[Federal Register Volume 61, Number 83 (Monday, April 29, 1996)]
[Rules and Regulations]
[Pages 18675-18678]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10395]
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DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 1
[TD 8667]
RIN 1545-AT33
Lease Term; Exchanges of Tax-Exempt Use Property
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Final regulations.
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SUMMARY: This document contains final regulations relating to the lease
term of tax-exempt use property. The final regulations also provide
guidance regarding certain like-kind exchanges among related parties
involving tax-exempt use property.
DATES: These regulations are effective April 29, 1996.
For dates of applicability see ``Effective dates'' section under
the SUPPLEMENTARY INFORMATION portion of the preamble and
Secs. 1.168(h)-1(e) and 1.168(i)-2(g).
FOR FURTHER INFORMATION CONTACT: John M. Aramburu of the Office of
Assistant Chief Counsel (Income Tax and Accounting) at (202) 622-4960
(not a toll-free number).
SUPPLEMENTARY INFORMATION:
Background
This document contains final regulations under section 168 of the
Internal Revenue Code of 1986 (Code). The regulations provide guidance
relating to certain exchanges of tax-exempt use property among related
parties and the determination of lease term under certain
circumstances. Proposed regulations (IA-18-95) were published in the
Federal Register on April 21, 1995 (60 FR 19868). The IRS received a
number of comments on the proposed regulations. A scheduled public
hearing was cancelled because there were no requests to testify. After
consideration of all the comments, the regulations proposed by IA-18-95
are adopted as revised by this Treasury decision. The revisions are
discussed below.
Overview
Under section 168, property used in a trade or business, or held
for the production of income, generally may be depreciated under the
general depreciation system (GDS) using accelerated methods over
relatively short recovery periods. However, certain property, including
``tax-exempt use property,'' must be depreciated under the alternative
depreciation system (ADS) described in section 168(g). Section
168(h)(1)(A) generally defines tax-exempt use property to include
tangible property (other than nonresidential real property) leased to a
tax-exempt entity. For this purpose, certain foreign entities and
persons are considered tax-exempt entities.
Congress subjected tax-exempt use property to a slower depreciation
system than GDS to prevent tax-exempt entities from indirectly claiming
tax benefits (in the form of reduced rentals) ``from investment
incentives for which they [would] not qualify directly, and effectively
gain[ing] the advantage of taking income tax deductions and credits
while having no corresponding liability to pay any tax on income from
the property.'' S. Rep. No. 169 (Vol. 1), 98th Cong., 2d Sess. 123
(1984).
In particular, section 168(g)(3)(A) provides that tax-exempt use
property subject to a lease must be depreciated using the straight-line
method over a period equal to the greater of the property's class life
or 125 percent of the lease term. Under section 168(i)(3), options to
renew generally must be taken into account in determining the lease
term and the periods of certain successive leases must be aggregated
with the period of an original lease.
Lease Term
The proposed regulations generally include an additional period of
time during which a lessee may not continue to be the lessee in the
lease term if the lessee (or a related person) has agreed that one or
both of them will or could be obligated to make a payment of rent, or a
payment in the nature of rent, with respect to such period. The
arrangements described in the proposed regulations are frequently
referred to as ``replacement leases.'' One commentator requested that
the portion of the proposed regulations dealing with replacement leases
be withdrawn. The commentator argued that Congress would not have
intended that the term of the replacement lease be taken into account
in determining lease term. The IRS and Treasury believe that the
proposed regulations are consistent with Congressional intent, and thus
the final regulations retain this portion of the proposed regulations.
Another commentator indicated that application of the proposed
regulations was unclear where property is subject to multiple leases,
possibly involving multiple parties. The final regulations clarify that
if property is subject to more than one lease (including any sublease)
entered into as part of a single transaction (or a series of related
transactions), the lease term shall include all periods described in
one or more of such leases. Thus, for example, if one taxable
corporation leases property to another taxable corporation for a 20-
year term and, as part of the same transaction, the lessee subleases
the property to a tax-exempt entity for a 10-year term, then the lease
term of the property is 20 years, and during the period of tax-exempt
use it must be depreciated using the straight line method over the
greater of its class life or 25 years.
