Farmer and Fisherman Income Averaging, 78157-78160 [2010-31497]
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Federal Register / Vol. 75, No. 240 / Wednesday, December 15, 2010 / Rules and Regulations
DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 1
[TD 9509]
RIN 1545–BE23
Farmer and Fisherman Income
Averaging
Internal Revenue Service (IRS),
Treasury.
ACTION: Final regulations and removal of
temporary regulations.
AGENCY:
This document contains final
regulations relating to the averaging of
farm and fishing income in computing
income tax liability. The regulations
reflect changes made by the American
Jobs Creation Act of 2004 and the Tax
Extenders and Alternative Minimum
Tax Relief Act of 2008. The regulations
provide guidance to individuals
engaged in a farming or fishing business
who elect to reduce their tax liability by
treating all or a portion of the current
taxable year’s farm or fishing income as
if one-third of it had been earned in
each of the prior three taxable years.
DATES: Effective Date: These regulations
are effective on December 15, 2010.
Applicability Date: For date of
applicability, see § 1.1301–1(g).
FOR FURTHER INFORMATION CONTACT:
Erika Reigle, (202) 622–4950 (not a tollfree number).
SUPPLEMENTARY INFORMATION:
SUMMARY:
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Background and Explanation of
Provisions
This document contains amendments
to 26 CFR part 1. On July 22, 2008,
temporary regulations (TD 9417) were
published in the Federal Register (73
FR 42522) relating to the averaging of
farm and fishing income in computing
tax liability. A notice of proposed
rulemaking (REG–161695–04) crossreferencing the temporary regulations
also was published in the Federal
Register (73 FR 42538) on July 22, 2008.
No comments in response to the notice
of proposed rulemaking or requests to
hold a public hearing were received,
and no hearing was held. This Treasury
decision adopts the proposed
regulations with minor changes and
removes the temporary regulations.
Section 504 of the Tax Extenders and
Alternative Minimum Tax Relief Act of
2008, Div. C of Public Law 110–343 (122
Stat. 3765), enacted on October 3, 2008,
provides that a taxpayer may treat
qualified settlement income received in
connection with the civil action In re
Exxon Valdez, No. 8–095–CV (HRH)
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(Consolidated) (D. Alaska), as income
from a fishing business eligible for
income averaging. Therefore, these final
regulations include this qualified
settlement income in the definition of
income from a fishing business.
Qualified settlement income is limited
to interest and punitive damages. The
extent to which compensatory damages
are treated as income from a fishing
business is determined under the
generally applicable rules of section
1301.
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, and because the
regulations do not impose a collection
of information on small entities, the
Regulatory Flexibility Act (5 U.S.C.
chapter 6) does not apply. Pursuant to
section 7805(f) of the Code, the notice
of proposed rulemaking preceding these
regulations were submitted to the Chief
Counsel for Advocacy of the Small
Business Administration for comment
on their impact on small business.
Drafting Information
The principal author of these
regulations is Erika Reigle of the Office
of Associate Chief Counsel (Income Tax
& Accounting). 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.
Adoption of Amendments to the
Regulations
Accordingly, 26 CFR part 1 is
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 1.1301–1 is amended
by revising the section heading and
paragraphs (a), (b)(1), (b)(3), (c)(1),
(d)(3)(ii), (d)(4), (e), (f)(2), (f)(4), and (g)
to read as follows:
■
§ 1.1301–1
income.
Averaging of farm and fishing
(a) Overview. An individual engaged
in a farming or fishing business may
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make a farm income averaging election
to compute current year (election year)
income tax liability under section 1 by
averaging, over the prior three-year
period (base years), all or a portion of
the individual’s current year electible
farm income as defined in paragraph (e)
of this section. Electible farm income
includes income from both farming and
fishing businesses. An individual who
makes a farm income averaging
election—
(1) Designates all or a portion of the
individual’s electible farm income for
the election year as elected farm
income; and
(2) Determines the election year
section 1 tax by calculating the sum of—
(i) The section 1 tax that would be
imposed for the election year if taxable
income for the year were reduced by
elected farm income; plus
(ii) The amount by which the section
1 tax would be increased if taxable
income for each base year were
increased by one-third of elected farm
income.
(b) Individual engaged in a farming or
fishing business—(1) In general—(i)
Farming or fishing business. ‘‘Farming
business’’ has the same meaning as
provided in section 263A(e)(4) and the
regulations under that section. Fishing
business means the conduct of
commercial fishing as defined in section
3 of the Magnuson-Stevens Fishery
Conservation and Management Act (16
U.S.C. 1802(4)). Accordingly, a fishing
business is fishing in which the fish
harvested are intended to or do enter
commerce through sale, barter, or trade.
Fishing means the catching, taking, or
harvesting of fish; the attempted
catching, taking, or harvesting of fish;
any activities that reasonably can be
expected to result in the catching,
taking, or harvesting of fish; or any
operations at sea in support of or in
preparation for the catching, taking, or
harvesting of fish. Fishing does not
include any scientific research activity
conducted by a scientific research
vessel. Fish means finfish, mollusks,
crustaceans, and all other forms of
marine animal and plant life, other than
marine mammals and birds. Catching,
taking, or harvesting includes activities
that result in the killing of fish or the
bringing of live fish on board a vessel.
(ii) Exxon Valdez settlement
payments. For purposes of this section,
a qualified taxpayer who receives
qualified settlement income in any
taxable year is treated as engaged in a
fishing business, and the income is
treated as income attributable to a
fishing business, for that taxable year. A
qualified taxpayer is an individual
plaintiff in the civil action In re Exxon
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Valdez, No. 89–095–CV (HRH)
(Consolidated) (D. Alaska). Qualified
taxpayer also means any individual who
is a beneficiary of the estate of such a
plaintiff, was the spouse or immediate
relative of that plaintiff, and acquired
the right to receive the settlement
income from that plaintiff. Qualified
settlement income means any interest
and punitive damage awards that are
received in connection with the civil
action In re Exxon Valdez (whether as
lump-sum or periodic payments,
whether pre- or post-judgment, and
whether related to a settlement or to a
judgment) and that are otherwise
includible in income.
