1988—
1987—
1986—
1980—
1978—
1961—
1958—
1955—Act June 15, 1955, ch. 143, §2(2),
The amount of any item of gross income shall be included in the gross income for the taxable year in which received by the taxpayer, unless, under the method of accounting used in computing taxable income, such amount is to be properly accounted for as of a different period.
In the case of a taxpayer the taxable income of which is computed under an accrual method of accounting, the all events test with respect to any item of gross income (or portion thereof) shall not be treated as met any later than when such item (or portion thereof) is taken into account as revenue in—
(i) an applicable financial statement of the taxpayer, or
(ii) such other financial statement as the Secretary may specify for purposes of this subsection.
This paragraph shall not apply to—
(i) a taxpayer which does not have a financial statement described in clause (i) or (ii) of subparagraph (A) for a taxable year, or
(ii) any item of gross income in connection with a mortgage servicing contract.
For purposes of this section, the all events test is met with respect to any item of gross income if all the events have occurred which fix the right to receive such income and the amount of such income can be determined with reasonable accuracy.
Paragraph (1) shall not apply with respect to any item of gross income for which the taxpayer uses a special method of accounting provided under any other provision of this chapter, other than any provision of part V of subchapter P (except as provided in clause (ii) of paragraph (1)(B)).
For purposes of this subsection, the term "applicable financial statement" means—
(A) a financial statement which is certified as being prepared in accordance with generally accepted accounting principles and which is—
(i) a 10–K (or successor form), or annual statement to shareholders, required to be filed by the taxpayer with the United States Securities and Exchange Commission,
(ii) an audited financial statement of the taxpayer which is used for—
(I) credit purposes,
(II) reporting to shareholders, partners, or other proprietors, or to beneficiaries, or
(III) any other substantial nontax purpose,
but only if there is no statement of the taxpayer described in clause (i), or
(iii) filed by the taxpayer with any other Federal agency for purposes other than Federal tax purposes, but only if there is no statement of the taxpayer described in clause (i) or (ii),
(B) a financial statement which is made on the basis of international financial reporting standards and is filed by the taxpayer with an agency of a foreign government which is equivalent to the United States Securities and Exchange Commission and which has reporting standards not less stringent than the standards required by such Commission, but only if there is no statement of the taxpayer described in subparagraph (A), or
(C) a financial statement filed by the taxpayer with any other regulatory or governmental body specified by the Secretary, but only if there is no statement of the taxpayer described in subparagraph (A) or (B).
For purposes of this subsection, in the case of a contract which contains multiple performance obligations, the allocation of the transaction price to each performance obligation shall be equal to the amount allocated to each performance obligation for purposes of including such item in revenue in the applicable financial statement of the taxpayer.
For purposes of paragraph (1), if the financial results of a taxpayer are reported on the applicable financial statement (as defined in paragraph (3)) for a group of entities, such statement shall be treated as the applicable financial statement of the taxpayer.
A taxpayer which computes taxable income under the accrual method of accounting, and receives any advance payment during the taxable year, shall—
(A) except as provided in subparagraph (B), include such advance payment in gross income for such taxable year, or
(B) if the taxpayer elects the application of this subparagraph with respect to the category of advance payments to which such advance payment belongs, the taxpayer shall—
(i) to the extent that any portion of such advance payment is required under subsection (b) to be included in gross income in the taxable year in which such payment is received, so include such portion, and
(ii) include the remaining portion of such advance payment in gross income in the taxable year following the taxable year in which such payment is received.
Except as otherwise provided in this paragraph, the election under paragraph (1)(B) shall be made at such time, in such form and manner, and with respect to such categories of advance payments, as the Secretary may provide.
An election under paragraph (1)(B) shall be effective for the taxable year with respect to which it is first made and for all subsequent taxable years, unless the taxpayer secures the consent of the Secretary to revoke such election. For purposes of this title, the computation of taxable income under an election made under paragraph (1)(B) shall be treated as a method of accounting.
Except as otherwise provided by the Secretary, the election under paragraph (1)(B) shall not apply with respect to advance payments received by the taxpayer during a taxable year if such taxpayer ceases to exist during (or with the close of) such taxable year.
For purposes of this subsection—
The term "advance payment" means any payment—
(i) the full inclusion of which in the gross income of the taxpayer for the taxable year of receipt is a permissible method of accounting under this section (determined without regard to this subsection),
(ii) any portion of which is included in revenue by the taxpayer in a financial statement described in clause (i) or (ii) of subsection (b)(1)(A) for a subsequent taxable year, and
(iii) which is for goods, services, or such other items as may be identified by the Secretary for purposes of this clause.
Except as otherwise provided by the Secretary, such term shall not include—
(i) rent,
(ii) insurance premiums governed by subchapter L,
(iii) payments with respect to financial instruments,
(iv) payments with respect to warranty or guarantee contracts under which a third party is the primary obligor,
(v) payments subject to section 871(a), 881, 1441, or 1442,
(vi) payments in property to which section 83 applies, and
(vii) any other payment identified by the Secretary for purposes of this subparagraph.
For purposes of this subsection, an item of gross income is received by the taxpayer if it is actually or constructively received, or if it is due and payable to the taxpayer.
For purposes of this subsection, rules similar to subsection (b)(4) shall apply.
In the case of the death of a taxpayer whose taxable income is computed under an accrual method of accounting, any amount accrued only by reason of the death of the taxpayer shall not be included in computing taxable income for the period in which falls the date of the taxpayer's death.
For purposes of subsection (a), tips included in a written statement furnished an employer by an employee pursuant to section 6053(a) shall be deemed to be received at the time the written statement including such tips is furnished to the employer.
In the case of insurance proceeds received as a result of destruction or damage to crops, a taxpayer reporting on the cash receipts and disbursements method of accounting may elect to include such proceeds in income for the taxable year following the taxable year of destruction or damage, if he establishes that, under his practice, income from such crops would have been reported in a following taxable year. For purposes of the preceding sentence, payments received under the Agricultural Act of 1949, as amended, or title II of the Disaster Assistance Act of 1988, as a result of (1) destruction or damage to crops caused by drought, flood, or any other natural disaster, or (2) the inability to plant crops because of such a natural disaster shall be treated as insurance proceeds received as a result of destruction or damage to crops. An election under this subsection for any taxable year shall be made at such time and in such manner as the Secretary prescribes.
In the case of income derived from the sale or exchange of livestock in excess of the number the taxpayer would sell if he followed his usual business practices, a taxpayer reporting on the cash receipts and disbursements method of accounting may elect to include such income for the taxable year following the taxable year in which such sale or exchange occurs if he establishes that, under his usual business practices, the sale or exchange would not have occurred in the taxable year in which it occurred if it were not for drought, flood, or other weather-related conditions, and that such conditions had resulted in the area being designated as eligible for assistance by the Federal Government.
Paragraph (1) shall apply only to a taxpayer whose principal trade or business is farming (within the meaning of section 6420(c)(3)).
If section 1033(e)(2) applies to a sale or exchange of livestock described in paragraph (1), the election under paragraph (1) shall be deemed valid if made during the replacement period described in such section.
In the case of a taxpayer the taxable income of which is computed under an accrual method of accounting, any income attributable to the sale or furnishing of utility services to customers shall be included in gross income not later than the taxable year in which such services are provided to such customers.
For purposes of this subsection—
The term "utility services" includes—
(i) the providing of electrical energy, water, or sewage disposal,
(ii) the furnishing of gas or steam through a local distribution system,
(iii) telephone or other communication services, and
(iv) the transporting of gas or steam by pipeline.
The taxable year in which services are treated as provided to customers shall not, in any manner, be determined by reference to—
(i) the period in which the customers' meters are read, or
(ii) the period in which the taxpayer bills (or may bill) the customers for such service.
In the case of interest credited during any calendar year on a frozen deposit in a qualified financial institution, the amount of such interest includible in the gross income of a qualified individual shall not exceed the sum of—
(A) the net amount withdrawn by such individual from such deposit during such calendar year, and
(B) the amount of such deposit which is withdrawable as of the close of the taxable year (determined without regard to any penalty for premature withdrawals of a time deposit).
Any interest not included in gross income by reason of paragraph (1) shall be treated as credited in the next calendar year.
No deduction shall be allowed to any qualified financial institution for interest not includible in gross income under paragraph (1) until such interest is includible in gross income.
For purposes of this subsection, the term "frozen deposit" means any deposit if, as of the close of the calendar year, any portion of such deposit may not be withdrawn because of—
(A) the bankruptcy or insolvency of the qualified financial institution (or threat thereof), or
(B) any requirement imposed by the State in which such institution is located by reason of the bankruptcy or insolvency (or threat thereof) of 1 or more financial institutions in the State.
For purposes of this subsection, the terms "qualified individual", "qualified financial institution", and "deposit" have the same respective meanings as when used in section 165(l).
For purposes of this title, in the case of an individual on the cash receipts and disbursements method of accounting, a qualified prize option shall be disregarded in determining the taxable year for which any portion of the qualified prize is properly includible in gross income of the taxpayer.
For purposes of this subsection—
The term "qualified prize option" means an option which—
(i) entitles an individual to receive a single cash payment in lieu of receiving a qualified prize (or remaining portion thereof), and
(ii) is exercisable not later than 60 days after such individual becomes entitled to the qualified prize.
The term "qualified prize" means any prize or award which—
(i) is awarded as a part of a contest, lottery, jackpot, game, or other similar arrangement,
(ii) does not relate to any past services performed by the recipient and does not require the recipient to perform any substantial future service, and
(iii) is payable over a period of at least 10 years.
The Secretary shall provide for the application of this subsection in the case of a partnership or other pass-through entity consisting entirely of individuals described in paragraph (1).
In the case of any qualifying electric transmission transaction for which the taxpayer elects the application of this section, qualified gain from such transaction shall be recognized—
(A) in the taxable year which includes the date of such transaction to the extent the amount realized from such transaction exceeds—
(i) the cost of exempt utility property which is purchased by the taxpayer during the 4-year period beginning on such date, reduced (but not below zero) by
(ii) any portion of such cost previously taken into account under this subsection, and
(B) ratably over the 8-taxable year period beginning with the taxable year which includes the date of such transaction, in the case of any such gain not recognized under subparagraph (A).
For purposes of this subsection, the term "qualified gain" means, with respect to any qualifying electric transmission transaction in any taxable year—
(A) any ordinary income derived from such transaction which would be required to be recognized under section 1245 or 1250 for such taxable year (determined without regard to this subsection), and
(B) any income derived from such transaction in excess of the amount described in subparagraph (A) which is required to be included in gross income for such taxable year (determined without regard to this subsection).
For purposes of this subsection, the term "qualifying electric transmission transaction" means any sale or other disposition before January 1, 2008 (before January 1, 2021, in the case of a qualified electric utility), of—
(A) property used in the trade or business of providing electric transmission services, or
(B) any stock or partnership interest in a corporation or partnership, as the case may be, whose principal trade or business consists of providing electric transmission services,
but only if such sale or disposition is to an independent transmission company.
For purposes of this subsection, the term "independent transmission company" means—
(A) an independent transmission provider approved by the Federal Energy Regulatory Commission,
(B) a person—
(i) who the Federal Energy Regulatory Commission determines in its authorization of the transaction under section 203 of the Federal Power Act (
(ii) whose transmission facilities to which the election under this subsection applies are under the operational control of a Federal Energy Regulatory Commission-approved independent transmission provider before the close of the period specified in such authorization, but not later than the date which is 4 years after the close of the taxable year in which the transaction occurs, or
(C) in the case of facilities subject to the jurisdiction of the Public Utility Commission of Texas—
(i) a person which is approved by that Commission as consistent with Texas State law regarding an independent transmission provider, or
(ii) a political subdivision or affiliate thereof whose transmission facilities are under the operational control of a person described in clause (i).
For purposes of this subsection:
The term "exempt utility property" means property used in the trade or business of—
(i) generating, transmitting, distributing, or selling electricity, or
(ii) producing, transmitting, distributing, or selling natural gas.
Acquisition of control of a corporation shall be taken into account under this subsection with respect to a qualifying electric transmission transaction only if the principal trade or business of such corporation is a trade or business referred to in subparagraph (A).
The term "exempt utility property" shall not include any property which is located outside the United States.
For purposes of this subsection, the term "qualified electric utility" means a person that, as of the date of the qualifying electric transmission transaction, is vertically integrated, in that it is both—
(A) a transmitting utility (as defined in section 3(23) of the Federal Power Act (
(B) an electric utility (as defined in section 3(22) of the Federal Power Act (
In the case of a corporation which is a member of an affiliated group filing a consolidated return, any exempt utility property purchased by another member of such group shall be treated as purchased by such corporation for purposes of applying paragraph (1)(A).
If the taxpayer has made the election under paragraph (1) and any gain is recognized by such taxpayer as provided in paragraph (1)(B), then—
(A) the statutory period for the assessment of any deficiency, for any taxable year in which any part of the gain on the transaction is realized, attributable to such gain shall not expire prior to the expiration of 3 years from the date the Secretary is notified by the taxpayer (in such manner as the Secretary may by regulations prescribe) of the purchase of exempt utility property or of an intention not to purchase such property, and
(B) such deficiency may be assessed before the expiration of such 3-year period notwithstanding any law or rule of law which would otherwise prevent such assessment.
For purposes of this subsection, the taxpayer shall be considered to have purchased any property if the unadjusted basis of such property is its cost within the meaning of section 1012.
An election under paragraph (1) shall be made at such time and in such manner as the Secretary may require and, once made, shall be irrevocable.
Section 453 shall not apply to any qualifying electric transmission transaction with respect to which an election to apply this subsection is made.
