[Federal Register Volume 59, Number 188 (Thursday, September 29, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-24011]
[[Page Unknown]]
[Federal Register: September 29, 1994]
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DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 301
[GL-0548-87]
RIN 1545-AE30
Presumptions Where Owner of Large Amount of Cash is Not
Identified
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Notice of Proposed Rulemaking.
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SUMMARY: This document contains proposed regulations regarding the
presumptions that arise where the owner of a large amount of cash or
its equivalent is not identified. The proposed regulations reflect
changes to the law made by the Tax Equity and Fiscal Responsibility Act
of 1982 and the Technical and Miscellaneous Revenue Act of 1988, and
incorporate the rules of current Sec. 301.6867-1T, relating to cash,
cash equivalents, specific cash equivalents and the value of cash
equivalents. In addition, several new items have been added to the list
of specific cash equivalents. The proposed regulations affect
individuals who are found in possession of a large amount of cash or
its equivalent and the true owners of that cash or its equivalent.
DATES: Written comments and requests for a public hearing must be
received by November 28, 1994.
ADDRESSES: Send submissions to: CC:DOM:CORP:T:R (CC:GL-0548- 87), room
5228, Internal Revenue Service, POB 7604, Ben Franklin Station,
Washington, DC 20044. In the alternative, submissions may be hand
delivered between the hours of 8 a.m. and 5 p.m. to: CC:DOM:CORP:T:R
(GL-0548-87), Courier's Desk, Internal Revenue Service, 1111
Constitution Avenue NW, Washington, DC.
FOR FURTHER INFORMATION CONTACT: Jerome D. Sekula, (202) 622-3640 (not
a toll-free call).
SUPPLEMENTARY INFORMATION:
Background
This document contains proposed regulations amending the Procedure
and Administration Regulations (26 CFR part 301) under section 6867 of
the Internal Revenue Code of 1986 (Code). The regulations reflect the
enactment of section 6867 by section 330(a) of the Tax Equity and
Fiscal Responsibility Act of 1982 (Pub. L. 97-248), and the amendment
made by section 1001(a)(1) of the Technical and Miscellaneous Revenue
Act of 1988 (Pub. L. 100-647).
Explanation of Provisions
Section 330(a) of the Tax Equity and Fiscal Responsibility Act of
1982 amended the Code by adding section 6867, designed to be used in
making jeopardy or termination assessments, as appropriate, when there
is no known owner of large amounts of cash. Section 6867 provides that
if an individual in physical possession of cash in excess of $10,000
does not claim the cash as belonging to that individual or as belonging
to another person whose identity is readily ascertainable and who
acknowledges ownership of the cash to the IRS, it is presumed that the
cash represents gross income of a single individual for the taxable
year in which the possession occurs and that the collection of tax will
be jeopardized by delay. Section 6867, as originally enacted, made the
entire amount of the cash subject to a 50 percent tax rate. Section
1001(a)(1) of the Technical and Miscellaneous Revenue Act of 1988
amended section 6867, effective for taxable years beginning after
December 31, 1986, to provide that the tax rate is to be the highest
rate of tax for an individual specified in section 1.
Under section 6867, the possessor of cash is treated (solely with
respect to the cash) as the taxpayer for the purposes of chapters 63
and 64 of the Code, relating to assessment and collection, and for the
purposes of section 7429(a)(1), entitling that individual to a written
statement of information concerning the assessment provided for by that
section. Because section 6867 does not treat the possessor as the
taxpayer for the purposes of sections 7429(a)(2) and 7429(b), relating
to administrative and judicial review of termination and jeopardy
assessments, the proposed regulations do not permit the possessor of
cash to maintain an action under section 7429 for such review.
The possessor of cash may petition the United States Tax Court to
challenge the notice of deficiency issued to the possessor solely in
that person's capacity as possessor of cash. In lieu thereof, the
possessor of cash, solely in that person's capacity as possessor of
cash, may institute a suit for refund in district court after the
deficiency has been collected.
The true owner of cash may maintain an action under section 7429
for administrative and judicial review of the deficiency notice issued
to the possessor. However, the true owner may only institute the
section 7429 action concerning the notice of deficiency issued to the
possessor by making a request for review within 30 days from the date
the possessor is given the written statement of information required
under section 7429(a)(1). After the deficiency asserted against the
possessor of cash has been levied upon, the true owner of cash may
bring an action in federal district court, within the time frame
specified in section 6532(c), to recover the cash, as provided in
section 7426, relating to civil actions by persons other than
taxpayers. In addition, the true owner of cash, with the permission of
the court, may appear before the United States Tax Court in any
proceeding that may be filed by the possessor of the cash challenging
the notice of deficiency issued to the possessor as possessor of the
cash.