(iii) Form of business. An individual
engaged in a farming or fishing business
includes a sole proprietor of a farming
or fishing business, a partner in a
partnership engaged in a farming or
fishing business, and a shareholder of
an S corporation engaged in a farming
or fishing business. Except as provided
in paragraph (e)(1)(i) of this section,
services performed as an employee are
disregarded in determining whether an
individual is engaged in a farming or
fishing business for purposes of section
1301 of the Internal Revenue Code.
(iv) Base years. An individual is not
required to have been engaged in a
farming or fishing business in any of the
base years in order to make a farm
income averaging election.
*
*
*
*
*
(3) Lessors of vessels used in fishing.
A lessor of a vessel is engaged in a
fishing business for purposes of section
1301 with respect to payments that are
received under the lease and are based
on a share of the catch from the lessee’s
use of the vessel in a fishing business
(or a share of the proceeds from the sale
of the catch) if this manner of payment
is determined under a written lease
agreement entered into before the lessee
begins any significant fishing activities
resulting in the catch. A lessor of a
vessel is not engaged in a fishing
business for purposes of section 1301
with respect to fixed lease payments or
with respect to lease payments based on
a share of the lessee’s catch (or a share
of the proceeds from the sale of the
catch) if the share is determined under
either an unwritten agreement or a
written agreement entered into after the
lessee begins significant fishing
activities resulting in the catch.
(c) Making, changing, or revoking an
election—(1) In general. A farm income
averaging election is made by filing
Schedule J, ‘‘Income Averaging for
Farmers and Fishermen,’’ with an
individual’s Federal income tax return
for the election year (including a late or
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amended return if the period of
limitation on filing a claim for credit or
refund has not expired).
*
*
*
*
*
(d) * * *
(3) * * *
(ii) Example. The rules of this
paragraph (d)(3) are illustrated by the
following example:
Example. (i) T is a fisherman who uses the
calendar taxable year. In each of the years
2007, 2008, and 2009, T’s taxable income is
$20,000, none of which is electible farm
income. In 2010, T has taxable income of
$30,000 (prior to any farm income averaging
election), $10,000 of which is electible farm
income. T makes a farm income averaging
election with respect to $9,000 of the
electible farm income for 2010. Under
paragraph (a)(2)(ii) of this section, $3,000 of
elected farm income is allocated to each of
the base years 2007, 2008, and 2009. Under
paragraph (a)(2) of this section, T’s 2010 tax
liability is the sum of the following amounts:
(A) The section 1 tax on $21,000, which is
T’s taxable income of $30,000, minus elected
farm income of $9,000.
(B) For each of the base years 2007, 2008,
and 2009, the amount by which the section
1 tax would be increased if one-third of
elected farm income were allocated to each
year. The amount for each year is the section
1 tax on $23,000 (T’s taxable income of
$20,000, plus $3,000, which is one-third of
elected farm income for the 2010 election
year), minus the section 1 tax on $20,000.
(ii) In 2011, T has taxable income of
$50,000, $12,000 of which is electible farm
income. T makes a farm income averaging
election with respect to all $12,000 of the
electible farm income for 2011. Under
paragraph (a)(2)(ii) of this section, $4,000 of
elected farm income is allocated to each of
the base years 2008, 2009, and 2010. Under
paragraph (a)(2) of this section, T’s 2011 tax
liability is the sum of the following amounts:
(A) The section 1 tax on $38,000, which is
T’s taxable income of $50,000, minus elected
farm income of $12,000.
(B) For each of the base years 2008 and
2009, the amount by which section 1 tax
would be increased if, after adjustments for
previous farm income averaging elections
pursuant to paragraph (d)(3)(i) of this section,
one-third of 2011 elected farm income were
allocated to each year. The amount for each
year is the section 1 tax on $27,000 (T’s
taxable income of $20,000 increased by
$3,000 for T’s 2010 farm income averaging
election and further increased by $4,000,
which is one-third of elected farm income for
the 2011 election year), minus the section 1
tax on $23,000 (T’s taxable income of $20,000
increased by $3,000 for T’s 2010 farm income
averaging election).
(C) For base year 2010, the amount by
which section 1 tax would be increased if,
after adjustments for previous farm income
averaging elections pursuant to paragraph
(d)(3)(i) of this section, one-third of elected
farm income were allocated to that year. This
amount is the section 1 tax on $25,000 (T’s
2010 taxable income of $30,000 reduced by
$9,000 for T’s 2010 farm income averaging
election and increased by $4,000, which is
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one-third of elected farm income for the 2011
election year), minus the section 1 tax on
$21,000 (T’s taxable income of $30,000
reduced by $9,000 for T’s 2010 farm income
averaging election).
(4) Deposits into Merchant Marine
Capital Construction Fund—(i)
Reductions to taxable income and
electible farm income. Under section
7518(c)(1)(A), certain deposits to a
Merchant Marine Capital Construction
Fund (CCF) reduce taxable income for
purposes of the Internal Revenue Code
(the CCF reduction). The amount of the
CCF reduction is limited under section
7518(a)(1)(A) to the taxpayer’s taxable
income (determined without regard to
the reduction) attributable to specified
maritime operations including
operations in fisheries of the United
States. The CCF reduction is taken into
account in determining the taxable
income used in computations under this
section. In addition, except to the extent
the amount described in section
7518(a)(1)(A) is not attributable to the
individual’s fishing business, the CCF
reduction is treated in computing
electible farm income as an item of
deduction attributable to the
individual’s fishing business.
