Today’s release proposes:
- Changes to the section 367(a) GRA regulations
- Amendments to the section 367(e)(2) regulations
Read the proposed regulations [PDF 173 KB]
Proposed changes to the section 367(a) GRA regulations
As noted in the preamble to today’s proposed regulations, under current law, if a U.S. transferor:
- fails to timely file an initial GRA, or
- fails to comply in any material respect with the section 367(a) GRA regulations with respect to an existing GRA (for example, because it fails to timely file an annual certification),
the U.S. transferor is subject to full gain recognition under section 367(a)(1) unless the U.S. transferor later (1) discovers the failure, (2) promptly files the GRA or other required information with the IRS, and (3) demonstrates that its failure was due to reasonable cause and not willful neglect.
As the IRS and Treasury observed, the existing reasonable cause standard (given its interpretation under the case law) may not be satisfied by U.S. transferors in many common situations—even though the failure was not intentional and not due to willful neglect. Thus, under current operation of the section 367(a) GRA regulations, the IRS and Treasury believe that:
- Full gain recognition under section 367(a)(1) is to apply only if a failure to timely file an initial GRA or a failure to comply with the section 367(a) GRA regulations with respect to an existing GRA is willful.
- The penalty imposed by section 6038B generally is sufficient to encourage proper reporting and compliance.
Thus, today’s proposed regulations would revise the section 367(a) GRA regulations to provide that a U.S. transferor seeking either (1) to avoid recognizing gain under section 367(a)(1) on the initial transfer as a result of a failure to timely file an initial GRA, or (2) to avoid triggering gain as a result of a failure to comply in all material respects with the section 367(a) GRA regulations or the terms of an existing GRA must demonstrate that the failure was not a willful failure.
For this purpose, “willful” is to be interpreted consistent with its meaning in the context of other civil penalties (for example, section 6672), and would include a failure due to gross negligence, reckless disregard, or willful neglect. Whether a failure is willful would be determined based on all the relevant facts and circumstances. An example in the proposed regulations concludes that filing a GRA statement that provides that fair market value information would be “available upon request” is not complete in all material respects and is a willful failure.
The proposed regulations also:
- Modify the process through which requests for relief from a failure to file or a failure to comply are evaluated by eliminating the requirement for the IRS to respond to relief requests within 120 days
- Provide guidance clarifying when an initial GRA is considered timely filed, and what gives rise to a failure to comply in any material respect with the requirements of the section 367(a) GRA regulations or the terms of an existing GRA
- Modify the information that must be reported with respect to a transfer of stock or securities on Form 926, Return by a U.S. Transferor of Property to a Foreign Corporation
- Require that a Form 926 be filed in all cases in which a GRA is filed, but provide that only Part I and Part II of the Form 926 must be completed if the only asset transferred is stock or securities
The proposed regulations provide examples intended to illustrate certain aspects of the new rules.
Proposed amendments to the section 367(e)(2) regulations
The preamble to today’s release explains that the section 367(e)(2) regulations governing liquidating distributions to foreign parent corporations contain several rules that condition nonrecognition treatment upon the timely filing of statements or other documents, or complying with the requirements of those regulations—documents that are functionally similar to GRAs in certain respects.
The current section 367(e)(2) regulations provide no explicit guidance regarding the treatment of taxpayers who fail to file these documents or report the required information, and also provide no mechanism to obtain relief for such failures. Also, the section 6038B regulations require that a Form 926 be filed with respect to liquidating distributions by a domestic corporation to a foreign parent corporation.
The IRS and Treasury believe that the changes made by the proposed regulations in instances of section 367(a) transfers are also appropriate for failures to file or failures to comply for purposes of the section 367(e)(2) regulations and the related section 6038B regulations.
Thus, today’s proposed regulations provide rules similar to the rules under the section 367(a) GRA regulations and related section 6038B regulations for failures to file the required documents or statements and failures to comply under the section 367(e)(2) regulations and related section 6038B regulations.
The proposed regulations modify the information that must be reported with respect to one or more liquidating distributions of property, including the addition of the requirement to report the basis and fair market value of the property distributed.
Other reporting under Reg. section 1.367(a)-3
The section 367(a) regulations currently do not address a taxpayer’s failure to file certain other statements required under Reg. section 1.367(a)-3 in connection with certain transfers of stock or securities, including:
- Statements required to be filed by a domestic target corporation in connection with a transfer of stock or securities of such corporation to a foreign corporation
- The statement required to be filed by a domestic target corporation in connection with the transfer of its assets to a foreign corporation in an exchange described in section 361 and the subsequent transfer of those assets to a domestic subsidiary in a transaction described in Reg. section 1.367(a)-3(d)(2)(vi)(B)(1)(ii)
As noted in the preamble, the IRS and Treasury believe that failures to file timely statements or failures to comply in all material respects with these regulations are to be treated similarly to failures to file or failures to comply with the section 367(a) GRA regulations. Thus, the proposed regulations incorporate similar rules with respect to these other filing obligations.
Proposed effective date, applicability date
The regulations are proposed to apply with respect to:
- Documents or statements required under the section 367(a) GRA regulations, Reg. section 1.367(a)-3(c) or (d), or the section 367(e) regulations that are required to be filed with a timely filed return on or after the date that final regulations are published in the Federal Register
- Any requests for relief for failures to file documents and statements required under these regulations, or failures to comply, if such requests are submitted on or after the date that final regulations are published in the Federal Register
The proposed regulations will appear in the Federal Register on Thursday, January 31, 2013, and written comments and requests for a public hearing must be received by a date that is 60 days after such publication.