Finally, the final regulations provide that lease term also
includes any period during which the lessee (or a related party) has
assumed or retained any risk of loss with respect to the property
(including, for example, by holding a note secured by the property).
The IRS and Treasury believe that such an arrangement is generally
similar to the replacement leases described in the proposed
regulations. As in the case of a replacement lease, the lessee is
assuming risk with respect to the value of the property at the
termination of the initial lease term. In addition, the term of the
debt provides an objective indication that the useful life of the
property exceeds the original term of the lease, in which case failure
to include the term of the debt in the lease term
[[Page 18676]]
could allow a tax-exempt lessee to benefit from depreciation deductions
that exceed economic depreciation, which would be contrary to
Congressional intent.
Like-kind Exchanges
The proposed regulations also address certain transactions between
related persons that are designed to circumvent the tax-exempt use
property rules through the use of a like-kind exchange described in
section 1031. The proposed regulations provide that property (tainted
property) transferred directly or indirectly to the taxpayer by a
related person (the related party) as part of, or in connection with, a
transaction described in section 1031 where the related party receives
tax-exempt use property (related tax-exempt use property) will, if the
tainted property is subject to an allowance for depreciation, be
treated in the same manner as the related tax-exempt use property for
purposes of determining the allowable depreciation deduction under
section 167(a). Under this rule, the tainted property is depreciated by
the taxpayer over the remaining recovery period of, and using the same
depreciation method and convention as that of, the related tax-exempt
use property.
The rule applies only with respect to direct or indirect transfers
of property involving related persons where (1) section 1031 applies to
any party, and (2) a principal purpose of the transfer is to avoid or
limit the application of ADS. For purposes of this rule, a person is
related to another person if they bear a relationship specified in
section 267(b) or section 707(b)(1). An exchange between members of a
consolidated group in a taxable year beginning on or after July 12,
1995, will not be subject to this provision because section 1031 does
not apply to intercompany transactions. See Sec. 1.1502-80(f).
No comments were received with respect to the treatment of like-
kind exchanges under the proposed regulations. Accordingly, these
provisions of the proposed regulations are adopted without modification
by this Treasury decision.
Effective Dates
The definition of lease term is generally applicable to leases
entered into on or after April 20, 1995. The changes made by the final
regulations apply to leases entered into after April 26, 1996. The
treatment of like-kind exchanges is applicable to transfers made on or
after April 20, 1995. No inference is intended by these effective dates
as to the treatment of any transaction under prior law. The regulations
do not preclude the application of common law doctrines (such as the
substance over form or step transaction doctrines) and other
authorities to transactions described in the regulations (e.g., as to
whether a particular transaction should be characterized as a lease or
a conditional sale for federal income tax purposes).
Special Analyses
It has been determined that this Treasury decision is not a
significant regulatory action as defined in EO 12866. Therefore, a
regulatory assessment is not required. It has also been determined that
section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5)
and the Regulatory Flexibility Act (5 U.S.C. chapter 6) do not apply to
these regulations, and therefore, a Regulatory Flexibility Analysis is
not required. Pursuant to section 7805(f) of the Internal Revenue Code,
the notice of proposed rulemaking preceding these regulations was
submitted to the Small Business Administration for comment on its
impact on small business.
Drafting Information: The principal author of these regulations
is John M. Aramburu of the Office of Assistant Chief Counsel (Income
Tax and 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 is amended by adding
entries in numerical order to read as follows:
Authority: 26 U.S.C. 7805 * * *.
Section 1.168(h)-1 also issued under 26 U.S.C. 168. * * *
Section 1.168(i)-2 also issued under 26 U.S.C. 168. * * *
Par. 2. Sections 1.168(h)-1 and 1.168(i)-2 are added to read as
follows:
Sec. 1.168(h)-1 Like-kind exchanges involving tax-exempt use property.