(ii) Example. The rules of this
paragraph (d)(4) are illustrated by the
following example:
Example. (i) T is a fisherman who uses the
calendar taxable year. In each of the years
2007, 2008, and 2009, T’s taxable income
(before taking any CCF reduction into
account) is $20,000. For taxable year 2008, all
of T’s income is described in section
7518(a)(1)(A) and is attributable to T’s fishing
business. T makes a $5,000 deposit into a
CCF for taxable year 2008. In 2010, T has
total taxable income of $30,000 (before taking
any CCF reduction into account). T’s
electible farm income for 2010 (before taking
the CCF reduction into account) is $10,000,
all of which is described in section
7518(a)(1)(A) and is attributable to T’s fishing
business. For taxable year 2010, T makes a
$4,000 deposit into a CCF.
(ii) The amount of the 2010 CCF deposit
reduces taxable income. Accordingly, T’s
taxable income for 2010 is $26,000 ($30,000–
$4,000). In addition, the entire amount of the
CCF reduction is treated as an item of
deduction attributable to T’s fishing business.
Accordingly, T’s electible farm income for
2010 is $6,000 ($10,000–$4,000). Similarly,
the amount of the 2008 CCF deposit reduces
T’s taxable income for 2008. Accordingly, T’s
taxable income for 2008 is $15,000 ($20,000–
$5,000).
(iii) T makes an income averaging election
with respect to all $6,000 of the electible
farm income for 2010. Under paragraph
(a)(2)(ii) of this section, $2,000 of elected
farm income is allocated to each of the base
years 2007, 2008, and 2009. Under paragraph
(a)(2) of this section, T’s 2010 tax liability is
the sum of the following amounts:
(A) The section 1 tax on $20,000, which is
T’s taxable income of $26,000 ($30,000
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reduced by the $4,000 CCF deposit), minus
elected farm income of $6,000.
(B) For each of the base years 2007, 2008,
and 2009, the amount by which section 1 tax
would be increased if one-third of elected
farm income were allocated to each year. The
amount for base years 2007 and 2009 is the
section 1 tax on $22,000, (T’s taxable income
of $20,000, plus $2,000, which is one-third
of elected farm income for the election year),
minus the section 1 tax on $20,000. The
amount for base year 2008 is the section 1 tax
on $17,000, which is T’s taxable income of
$15,000 ($20,000 reduced by the $5,000 CCF
deposit), plus $2,000 (one-third of elected
farm income for the election year), minus the
section 1 tax on $15,000.
(e) Electible farm income—(1)
Identification of items attributable to a
farming or fishing business—(i) In
general. Farm and fishing income
includes items of income, deduction,
gain, and loss attributable to an
individual’s farming or fishing business.
Farm and fishing losses include, to the
extent attributable to a farming or
fishing business, any net operating loss
carryover or carryback or net capital loss
carryover to an election year. Income,
gain, or loss from the sale of
development rights, grazing rights, and
other similar rights is not treated as
attributable to a farming business. In
general, farm and fishing income does
not include compensation received as
an employee. However, a shareholder of
an S corporation engaged in a farming
or fishing business may treat
compensation received from the
corporation as farm or fishing income if
the compensation is paid by the
corporation in the conduct of the
farming or fishing business. If a
crewmember on a vessel engaged in
commercial fishing (within the meaning
of section 3 of the Magnuson-Stevens
Fishery Conservation and Management
Act, 16 U.S.C. 1802(4)) is compensated
by a share of the boat’s catch of fish or
a share of the proceeds from the sale of
the catch, the crewmember is treated for
purposes of section 1301 as engaged in
a fishing business and the compensation
is treated for such purposes as income
from a fishing business.
(ii) Gain or loss on sale or other
disposition of property—(A) In general.
Gain or loss from the sale or other
disposition of property that was
regularly used in the individual’s
farming or fishing business for a
substantial period of time is treated as
attributable to a farming or fishing
business. For this purpose, the term
property does not include land, but does
include structures affixed to land.
Property that has always been used
solely in the farming or fishing business
by the individual is deemed to meet
both the regularly used and substantial
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period tests. Whether property not used
solely in the farming or fishing business
was regularly used in the farming or
fishing business for a substantial period
of time depends on all of the facts and
circumstances.
(B) Cessation of a farming or fishing
business. If gain or loss described in
paragraph (e)(1)(ii)(A) of this section is
realized after cessation of a farming or
fishing business, the gain or loss is
treated as attributable to a farming or
fishing business only if the property is
sold within a reasonable time after
cessation of the farming or fishing
business. A sale or other disposition
within one year of cessation of the
farming or fishing business is presumed
to be within a reasonable time. Whether
a sale or other disposition that occurs
more than one year after cessation of the
farming or fishing business is within a
reasonable time depends on all of the
facts and circumstances.
(2) Determination of amount that may
be elected farm income—(i) Electible
farm income. (A) The maximum amount
of income that an individual may elect
to average (electible farm income) is the
sum of any farm and fishing income and
gains, minus any farm and fishing
deductions or losses (including loss
carryovers and carrybacks) that are
allowed as a deduction in computing
the individual’s taxable income.
(B) Individuals conducting both a
farming business and a fishing business
must calculate electible farm income by
combining income, gains, deductions,
and losses derived from the farming
business and the fishing business.
(C) Except as otherwise provided in
paragraph (d)(4) of this section, the
amount of any CCF reduction is treated
as a deduction from income attributable
to a fishing business in calculating
electible farm income.
(D) Electible farm income may not
exceed taxable income, and electible
farm income from net capital gain
attributable to a farming or fishing
business may not exceed total net
capital gain. Subject to these limitations,
an individual who has both ordinary
income and net capital gain from a
farming or fishing business may elect to
average any combination of the ordinary
income and net capital gain.
(ii) Examples. The rules of this
paragraph (e)(2) are illustrated by the
following examples:
Example 1. A has ordinary income from a
farming business of $200,000 and deductible
expenses from a farming business of $50,000.