Section 301.6867-1(f) of the proposed regulations incorporates the
definitions contained in current Sec. 301.6867-1T, relating to cash,
cash equivalents, specific cash equivalents and the value of cash
equivalents. In addition, several other items have been identified and
added to the list of specific cash equivalents. Section 301.6867-1T
will be removed on the date final regulations are filed with the
Federal Register.
Proposed Effective Date
The regulations are proposed to be effective on and after the date
final regulations are filed with the Federal Register.
Special Analyses
It has been determined that this notice of proposed rulemaking is
not a significant regulatory action as defined in EO 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) 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, this notice of proposed rulemaking will be
submitted to the Chief Counsel for Advocacy of the Small Business
Administration for comment on its impact on small business.
Comments and Requests for a 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) that are submitted timely to the IRS. All
comments will be available for public inspection and copying. A public
hearing may be scheduled if requested in writing by a person that
timely submits written comments. If a public hearing is scheduled,
notice of the date, time, and place for the hearing will be published
in the Federal Register.
Drafting Information
The principal author of these regulations is Jerome D. Sekula of
the General Litigation Division of the Office of Chief Counsel, IRS.
However, other personnel from the IRS and Treasury Department
participated in their development.
List of Subjects in 26 CFR Part 301
Employment taxes, Estate taxes, Excise taxes, Gift taxes, Income
taxes, Penalties, Reporting and recordkeeping requirements.
Proposed Amendments to the Regulations
Accordingly, 26 CFR part 301 is proposed to be amended as follows:
Paragraph 1. The authority citation for part 301 continues to read
in part as follows:
Authority: 26 U.S.C. 7805 * * *
Par. 2. Section 301.6867-1 is added to read as follows:
Sec. 301.6867-1 Presumptions where owner of large amount of cash is
not identified.
(a) General rule. For purposes of section 6851 (relating to
termination assessments) and section 6861 (relating to jeopardy
assessments), if cash in excess of $10,000 is found in the physical
possession of an individual who does not claim either ownership of that
cash or ownership by some other person whose identity the Commissioner
can readily ascertain and who acknowledges ownership of that cash as of
the date the cash was found, then, it shall be presumed that--
(1) The cash represents gross income of an unknown single
individual; and
(2) That the collection of tax on that income will be jeopardized
by delay.
(b) Rules for assessment. The Commissioner may make an assessment
pursuant to section 6851 or section 6861, as appropriate, using the
rules for assessment specified in this paragraph. In the case of any
assessment resulting from the application of paragraph (a) of this
section--
(1) The entire amount of cash is treated as taxable income for the
taxable year in which the cash is found;
(2) The income is treated as taxable at the highest rate of tax
specified in section 1 of the Internal Revenue Code; and
(3) Except as provided in paragraph (c), the possessor of the cash
is treated (solely with respect to that cash) as the taxpayer for
purposes of chapters 63 and 64 and section 7429(a)(1) of the Internal
Revenue Code.
(c) Effect of later substitution of true owner--(1) In general. If
an assessment resulting from the application of paragraph (a) of this
section is later abated and replaced by an assessment against the true
owner of the cash, the later assessment is treated for purposes of all
laws relating to lien, levy, and collection as relating back to the
date of the original assessment. Notwithstanding the preceding
sentence, any notice and review provided for by section 7429 and the
notice of deficiency issued to the true owner relative to the later
assessment are to be made within the prescribed time limits, using the
actual date of the later assessment against the true owner.
(2) Example. The provisions of paragraph (c)(1) of this section may
be illustrated by the following example:
Example. On June 5, 1994, A is found in possession of a bag,
containing $200,000, which A claims he was holding for a friend
whose name A cannot remember. Because A does not claim ownership of
the cash and does not provide the name of the true owner so that the
Commissioner can identify the true owner and have that person
acknowledge ownership of the cash, it is presumed that the cash
represents gross income of an individual for calendar year 1994, and
that the collection of tax on that gross income will be jeopardized
by delay. Accordingly, on June 17, 1994, a termination assessment
under section 6851 is made against A, in his capacity as possessor
of the cash. On June 21, 1994, the written statement of information
provided for by section 7429(a)(1) is given A. No request for review
under section 7429(a)(2) is made by the true owner within 30 days
after the day on which A was furnished the written statement
provided for in section 7429(a)(1). Subsequently, individual B comes
to the Service and states that he is the owner of the cash. On
September 2, 1994, the Service determines that B was the true owner
of the cash on June 5, 1994. On September 9, 1994, the Service
abates the termination assessment made against A solely as possessor
of cash and, after determining that jeopardy exists, replaces it
with a termination assessment under section 6851 against B. The lien
against B that arises under section 6321 is treated as arising on
June 17, 1994. However, within 5 days after September 9, 1994, the
Service must give B the written statement of information required by
section 7429(a)(1). In addition, a notice of deficiency must be sent
to B within 60 days after the later of the due date or the actual
filing of B's tax return for 1994, as required by section 6851(b).