(Aug. 16, 1954, ch. 736,
The Agricultural Act of 1949, as amended, referred to in subsec. (f), is act Oct. 31, 1949, ch. 792,
The Disaster Assistance Act of 1988, referred to in subsec. (f), is
2019—Subsec. (k)(3).
2018—Subsec. (k)(3).
2017—Subsecs. (b) to (k).
2015—Subsec. (i)(3).
2014—Subsec. (i)(3).
2013—Subsec. (i)(3).
2010—Subsec. (i)(3).
2008—Subsec. (i)(3).
Subsec. (i)(4)(B)(ii).
Subsec. (i)(5)(C).
Subsec. (i)(6) to (11).
2005—Subsec. (i)(3).
Subsec. (i)(4)(B)(ii).
2004—Subsec. (e)(3).
Subsec. (i).
1998—Subsec. (h).
1997—Subsec. (e).
1988—Subsec. (d).
Subsec. (e)(1).
Subsecs. (f), (g).
1986—Subsec. (f).
1976—Subsec. (d).
Subsec. (e).
1969—Subsec. (d).
1965—Subsec. (c).
"(c)
"(d)
"(1)
"(A) such change shall be treated as initiated by the taxpayer, and
"(B) such change shall be treated as made with the consent of the Secretary of the Treasury.
"(2)
"(A) is required by the amendments made by this section, or
"(B) was prohibited under the Internal Revenue Code of 1986 prior to such amendments and is permitted under such Code after such amendments.
"(e)
"(1) the amendments made by this section shall apply to taxable years beginning after December 31, 2018, and
"(2) the period for taking into account any adjustments under section 481 by reason of a qualified change in method of accounting (as defined in subsection (d)) shall be 6 years."
"(1)
"(2)
"(1)
"(2)
"(3)
"(1)
"(2)
"(A) clause (ii) of such section 451(h)(2)(A) [now 451(j)(2)(A)] shall not apply, and
"(B) such option shall be treated as a qualified prize option if it is exercisable only during all or part of the 18-month period beginning on July 1, 1999."
Amendment by section 1009(d)(3) of
"(1)
"(2)
"(A) such change shall be treated as initiated by the taxpayer,
"(B) such change shall be treated as having been made with the consent of the Secretary, and
"(C) the adjustments under section 481 of the Internal Revenue Code of 1954 [now 1986] by reason of such change shall be taken into account ratably over a period no longer than the first 4 taxable years beginning after December 31, 1986.
"(3)
"(1)
"(2)
"(A) The amendment made by subsection (b) [amending this section] shall apply to taxable years beginning after December 31, 1982, and before January 1, 1987, only if the qualified individual elects to have such amendment apply for all such taxable years.
"(B) In the case of interest attributable to the period beginning January 1, 1983, and ending December 31, 1987, the interest deduction of financial institutions shall be determined without regard to paragraph (3) of section 451(f) [now 451(h)] of the Internal Revenue Code of 1986 (as added by subsection (b))."
Amendment by
Voluntary separation incentives paid to members of Armed Forces under
For provisions relating to credit or refund of overpayments of tax, and assessment of underpayments of tax, due to amendments by section 905 of
"(a)
"(1) clarify the time at which a contract is to be considered completed,
"(2) clarify when—
"(A) one agreement will be treated as more than one contract, and
"(B) two or more agreements will be treated as one contract, and
"(3) properly allocate all costs which directly benefit, or are incurred by reason of, the extended period long-term contract activities of the taxpayer.
"(b)
"(1)
"(2)
"(A)
"(i) who estimates (at the time such contract is entered into) that such contract will be completed within the 3-year period beginning on the contract commencement date of such contract, or
"(ii) whose average annual gross receipts over the 3 taxable years preceding the taxable year in which such contract is entered into do not exceed $25,000,000.
"(B)
"(i) all trades or businesses (whether or not incorporated) which are under common control with the taxpayer (within the meaning of section 52(b)), and
"(ii) all members of any controlled group of corporations of which the taxpayer is a member,
for the 3 taxable years of such persons preceding the taxable year in which the contract described in subparagraph (A) is entered into shall be included in the gross receipts of the taxpayer for the period described in subparagraph (A). The Secretary shall prescribe regulations which provide attribution rules that take into account, in addition to the persons and entities described in the preceding sentence, taxpayers who engage in construction contracts through partnerships, joint ventures, and corporations.
"(C)
"(i) 'more than 50 percent' shall be substituted for 'at least 80 percent' each place it appears in section 1563(a)(1), and
"(ii) the determination shall be made without regard to subsections (a)(4) and (e)(3)(C) of section 1563.
"(3)
"(4)
"(c)
"(1)
"(2)
"(A)
"(B)
| "If the taxable year begins in calendar year: | The applicable percentage is: |
|---|---|
| 1983 | 331/3 |
| 1984 | 662/3 |
| 1985 or thereafter | 100. |
"(3)
"(A)
"(B)
"(i) solely by reason of any modification to regulations made under subsection (a)(2), or
"(ii) solely by reason of any modifications to regulations made under both paragraphs (1) and (2) of subsection (a),
shall be treated as having been completed on the first day after December 31, 1982, on which any contract which was severed from such contract (by reason of the modifications made by subsection (a)(2)) is completed (determined after the application of any modifications to regulations made under subsection (a)(1)).
"(4)
"(a)
"(b)
"(1)
"(A) where the person for whom the service is performed is not a State (within the meaning of paragraph (1) of section 457(d) of the Internal Revenue Code of 1986 [formerly I.R.C. 1954]) and not an organization which is exempt from tax under section 501 of such Code, and
"(B) under which the payment or otherwise making available of compensation is deferred.
"(2)
"(A) a plan described in section 401(a) of the Internal Revenue Code of 1986 which includes a trust, exempt from tax under section 501(a) of such Code,
"(B) an annuity plan or contract described in section 403 of such Code,
"(C) a qualified bond purchase plan described in section 405(a) of such Code,
"(D) that portion of any plan which consists of a transfer of property described in section 83 (determined without regard to subsection (e) thereof of such Code, and
"(E) that portion of any plan which consists of a trust to which section 402(b) of such Code applies.
"(c)
"(a)
"(1)(A) the taxpayer receives in his first taxable year beginning in 1978 payments under the Agricultural Act of 1949, as amended, [see Short Title note set out under
"(i) the destruction or damage to crops caused by drought, flood, or any other natural disaster, or
"(ii) the inability to plant crops because of such a natural disaster, and
"(B) the taxpayer establishes that, under his practice, income from such crops could have been reported for his last taxable year beginning in 1977, or
"(2)(A) the taxpayer receives in his first taxable year beginning in 1978 deficiency (or 'target price') payments under the Agricultural Act of 1949, as amended, for any 1977 crop, and
"(B) the fifth month of such crop's marketing year ends before December 1, 1977,
then the taxpayer may elect to include such proceeds in income for his last taxable year beginning in 1977.
"(b)
Section, act Aug. 16, 1954, ch. 736,
Repeal effective with respect to taxable years beginning after Dec. 31, 1953, and ending after Aug. 16, 1954, see section 3 of act June 15, 1955, set out as an Effective Date of 1955 Amendment note under
For provisions concerning increase in tax in any taxable year ending on or before June 15, 1955 by reason of enactment of act June 15, 1955, see section 4 of act June 15, 1955, set out as a note under
Except as otherwise provided in this section, income from an installment sale shall be taken into account for purposes of this title under the installment method.
For purposes of this section—
The term "installment sale" means a disposition of property where at least 1 payment is to be received after the close of the taxable year in which the disposition occurs.
The term "installment sale" does not include—
Any dealer disposition (as defined in subsection (l)).
A disposition of personal property of a kind which is required to be included in the inventory of the taxpayer if on hand at the close of the taxable year.
For purposes of this section, the term "installment method" means a method under which the income recognized for any taxable year from a disposition is that proportion of the payments received in that year which the gross profit (realized or to be realized when payment is completed) bears to the total contract price.
Subsection (a) shall not apply to any disposition if the taxpayer elects to have subsection (a) not apply to such disposition.
Except as otherwise provided by regulations, an election under paragraph (1) with respect to a disposition may be made only on or before the due date prescribed by law (including extensions) for filing the taxpayer's return of the tax imposed by this chapter for the taxable year in which the disposition occurs. Such an election shall be made in the manner prescribed by regulations.
An election under paragraph (1) with respect to any disposition may be revoked only with the consent of the Secretary.
If—
(A) any person disposes of property to a related person (hereinafter in this subsection referred to as the "first disposition"), and
(B) before the person making the first disposition receives all payments with respect to such disposition, the related person disposes of the property (hereinafter in this subsection referred to as the "second disposition"),
then, for purposes of this section, the amount realized with respect to such second disposition shall be treated as received at the time of the second disposition by the person making the first disposition.
Except in the case of marketable securities, paragraph (1) shall apply only if the date of the second disposition is not more than 2 years after the date of the first disposition.
The running of the 2-year period set forth in subparagraph (A) shall be suspended with respect to any property for any period during which the related person's risk of loss with respect to the property is substantially diminished by—
(i) the holding of a put with respect to such property (or similar property),
(ii) the holding by another person of a right to acquire the property, or
(iii) a short sale or any other transaction.
The amount treated for any taxable year as received by the person making the first disposition by reason of paragraph (1) shall not exceed the excess of—
(A) the lesser of—
(i) the total amount realized with respect to any second disposition of the property occurring before the close of the taxable year, or
(ii) the total contract price for the first disposition, over
(B) the sum of—
(i) the aggregate amount of payments received with respect to the first disposition before the close of such year, plus
(ii) the aggregate amount treated as received with respect to the first disposition for prior taxable years by reason of this subsection.
For purposes of this subsection, if the second disposition is not a sale or exchange, an amount equal to the fair market value of the property disposed of shall be substituted for the amount realized.
If paragraph (1) applies for any taxable year, payments received in subsequent taxable years by the person making the first disposition shall not be treated as the receipt of payments with respect to the first disposition to the extent that the aggregate of such payments does not exceed the amount treated as received by reason of paragraph (1).
For purposes of this subsection—
Any sale or exchange of stock to the issuing corporation shall not be treated as a first disposition.
A compulsory or involuntary conversion (within the meaning of section 1033) and any transfer thereafter shall not be treated as a second disposition if the first disposition occurred before the threat or imminence of the conversion.
Any transfer after the earlier of—
(i) the death of the person making the first disposition, or
(ii) the death of the person acquiring the property in the first disposition,
and any transfer thereafter shall not be treated as a second disposition.
This subsection shall not apply to a second disposition (and any transfer thereafter) if it is established to the satisfaction of the Secretary that neither the first disposition nor the second disposition had as one of its principal purposes the avoidance of Federal income tax.
The period for assessing a deficiency with respect to a first disposition (to the extent such deficiency is attributable to the application of this subsection) shall not expire before the day which is 2 years after the date on which the person making the first disposition furnishes (in such manner as the Secretary may by regulations prescribe) a notice that there was a second disposition of the property to which this subsection may have applied. Such deficiency may be assessed notwithstanding the provisions of any law or rule of law which would otherwise prevent such assessment.
For purposes of this section—
Except for purposes of subsections (g) and (h), the term "related person" means—
(A) a person whose stock would be attributed under section 318(a) (other than paragraph (4) thereof) to the person first disposing of the property, or
(B) a person who bears a relationship described in section 267(b) to the person first disposing of the property.
The term "marketable securities" means any security for which, as of the date of the disposition, there was a market on an established securities market or otherwise.
Except as provided in paragraph (4), the term "payment" does not include the receipt of evidences of indebtedness of the person acquiring the property (whether or not payment of such indebtedness is guaranteed by another person).
Receipt of a bond or other evidence of indebtedness which—
(A) is payable on demand, or
(B) is readily tradable,
shall be treated as receipt of payment.
For purposes of paragraph (4), the term "readily tradable" means a bond or other evidence of indebtedness which is issued—
(A) with interest coupons attached or in registered form (other than one in registered form which the taxpayer establishes will not be readily tradable in an established securities market), or
(B) in any other form designed to render such bond or other evidence of indebtedness readily tradable in an established securities market.
In the case of any exchange described in section 1031(b)—
(A) the total contract price shall be reduced to take into account the amount of any property permitted to be received in such exchange without recognition of gain,
(B) the gross profit from such exchange shall be reduced to take into account any amount not recognized by reason of section 1031(b), and
(C) the term "payment", when used in any provision of this section other than subsection (b)(1), shall not include any property permitted to be received in such exchange without recognition of gain.
Similar rules shall apply in the case of an exchange which is described in section 356(a) and is not treated as a dividend.
The term "depreciable property" means property of a character which (in the hands of the transferee) is subject to the allowance for depreciation provided in section 167.
The term "payments to be received" includes—
(A) the aggregate amount of all payments which are not contingent as to amount, and
(B) the fair market value of any payments which are contingent as to amount.
In the case of an installment sale of depreciable property between related persons—
(A) subsection (a) shall not apply,
(B) for purposes of this title—
(i) except as provided in clause (ii), all payments to be received shall be treated as received in the year of the disposition, and
(ii) in the case of any payments which are contingent as to the amount but with respect to which the fair market value may not be reasonably ascertained, the basis shall be recovered ratably, and
(C) the purchaser may not increase the basis of any property acquired in such sale by any amount before the time such amount is includible in the gross income of the seller.
Paragraph (1) shall not apply if it is established to the satisfaction of the Secretary that the disposition did not have as one of its principal purposes the avoidance of Federal income tax.
For purposes of this subsection, the term "related persons" has the meaning given to such term by section 1239(b), except that such term shall include 2 or more partnerships having a relationship to each other described in section 707(b)(1)(B).