A’s taxable income is $150,000 ($200,000–
$50,000). Under paragraph (e)(2)(i) of this
section, A’s electible farm income is
$150,000, all of which is ordinary income.
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78159
Example 2. B has capital gain of $20,000
that is not from a farming or fishing business,
capital loss from a farming business of
$30,000, and ordinary income from a farming
business of $100,000. Under section 1211(b),
B’s allowable capital loss is limited to
$23,000. B’s taxable income is $97,000
(($20,000–$23,000) + $100,000). B has a
capital loss carryover from a farming
business of $7,000 ($30,000 total loss ¥
$23,000 allowable loss). Under paragraph
(e)(2)(i) of this section, B’s electible farm
income is $77,000 ($100,000 ordinary income
from a farming business, minus $23,000
capital loss from a farming business), all of
which is ordinary income.
Example 3. C has ordinary income from a
fishing business of $200,000 and ordinary
loss from a farming business of $60,000. C’s
taxable income is $140,000 ($200,000 ¥
$60,000). Under paragraph (e)(2)(i)(B) of this
section, C must deduct the farm loss from the
fishing income in determining C’s electible
farm income. Therefore, C’s electible farm
income is $140,000 ($200,000–$60,000), all
of which is ordinary income.
Example 4. D has ordinary income from a
farming business of $200,000 and ordinary
loss of $50,000 that is not from a farming or
fishing business. D’s taxable income is
$150,000 ($200,000 ¥ $50,000). Under
paragraph (e)(2)(i)(D) of this section, electible
farm income may not exceed taxable income.
Therefore, D’s electible farm income is
$150,000, all of which is ordinary income.
Example 5. E has capital gain from a
farming business of $50,000, capital loss of
$40,000 that is not from a farming or fishing
business, and ordinary income from a
farming business of $60,000. E’s taxable
income is $70,000 (($50,000 ¥ $40,000) +
$60,000). Under paragraph (e)(2)(i)(D) of this
section, electible farm income may not
exceed taxable income, and electible farm
income from net capital gain attributable to
a farming or fishing business may not exceed
total net capital gain. Therefore, E’s electible
farm income is $70,000 of which $10,000 is
capital gain and $60,000 is ordinary income.
(f) * * *
(2) Changes in filing status. An
individual is not prohibited from
making a farm income averaging
election solely because the individual’s
filing status is not the same in an
election year and the base years. For
example, an individual who is married
and files a joint return in the election
year, who filed as single in one or more
of the base years, may elect to average
farm or fishing income, by using the
single filing status to compute the
increase in section 1 taxes for the base
years in which the individual filed as
single.
*
*
*
*
*
(4) Alternative minimum tax. A farm
income averaging election is
disregarded in computing the tentative
minimum tax and the regular tax under
section 55 for the election year or any
base year. The election is taken into
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account, however, in determining the
regular tax liability under section 53(c)
for the election year.
*
*
*
*
*
(g) Effective/applicability date. This
section applies for taxable years
beginning after December 15, 2010. See
the provisions of §§ 1.1301–1 and
1.1301–1T as in effect on December 14,
2010 for rules that apply for taxable
years beginning on or before December
15, 2010. In addition, a taxpayer may
apply paragraph (b)(1)(ii) of this section
in taxable years beginning after
December 31, 2003.
§ 1.1301–1T
■
[Removed]
Par. 3. Section 1.1301–1T is removed.
Linda E. Stiff,
Deputy Commissioner for Services and
Enforcement.
Approved: December 7, 2010.
Michael Mundaca,
Assistant Secretary of the Treasury (Tax
Policy).
[FR Doc. 2010–31497 Filed 12–14–10; 8:45 am]
BILLING CODE 4830–01–P
DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 1
[TD 9510]
RIN 1545–BJ54
Requirement of a Statement Disclosing
Uncertain Tax Positions
Internal Revenue Service (IRS),
Treasury.
ACTION: Final regulation.
AGENCY:
This document contains final
regulations allowing the IRS to require
corporations to file a schedule
disclosing uncertain tax positions
related to the tax return as required by
the IRS.
DATES: Effective date: This regulation is
effective on December 15, 2010.
Applicability date: For dates of
applicability, see § 1.6012–2(a)(5).
FOR FURTHER INFORMATION CONTACT:
Kathryn Zuba at (202) 622–3400 (not a
toll-free number).
SUPPLEMENTARY INFORMATION:
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SUMMARY:
Background
This document contains amendments
to the Income Tax Regulations (26 CFR
part 1) under section 6012 relating to
the returns of income corporations are
required to file. Section 6011 provides
that persons liable for a tax imposed by
Title 26 shall make a return when
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16:44 Dec 14, 2010
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required by regulations prescribed by
the Secretary of the Treasury according
to the forms and regulations prescribed
by the Secretary. Treasury Regulation
§ 1.6011–1 requires every person liable
for income tax to make the returns
required by regulation. Section 6012
requires corporations subject to an
income tax to make a return with
respect to that tax. Treasury Regulation
§ 1.6012–2 sets out the corporations that
are required to file returns and the form
those returns must take.
A proposed regulation under section
6012 (REG–119046–10) was published
in the Federal Register on September 9,
2010. Requirement of a Statement
Disclosing Uncertain Tax Positions, 75
FR 54802 (proposed Sept. 9, 2010). The
IRS received one written comment
concerning the proposed regulation, and
a public hearing regarding the proposed
regulation was held on October 19,
2010. Neither of the two speakers at the
public hearing had comments relating to
the proposed regulation, although both
organizations the speakers represented
had previously submitted written
comments concerning the draft
Schedule UTP and instructions.