(d) Rights of possessor of cash--(1) Actions permitted. Section
6867 provides that the possessor of cash is treated as the taxpayer for
purposes of chapter 63 (relating to assessment) and chapter 64
(relating to collection). Accordingly, the possessor of cash may file a
petition with the United States Tax Court, within the applicable time
limits, challenging the notice of deficiency issued to the possessor
solely in that person's capacity as possessor of cash. In lieu thereof,
the possessor of cash may, after the deficiency has been collected,
file a refund claim solely in that person's capacity as possessor of
cash and, if the refund claim is denied or not timely acted upon by the
Service within six months, institute a suit for refund in the
appropriate court.
(2) Actions not permitted. Section 6867 provides that the possessor
of cash is treated as the taxpayer solely for purposes of section
7429(a)(1), and is entitled to the written statement of information
provided for by that section. The possessor of cash is not treated as
the taxpayer for purposes of sections 7429(a)(2) and 7429(b), relating
to administrative and judicial review of termination and jeopardy
assessments, and may not maintain an action under section 7429 for such
review.
(e) Rights of true owner of cash--(1) Actions permitted. The true
owner of cash may request administrative review under section
7429(a)(2) and may maintain a civil action under section 7429(b) for
judicial review of an assessment under section 6851 or section 6861
made against the possessor solely in that person's capacity as
possessor of cash. Such an action, however, must be preceded by a
request for review under section 7429(a)(2) made by the true owner
within 30 days after the day on which the possessor is furnished the
written statement provided for in section 7429(a)(1). In addition,
after the deficiency asserted against the possessor of cash has been
levied upon, the true owner of cash may bring an action in federal
district court to recover the cash, as provided in section 7426,
relating to civil actions by persons other than taxpayers. See,
however, section 6532(c), relating to the 9-month statute of
limitations for suits under section 7426. In addition, the true owner
of cash, with the permission of the court, may appear before the United
States Tax Court in any proceeding that may be filed by the possessor
of the cash challenging the notice of deficiency issued to the
possessor solely in that person's capacity as possessor of the cash.
(2) Actions not permitted. The true owner of cash may not file a
petition with the United States Tax Court challenging the notice of
deficiency issued to the possessor solely in that person's capacity as
possessor of cash. Notwithstanding the preceding sentence, the true
owner of cash may file a petition with the United States Tax Court
challenging any notice of deficiency issued to the true owner following
the abatement of the assessment made against the possessor of cash.
(f) Definitions. For the purposes of this section and section
6867--
(1) Cash. The term cash includes any cash equivalents.
(2) Cash equivalent--(i) In general. The term cash equivalent
includes foreign currency, any bearer obligation, and any medium of
exchange that is of a type that has been frequently used in illegal
activities, as listed in paragraph (f)(2)(ii) of this section.
(ii) Specific cash equivalents. For purposes of paragraph
(f)(2)(i), the following are also cash equivalents--
(A) Coins;
(B) Precious metals;
(C) Jewelry;
(D) Precious stones;
(E) Postage stamps;
(F) Traveler's checks in any form;
(G) Negotiable instruments (including personal checks, business
checks, official bank checks, cashier's checks, notes, and money
orders) that are either in bearer form, endorsed without restriction,
made out to a fictitious payee, or otherwise in such form that title
thereto passes upon delivery;
(H) Incomplete instruments (including personal checks, business
checks, official bank checks, cashier's checks, notes, and money
orders) signed but with the payee's name omitted; and
(I) Securities or stock in bearer form or otherwise in such form
that title thereto passes upon delivery.
(iii) Value of cash equivalents. A cash equivalent is taken into
account at its fair market value except in the case of a bearer
obligation, in which case it is taken into account at its face value.
(3) Possessor of cash. An individual is considered to be the
possessor of cash if the cash is found on that individual's person or
in that individual's possession or is found in any object, container,
vehicle, or area under that individual's custody or control.
(4) True owner of the cash. The true owner of cash is the
individual who beneficially owns the cash on the date such cash is
found in the physical possession of the individual described in
paragraph (f)(3) of this section. An agent, bailee, or other custodian
of the cash is not the true owner of cash. A true owner of cash does
not include an individual who, subsequent to the date on which the cash
is found in the physical possession of the individual described in
paragraph (f)(3) of this section, obtains ownership of the cash by
purchase, subrogation, descent, or other means.
(g) Effective date. This section is effective with respect to cash
found in the physical possession of an individual on the date final
regulations are published in the Federal Register.
Sec. 301.6867-1T [Removed]
Par. 3. Section 301.6867-1T is removed.
Margaret Milner Richardson,
Commissioner of Internal Revenue.
[FR Doc. 94-24011 Filed 9-28-94; 8:45 am]
BILLING CODE 4830-01-P