If, in a liquidation to which section 331 applies, the shareholder receives (in exchange for the shareholder's stock) an installment obligation acquired in respect of a sale or exchange by the corporation during the 12-month period beginning on the date a plan of complete liquidation is adopted and the liquidation is completed during such 12-month period, then, for purposes of this section, the receipt of payments under such obligation (but not the receipt of such obligation) by the shareholder shall be treated as the receipt of payment for the stock.
Subparagraph (A) shall not apply to an installment obligation acquired in respect of a sale or exchange of—
(i) stock in trade of the corporation,
(ii) other property of a kind which would properly be included in the inventory of the corporation if on hand at the close of the taxable year, and
(iii) property held by the corporation primarily for sale to customers in the ordinary course of its trade or business,
unless such sale or exchange is to 1 person in 1 transaction and involves substantially all of such property attributable to a trade or business of the corporation.
If the obligor of any installment obligation and the shareholder are married to each other or are related persons (within the meaning of section 1239(b)), to the extent such installment obligation is attributable to the disposition by the corporation of depreciable property—
(i) subparagraph (A) shall not apply to such obligation, and
(ii) for purposes of this title, all payments to be received by the shareholder shall be deemed received in the year the shareholder receives the obligation.
For purposes of subsection (e)(1)(A), disposition of property by the corporation shall be treated also as disposition of such property by the shareholder.
For purposes of subparagraph (A), in the case of a controlling corporate shareholder (within the meaning of section 368(c)) of a selling corporation, an obligation acquired in respect of a sale or exchange by the selling corporation shall be treated as so acquired by such controlling corporate shareholder. The preceding sentence shall be applied successively to each controlling corporate shareholder above such controlling corporate shareholder.
If—
(A) paragraph (1) applies with respect to any installment obligation received by a shareholder from a corporation, and
(B) by reason of the liquidation such shareholder receives property in more than 1 taxable year,
then, on completion of the liquidation, basis previously allocated to property so received shall be reallocated for all such taxable years so that the shareholder's basis in the stock of the corporation is properly allocated among all property received by such shareholder in such liquidation.
In the case of any installment sale of property to which subsection (a) applies—
(A) notwithstanding subsection (a), any recapture income shall be recognized in the year of the disposition, and
(B) any gain in excess of the recapture income shall be taken into account under the installment method.
For purposes of paragraph (1), the term "recapture income" means, with respect to any installment sale, the aggregate amount which would be treated as ordinary income under section 1245 or 1250 (or so much of section 751 as relates to section 1245 or 1250) for the taxable year of the disposition if all payments to be received were received in the taxable year of disposition.
The Secretary shall prescribe such regulations as may be necessary or appropriate to carry out the provisions of this section.
The regulations prescribed under paragraph (1) shall include regulations providing for ratable basis recovery in transactions where the gross profit or the total contract price (or both) cannot be readily ascertained.
In the case of—
(1) any disposition of personal property under a revolving credit plan, or
(2) any installment obligation arising out of a sale of—
(A) stock or securities which are traded on an established securities market, or
(B) to the extent provided in regulations, property (other than stock or securities) of a kind regularly traded on an established market,
subsection (a) shall not apply, and, for purposes of this title, all payments to be received shall be treated as received in the year of disposition. The Secretary may provide for the application of this subsection in whole or in part for transactions in which the rules of this subsection otherwise would be avoided through the use of related parties, pass-thru entities, or intermediaries.
For purposes of subsection (b)(2)(A)—
The term "dealer disposition" means any of the following dispositions:
Any disposition of personal property by a person who regularly sells or otherwise disposes of personal property of the same type on the installment plan.
Any disposition of real property which is held by the taxpayer for sale to customers in the ordinary course of the taxpayer's trade or business.
The term "dealer disposition" does not include—
The disposition on the installment plan of any property used or produced in the trade or business of farming (within the meaning of section 2032A(e)(4) or (5)).
Any dispositions described in clause (ii) on the installment plan if the taxpayer elects to have paragraph (3) apply to any installment obligations which arise from such dispositions. An election under this paragraph shall not apply with respect to an installment obligation which is guaranteed by any person other than an individual.
A disposition is described in this clause if it is a disposition in the ordinary course of the taxpayer's trade or business to an individual of—
(I) a timeshare right to use or a timeshare ownership interest in residential real property for not more than 6 weeks per year, or a right to use specified campgrounds for recreational purposes, or
(II) any residential lot, but only if the taxpayer (or any related person) is not to make any improvements with respect to such lot.
For purposes of subclause (I), a timeshare right to use (or timeshare ownership interest in) property held by the spouse, children, grandchildren, or parents of an individual shall be treated as held by such individual.
Any carrying charges or interest with respect to a disposition described in subparagraph (A) or (B) which are added on the books of account of the seller to the established cash selling price of the property shall be included in the total contract price of the property and, if such charges or interest are not so included, any payments received shall be treated as applying first against such carrying charges or interest.
In the case of any installment obligation to which paragraph (2)(B) applies, the tax imposed by this chapter for any taxable year for which payment is received on such obligation shall be increased by the amount of interest determined in the manner provided under subparagraph (B).
The amount of interest referred to in subparagraph (A) for any taxable year shall be determined—
(I) on the amount of the tax for such taxable year which is attributable to the payments received during such taxable year on installment obligations to which this subsection applies,
(II) for the period beginning on the date of sale, and ending on the date such payment is received, and
(III) by using the applicable Federal rate under section 1274 (without regard to subsection (d)(2) thereof) in effect at the time of the sale compounded semiannually.
For purposes of clause (i), the portion of any tax attributable to the receipt of any payment shall be determined without regard to any interest imposed under subparagraph (A).
No interest shall be determined for any payment received in the taxable year of the disposition from which the installment obligation arises.
Any amount payable under this paragraph shall be taken into account in computing the amount of any deduction allowable to the taxpayer for interest paid or accrued during such taxable year.
(Added
A prior section 453, acts Aug. 16, 1954, ch. 736,
2004—Subsec. (f)(4)(B).
2000—Subsecs. (a), (d)(1), (i)(1), (k).
1999—Subsec. (a).
Subsecs. (d)(1), (i)(1), (k).
1988—Subsec. (f)(1).
Subsec. (f)(8).
Subsec. (g)(1).
"(A) subsection (a) shall not apply, and
"(B) for purposes of this title—
"(i) except as provided in clause (ii), all payments to be received shall be treated as received in the year of the disposition, and
"(ii) in the case of any payments which are contingent as to amount but with respect to which the fair market value may not be reasonably ascertained—
"(I) the basis shall be recovered ratably, and
"(II) the purchaser may not increase the basis of any property acquired in such sale by any amount before such time as the seller includes such amount in income."
Subsec. (g)(3).
Subsec. (h)(1)(B).
Subsec. (h)(1)(E).
Subsec. (j).
Subsec. (k).
Subsec. (l)(1)(A).
1987—Subsec. (b)(2)(A).
Subsec. (l).
1986—Subsec. (f)(1).
Subsec. (f)(8).
Subsec. (g).
Subsec. (g)(1).
Subsec. (h).
Subsec. (h)(1)(A).
Subsec. (h)(1)(B).
Subsec. (h)(1)(E).
Subsec. (i)(2).
Subsec. (j).
1984—Subsec. (g).
Subsec. (h)(1)(C).
Subsec. (i).
1983—Subsec. (f)(6)(C).
1981—Subsecs. (i), (j).
"(a)
"(b)
Amendment by sections 1006(e)(7), (i)(1), (2), 1008(g)(1), and 1018(u)(25), (26) of
Amendment by section 2004(d)(1), (5) of
"(1)
"(2)
"(A)
"(B)
"(i)
"(ii)
"(I) such change shall be treated as initiated by the taxpayer,
"(II) such change shall be treated as made with the consent of the Secretary of the Treasury or his delegate, and
"(III) the net amount of adjustments required by section 481 of the Internal Revenue Code of 1986 shall be taken into account over a period not longer than 4 taxable years.
"(C)
"(3)
"(A)
"(B)
"(i)
"(ii)
"(C)
"(i) dispositions after August 16, 1986, and before the 1st day of such taxable year shall be treated as made on such 1st day, and
"(ii) subsections (b)(2)(B) and (c)(4) of section 453A of such Code shall be applied separately with respect to such dispositions by substituting for '$5,000,000' the amount which bears the same ratio to $5,000,000 as the number of days after August 16, 1986, and before such 1st day bears to 365.
"(4)
"(5)
Amendment by section 631(e)(8) of
Amendment by section 642(a)(1)(D), (3), (b) of
"(1)
"(2)
"(3)
"(A) such change shall be treated as initiated by the taxpayer,
"(B) such change shall be treated as having been made with the consent of the Secretary,
"(C) the period for taking into account adjustments under section 481 of such Code by reason of such change shall be equal to 4 years, and
"(D) except as provided in paragraph (4), the amount taken into account in each of such 4 years shall be the applicable percentage (determined in accordance with the following table) of the net adjustment:
| "In the case of the: | The applicable percentage is: |
|---|---|
| 1st taxable year | 15 |
| 2nd taxable year | 25 |
| 3rd taxable year | 30 |
| 4th taxable year | 30. |
If the taxpayer's last taxable year beginning before January 1, 1987, was the taxpayer's 1st taxable year in which sales were made under a revolving credit plan, all adjustments under section 481 of such Code shall be taken into account in the taxpayer's 1st taxable year beginning after December 31, 1986.
"(4)
"(A)
"(i) the percentage determined under subparagraph (B) shall be substituted for the applicable percentage which would otherwise apply under paragraph (3)(D), and
"(ii) any increase in the applicable percentage by reason of clause (i) shall be applied to reduce the applicable percentage determined under paragraph (3)(D) for subsequent taxable years in the adjustment period (beginning with the 1st of such subsequent taxable years).
"(B)
"(i) the percentage determined by dividing the aggregate contraction in revolving installment obligations by the aggregate face amount of such obligations outstanding as of the close of the taxpayer's last taxable year beginning before January 1, 1987, over
"(ii) the sum of the applicable percentages under paragraph (3)(D) (as modified by this paragraph) for prior taxable years in the adjustment period.
"(C)
"(i) the aggregate face amount of the revolving installment obligations outstanding as of the close of the taxpayer's last taxable year beginning before January 1, 1987, exceeds
"(ii) the aggregate face amount of the revolving installment obligations outstanding as of the close of the taxable year involved.
"(D)
"(E)
"(i) which was disposed of to an unrelated person on or before October 26, 1987, or
"(ii) was disposed of to an unrelated person on or after such date pursuant to a binding written contract in effect on October 26, 1987, and at all times thereafter before such disposition.
For purposes of the preceding sentence, the term 'unrelated person' means any person who is not a related person (as defined in section 453(g) of the Internal Revenue Code of 1986).
"(5)
"(A) no losses from such dispositions shall be recognized, and
"(B) the aggregate amount of the adjustment for taxable years in the adjustment period (in reverse order of time) shall be reduced by the amount of such losses.
"(6)
Amendment by section 1809(c) of
"(1)
"(2)
"(3)
Amendment by section 421(b)(6)(B), (C) of
Amendment by
"(1)
"(2)
"(3)
"(4)
"(5)
"(6)
"(7)
"(A) paragraph (2) of such section 453(b), and
"(B) any requirement that more than 1 payment be received."
For provisions directing that if any amendments made by subtitle A or subtitle C of title XI [§§1101–1147 and 1171–1177] or title XVIII [§§1800–1899A] of
In the case of an installment obligation to which this section applies—
(1) interest shall be paid on the deferred tax liability with respect to such obligation in the manner provided under subsection (c), and
(2) the pledging rules under subsection (d) shall apply.
This section shall apply to any obligation which arises from the disposition of any property under the installment method, but only if the sales price of such property exceeds $150,000.
For purposes of subsection (a)(1), this section shall apply to an obligation described in paragraph (1) arising during a taxable year only if—
(A) such obligation is outstanding as of the close of such taxable year, and
(B) the face amount of all such obligations held by the taxpayer which arose during, and are outstanding as of the close of, such taxable year exceeds $5,000,000.
Except as provided in regulations, all persons treated as a single employer under subsection (a) or (b) of section 52 shall be treated as one person for purposes of this paragraph and subsection (c)(4).
An installment obligation shall not be treated as described in paragraph (1) if it arises from the disposition—
(A) by an individual of personal use property (within the meaning of section 1275(b)(3)), or
(B) of any property used or produced in the trade or business of farming (within the meaning of section 2032A(e)(4) or (5)).
An installment obligation shall not be treated as described in paragraph (1) if it arises from a disposition described in section 453(l)(2)(B), but the provisions of section 453(l)(3) (relating to interest payments on timeshares and residential lots) shall apply to such obligation.
For purposes of paragraph (1), all sales or exchanges which are part of the same transaction (or a series of related transactions) shall be treated as 1 sale or exchange.
If an obligation to which this section applies is outstanding as of the close of any taxable year, the tax imposed by this chapter for such taxable year shall be increased by the amount of interest determined in the manner provided under paragraph (2).
For purposes of paragraph (1), the interest for any taxable year shall be an amount equal to the product of—
(A) the applicable percentage of the deferred tax liability with respect to such obligation, multiplied by
(B) the underpayment rate in effect under section 6621(a)(2) for the month with or within which the taxable year ends.
For purposes of this section, the term "deferred tax liability" means, with respect to any taxable year, the product of—
(A) the amount of gain with respect to an obligation which has not been recognized as of the close of such taxable year, multiplied by
(B) the maximum rate of tax in effect under section 1 or 11, whichever is appropriate, for such taxable year.