Announcement 2010–30, 2010–19 IRB
668. After considering the comments,
the proposed regulation is adopted by
this Treasury decision with one nonsubstantive change related to the
effective date. While the proposed
regulation applied to returns filed for
tax years beginning after December 15,
2009 and ending after the date the
regulations were published in the
Federal Register, the final regulation
applies to returns filed for tax years
beginning on or after January 1, 2010.
Explanation and Summary of
Comments
This rule will authorize the IRS to
require certain corporations, as set out
in forms, publications, instructions, or
other guidance, to provide information
concerning uncertain tax positions
concurrent with the filing of a return.
On September 24, 2010, the IRS released
Schedule UTP with accompanying
instructions that explain how the IRS
plans to implement the authority
provided by this regulation. One
commentator asked that the proposed
regulation not be adopted because
Schedule UTP would require the
disclosure of privileged information. If
the regulation is adopted, the
commentator recommended it should
state that taxpayer may assert any
applicable privileges to providing
information sought by Schedule UTP
and that any disclosure of information
on that schedule will not constitute a
waiver of any applicable privilege.
PO 00000
Frm 00010
Fmt 4700
Sfmt 4700
The final regulation does not adopt
this recommendation. The regulation
addresses the IRS’s authority to require
certain corporations to provide
information concerning uncertain tax
positions. The IRS has decided to
require the filing of Schedule UTP based
on its determination that the
information about uncertain tax
positions taken in a tax return required
by the schedule is essential to achieving
an effective and efficient self-assessment
tax system. Provisions relating to the
assertion of privilege are not included in
this regulation, since it does not affect
the existence of any applicable
privileges taxpayers may have
concerning information requested by a
return or how they may assert those
privileges.
Special Analyses
It has been determined that this final
rule is not a significant regulatory action
as defined in Executive Order 12866.
Therefore, a regulatory assessment is not
required.
This regulation will only affect
taxpayers that prepare or are required to
issue audited financial statements.
Small entities rarely prepare or are
required to issue audited financial
statements due to the expense involved.
It is hereby certified that this regulation
will not have a significant economic
impact on a substantial number of small
entities pursuant to the Regulatory
Flexibility Act (5 U.S.C. chapter 6).
Accordingly, a regulatory flexibility
analysis is not required. Pursuant to 5
U.S.C. 553(d)(3), it has been determined
that there is good cause for the effective
date of this final rule, which is less than
30 days after the date of publication.
Pursuant to section 7805(f) of the
Internal Revenue Code, the notice of
proposed rulemaking preceding this
regulation was submitted to the Chief
Counsel for Advocacy of the Small
Business Administration for comment
on their impact on small business.
Drafting Information
The principal author of these
regulations is Kathryn Zuba of the
Office of the Associate Chief Counsel
(Procedure and Administration).
List of Subjects in 26 CFR Part 1
Income taxes, Reporting and
recordkeeping requirements.
Adoption of Amendments to the
Regulations
Accordingly, 26 CFR part 1 is
amended as follows:
■
E:\FR\FM\15DER1.SGM
15DER1
Agencies
[Federal Register Volume 75, Number 240 (Wednesday, December 15, 2010)]
[Rules and Regulations]
[Pages 78157-78160]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-31497]
[[Page 78157]]
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DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 1
[TD 9509]
RIN 1545-BE23
Farmer and Fisherman Income Averaging
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Final regulations and removal of temporary regulations.
-----------------------------------------------------------------------
SUMMARY: This document contains final regulations relating to the
averaging of farm and fishing income in computing income tax liability.
The regulations reflect changes made by the American Jobs Creation Act
of 2004 and the Tax Extenders and Alternative Minimum Tax Relief Act of
2008. The regulations provide guidance to individuals engaged in a
farming or fishing business who elect to reduce their tax liability by
treating all or a portion of the current taxable year's farm or fishing
income as if one-third of it had been earned in each of the prior three
taxable years.
DATES: Effective Date: These regulations are effective on December 15,
2010.
Applicability Date: For date of applicability, see Sec. 1.1301-
1(g).
FOR FURTHER INFORMATION CONTACT: Erika Reigle, (202) 622-4950 (not a
toll-free number).
SUPPLEMENTARY INFORMATION:
Background and Explanation of Provisions
This document contains amendments to 26 CFR part 1. On July 22,
2008, temporary regulations (TD 9417) were published in the Federal
Register (73 FR 42522) relating to the averaging of farm and fishing
income in computing tax liability. A notice of proposed rulemaking
(REG-161695-04) cross-referencing the temporary regulations also was
published in the Federal Register (73 FR 42538) on July 22, 2008. No
comments in response to the notice of proposed rulemaking or requests
to hold a public hearing were received, and no hearing was held. This
Treasury decision adopts the proposed regulations with minor changes
and removes the temporary regulations.
Section 504 of the Tax Extenders and Alternative Minimum Tax Relief
Act of 2008, Div. C of Public Law 110-343 (122 Stat. 3765), enacted on
October 3, 2008, provides that a taxpayer may treat qualified
settlement income received in connection with the civil action In re
Exxon Valdez, No. 8-095-CV (HRH) (Consolidated) (D. Alaska), as income
from a fishing business eligible for income averaging. Therefore, these
final regulations include this qualified settlement income in the
definition of income from a fishing business. Qualified settlement
income is limited to interest and punitive damages. The extent to which
compensatory damages are treated as income from a fishing business is
determined under the generally applicable rules of section 1301.
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, and because the
regulations do not impose a collection of information on small
entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not
apply. Pursuant to section 7805(f) of the Code, the notice of proposed
rulemaking preceding these regulations were submitted to the Chief
Counsel for Advocacy of the Small Business Administration for comment
on their impact on small business.
Drafting Information
The principal author of these regulations is Erika Reigle of the
Office of Associate Chief Counsel (Income Tax & Accounting). 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.