(a) Scope. (1) This section applies with respect to a direct or
indirect transfer of property among related persons, including
transfers made through a qualified intermediary (as defined in
Sec. 1.1031(k)-1(g)(4)) or other unrelated person, (a transfer) if--
(i) Section 1031 applies to any party to the transfer or to any
related transaction; and
(ii) A principal purpose of the transfer or any related transaction
is to avoid or limit the application of the alternative depreciation
system (within the meaning of section 168(g)).
(2) For purposes of this section, a person is related to another
person if they bear a relationship specified in section 267(b) or
section 707(b)(1).
(b) Allowable depreciation deduction for property subject to this
section--(1) In general. Property (tainted property) transferred
directly or indirectly to a taxpayer by a related person (related
party) as part of, or in connection with, a transaction in which the
related party receives tax-exempt use property (related tax-exempt use
property) will, if the tainted property is subject to an allowance for
depreciation, be treated in the same manner as the related tax-exempt
use property for purposes of determining the allowable depreciation
deduction under section 167(a). Under this paragraph (b), the tainted
property is depreciated by the taxpayer over the remaining recovery
period of, and using the same depreciation method and convention as
that of, the related tax-exempt use property.
(2) Limitations--(i) Taxpayer's basis in related tax-exempt use
property. The rules of this paragraph (b) apply only with respect to so
much of the taxpayer's basis in the tainted property as does not exceed
the taxpayer's adjusted basis in the related tax-exempt use property
prior to the transfer. Any excess of the taxpayer's basis in the
tainted property over its adjusted basis in the related tax-exempt use
property prior to the transfer is treated as property to which this
section does not apply. This paragraph (b)(2)(i) does not apply if the
related tax-exempt use property is not acquired from the taxpayer
(e.g., if the taxpayer acquires the tainted property for cash but
section 1031 nevertheless applies to the related party because the
transfer involves a qualified intermediary).
(ii) Application of section 168(i)(7). This section does not apply
to so much of the taxpayer's basis in the tainted property as is
subject to section 168(i)(7).
(c) Related tax-exempt use property. (1) For purposes of paragraph
(b) of this section, related tax-exempt use property includes--
(i) Property that is tax-exempt use property (as defined in section
168(h)) at the time of the transfer; and
(ii) Property that does not become tax-exempt use property until
after the transfer if, at the time of the transfer, it
[[Page 18677]]
was intended that the property become tax-exempt use property.
(2) For purposes of determining the remaining recovery period of
the related tax-exempt use property in the circumstances described in
paragraph (c)(1)(ii) of this section, the related tax-exempt use
property will be treated as having, prior to the transfer, a lease term
equal to the term of any lease that causes such property to become tax-
exempt use property.
(d) Examples. The following examples illustrate the application of
this section. The examples do not address common law doctrines or other
authorities that may apply to recharacterize or alter the effects of
the transactions described therein. Unless otherwise indicated, parties
to the transactions are not related to one another.
Example 1. (i) X owns all of the stock of two subsidiaries, B
and Z. X, B and Z do not file a consolidated federal income tax
return. On May 5, 1995, B purchases an aircraft (FA) for $1 million
and leases it to a foreign airline whose income is not subject to
United States taxation and which is a tax-exempt entity as defined
in section 168(h)(2). On the same date, Z owns an aircraft (DA) with
a fair market value of $1 million, which has been, and continues to
be, leased to an airline that is a United States taxpayer. Z's
adjusted basis in DA is $0. The next day, at a time when each
aircraft is still worth $1 million, B transfers FA to Z (subject to
the lease to the foreign airline) in exchange for DA (subject to the
lease to the airline that is a United States taxpayer). Z realizes
gain of $1 million on the exchange, but that gain is not recognized
pursuant to section 1031(a) because the exchange is of like-kind
properties. Assume that a principal purpose of the transfer of DA to
B or of FA to Z is to avoid the application of the alternative
depreciation system. Following the exchange, Z has a $0 basis in FA
pursuant to section 1031(d). B has a $1 million basis in DA.