For purposes of applying the preceding sentence with respect to so much of the gain which, when recognized, will be treated as long-term capital gain, the maximum rate on net capital gain under section 1(h) shall be taken into account.
For purposes of this subsection, the term "applicable percentage" means, with respect to obligations arising in any taxable year, the percentage determined by dividing—
(A) the portion of the aggregate face amount of such obligations outstanding as of the close of such taxable year in excess of $5,000,000, by
(B) the aggregate face amount of such obligations outstanding as of the close of such taxable year.
Any amount payable under this subsection shall be taken into account in computing the amount of any deduction allowable to the taxpayer for interest paid or accrued during the taxable year.
The Secretary shall prescribe such regulations as may be necessary to carry out the provisions of this subsection including regulations providing for the application of this subsection in the case of contingent payments, short taxable years, and pass-thru entities.
For purposes of section 453, if any indebtedness (hereinafter in this subsection referred to as "secured indebtedness") is secured by an installment obligation to which this section applies, the net proceeds of the secured indebtedness shall be treated as a payment received on such installment obligation as of the later of—
(A) the time the indebtedness becomes secured indebtedness, or
(B) the time the proceeds of such indebtedness are received by the taxpayer.
The amount treated as received under paragraph (1) by reason of any secured indebtedness shall not exceed the excess (if any) of—
(A) the total contract price, over
(B) any portion of the total contract price received under the contract before the later of the times referred to in subparagraph (A) or (B) of paragraph (1) (including amounts previously treated as received under paragraph (1) but not including amounts not taken into account by reason of paragraph (3)).
If any amount is treated as received under paragraph (1) with respect to any installment obligation, subsequent payments received on such obligation shall not be taken into account for purposes of section 453 to the extent that the aggregate of such subsequent payments does not exceed the aggregate amount treated as received under paragraph (1).
For purposes of this subsection indebtedness is secured by an installment obligation to the extent that payment of principal or interest on such indebtedness is directly secured (under the terms of the indebtedness or any underlying arrangements) by any interest in such installment obligation. A payment shall be treated as directly secured by an interest in an installment obligation to the extent an arrangement allows the taxpayer to satisfy all or a portion of the indebtedness with the installment obligation.
The Secretary shall prescribe such regulations as may be necessary to carry out the purposes of this section, including regulations—
(1) disallowing the use of the installment method in whole or in part for transactions in which the rules of this section otherwise would be avoided through the use of related persons, pass-thru entities, or intermediaries, and
(2) providing that the sale of an interest in a partnership or other pass-thru entity will be treated as a sale of the proportionate share of the assets of the partnership or other entity.
(Added
Provisions similar to those comprising this section were contained in former
2017—Subsec. (c)(3).
1999—Subsec. (d)(4).
1993—Subsec. (c)(3).
1989—Subsec. (b)(2)(B).
Subsec. (b)(3).
Subsec. (c)(5), (6).
Subsec. (d)(1)(B).
Subsec. (d)(2)(B).
1988—
Subsec. (b)(1).
Subsec. (b)(2).
Subsec. (b)(3).
"(A) by an individual of personal use property (within the meaning of section 1275(b)(3)), or
"(B) of any property used or produced in the trade or business of farming (within the meaning of section 2032A(e)(4) or (5))."
Subsec. (c).
Subsec. (e).
1987—
1986—Subsec. (a)(2).
Subsec. (c).
Amendment by
Amendment by
Amendment by
Amendment by sections 7812(c)(2) and 7815(g) of
Amendment by section 7821(a)(1)–(3), (4)(B) of
Amendment by section 1008(g)(2) of
Amendment by section 2004(d)(2), (7), (8) of
"(1)
"(2)
"(A) such sale is pursuant to a written binding contract in effect on October 21, 1988, and at all times thereafter before such sale,
"(B) such sale is pursuant to a letter of intent in effect on October 21, 1988, or
"(C) there is a board of directors or shareholder approval for such sale on or before October 21, 1988."
Amendment by
For effective date, see section 6(a)(4) of
"(a)
"(b)
"(c)
"(1) a refinancing is attributable to the calling of indebtedness by the creditor, and
"(2) such refinancing is not with the creditor under the refinanced indebtedness or a person related to such creditor,
such refinancing shall, to the extent the refinanced indebtedness qualifies under subsections (a) and (b), be treated as a continuation of such refinanced indebtedness."
For provisions requiring change in accounting method in the case of any taxpayer who made sales under revolving credit plan and was on installment method under this section for such taxpayer's last taxable year beginning before Jan. 1, 1987, see section 812(c)(2) of
If an installment obligation is satisfied at other than its face value or distributed, transmitted, sold, or otherwise disposed of, gain or loss shall result to the extent of the difference between the basis of the obligation and—
(1) the amount realized, in the case of satisfaction at other than face value or a sale or exchange, or
(2) the fair market value of the obligation at the time of distribution, transmission, or disposition, in the case of the distribution, transmission, or disposition otherwise than by sale or exchange.
any gain or loss so resulting shall be considered as resulting from the sale or exchange of the property in respect of which the installment obligation was received.
The basis of an installment obligation shall be the excess of the face value of the obligation over an amount equal to the income which would be returnable were the obligation satisfied in full.
Except as provided in section 691 (relating to recipients of income in respect of decedents), this section shall not apply to the transmission of installment obligations at death.
Subsection (a) shall not apply to any distribution to which section 337(a) applies.
In the case of a disposition of an installment obligation by any person other than a life insurance company (as defined in section 816(a)) to such an insurance company or to a partnership of which such an insurance company is a partner, no provision of this subtitle providing for the nonrecognition of gain shall apply with respect to any gain resulting under subsection (a). If a corporation which is a life insurance company for the taxable year was (for the preceding taxable year) a corporation which was not a life insurance company, such corporation shall, for purposes of this subsection and subsection (a), be treated as having transferred to a life insurance company, on the last day of the preceding taxable year, all installment obligations which it held on such last day. A partnership of which a life insurance company becomes a partner shall, for purposes of this subsection and subsection (a), be treated as having transferred to a life insurance company, on the last day of the preceding taxable year of such partnership, all installment obligations which it holds at the time such insurance company becomes a partner.
Paragraph (1) shall not apply to any transfer or deemed transfer of an installment obligation if the life insurance company elects (at such time and in such manner as the Secretary may by regulations prescribe) to determine its life insurance company taxable income—
(A) by returning the income on such installment obligation under the installment method prescribed in section 453, and
(B) as if such income were an item attributable to a noninsurance business.
For purposes of this subsection, the term "noninsurance business" means any activity which is not an insurance business.
For purposes of subparagraph (A), any activity which is not an insurance business shall be treated as an insurance business if—
(i) it is of a type traditionally carried on by life insurance companies for investment purposes, but only if the carrying on of such activity (other than in the case of real estate) does not constitute the active conduct of a trade or business, or
(ii) it involves the performance of administrative services in connection with plans providing life insurance, pension, or accident and health benefits.
For purposes of this section, if any installment obligation is canceled or otherwise becomes unenforceable—
(1) the obligation shall be treated as if it were disposed of in a transaction other than a sale or exchange, and
(2) if the obligor and obligee are related persons (within the meaning of section 453(f)(1)), the fair market value of the obligation shall be treated as not less than its face amount.
In the case of any transfer described in subsection (a) of section 1041 (other than a transfer in trust)—
(1) subsection (a) of this section shall not apply, and
(2) the same tax treatment with respect to the transferred installment obligation shall apply to the transferee as would have applied to the transferor.
If—
(1) an installment obligation is distributed by an S corporation in a complete liquidation, and
(2) receipt of the obligation is not treated as payment for the stock by reason of section 453(h)(1),
then, except for purposes of any tax imposed by subchapter S, no gain or loss with respect to the distribution of the obligation shall be recognized by the distributing corporation. Under regulations prescribed by the Secretary, the character of the gain or loss to the shareholder shall be determined in accordance with the principles of section 1366(b).
(Added
Provisions similar to those comprising this section were contained in former
2018—
2017—Subsec. (e)(2)(B).
Subsec. (e)(3).
1990—Subsec. (d).
"(1) an installment obligation is distributed in a liquidation to which section 332 (relating to complete liquidations of subsidiaries) applies, and
"(2) the basis of such obligation in the hands of the distributee is determined under section 334(b)(1),
then no gain or loss with respect to the distribution of such obligation shall be recognized by the distributing corporation."
1988—Subsec. (h).
1986—Subsec. (d).
Subsec. (e)(2)(B).
Subsec. (g).
1984—Subsec. (d)(2).
Subsec. (e)(1).
Subsec. (e)(2).
Subsec. (g).
1983—Subsec. (d)(2).
1980—Subsec. (d).
Amendment by
Amendment by
Amendment by section 631(e)(9) of
Amendment by section 1842(c) of
Amendment by section 43(c)(2) of
Amendment by section 211(b)(6) of
Amendment by section 421(b)(3) of
Amendment by section 492(b)(3) of
Amendment by
For effective date of amendment by
For effective date, see section 6(a)(1), (5) of
"(a)
"(b)
For provisions directing that if any amendments made by subtitle A or subtitle C of title XI [§§1101–1147 and 1171–1177] or title XVIII [§§1800–1899A] of
Section, added
Repeal applicable to dispositions in taxable years beginning after Dec. 31, 1987, with special rules for dealers and non-dealers, and coordination with Tax Reform Act of 1986, see section 10202(e)(1)–(3), (5) of
"(1)
"[(2) Repealed.
"(3)
"(A) 125/8 percent subordinated debentures with a total face amount of $175,000,000 issued pursuant to a trust indenture dated as of September 1, 1985.
"(B) A revolving credit term loan in the maximum amount of $130,000,000 made pursuant to a revolving credit and security agreement dated as of September 6, 1985, payable in various stages with final payment due on August 31, 1992.
This paragraph shall also apply to indebtedness which replaces indebtedness described in this paragraph if such indebtedness does not exceed the amount and maturity of the indebtedness it replaces.
"(4)
"(A) for which a contract to purchase land for the project was entered into at least 5 years before the date of the enactment of this Act,
"(B) with respect to which land for the project was purchased before September 26, 1985,
"(C) with respect to which building permits for the project were obtained, and construction commenced, before September 26, 1985,
"(D) in conjunction with which not less than 80 units of low-income housing are deeded to a tax-exempt organization designated by a local government, and
"(E) with respect to which at least $1,000,000 of expenses were incurred before September 26, 1985.
"(5)
"(A) such corporation was incorporated on May 25, 1984, for the purpose of acquiring all of the stock of another corporation,
"(B) such acquisition took place on October 23, 1984,
"(C) in connection with such acquisition, the corporation incurred indebtedness of approximately $151,000,000, and
"(D) substantially all of the stock of the corporation is owned directly or indirectly by employees of the corporation the stock of which was acquired on October 23, 1984.
"(6)
"(A) in the 1st taxable year of the taxpayer ending after December 31, 1986, shall be taken into account ratably over the 3 taxable years beginning with such 1st taxable year, and
"(B) in the 2nd taxable year of the taxpayer ending after December 31, 1986, shall be taken into account ratably over the 2 taxable years beginning with such 2nd taxable year.
"(7)
"(A) any increase in tax imposed by
"(B) any increase in tax imposed by such
"(8)
"(A) such note agreement was executed pursuant to an agreement of purchase and sale dated April 25, 1980,
"(B) more than ½ of the installment payments of the aggregate principal of such notes have been received by August 29, 1986, and
"(C) the last installment payment of the principal of such notes is due August 29, 1989,
shall be taxed at a rate of 28 percent.
"(9)
"(A)
"(B)
[
["(1)
["(2)
["(A) such changes shall be treated as initiated by the taxpayer,
["(B) such changes shall be treated as made with the consent of the Secretary of the Treasury, and
["(C) the net amount of the adjustments required to be taken into account under section 481(a) of the Internal Revenue Code of 1986 shall be taken into account ratably over the 4 taxable year period beginning with the first taxable year beginning more than 1 year after the date of the enactment of this Act."]
If, in the case of a taxpayer owning any non-interest-bearing obligation issued at a discount and redeemable for fixed amounts increasing at stated intervals or owning an obligation described in paragraph (2) of subsection (c), the increase in the redemption price of such obligation occurring in the taxable year does not (under the method of accounting used in computing his taxable income) constitute income to him in such year, such taxpayer may, at his election made in his return for any taxable year, treat such increase as income received in such taxable year. If any such election is made with respect to any such obligation, it shall apply also to all such obligations owned by the taxpayer at the beginning of the first taxable year to which it applies and to all such obligations thereafter acquired by him and shall be binding for all subsequent taxable years, unless on application by the taxpayer the Secretary permits him, subject to such conditions as the Secretary deems necessary, to change to a different method. In the case of any such obligations owned by the taxpayer at the beginning of the first taxable year to which his election applies, the increase in the redemption price of such obligations occurring between the date of acquisition (or, in the case of an obligation described in paragraph (2) of subsection (c), the date of acquisition of the series E bond involved) and the first day of such taxable year shall also be treated as income received in such taxable year.
In the case of any obligation—
(1) of the United States; or
(2) of a State or a possession of the United States, or any political subdivision of any of the foregoing, or of the District of Columbia,
which is issued on a discount basis and payable without interest at a fixed maturity date not exceeding 1 year from the date of issue, the amount of discount at which such obligation is originally sold shall not be considered to accrue until the date on which such obligation is paid at maturity, sold, or otherwise disposed of.