Adoption of 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 continues to read in
part as follows:
Authority: 26 U.S.C. 7805 * * *
0
Par. 2. Section 1.1301-1 is amended by revising the section heading and
paragraphs (a), (b)(1), (b)(3), (c)(1), (d)(3)(ii), (d)(4), (e),
(f)(2), (f)(4), and (g) to read as follows:
Sec. 1.1301-1 Averaging of farm and fishing income.
(a) Overview. An individual engaged in a farming or fishing
business may make a farm income averaging election to compute current
year (election year) income tax liability under section 1 by averaging,
over the prior three-year period (base years), all or a portion of the
individual's current year electible farm income as defined in paragraph
(e) of this section. Electible farm income includes income from both
farming and fishing businesses. An individual who makes a farm income
averaging election--
(1) Designates all or a portion of the individual's electible farm
income for the election year as elected farm income; and
(2) Determines the election year section 1 tax by calculating the
sum of--
(i) The section 1 tax that would be imposed for the election year
if taxable income for the year were reduced by elected farm income;
plus
(ii) The amount by which the section 1 tax would be increased if
taxable income for each base year were increased by one-third of
elected farm income.
(b) Individual engaged in a farming or fishing business--(1) In
general--(i) Farming or fishing business. ``Farming business'' has the
same meaning as provided in section 263A(e)(4) and the regulations
under that section. Fishing business means the conduct of commercial
fishing as defined in section 3 of the Magnuson-Stevens Fishery
Conservation and Management Act (16 U.S.C. 1802(4)). Accordingly, a
fishing business is fishing in which the fish harvested are intended to
or do enter commerce through sale, barter, or trade. Fishing means the
catching, taking, or harvesting of fish; the attempted catching,
taking, or harvesting of fish; any activities that reasonably can be
expected to result in the catching, taking, or harvesting of fish; or
any operations at sea in support of or in preparation for the catching,
taking, or harvesting of fish. Fishing does not include any scientific
research activity conducted by a scientific research vessel. Fish means
finfish, mollusks, crustaceans, and all other forms of marine animal
and plant life, other than marine mammals and birds. Catching, taking,
or harvesting includes activities that result in the killing of fish or
the bringing of live fish on board a vessel.
(ii) Exxon Valdez settlement payments. For purposes of this
section, a qualified taxpayer who receives qualified settlement income
in any taxable year is treated as engaged in a fishing business, and
the income is treated as income attributable to a fishing business, for
that taxable year. A qualified taxpayer is an individual plaintiff in
the civil action In re Exxon
[[Page 78158]]
Valdez, No. 89-095-CV (HRH) (Consolidated) (D. Alaska). Qualified
taxpayer also means any individual who is a beneficiary of the estate
of such a plaintiff, was the spouse or immediate relative of that
plaintiff, and acquired the right to receive the settlement income from
that plaintiff. Qualified settlement income means any interest and
punitive damage awards that are received in connection with the civil
action In re Exxon Valdez (whether as lump-sum or periodic payments,
whether pre- or post-judgment, and whether related to a settlement or
to a judgment) and that are otherwise includible in income.
(iii) Form of business. An individual engaged in a farming or
fishing business includes a sole proprietor of a farming or fishing
business, a partner in a partnership engaged in a farming or fishing
business, and a shareholder of an S corporation engaged in a farming or
fishing business. Except as provided in paragraph (e)(1)(i) of this
section, services performed as an employee are disregarded in
determining whether an individual is engaged in a farming or fishing
business for purposes of section 1301 of the Internal Revenue Code.
(iv) Base years. An individual is not required to have been engaged
in a farming or fishing business in any of the base years in order to
make a farm income averaging election.
* * * * *
(3) Lessors of vessels used in fishing. A lessor of a vessel is
engaged in a fishing business for purposes of section 1301 with respect
to payments that are received under the lease and are based on a share
of the catch from the lessee's use of the vessel in a fishing business
(or a share of the proceeds from the sale of the catch) if this manner
of payment is determined under a written lease agreement entered into
before the lessee begins any significant fishing activities resulting
in the catch. A lessor of a vessel is not engaged in a fishing business
for purposes of section 1301 with respect to fixed lease payments or
with respect to lease payments based on a share of the lessee's catch
(or a share of the proceeds from the sale of the catch) if the share is
determined under either an unwritten agreement or a written agreement
entered into after the lessee begins significant fishing activities
resulting in the catch.
(c) Making, changing, or revoking an election--(1) In general. A
farm income averaging election is made by filing Schedule J, ``Income
Averaging for Farmers and Fishermen,'' with an individual's Federal
income tax return for the election year (including a late or amended
return if the period of limitation on filing a claim for credit or
refund has not expired).
* * * * *
(d) * * *
(3) * * *
(ii) Example. The rules of this paragraph (d)(3) are illustrated by
the following example:
Example. (i) T is a fisherman who uses the calendar taxable
year. In each of the years 2007, 2008, and 2009, T's taxable income
is $20,000, none of which is electible farm income. In 2010, T has
taxable income of $30,000 (prior to any farm income averaging
election), $10,000 of which is electible farm income. T makes a farm
income averaging election with respect to $9,000 of the electible
farm income for 2010. Under paragraph (a)(2)(ii) of this section,
$3,000 of elected farm income is allocated to each of the base years
2007, 2008, and 2009. Under paragraph (a)(2) of this section, T's
2010 tax liability is the sum of the following amounts:
(A) The section 1 tax on $21,000, which is T's taxable income of
$30,000, minus elected farm income of $9,000.
(B) For each of the base years 2007, 2008, and 2009, the amount
by which the section 1 tax would be increased if one-third of
elected farm income were allocated to each year. The amount for each
year is the section 1 tax on $23,000 (T's taxable income of $20,000,
plus $3,000, which is one-third of elected farm income for the 2010
election year), minus the section 1 tax on $20,000.
(ii) In 2011, T has taxable income of $50,000, $12,000 of which
is electible farm income. T makes a farm income averaging election
with respect to all $12,000 of the electible farm income for 2011.