(ii) B has acquired property from Z, a related person; Z's gain
is not recognized pursuant to section 1031(a); Z has received tax-
exempt use property as part of the transaction; and a principal
purpose of the transfer of DA to B or of FA to Z is to avoid the
application of the alternative depreciation system. Accordingly, the
transaction is within the scope of this section. Pursuant to
paragraph (b) of this section, B must recover its $1 million basis
in DA over the remaining recovery period of, and using the same
depreciation method and convention as that of, FA, the related tax-
exempt use property.
(iii) If FA did not become tax-exempt use property until after
the exchange, it would still be related tax-exempt use property and
paragraph (b) of this section would apply if, at the time of the
exchange, it was intended that FA become tax-exempt use property.
Example 2. (i) X owns all of the stock of two subsidiaries, B
and Z. X, B and Z do not file a consolidated federal income tax
return. B and Z each own identical aircraft. B's aircraft (FA) is
leased to a tax-exempt entity as defined in section 168(h)(2) and
has a fair market value of $1 million and an adjusted basis of
$500,000. Z's aircraft (DA) is leased to a United States taxpayer
and has a fair market value of $1 million and an adjusted basis of
$10,000. On May 1, 1995, B and Z exchange aircraft, subject to their
respective leases. B realizes gain of $500,000 and Z realizes gain
of $990,000, but neither person recognizes gain because of the
operation of section 1031(a). Moreover, assume that a principal
purpose of the transfer of DA to B or of FA to Z is to avoid the
application of the alternative depreciation system.
(ii) As in Example 1, B has acquired property from Z, a related
person; Z's gain is not recognized pursuant to section 1031(a); Z
has received tax-exempt use property as part of the transaction; and
a principal purpose of the transfer of DA to B or of FA to Z is to
avoid the application of the alternative depreciation system. Thus,
the transaction is within the scope of this section even though B
has held tax-exempt use property for a period of time and, during
that time, has used the alternative depreciation system with respect
to such property. Pursuant to paragraph (b) of this section, B,
which has a substituted basis determined pursuant to section 1031(d)
of $500,000 in DA, must depreciate the aircraft over the remaining
recovery period of FA, using the same depreciation method and
convention. Z holds tax-exempt use property with a basis of $10,000,
which must be depreciated under the alternative depreciation system.
(iii) Assume the same facts as in paragraph (i) of this Example
2, except that B and Z are members of an affiliated group that files
a consolidated federal income tax return. Of B's $500,000 basis in
DA, $10,000 is subject to section 168(i)(7) and therefore not
subject to this section. The remaining $490,000 of basis is subject
to this section. But see Sec. 1.1502-80(f) making section 1031
inapplicable to intercompany transactions occurring in consolidated
return years beginning on or after July 12, 1995.
(e) Effective date. This section applies to transfers made on or
after April 20, 1995.
Sec. 1.168(i)-2 Lease term.
(a) In general. For purposes of section 168, a lease term is
determined under all the facts and circumstances. Paragraph (b) of this
section and Sec. 1.168(j)-1T, Q&A 17, describe certain circumstances
that will result in a period of time not included in the stated
duration of an original lease (additional period) nevertheless being
included in the lease term. These rules do not prevent the inclusion of
an additional period in the lease term in other circumstances.
(b) Lessee retains financial obligation--(1) In general. An
additional period of time during which a lessee may not continue to be
the lessee will nevertheless be included in the lease term if the
lessee (or a related person)--
(i) Has agreed that one or both of them will or could be obligated
to make a payment of rent or a payment in the nature of rent with
respect to such period; or
(ii) Has assumed or retained any risk of loss with respect to the
property for such period (including, for example, by holding a note
secured by the property).
(2) Payments in the nature of rent. For purposes of paragraph
(b)(1)(i) of this section, a payment in the nature of rent includes a
payment intended to substitute for rent or to fund or supplement the
rental payments of another. For example, a payment in the nature of
rent includes a payment of any kind (whether denominated as
supplemental rent, as liquidated damages, or otherwise) that is
required to be made in the event that--
(i) The leased property is not leased for the additional period;
(ii) The leased property is leased for the additional period under
terms that do not satisfy specified terms and conditions;
(iii) There is a failure to make a payment of rent with respect to
such additional period; or
(iv) Circumstances similar to those described in paragraph (b)(2)
(i), (ii), or (iii) of this section occur.