In the case of a taxpayer who—
(1) holds a series E United States savings bond at the date of maturity, and
(2) pursuant to regulations prescribed under
the increase in redemption value (to the extent not previously includible in gross income) in excess of the amount paid for such series E bond shall be includible in gross income in the taxable year in which the obligation is finally redeemed or in the taxable year of final maturity, whichever is earlier. This subsection shall not apply to a corporation, and shall not apply in the case of any taxable year for which the taxpayer's taxable income is computed under an accrual method of accounting or for which an election made by the taxpayer under subsection (a) applies.
(Aug. 16, 1954, ch. 736,
1983—Subsec. (c)(2).
1976—Subsec. (a).
Subsec. (b)(2).
1959—Subsec. (c)(2).
Prepaid subscription income to which this section applies shall be included in gross income for the taxable years during which the liability described in subsection (d)(2) exists.
In the case of any prepaid subscription income to which this section applies—
(1) If the liability described in subsection (d)(2) ends, then so much of such income as was not includible in gross income under subsection (a) for preceding taxable years shall be included in gross income for the taxable year in which the liability ends.
(2) If the taxpayer dies or ceases to exist, then so much of such income as was not includible in gross income under subsection (a) for preceding taxable years shall be included in gross income for the taxable year in which such death, or such cessation of existence, occurs.
This section shall apply to prepaid subscription income if and only if the taxpayer makes an election under this section with respect to the trade or business in connection with which such income is received. The election shall be made in such manner as the Secretary may by regulations prescribe. No election may be made with respect to a trade or business if in computing taxable income the cash receipts and disbursements method of accounting is used with respect to such trade or business.
An election made under this section shall apply to all prepaid subscription income received in connection with the trade or business with respect to which the taxpayer has made the election; except that the taxpayer may, to the extent permitted under regulations prescribed by the Secretary, include in gross income for the taxable year of receipt the entire amount of any prepaid subscription income if the liability from which it arose is to end within 12 months after the date of receipt. An election made under this section shall not apply to any prepaid subscription income received before the first taxable year for which the election is made.
A taxpayer may, with the consent of the Secretary, make an election under this section at any time.
A taxpayer may, without the consent of the Secretary, make an election under this section for his first taxable year in which he receives prepaid subscription income in the trade or business. Such election shall be made not later than the time prescribed by law for filing the return for the taxable year (including extensions thereof) with respect to which such election is made.
An election under this section shall be effective for the taxable year with respect to which it is first made and for all subsequent taxable years, unless the taxpayer secures the consent of the Secretary to the revocation of such election. For purposes of this title, the computation of taxable income under an election made under this section shall be treated as a method of accounting.
For purposes of this section—
The term "prepaid subscription income" means any amount (includible in gross income) which is received in connection with, and is directly attributable to, a liability which extends beyond the close of the taxable year in which such amount is received, and which is income from a subscription to a newspaper, magazine, or other periodical.
The term "liability" means a liability to furnish or deliver a newspaper, magazine, or other periodical.
Prepaid subscription income shall be treated as received during the taxable year for which it is includible in gross income under section 451 (without regard to this section).
Notwithstanding the provisions of this section, any taxpayer who has, for taxable years prior to the first taxable year to which this section applies, reported his income under an established and consistent method or practice of accounting for prepaid subscription income (to which this section would apply if an election were made) may continue to report his income for taxable years to which this title applies in accordance with such method or practice.
(Added
1976—Subsec. (c).
Subsec. (c)(3)(B).
Amendment by section 1901(a)(67) of
Prepaid dues income to which this section applies shall be included in gross income for the taxable years during which the liability described in subsection (e)(2) exists.
In the case of any prepaid dues income to which this section applies—
(1) If the liability described in subsection (e)(2) ends, then so much of such income as was not includible in gross income under subsection (a) for preceding taxable years shall be included in gross income for the taxable year in which the liability ends.
(2) If the taxpayer ceases to exist, then so much of such income as was not includible in gross income under subsection (a) for preceding taxable years shall be included in gross income for the taxable year in which such cessation of existence occurs.
This section shall apply to prepaid dues income if and only if the taxpayer makes an election under this section with respect to the trade or business in connection with which such income is received. The election shall be made in such manner as the Secretary may by regulations prescribe. No election may be made with respect to a trade or business if in computing taxable income the cash receipts and disbursements method of accounting is used with respect to such trade or business.
An election made under this section shall apply to all prepaid dues income received in connection with the trade or business with respect to which the taxpayer has made the election; except that the taxpayer may, to the extent permitted under regulations prescribed by the Secretary, include in gross income for the taxable year of receipt the entire amount of any prepaid dues income if the liability from which it arose is to end within 12 months after the date of receipt. Except as provided in subsection (d), and election made under this section shall not apply to any prepaid dues income received before the first taxable year for which the election is made.
A taxpayer may, with the consent of the Secretary, make an election under this section at any time.
A taxpayer may, without the consent of the Secretary, make an election under this section for its first taxable year in which it receives prepaid dues income in the trade or business. Such election shall be made not later than the time prescribed by law for filing the return for the taxable year (including extensions thereof) with respect to which such election is made.
An election under this section shall be effective for the taxable year with respect to which it is first made and for all subsequent taxable years, unless the taxpayer secures the consent of the Secretary to the revocation of such election. For purposes of this title, the computation of taxable income under an election made under this section shall be treated as a method of accounting.
If a taxpayer makes an election under this section with respect to prepaid dues income, such taxpayer shall include in gross income, for each taxable year to which such election applies, not only that portion of prepaid dues income received in such year otherwise includible in gross income for such year under this section, but shall also include in gross income for such year an additional amount equal to the amount of prepaid dues income received in the 3 taxable years preceding the first taxable year to which such election applies which would have been included in gross income in the taxable year had the election been effective 3 years earlier.
A taxpayer who makes an election with respect to prepaid dues income, and who includes in gross income for any taxable year to which the election applies an additional amount computed under paragraph (1), shall be permitted to deduct, for such taxable year and for each of the 4 succeeding taxable years, an amount equal to one-fifth of such additional amount, but only to the extent that such additional amount was also included in the taxpayer's gross income during any of the 3 taxable years preceding the first taxable year to which such election applies.
For purposes of this section—
The term "prepaid dues income" means any amount (includible in gross income) which is received by a membership organization in connection with, and is directly attributable to, a liability to render services or make available membership privileges over a period of time which extends beyond the close of the taxable year in which such amount is received.
The term "liability" means a liability to render services or make available membership privileges over a period of time which does not exceed 36 months, which liability shall be deemed to exist ratably over the period of time that such services are required to be rendered, or that such membership privileges are required to be made available.
The term "membership organization" means a corporation, association, federation, or other organization—
(A) organized without capital stock of any kind, and
(B) no part of the net earnings of which is distributable to any member.
Prepaid dues income shall be treated as received during the taxable year for which it is includible in gross income under section 451 (without regard to this section).
(Added
1976—Subsec. (c).
Subsec. (c)(3)(B).
Amendment by section 1901(a)(68) of
Any amount of compensation deferred under an eligible deferred compensation plan, and any income attributable to the amounts so deferred, shall be includible in gross income only for the taxable year in which such compensation or other income—
(A) is paid to the participant or other beneficiary, in the case of a plan of an eligible employer described in subsection (e)(1)(A), and
(B) is paid or otherwise made available to the participant or other beneficiary, in the case of a plan of an eligible employer described in subsection (e)(1)(B).
To the extent provided in section 72(t)(9), section 72(t) shall apply to any amount includible in gross income under this subsection.
In the case of a plan of an eligible employer described in subsection (e)(1)(A), to the extent provided in section 402(l), paragraph (1) shall not apply to amounts otherwise includible in gross income under this subsection.
For purposes of this section, the term "eligible deferred compensation plan" means a plan established and maintained by an eligible employer—
(1) in which only individuals who perform service for the employer may be participants,
(2) which provides that (except as provided in paragraph (3)) the maximum amount which may be deferred under the plan for the taxable year (other than rollover amounts) shall not exceed the lesser of—
(A) the applicable dollar amount, or
(B) 100 percent of the participant's includible compensation,
(3) which may provide that, for 1 or more of the participant's last 3 taxable years ending before he attains normal retirement age under the plan, the ceiling set forth in paragraph (2) shall be the lesser of—
(A) twice the dollar amount in effect under subsection (b)(2)(A), or
(B) the sum of—
(i) the plan ceiling established for purposes of paragraph (2) for the taxable year (determined without regard to this paragraph), plus
(ii) so much of the plan ceiling established for purposes of paragraph (2) for taxable years before the taxable year as has not previously been used under paragraph (2) or this paragraph,
(4) which provides that compensation will be deferred for any calendar month only if an agreement providing for such deferral has been entered into before the beginning of such month,
(5) which meets the distribution requirements of subsection (d), and
(6) except as provided in subsection (g), which provides that—
(A) all amounts of compensation deferred under the plan,
(B) all property and rights purchased with such amounts, and
(C) all income attributable to such amounts, property, or rights,
shall remain (until made available to the participant or other beneficiary) solely the property and rights of the employer (without being restricted to the provision of benefits under the plan), subject only to the claims of the employer's general creditors.
A plan which is established and maintained by an employer which is described in subsection (e)(1)(A) and which is administered in a manner which is inconsistent with the requirements of any of the preceding paragraphs shall be treated as not meeting the requirements of such paragraph as of the 1st plan year beginning more than 180 days after the date of notification by the Secretary of the inconsistency unless the employer corrects the inconsistency before the 1st day of such plan year.
The maximum amount of the compensation of any one individual which may be deferred under subsection (a) during any taxable year shall not exceed the amount in effect under subsection (b)(2)(A) (as modified by any adjustment provided under subsection (b)(3)).
For purposes of subsection (b)(5), a plan meets the distribution requirements of this subsection if—
(A) under the plan amounts will not be made available to participants or beneficiaries earlier than—
(i) the calendar year in which the participant attains age 70½ (in the case of a plan maintained by an employer described in subsection (e)(1)(A), age 59½),
(ii) when the participant has a severance from employment with the employer,
(iii) when the participant is faced with an unforeseeable emergency (determined in the manner prescribed by the Secretary in regulations), or
(iv) except as may be otherwise provided by regulations, in the case of a plan maintained by an employer described in subsection (e)(1)(A), with respect to amounts invested in a lifetime income investment (as defined in section 401(a)(38)(B)(ii)), the date that is 90 days prior to the date that such lifetime income investment may no longer be held as an investment option under the plan,
(B) the plan meets the minimum distribution requirements of paragraph (2),
(C) in the case of a plan maintained by an employer described in subsection (e)(1)(A), the plan meets requirements similar to the requirements of section 401(a)(31), and
(D) except as may be otherwise provided by regulations, in the case of amounts described in subparagraph (A)(iv), such amounts will be distributed only in the form of a qualified distribution (as defined in section 401(a)(38)(B)(i)) or a qualified plan distribution annuity contract (as defined in section 401(a)(38)(B)(iv)).
Any amount transferred in a direct trustee-to-trustee transfer in accordance with section 401(a)(31) shall not be includible in gross income for the taxable year of transfer.
A plan meets the minimum distribution requirements of this paragraph if such plan meets the requirements of section 401(a)(9).
An eligible deferred compensation plan of an employer described in subsection (e)(1)(A) shall not be treated as failing to meet the requirements of this subsection solely by reason of making a distribution described in subsection (e)(9)(A).
For purposes of this section—
The term "eligible employer" means—
(A) a State, political subdivision of a State, and any agency or instrumentality of a State or political subdivision of a State, and
(B) any other organization (other than a governmental unit) exempt from tax under this subtitle.
The performance of service includes performance of service as an independent contractor and the person (or governmental unit) for whom such services are performed shall be treated as the employer.
The term "participant" means an individual who is eligible to defer compensation under the plan.
The term "beneficiary" means a beneficiary of the participant, his estate, or any other person whose interest in the plan is derived from the participant.
The term "includible compensation" has the meaning given to the term "participant's compensation" by section 415(c)(3).
Compensation shall be taken into account at its present value.
The amount of includible compensation shall be determined without regard to any community property laws.
Gains from the disposition of property shall be treated as income attributable to such property.
In the case of an eligible deferred compensation plan of an employer described in subsection (e)(1)(B)—
The total amount payable to a participant under the plan shall not be treated as made available merely because the participant may elect to receive such amount (or the plan may distribute such amount without the participant's consent) if—
(i) the portion of such amount which is not attributable to rollover contributions (as defined in section 411(a)(11)(D)) does not exceed the dollar limit under section 411(a)(11)(A), and
(ii) such amount may be distributed only if—
(I) no amount has been deferred under the plan with respect to such participant during the 2-year period ending on the date of the distribution, and
(II) there has been no prior distribution under the plan to such participant to which this subparagraph applied.
A plan shall not be treated as failing to meet the distribution requirements of subsection (d) by reason of a distribution to which this subparagraph applies.
The total amount payable to a participant under the plan shall not be treated as made available merely because the participant may elect to defer commencement of distributions under the plan if—
(i) such election is made after amounts may be available under the plan in accordance with subsection (d)(1)(A) and before commencement of such distributions, and
(ii) the participant may make only 1 such election.
A participant shall not be required to include in gross income any portion of the entire amount payable to such participant solely by reason of the transfer of such portion from 1 eligible deferred compensation plan to another eligible deferred compensation plan.
The following plans shall be treated as not providing for the deferral of compensation:
(i) Any bona fide vacation leave, sick leave, compensatory time, severance pay, disability pay, or death benefit plan.
(ii) Any plan paying solely length of service awards to bona fide volunteers (or their beneficiaries) on account of qualified services performed by such volunteers.