Under paragraph (a)(2)(ii) of this section, $4,000 of elected farm
income is allocated to each of the base years 2008, 2009, and 2010.
Under paragraph (a)(2) of this section, T's 2011 tax liability is
the sum of the following amounts:
(A) The section 1 tax on $38,000, which is T's taxable income of
$50,000, minus elected farm income of $12,000.
(B) For each of the base years 2008 and 2009, the amount by
which section 1 tax would be increased if, after adjustments for
previous farm income averaging elections pursuant to paragraph
(d)(3)(i) of this section, one-third of 2011 elected farm income
were allocated to each year. The amount for each year is the section
1 tax on $27,000 (T's taxable income of $20,000 increased by $3,000
for T's 2010 farm income averaging election and further increased by
$4,000, which is one-third of elected farm income for the 2011
election year), minus the section 1 tax on $23,000 (T's taxable
income of $20,000 increased by $3,000 for T's 2010 farm income
averaging election).
(C) For base year 2010, the amount by which section 1 tax would
be increased if, after adjustments for previous farm income
averaging elections pursuant to paragraph (d)(3)(i) of this section,
one-third of elected farm income were allocated to that year. This
amount is the section 1 tax on $25,000 (T's 2010 taxable income of
$30,000 reduced by $9,000 for T's 2010 farm income averaging
election and increased by $4,000, which is one-third of elected farm
income for the 2011 election year), minus the section 1 tax on
$21,000 (T's taxable income of $30,000 reduced by $9,000 for T's
2010 farm income averaging election).
(4) Deposits into Merchant Marine Capital Construction Fund--(i)
Reductions to taxable income and electible farm income. Under section
7518(c)(1)(A), certain deposits to a Merchant Marine Capital
Construction Fund (CCF) reduce taxable income for purposes of the
Internal Revenue Code (the CCF reduction). The amount of the CCF
reduction is limited under section 7518(a)(1)(A) to the taxpayer's
taxable income (determined without regard to the reduction)
attributable to specified maritime operations including operations in
fisheries of the United States. The CCF reduction is taken into account
in determining the taxable income used in computations under this
section. In addition, except to the extent the amount described in
section 7518(a)(1)(A) is not attributable to the individual's fishing
business, the CCF reduction is treated in computing electible farm
income as an item of deduction attributable to the individual's fishing
business.
(ii) Example. The rules of this paragraph (d)(4) are illustrated by
the following example:
Example. (i) T is a fisherman who uses the calendar taxable
year. In each of the years 2007, 2008, and 2009, T's taxable income
(before taking any CCF reduction into account) is $20,000. For
taxable year 2008, all of T's income is described in section
7518(a)(1)(A) and is attributable to T's fishing business. T makes a
$5,000 deposit into a CCF for taxable year 2008. In 2010, T has
total taxable income of $30,000 (before taking any CCF reduction
into account). T's electible farm income for 2010 (before taking the
CCF reduction into account) is $10,000, all of which is described in
section 7518(a)(1)(A) and is attributable to T's fishing business.
For taxable year 2010, T makes a $4,000 deposit into a CCF.
(ii) The amount of the 2010 CCF deposit reduces taxable income.
Accordingly, T's taxable income for 2010 is $26,000 ($30,000-
$4,000). In addition, the entire amount of the CCF reduction is
treated as an item of deduction attributable to T's fishing
business. Accordingly, T's electible farm income for 2010 is $6,000
($10,000-$4,000). Similarly, the amount of the 2008 CCF deposit
reduces T's taxable income for 2008. Accordingly, T's taxable income
for 2008 is $15,000 ($20,000-$5,000).
(iii) T makes an income averaging election with respect to all
$6,000 of the electible farm income for 2010. Under paragraph
(a)(2)(ii) of this section, $2,000 of elected farm income is
allocated to each of the base years 2007, 2008, and 2009. Under
paragraph (a)(2) of this section, T's 2010 tax liability is the sum
of the following amounts:
(A) The section 1 tax on $20,000, which is T's taxable income of
$26,000 ($30,000
[[Page 78159]]
reduced by the $4,000 CCF deposit), minus elected farm income of
$6,000.
(B) For each of the base years 2007, 2008, and 2009, the amount
by which section 1 tax would be increased if one-third of elected
farm income were allocated to each year. The amount for base years
2007 and 2009 is the section 1 tax on $22,000, (T's taxable income
of $20,000, plus $2,000, which is one-third of elected farm income
for the election year), minus the section 1 tax on $20,000. The
amount for base year 2008 is the section 1 tax on $17,000, which is
T's taxable income of $15,000 ($20,000 reduced by the $5,000 CCF
deposit), plus $2,000 (one-third of elected farm income for the
election year), minus the section 1 tax on $15,000.
(e) Electible farm income--(1) Identification of items attributable
to a farming or fishing business--(i) In general. Farm and fishing
income includes items of income, deduction, gain, and loss attributable
to an individual's farming or fishing business. Farm and fishing losses
include, to the extent attributable to a farming or fishing business,
any net operating loss carryover or carryback or net capital loss
carryover to an election year. Income, gain, or loss from the sale of
development rights, grazing rights, and other similar rights is not
treated as attributable to a farming business. In general, farm and
fishing income does not include compensation received as an employee.
However, a shareholder of an S corporation engaged in a farming or
fishing business may treat compensation received from the corporation
as farm or fishing income if the compensation is paid by the
corporation in the conduct of the farming or fishing business. If a
crewmember on a vessel engaged in commercial fishing (within the
meaning of section 3 of the Magnuson-Stevens Fishery Conservation and
Management Act, 16 U.S.C. 1802(4)) is compensated by a share of the
boat's catch of fish or a share of the proceeds from the sale of the
catch, the crewmember is treated for purposes of section 1301 as
engaged in a fishing business and the compensation is treated for such
purposes as income from a fishing business.