(3) De minimis rule. For the purposes of this paragraph (b),
obligations to make de minimis payments will be disregarded.
(c) Multiple leases or subleases. If property is subject to more
than one lease (including any sublease) entered into as part of a
single transaction (or a series of related transactions), the lease
term includes all periods described in one or more of such leases. For
example, if one taxable corporation leases property to another taxable
corporation for a 20-year term and, as part of the same transaction,
the lessee subleases the property to a tax-exempt entity for a 10-year
term, then the lease term of the property for purposes of section 168
is 20 years. During the period of tax-exempt use, the property must be
depreciated under the alternative depreciation system using the
straight line method over the greater of its class life or 25 years
(125 percent of the 20-year lease term).
(d) Related person. For purposes of paragraph (b) of this section,
a person is related to the lessee if such person is described in
section 168(h)(4).
(e) Changes in status. Section 168(i)(5) (changes in status)
applies if an additional period is included in a lease term under this
section and the leased property ceases to be tax-exempt use property
for such additional period.
[[Page 18678]]
(f) Example. The following example illustrates the principles of
this section. The example does not address common law doctrines or
other authorities that may apply to cause an additional period to be
included in the lease term or to recharacterize a lease as a
conditional sale or otherwise for federal income tax purposes. Unless
otherwise indicated, parties to the transactions are not related to one
another.
Example. Financial obligation with respect to an additional
period--(i) Facts. X, a taxable corporation, and Y, a foreign
airline whose income is not subject to United States taxation, enter
into a lease agreement under which X agrees to lease an aircraft to
Y for a period of 10 years. The lease agreement provides that, at
the end of the lease period, Y is obligated to find a subsequent
lessee (replacement lessee) to enter into a subsequent lease
(replacement lease) of the aircraft from X for an additional 10-year
period. The provisions of the lease agreement require that any
replacement lessee be unrelated to Y and that it not be a tax-exempt
entity as defined in section 168(h)(2). The provisions of the lease
agreement also set forth the basic terms and conditions of the
replacement lease, including its duration and the required rental
payments. In the event Y fails to secure a replacement lease, the
lease agreement requires Y to make a payment to X in an amount
determined under the lease agreement.
(ii) Application of this section. The lease agreement between X
and Y obligates Y to make a payment in the event the aircraft is not
leased for the period commencing after the initial 10-year lease
period and ending on the date the replacement lease is scheduled to
end. Accordingly, pursuant to paragraph (b) of this section, the
term of the lease between X and Y includes such additional period,
and the lease term is 20 years for purposes of section 168.
(iii) Facts modified. Assume the same facts as in paragraph (i)
of this Example, except that Y is required to guarantee the payment
of rentals under the 10-year replacement lease and to make a payment
to X equal to the present value of any excess of the replacement
lease rental payments specified in the lease agreement between X and
Y, over the rental payments actually agreed to be paid by the
replacement lessee. Pursuant to paragraph (b) of this section, the
term of the lease between X and Y includes the additional period,
and the lease term is 20 years for purposes of section 168.
(iv) Changes in status. If, upon the conclusion of the stated
duration of the lease between X and Y, the aircraft either is
returned to X or leased to a replacement lessee that is not a tax-
exempt entity as defined in section 168(h)(2), the subsequent method
of depreciation will be determined pursuant to section 168(i)(5).
(g) Effective date--(1) In general. Except as provided in paragraph
(g)(2) of this section, this section applies to leases entered into on
or after April 20, 1995.
(2) Special rules. Paragraphs (b)(1)(ii) and (c) of this section
apply to leases entered into after April 26, 1996.
Margaret Milner Richardson,
Commissioner of Internal Revenue.
Approved: March 26, 1996.
Leslie Samuels,
Assistant Secretary of the Treasury.
[FR Doc. 96-10395 Filed 4-26-96; 8:45 am]
BILLING CODE 4830-01-U