An individual shall be treated as a bona fide volunteer for purposes of subparagraph (A)(ii) if the only compensation received by such individual for performing qualified services is in the form of—
(I) reimbursement for (or a reasonable allowance for) reasonable expenses incurred in the performance of such services, or
(II) reasonable benefits (including length of service awards), and nominal fees for such services, customarily paid by eligible employers in connection with the performance of such services by volunteers.
A plan shall not be treated as described in subparagraph (A)(ii) if the aggregate amount of length of service awards accruing with respect to any year of service for any bona fide volunteer exceeds $6,000.
In the case of taxable years beginning after December 31, 2017, the Secretary shall adjust the $6,000 amount under clause (ii) at the same time and in the same manner as under section 415(d), except that the base period shall be the calendar quarter beginning July 1, 2016, and any increase under this paragraph that is not a multiple of $500 shall be rounded to the next lowest multiple of $500.
In the case of a plan described in subparagraph (A)(ii) which is a defined benefit plan (as defined in section 414(j)), the limitation under clause (ii) shall apply to the actuarial present value of the aggregate amount of length of service awards accruing with respect to any year of service. Such actuarial present value with respect to any year shall be calculated using reasonable actuarial assumptions and methods, assuming payment will be made under the most valuable form of payment under the plan with payment commencing at the later of the earliest age at which unreduced benefits are payable under the plan or the participant's age at the time of the calculation.
For purposes of this paragraph, the term "qualified services" means fire fighting and prevention services, emergency medical services, and ambulance services.
If an applicable voluntary early retirement incentive plan—
(I) makes payments or supplements as an early retirement benefit, a retirement-type subsidy, or a benefit described in the last sentence of section 411(a)(9), and
(II) such payments or supplements are made in coordination with a defined benefit plan which is described in section 401(a) and includes a trust exempt from tax under section 501(a) and which is maintained by an eligible employer described in paragraph (1)(A) or by an education association described in clause (ii)(II),
such applicable plan shall be treated for purposes of subparagraph (A)(i) as a bona fide severance pay plan with respect to such payments or supplements to the extent such payments or supplements could otherwise have been provided under such defined benefit plan (determined as if section 411 applied to such defined benefit plan).
For purposes of this subparagraph, the term "applicable voluntary early retirement incentive plan" means a voluntary early retirement incentive plan maintained by—
(I) a local educational agency (as defined in section 8101 of the Elementary and Secondary Education Act of 1965), or
(II) an education association which principally represents employees of 1 or more agencies described in subclause (I) and which is described in section 501(c)(5) or (6) and exempt from tax under section 501(a).
This section shall not apply to nonelective deferred compensation attributable to services not performed as an employee.
For purposes of subparagraph (A), deferred compensation shall be treated as nonelective only if all individuals (other than those who have not satisfied any applicable initial service requirement) with the same relationship to the payor are covered under the same plan with no individual variations or options under the plan.
The term "eligible employer" shall not include a church (as defined in section 3121(w)(3)(A)) or qualified church-controlled organization (as defined in section 3121(w)(3)(B)).
Subsections (b)(2) and (c)(1) shall not apply to any qualified governmental excess benefit arrangement (as defined in section 415(m)(3)), and benefits provided under such an arrangement shall not be taken into account in determining whether any other plan is an eligible deferred compensation plan.
The applicable dollar amount is $15,000.
In the case of taxable years beginning after December 31, 2006, the Secretary shall adjust the $15,000 amount under subparagraph (A) at the same time and in the same manner as under section 415(d), except that the base period shall be the calendar quarter beginning July 1, 2005, and any increase under this paragraph which is not a multiple of $500 shall be rounded to the next lowest multiple of $500.
In the case of an eligible deferred compensation plan established and maintained by an employer described in subsection (e)(1)(A), if—
(i) any portion of the balance to the credit of an employee in such plan is paid to such employee in an eligible rollover distribution (within the meaning of section 402(c)(4)),
(ii) the employee transfers any portion of the property such employee receives in such distribution to an eligible retirement plan described in section 402(c)(8)(B), and
(iii) in the case of a distribution of property other than money, the amount so transferred consists of the property distributed,
then such distribution (to the extent so transferred) shall not be includible in gross income for the taxable year in which paid.
The rules of paragraphs (2) through (7), (9), and (11) of section 402(c) and section 402(f) shall apply for purposes of subparagraph (A).
Rollovers under this paragraph shall be reported to the Secretary in the same manner as rollovers from qualified retirement plans (as defined in section 4974(c)).
No amount shall be includible in gross income by reason of a direct trustee-to-trustee transfer to a defined benefit governmental plan (as defined in section 414(d)) if such transfer is—
(A) for the purchase of permissive service credit (as defined in section 415(n)(3)(A)) under such plan, or
(B) a repayment to which section 415 does not apply by reason of subsection (k)(3) thereof.
In the case of an individual who is an eligible participant (as defined by section 414(v)) and who is a participant in an eligible deferred compensation plan of an employer described in paragraph (1)(A), subsections (b)(3) and (c) shall be applied by substituting for the amount otherwise determined under the applicable subsection the greater of—
(A) the sum of—
(i) the plan ceiling established for purposes of subsection (b)(2) (without regard to subsection (b)(3)), plus
(ii) the applicable dollar amount for the taxable year determined under section 414(v)(2)(B)(i), or
(B) the amount determined under the applicable subsection (without regard to this paragraph).
In the case of a plan of an eligible employer providing for a deferral of compensation, if such plan is not an eligible deferred compensation plan, then—
(A) the compensation shall be included in the gross income of the participant or beneficiary for the 1st taxable year in which there is no substantial risk of forfeiture of the rights to such compensation, and
(B) the tax treatment of any amount made available under the plan to a participant or beneficiary shall be determined under section 72 (relating to annuities, etc.).
Paragraph (1) shall not apply to—
(A) a plan described in section 401(a) which includes a trust exempt from tax under section 501(a),
(B) an annuity plan or contract described in section 403,
(C) that portion of any plan which consists of a transfer of property described in section 83,
(D) that portion of any plan which consists of a trust to which section 402(b) applies,
(E) a qualified governmental excess benefit arrangement described in section 415(m), and
(F) that portion of any applicable employment retention plan described in paragraph (4) with respect to any participant.
For purposes of this subsection—
The term "plan" includes any agreement or arrangement.
The rights of a person to compensation are subject to a substantial risk of forfeiture if such person's rights to such compensation are conditioned upon the future performance of substantial services by any individual.
For purposes of paragraph (2)(F)—
The portion of an applicable employment retention plan described in this paragraph with respect to any participant is that portion of the plan which provides benefits payable to the participant not in excess of twice the applicable dollar limit determined under subsection (e)(15).
Paragraph (2)(F) shall only apply to the portion of the plan described in subparagraph (A) for years preceding the year in which such portion is paid or otherwise made available to the participant.
A plan shall not be treated for purposes of this title as providing for the deferral of compensation for any year with respect to the portion of the plan described in subparagraph (A).
The term "applicable employment retention plan" means an employment retention plan maintained by—
(i) a local educational agency (as defined in section 8101 of the Elementary and Secondary Education Act of 1965 (
(ii) an education association which principally represents employees of 1 or more agencies described in clause (i) and which is described in section 501(c)(5) or (6) and exempt from taxation under section 501(a).
The term "employment retention plan" means a plan to pay, upon termination of employment, compensation to an employee of a local educational agency or education association described in subparagraph (C) for purposes of—
(i) retaining the services of the employee, or
(ii) rewarding such employee for the employee's service with 1 or more such agencies or associations.
A plan maintained by an eligible employer described in subsection (e)(1)(A) shall not be treated as an eligible deferred compensation plan unless all assets and income of the plan described in subsection (b)(6) are held in trust for the exclusive benefit of participants and their beneficiaries.
For purposes of this title—
(A) a trust described in paragraph (1) shall be treated as an organization exempt from taxation under section 501(a), and
(B) notwithstanding any other provision of this title, amounts in the trust shall be includible in the gross income of participants and beneficiaries only to the extent, and at the time, provided in this section.
For purposes of this subsection, custodial accounts and contracts described in section 401(f) shall be treated as trusts under rules similar to the rules under section 401(f).
A plan described in paragraph (1) shall not be treated as an eligible deferred compensation plan unless such plan meets the requirements of section 401(a)(37).
(Added
For inflation adjustment of certain items in this section, see Internal Revenue Notices listed in a table under
Section 8101 of the Elementary and Secondary Education Act of 1965, referred to in subsec. (e)(11)(D)(ii)(I), is classified to
2019—Subsec. (d)(1)(A)(i).
Subsec. (d)(1)(A)(iv).
Subsec. (d)(1)(D).
2018—Subsec. (f)(4)(C)(i).
2017—Subsec. (e)(11)(B)(ii).
Subsec. (e)(11)(B)(iii).
Subsec. (e)(11)(B)(iv).
2015—Subsec. (e)(11)(D)(ii)(I).
2014—Subsec. (e)(15)(A).
2008—Subsec. (g)(4).
2006—Subsec. (a)(3).
Subsec. (e)(11)(D).
Subsec. (e)(16)(B).
Subsec. (f)(2)(F).
Subsec. (f)(4).
2002—Subsec. (e)(5).
Subsec. (e)(18).
2001—Subsec. (a).
Subsec. (b)(2).
Subsec. (b)(2)(A).
Subsec. (b)(2)(B).
Subsec. (b)(3)(A).
Subsec. (c).
Subsec. (c)(1).
Subsec. (c)(2).
Subsec. (d)(1).
Subsec. (d)(1)(A)(ii).
Subsec. (d)(2).
Subsec. (d)(3).
Subsec. (e)(9).
Subsec. (e)(9)(A)(i).
Subsec. (e)(15).
Subsec. (e)(16).
Subsec. (e)(17).
1997—Subsec. (e)(9)(A).
1996—Subsec. (b)(6).
Subsec. (c)(2)(B)(i).
Subsec. (e)(9).
"(A) the total amount payable to a participant under the plan does not exceed $3,500, and
"(B) no additional amounts may be deferred under the plan with respect to the participant,
the amount payable to the participant under the plan shall not be treated as made available merely because such participant may elect to receive a lump sum payable after separation from service and within 60 days of the election."
Subsec. (e)(11).
Subsec. (e)(14).
Subsec. (e)(15).
Subsec. (f)(2)(E).
Subsec. (g).
1992—Subsec. (c)(2)(B)(i).
1989—Subsec. (d)(1)(A)(iii).
Subsec. (d)(2)(B)(i)(I).
Subsec. (e)(13).
1988—Subsec. (c)(2).
Subsec. (d)(1)(A).
Subsec. (d)(2)(B)(i)(I).
Subsec. (d)(10).
Subsec. (d)(11).
"(A)
"(B)
Subsec. (e)(9).
Subsec. (e)(11).
Subsec. (e)(12).
Subsec. (e)(13).
1986—
1984—Subsec. (e)(2).
1980—Subsec. (d)(9)(B).
Amendment by section 104(b) of
Amendment by section 109(d) of
Amendment by
Amendment by
Amendment by
Amendment by section 829(a)(4) of
Amendment by section 845(b)(3) of
"(1)
"(2)
"(3) ERISA
"(4)
Amendment by
Amendment by section 611(d)(3)(B), (e) of
Amendment by section 641(a)(1)(A)–(C) of
Amendment by section 646(a)(3) of
Amendment by section 647(b) of
Amendment by section 648(b) of
Amendment by
Amendment by section 1421(b)(3)(C) of
Amendment by section 1444(b)(2), (3) of
"(1)
"(2)
Amendment by
Amendment by
Amendment by section 1011(e)(1), (2), (10) of
"(1)
"(2)
"(A)
"(B)
"(C)
"(3)
"(A) if such amounts were deferred from periods before July 14, 1988, or
"(B) if—
"(i) such amounts are deferred from periods on or after such date pursuant to an agreement which—
"(I) was in writing on such date, and
"(II) on such date provides for a deferral for each taxable year covered by the agreement of a fixed amount or of an amount determined pursuant to a fixed formula, and
"(ii) the individual with respect to whom the deferral is made was covered under such agreement on such date.
Subparagraph (B) shall not apply to any taxable year ending after the date on which any modification of the amount or formula described in subparagraph (B)(i)(II) agreed to in writing before January 1, 1989, is effective. The preceding sentence shall not apply to a modification agreed to in writing before January 1, 1989, which does not increase any benefit of a participant. Amounts described in the first sentence of this paragraph shall be taken into account for purposes of applying section 457 of the 1986 Code to other amounts deferred under any eligible deferred compensation plan.
"(4)
[The due date for the report on the study referred to in section 6064(d)(4) of
Amendment by section 6071(c) of
"(1)
"(2)
"(3)
"(A)
"(B)
"(i) were deferred from taxable years beginning before January 1, 1987, or
"(ii) are deferred from taxable years beginning after December 31, 1986, pursuant to an agreement which—
"(I) was in writing on August 16, 1986,
"(II) on such date provides for a deferral for each taxable year covered by the agreement of a fixed amount or of an amount determined pursuant to a fixed formula.
Clause (ii) shall not apply to any taxable year ending after the date on which any modification to the amount or formula described in subclause (II) is effective. Amounts described in the first sentence shall be taken into account for applying section 457 to other amounts deferred under any deferred compensation plan. This subparagraph shall only apply to individuals who were covered under the plan and agreement on August 16, 1986.
"(4)
"(5)
"(A) to employees on August 16, 1986, of a nonprofit corporation organized under the laws of the State of Alabama maintaining a deferred compensation plan with respect to which the Internal Revenue Service issued a ruling dated March 17, 1976, that the plan would not affect the tax-exempt status of the corporation, or
"(B) to to [sic] individuals eligible to participate on August 16, 1986, in a deferred compensation plan with respect to which a letter dated November 6, 1975, submitted the original plan to the Internal Revenue Service, an amendment was submitted on November 19, 1975, and the Internal Revenue Service responded with a letter dated December 24, 1975,
but only with respect to deferrals under such plan."