(ii) Gain or loss on sale or other disposition of property--(A) In
general. Gain or loss from the sale or other disposition of property
that was regularly used in the individual's farming or fishing business
for a substantial period of time is treated as attributable to a
farming or fishing business. For this purpose, the term property does
not include land, but does include structures affixed to land. Property
that has always been used solely in the farming or fishing business by
the individual is deemed to meet both the regularly used and
substantial period tests. Whether property not used solely in the
farming or fishing business was regularly used in the farming or
fishing business for a substantial period of time depends on all of the
facts and circumstances.
(B) Cessation of a farming or fishing business. If gain or loss
described in paragraph (e)(1)(ii)(A) of this section is realized after
cessation of a farming or fishing business, the gain or loss is treated
as attributable to a farming or fishing business only if the property
is sold within a reasonable time after cessation of the farming or
fishing business. A sale or other disposition within one year of
cessation of the farming or fishing business is presumed to be within a
reasonable time. Whether a sale or other disposition that occurs more
than one year after cessation of the farming or fishing business is
within a reasonable time depends on all of the facts and circumstances.
(2) Determination of amount that may be elected farm income--(i)
Electible farm income. (A) The maximum amount of income that an
individual may elect to average (electible farm income) is the sum of
any farm and fishing income and gains, minus any farm and fishing
deductions or losses (including loss carryovers and carrybacks) that
are allowed as a deduction in computing the individual's taxable
income.
(B) Individuals conducting both a farming business and a fishing
business must calculate electible farm income by combining income,
gains, deductions, and losses derived from the farming business and the
fishing business.
(C) Except as otherwise provided in paragraph (d)(4) of this
section, the amount of any CCF reduction is treated as a deduction from
income attributable to a fishing business in calculating electible farm
income.
(D) Electible farm income may not exceed taxable income, and
electible farm income from net capital gain attributable to a farming
or fishing business may not exceed total net capital gain. Subject to
these limitations, an individual who has both ordinary income and net
capital gain from a farming or fishing business may elect to average
any combination of the ordinary income and net capital gain.
(ii) Examples. The rules of this paragraph (e)(2) are illustrated
by the following examples:
Example 1. A has ordinary income from a farming business of
$200,000 and deductible expenses from a farming business of $50,000.
A's taxable income is $150,000 ($200,000-$50,000). Under paragraph
(e)(2)(i) of this section, A's electible farm income is $150,000,
all of which is ordinary income.
Example 2. B has capital gain of $20,000 that is not from a
farming or fishing business, capital loss from a farming business of
$30,000, and ordinary income from a farming business of $100,000.
Under section 1211(b), B's allowable capital loss is limited to
$23,000. B's taxable income is $97,000 (($20,000-$23,000) +
$100,000). B has a capital loss carryover from a farming business of
$7,000 ($30,000 total loss - $23,000 allowable loss). Under
paragraph (e)(2)(i) of this section, B's electible farm income is
$77,000 ($100,000 ordinary income from a farming business, minus
$23,000 capital loss from a farming business), all of which is
ordinary income.
Example 3. C has ordinary income from a fishing business of
$200,000 and ordinary loss from a farming business of $60,000. C's
taxable income is $140,000 ($200,000 - $60,000). Under paragraph
(e)(2)(i)(B) of this section, C must deduct the farm loss from the
fishing income in determining C's electible farm income. Therefore,
C's electible farm income is $140,000 ($200,000-$60,000), all of
which is ordinary income.
Example 4. D has ordinary income from a farming business of
$200,000 and ordinary loss of $50,000 that is not from a farming or
fishing business. D's taxable income is $150,000 ($200,000 -
$50,000). Under paragraph (e)(2)(i)(D) of this section, electible
farm income may not exceed taxable income. Therefore, D's electible
farm income is $150,000, all of which is ordinary income.
Example 5. E has capital gain from a farming business of
$50,000, capital loss of $40,000 that is not from a farming or
fishing business, and ordinary income from a farming business of
$60,000. E's taxable income is $70,000 (($50,000 - $40,000) +
$60,000). Under paragraph (e)(2)(i)(D) of this section, electible
farm income may not exceed taxable income, and electible farm income
from net capital gain attributable to a farming or fishing business
may not exceed total net capital gain. Therefore, E's electible farm
income is $70,000 of which $10,000 is capital gain and $60,000 is
ordinary income.
(f) * * *
(2) Changes in filing status. An individual is not prohibited from
making a farm income averaging election solely because the individual's
filing status is not the same in an election year and the base years.
For example, an individual who is married and files a joint return in
the election year, who filed as single in one or more of the base
years, may elect to average farm or fishing income, by using the single
filing status to compute the increase in section 1 taxes for the base
years in which the individual filed as single.
* * * * *
(4) Alternative minimum tax. A farm income averaging election is
disregarded in computing the tentative minimum tax and the regular tax
under section 55 for the election year or any base year. The election
is taken into
[[Page 78160]]
account, however, in determining the regular tax liability under
section 53(c) for the election year.
* * * * *
(g) Effective/applicability date. This section applies for taxable
years beginning after December 15, 2010. See the provisions of
Sec. Sec. 1.1301-1 and 1.1301-1T as in effect on December 14, 2010 for
rules that apply for taxable years beginning on or before December 15,
2010. In addition, a taxpayer may apply paragraph (b)(1)(ii) of this
section in taxable years beginning after December 31, 2003.
Sec. 1.1301-1T [Removed]
0
Par. 3. Section 1.1301-1T is removed.
Linda E. Stiff,
Deputy Commissioner for Services and Enforcement.
Approved: December 7, 2010.
Michael Mundaca,
Assistant Secretary of the Treasury (Tax Policy).
[FR Doc. 2010-31497 Filed 12-14-10; 8:45 am]
BILLING CODE 4830-01-P