Amendment by
Amendment by
For provisions directing that if any amendments made by subtitle D [§§1401–1465] of title I of
For provisions directing that if any amendments made by subtitle B [§§521–523] of title V of
For provisions directing that if any amendments made by subtitle A or subtitle C of title XI [§§1100–1147 and 1171–1177] or title XVIII [§§1800–1899A] of
"(A)
"(i) any amount of compensation deferred under a plan of a State providing for a deferral of compensation (other than a plan described in section 457(e)(2) of the Internal Revenue Code of 1986 [formerly I.R.C. 1954]), and any income attributable to the amounts so deferred, shall be includible in gross income only for the taxable year in which such compensation or other income is paid or otherwise made available to the participant or other beneficiary, but
"(ii) the maximum amount of the compensation of any one individual which may be excluded from gross income by reason of clause (i) and by reason of section 457(a) of such Code during any such taxable year shall not exceed the lesser of—
"(I) $7,500, or
"(II) 331/3 percent of the participant's includible compensation.
"(B)
"(C)
"(D)
"(A)
"(B)
"(i) such plan has been continuously in existence since December 31, 1978,
"(ii) under such plan, all judges eligible to benefit under the plan—
"(I) are required to participate, and
"(II) are required to contribute the same fixed percentage of their basic or regular rate of compensation as judge,
"(iii) under such plan, no judge has an option as to contributions or benefits the exercise of which would affect the amount of includible compensation,
"(iv) the retirement payments of a judge under the plan are a percentage of the compensation of judges of that State holding similar positions, and
"(v) the plan during any year does not pay benefits with respect to any participant which exceed the limitations of section 415(b) of the Internal Revenue Code of 1986 [formerly I.R.C. 1954]."
Any compensation which is deferred under a nonqualified deferred compensation plan of a nonqualified entity shall be includible in gross income when there is no substantial risk of forfeiture of the rights to such compensation.
For purposes of this section, the term "nonqualified entity" means—
(1) any foreign corporation unless substantially all of its income is—
(A) effectively connected with the conduct of a trade or business in the United States, or
(B) subject to a comprehensive foreign income tax, and
(2) any partnership unless substantially all of its income is allocated to persons other than—
(A) foreign persons with respect to whom such income is not subject to a comprehensive foreign income tax, and
(B) organizations which are exempt from tax under this title.
If the amount of any compensation is not determinable at the time that such compensation is otherwise includible in gross income under subsection (a)—
(A) such amount shall be so includible in gross income when determinable, and
(B) the tax imposed under this chapter for the taxable year in which such compensation is includible in gross income shall be increased by the sum of—
(i) the amount of interest determined under paragraph (2), and
(ii) an amount equal to 20 percent of the amount of such compensation.
For purposes of paragraph (1)(B)(i), the interest determined under this paragraph for any taxable year is the amount of interest at the underpayment rate under section 6621 plus 1 percentage point on the underpayments that would have occurred had the deferred compensation been includible in gross income for the taxable year in which first deferred or, if later, the first taxable year in which such deferred compensation is not subject to a substantial risk of forfeiture.
For purposes of this section—
The rights of a person to compensation shall be treated as subject to a substantial risk of forfeiture only if such person's rights to such compensation are conditioned upon the future performance of substantial services by any individual.
To the extent provided in regulations prescribed by the Secretary, if compensation is determined solely by reference to the amount of gain recognized on the disposition of an investment asset, such compensation shall be treated as subject to a substantial risk of forfeiture until the date of such disposition.
For purposes of clause (i), the term "investment asset" means any single asset (other than an investment fund or similar entity)—
(I) acquired directly by an investment fund or similar entity,
(II) with respect to which such entity does not (nor does any person related to such entity) participate in the active management of such asset (or if such asset is an interest in an entity, in the active management of the activities of such entity), and
(III) substantially all of any gain on the disposition of which (other than such deferred compensation) is allocated to investors in such entity.
Paragraph (3)(B) shall not apply to any compensation to which clause (i) applies.
The term "comprehensive foreign income tax" means, with respect to any foreign person, the income tax of a foreign country if—
(A) such person is eligible for the benefits of a comprehensive income tax treaty between such foreign country and the United States, or
(B) such person demonstrates to the satisfaction of the Secretary that such foreign country has a comprehensive income tax.
The term "nonqualified deferred compensation plan" has the meaning given such term under section 409A(d), except that such term shall include any plan that provides a right to compensation based on the appreciation in value of a specified number of equity units of the service recipient.
Compensation shall not be treated as deferred for purposes of this section if the service provider receives payment of such compensation not later than 12 months after the end of the taxable year of the service recipient during which the right to the payment of such compensation is no longer subject to a substantial risk of forfeiture.
In the case of a foreign corporation with income which is taxable under section 882, this section shall not apply to compensation which, had such compensation been paid in cash on the date that such compensation ceased to be subject to a substantial risk of forfeiture, would have been deductible by such foreign corporation against such income.
Rules similar to the rules of paragraphs (5) and (6) of section 409A(d) shall apply.
The Secretary shall prescribe such regulations as may be necessary or appropriate to carry out the purposes of this section, including regulations disregarding a substantial risk of forfeiture in cases where necessary to carry out the purposes of this section.
(Added
2018—Subsec. (d)(4).
"(1)
"(2)
"(A) the last taxable year beginning before 2018, or
"(B) the taxable year in which there is no substantial risk of forfeiture of the rights to such compensation (determined in the same manner as determined for purposes of section 457A of the Internal Revenue Code of 1986, as added by this section).
"(3)
"(4)
"(5)
A taxpayer who is on an accrual method of accounting may elect not to include in the gross income for the taxable year the income attributable to the qualified sale of any magazine, paperback, or record which is returned to the taxpayer before the close of the merchandise return period.
For purposes of this section—
The term "magazine" includes any other periodical.
The term "paperback" means any book which has a flexible outer cover and the pages of which are affixed directly to such outer cover. Such term does not include a magazine.
The term "record" means a disc, tape, or similar object on which musical, spoken, or other sounds are recorded.
If a taxpayer makes qualified sales of more than one category of merchandise in connection with the same trade or business, this section shall be applied as if the qualified sales of each such category were made in connection with a separate trade or business. For purposes of the preceding sentence, magazines, paperbacks, and records shall each be treated as a separate category of merchandise.
A sale of a magazine, paperback, or record is a qualified sale if—
(A) at the time of sale, the taxpayer has a legal obligation to adjust the sales price of such magazine, paperback, or record if it is not resold, and
(B) the sales price of such magazine, paperback, or record is adjusted by the taxpayer because of a failure to resell it.
The amount excluded under this section with respect to any qualified sale shall be the lesser of—
(A) the amount covered by the legal obligation described in paragraph (5)(A), or
(B) the amount of the adjustment agreed to by the taxpayer before the close of the merchandise return period.
(A) Except as provided in subparagraph (B), the term "merchandise return period" means, with respect to any taxable year—
(i) in the case of magazines, the period of 2 months and 15 days first occurring after the close of taxable year, or
(ii) in the case of paperbacks and records, the period of 4 months and 15 days first occurring after the close of the taxable year.
(B) The taxpayer may select a shorter period than the applicable period set forth in subparagraph (A).
(C) Any change in the merchandise return period shall be treated as a change in the method of accounting.
Under regulations prescribed by the Secretary, the taxpayer may substitute, for the physical return of magazines, paperbacks, or records required by subsection (a), certification or other evidence that the magazine, paperback, or record has not been resold and will not be resold if such evidence—
(A) is in the possession of the taxpayer at the close of the merchandise return period, and
(B) is satisfactory to the Secretary.
A repurchase by the taxpayer shall be treated as an adjustment of the sales price rather than as a resale.
This section shall apply to qualified sales of magazines, paperbacks, or records, as the case may be, if and only if the taxpayer makes an election under this section with respect to the trade or business in connection with which such sales are made. An election under this section may be made without the consent of the Secretary. The election shall be made in such manner as the Secretary may by regulations prescribe and shall be made for any taxable year not later than the time prescribed by law for filing the return for such taxable year (including extensions thereof).
An election made under this section shall apply to all qualified sales of magazines, paperbacks, or records, as the case may be, made in connection with the trade or business with respect to which the taxpayer has made the election.
An election under this section shall be effective for the taxable year for which it is made and for all subsequent taxable years, unless the taxpayer secures the consent of the Secretary to the revocation of such election.
Except to the extent inconsistent with the provisions of this section, for purposes of this subtitle, the computation of taxable income under an election made under this section shall be treated as a method of accounting.
In applying section 481(c) with respect to any election under this section which applies to magazines, the period for taking into account any decrease in taxable income resulting from the application of section 481(a)(2) shall be the taxable year for which the election is made and the 4 succeeding taxable years.
In the case of any election under this section which applies to paperbacks or records, in lieu of applying section 481, the taxpayer shall establish a suspense account for the trade or business for the taxable year for which the election is made.
The opening balance of the account described in paragraph (1) for the first taxable year to which the election applies shall be the largest dollar amount of returned merchandise which would have been taken into account under this section for any of the 3 immediately preceding taxable years if this section had applied to such preceding 3 taxable years. This paragraph and paragraph (3) shall be applied by taking into account only amounts attributable to the trade or business for which such account is established.
At the close of each taxable year the suspense account shall be—
(A) reduced the excess (if any) of—
(i) the opening balance of the suspense account for the taxable year, over
(ii) the amount excluded from gross income for the taxable year under subsection (a), or
(B) increased (but not in excess of the initial opening balance) by the excess (if any) of—
(i) the amount excluded from gross income for the taxable year under subsection (a), over
(ii) the opening balance of the account for the taxable year.
In the case of any reduction under paragraph (3)(A) in the account for the taxable year, an amount equal to such reduction shall be excluded from gross income for such taxable year.
In the case of any increase under paragraph (3)(B) in the account for the taxable year, an amount equal to such increase shall be included in gross income for such taxable year.
If the initial opening balance exceeds the dollar amount of returned merchandise which would have been taken into account under subsection (a) for the taxable year preceding the first taxable year for which the election is effective if this section had applied to such preceding taxable year, then an amount equal to the amount of such excess shall be included in gross income for such first taxable year.
The application of this subsection with respect to a taxpayer which is a party to any transaction with respect to which there is nonrecognition of gain or loss to any party to the transaction by reason of subchapter C shall be determined under regulations prescribed by the Secretary.
(Added
2018—Subsec. (b)(9).
Subsec. (c)(1).
In the case of any long-term contract, the taxable income from such contract shall be determined under the percentage of completion method (as modified by subsection (b)).
Except as provided in paragraph (3), in the case of any long-term contract with respect to which the percentage of completion method is used—
(A) the percentage of completion shall be determined by comparing costs allocated to the contract under subsection (c) and incurred before the close of the taxable year with the estimated total contract costs, and
(B) upon completion of the contract (or, with respect to any amount properly taken into account after completion of the contract, when such amount is so properly taken into account), the taxpayer shall pay (or shall be entitled to receive) interest computed under the look-back method of paragraph (2).
In the case of any long-term contract with respect to which the percentage of completion method is used, except for purposes of applying the look-back method of paragraph (2), any income under the contract (to the extent not previously includible in gross income) shall be included in gross income for the taxable year following the taxable year in which the contract was completed. For purposes of subtitle F (other than sections 6654 and 6655), any interest required to be paid by the taxpayer under subparagraph (B) shall be treated as an increase in the tax imposed by this chapter for the taxable year in which the contract is completed (or, in the case of interest payable with respect to any amount properly taken into account after completion of the contract, for the taxable year in which the amount is so properly taken into account).
The interest computed under the look-back method of this paragraph shall be determined by—
(A) first, allocating income under the contract among taxable years before the year in which the contract is completed on the basis of the actual contract price and costs instead of the estimated contract price and costs,
(B) second, determining (solely for purposes of computing such interest) the overpayment or underpayment of tax for each taxable year referred to in subparagraph (A) which would result solely from the application of subparagraph (A), and
(C) then using the adjusted overpayment rate (as defined in paragraph (7)), compounded daily, on the overpayment or underpayment determined under subparagraph (B).
For purposes of the preceding sentence, any amount properly taken into account after completion of the contract shall be taken into account by discounting (using the Federal mid-term rate determined under section 1274(d) as of the time such amount was properly taken into account) such amount to its value as of the completion of the contract. The taxpayer may elect with respect to any contract to have the preceding sentence not apply to such contract.
In the case of any long-term contract, the Secretary may prescribe a simplified procedure for allocation of costs to such contract in lieu of the method of allocation under subsection (c).
Paragraph (1)(B) shall not apply to any contract—
(i) the gross price of which (as of the completion of the contract) does not exceed the lesser of—
(I) $1,000,000, or
(II) 1 percent of the average annual gross receipts of the taxpayer for the 3 taxable years preceding the taxable year in which the contract was completed, and
(ii) which is completed within 2 years of the contract commencement date.
For purposes of this subparagraph, rules similar to the rules of subsections (e)(2) and (f)(3) shall apply.
In the case of a pass-thru entity—
(i) the look-back method of paragraph (2) shall be applied at the entity level,
(ii) in determining overpayments and underpayments for purposes of applying paragraph (2)(B)—
(I) any increase in the income under the contract for any taxable year by reason of the allocation under paragraph (2)(A) shall be treated as giving rise to an underpayment determined by applying the highest rate for such year to such increase, and
(II) any decrease in such income for any taxable year by reason of such allocation shall be treated as giving rise to an overpayment determined by applying the highest rate for such year to such decrease, and
(iii) any interest required to be paid by the taxpayer under paragraph (2) shall be paid by such entity (and any interest entitled to be received by the taxpayer under paragraph (2) shall be paid to such entity).
This paragraph shall not apply to any closely held pass-thru entity.
This paragraph shall not apply to any contract unless substantially all of the income from such contract is from sources in the United States.
For purposes of this paragraph—
The term "highest rate" means—
(I) the highest rate of tax specified in section 11, or
(II) if at all times during the year involved more than 50 percent of the interests in the entity are held by individuals directly or through 1 or more other pass-thru entities, the highest rate of tax specified in section 1.
The term "pass-thru entity" means any—
(I) partnership,
(II) S corporation, or
(III) trust.
The term "closely held pass-thru entity" means any pass-thru entity if, at any time during any taxable year for which there is income under the contract, 50 percent or more (by value) of the beneficial interests in such entity are held (directly or indirectly) by or for 5 or fewer persons. For purposes of the preceding sentence, rules similar to the constructive ownership rules of section 1563(e) shall apply.
In the case of any long-term contract with respect to which an election under this paragraph is in effect, the 10-percent method shall apply in determining the taxable income from such contract.
For purposes of this paragraph—
The 10-percent method is the percentage of completion method, modified so that any item which would otherwise be taken into account in computing taxable income with respect to a contract for any taxable year before the 10-percent year is taken into account in the 10-percent year.
The term "10-percent year" means the 1st taxable year as of the close of which at least 10 percent of the estimated total contract costs have been incurred.
An election under this paragraph shall apply to all long-term contracts of the taxpayer which are entered into during the taxable year in which the election is made or any subsequent taxable year.
This paragraph shall not apply to any taxpayer which uses a simplified procedure for allocation of costs under paragraph (3)(A).
The 10-percent method shall be taken into account for purposes of applying the look-back method of paragraph (2) to any taxpayer making an election under this paragraph.
Paragraph (1)(B) shall not apply with respect to any taxable year (beginning after the taxable year in which the contract is completed) if—
(i) the cumulative taxable income (or loss) under the contract as of the close of such taxable year, is within
(ii) 10 percent of the cumulative look-back taxable income (or loss) under the contract as of the close of the most recent taxable year to which paragraph (1)(B) applied (or would have applied but for subparagraph (B)).
Paragraph (1)(B) shall not apply in any case to which it would otherwise apply if—
(i) the cumulative taxable income (or loss) under the contract as of the close of each prior contract year, is within
(ii) 10 percent of the cumulative look-back income (or loss) under the contract as of the close of such prior contract year.
For purposes of this paragraph—
The term "contract year" means any taxable year for which income is taken into account under the contract.
The look-back income (or loss) is the amount which would be the taxable income (or loss) under the contract if the allocation method set forth in paragraph (2)(A) were used in determining taxable income.
The amounts taken into account after the completion of the contract shall be determined without regard to any discounting under the 2nd sentence of paragraph (2).
This paragraph shall only apply if the taxpayer makes an election under this subparagraph. Unless revoked with the consent of the Secretary, such an election shall apply to all long-term contracts completed during the taxable year for which election is made or during any subsequent taxable year.
The adjusted overpayment rate for any interest accrual period is the overpayment rate in effect under section 6621 for the calendar quarter in which such interest accrual period begins.
For purposes of subparagraph (A), the term "interest accrual period" means the period—
(i) beginning on the day after the return due date for any taxable year of the taxpayer, and
(ii) ending on the return due date for the following taxable year.
For purposes of the preceding sentence, the term "return due date" means the date prescribed for filing the return of the tax imposed by this chapter (determined without regard to extensions).
In the case of a long-term contract, all costs (including research and experimental costs) which directly benefit, or are incurred by reason of, the long-term contract activities of the taxpayer shall be allocated to such contract in the same manner as costs are allocated to extended period long-term contracts under section 451 and the regulations thereunder.
In the case of a cost-plus long-term contract or a Federal long-term contract, any cost not allocated to such contract under paragraph (1) shall be allocated to such contract if such cost is identified by the taxpayer (or a related person), pursuant to the contract or Federal, State, or local law or regulation, as being attributable to such contract.
Except as provided in subparagraphs (B) and (C), in the case of a long-term contract, interest costs shall be allocated to the contract in the same manner as interest costs are allocated to property produced by the taxpayer under section 263A(f).
In applying section 263A(f) for purposes of subparagraph (A), the production period shall be the period—
(i) beginning on the later of—
(I) the contract commencement date, or
(II) in the case of a taxpayer who uses an accrual method with respect to long-term contracts, the date by which at least 5 percent of the total estimated costs (including design and planning costs) under the contract have been incurred, and
(ii) ending on the contract completion date.
In applying section 263A(f) for purposes of subparagraph (A), paragraph (1)(B)(iii) of such section shall be applied on a contract-by-contract basis; except that, in the case of a taxpayer described in subparagraph (B)(i)(II) of this paragraph, paragraph (1)(B)(iii) of section 263A(f) shall be applied on a property-by-property basis.
This subsection shall not apply to any—
(A) independent research and development expenses,
(B) expenses for unsuccessful bids and proposals, and
(C) marketing, selling, and advertising expenses.
For purposes of paragraph (4), the term "independent research and development expenses" means any expenses incurred in the performance of research or development, except that such term shall not include—
(A) any expenses which are directly attributable to a long-term contract in existence when such expenses are incurred, or
(B) any expenses under an agreement to perform research or development.
Solely for purposes of determining the percentage of completion under subsection (b)(1)(A), the cost of qualified property shall be taken into account as a cost allocated to the contract as if subsection (k) of section 168 had not been enacted.
For purposes of this paragraph, the term "qualified property" means property described in section 168(k)(2) which—
(i) has a recovery period of 7 years or less, and
(ii) is placed in service before January 1, 2027 (January 1, 2028 in the case of property described in section 168(k)(2)(B)).
For purposes of this section—
The term "Federal long-term contract" means any long-term contract—
(A) to which the United States (or any agency or instrumentality thereof) is a party, or
(B) which is a subcontract under a contract described in subparagraph (A).
For purposes of paragraph (1), the rules of section 168(h)(2)(D) (relating to certain taxable entities not treated as instrumentalities) shall apply.
Subsections (a), (b), and (c)(1) and (2) shall not apply to—
(A) any home construction contract, or
(B) any other construction contract entered into by a taxpayer (other than a tax shelter prohibited from using the cash receipts and disbursements method of accounting under section 448(a)(3))—
(i) who estimates (at the time such contract is entered into) that such contract will be completed within the 2-year period beginning on the contract commencement date of such contract, and
(ii) who meets the gross receipts test of section 448(c) for the taxable year in which such contract is entered into.
In the case of a home construction contract with respect to which the requirements of clauses (i) and (ii) of subparagraph (B) are not met, section 263A shall apply notwithstanding subsection (c)(4) thereof.
For purposes of paragraph (1)(B)(ii), in the case of any taxpayer which is not a corporation or a partnership, the gross receipts test of section 448(c) shall be applied in the same manner as if each trade or business of such taxpayer were a corporation or partnership.
Any change in method of accounting made pursuant to paragraph (1)(B)(ii) shall be treated as initiated by the taxpayer and made with the consent of the Secretary. Such change shall be effected on a cut-off basis for all similarly classified contracts entered into on or after the year of change.
For purposes of this subsection, the term "construction contract" means any contract for the building, construction, reconstruction, or rehabilitation of, or the installation of any integral component to, or improvements of, real property.
In the case of any residential construction contract which is not a home construction contract, subsection (a) (as in effect on the day before the date of the enactment of the Revenue Reconciliation Act of 1989) shall apply except that such subsection shall be applied—
(A) by substituting "70 percent" for "90 percent" each place it appears, and
(B) by substituting "30 percent" for "10 percent".
For purposes of this subsection—
The term "home construction contract" means any construction contract if 80 percent or more of the estimated total contract costs (as of the close of the taxable year in which the contract was entered into) are reasonably expected to be attributable to activities referred to in paragraph (4) with respect to—
(i) dwelling units (as defined in section 168(e)(2)(A)(ii)) contained in buildings containing 4 or fewer dwelling units (as so defined), and
(ii) improvements to real property directly related to such dwelling units and located on the site of such dwelling units.
For purposes of clause (i), each townhouse or rowhouse shall be treated as a separate building.
The term "residential construction contract" means any contract which would be described in subparagraph (A) if clause (i) of such subparagraph reads as follows:
"(i) dwelling units (as defined in section 168(e)(2)(A)(ii)), and".
For purposes of this section—
The term "long-term contract" means any contract for the manufacture, building, installation, or construction of property if such contract is not completed within the taxable year in which such contract is entered into.
A contract for the manufacture of property shall not be treated as a long-term contract unless such contract involves the manufacture of—
(A) any unique item of a type which is not normally included in the finished goods inventory of the taxpayer, or
(B) any item which normally requires more than 12 calendar months to complete (without regard to the period of the contract).
For purposes of this subsection, under regulations prescribed by the Secretary—
(A) 2 or more contracts which are interdependent (by reason of pricing or otherwise) may be treated as 1 contract, and
(B) a contract which is properly treated as an aggregation of separate contracts may be so treated.
For purposes of this section, the term "contract commencement date" means, with respect to any contract, the first date on which any costs (other than bidding expenses or expenses incurred in connection with negotiating the contract) allocable to such contract are incurred.
The Secretary shall prescribe such regulations as may be necessary or appropriate to carry out the purposes of this section, including regulations to prevent the use of related parties, pass-thru entities, intermediaries, options, or other similar arrangements to avoid the application of this section.
(Added
The date of the enactment of the Revenue Reconciliation Act of 1989, referred to in subsec. (e)(4), is the date of enactment of title VII of
2018—Subsec. (b)(2)(A).
2017—Subsec. (c)(6)(B)(ii).
Subsec. (e)(1)(B).
Subsec. (e)(1)(B)(ii).
Subsec. (e)(2).
Subsec. (e)(3) to (6).
2015—Subsec. (c)(6)(B)(ii).
Subsec. (c)(6)(B)(ii).
2014—Subsec. (c)(6)(B)(ii).
2013—Subsec. (c)(6)(B)(ii).
2010—Subsec. (c)(6).
1997—Subsec. (b)(2)(C).
Subsec. (b)(6).
Subsec. (b)(7).
1996—Subsec. (b)(1).
Subsec. (e)(6)(B).
1990—Subsec. (e)(6)(A)(i).
1989—Subsec. (a).
"(1)
"(A) 90 percent of the items with respect to such contract shall be taken into account under the percentage of completion method (as modified by subsection (b)), and
"(B) 10 percent of the items with respect to such contract shall be taken into account under the taxpayer's normal method of accounting.
"(2) 90
Subsec. (a)(2).
Subsec. (b)(1).
Subsec. (b)(2).
Subsec. (b)(2)(B).
Subsec. (b)(3).
Subsec. (b)(3)(B).
Subsec. (b)(4).
Subsec. (b)(4)(A)(i).
Subsec. (b)(4)(A)(ii).
Subsec. (b)(4)(A)(ii)(I).
Subsec. (b)(4)(A)(iii).
Subsec. (b)(5).
Subsec. (e)(2)(C).
Subsec. (e)(5).
Subsec. (e)(6)(A).
Subsec. (e)(6)(A)(i).
1988—Subsec. (a)(1)(A).
Subsec. (a)(1)(B).
Subsec. (a)(2).
Subsec. (b)(2).
Subsec. (b)(2)(B).
Subsec. (b)(3).
Subsec. (b)(3)(B).
Subsec. (b)(3)(C).
Subsec. (b)(4).
Subsec. (b)(5).
Subsec. (e)(1).
"(A) who estimates (at the time such contract is entered into) that such contract will be completed within the 2-year period beginning on the contract commencement date of such contract, and
"(B) whose average annual gross receipts for the 3 taxable years preceding the taxable year in which such contract is entered into do not exceed $10,000,000."
Subsec. (e)(5).
Subsec. (e)(6).
Subsec. (h).
1987—Subsec. (a).
Amendment by section 13102(d) of
Amendment by section 13201 of
Amendment by section 143(a)(2) of
Amendment by section 143(b)(6)(I) of
Amendment by
Amendment by
"(1)
"(2)
Amendment by section 1702(h)(15) of
Amendment by
"(1)
"(2)
"(3)
Amendment by sections 7811(e) and 7815(e)(1) of
Amendment by section 1008(c)(1), (2), (4) of
"(1)
"(A)
"(B)
"(C)
"(2)
"(1)
"(2)
"(A)
"(B)
"(i) such ships will not be constructed (directly or indirectly) for the Federal Government, and
"(ii) the taxpayer reasonably expects to complete such contract within 5 years of the contract commencement date (as defined in section 460(g) of the Internal Revenue Code of 1986)."
"(1)
"(2)
"(A)
"(i) any independent research and development expenses taken into account in determining the total contract price shall not be severable from the contract, and
"(ii) any independent research and development expenses shall not be treated as amounts chargeable to capital account.
"(B)
For provisions that nothing in amendment by
"(a)
"(b)
"(1) the amount of tax which would have been imposed during such period if this section had not been enacted, over
"(2) the amount of tax so imposed during such period.
"(c)
"(1)
"(2)
"(3)
"(d)
"(e)
Allocable costs (within the meaning of subsec. (c) of this section) with respect to any property to include contributions paid to or under a pension or annuity plan whether or not such contributions represent past service costs, see section 10204 of