Federal Tax Regulations Issued in 2017

The table below lists tax regulations issued by the Treasury Department and IRS in 2017 in chronological order.  The links will take you to the text of the regulations (usually in the Federal Register) and other helpful information. 

List of regulations issued in: 2016   2015    2014     2013     2012      2011

California Franchise Tax Board (FTB) Regulations – see the Interested Parties meetings website of the FTB.

See information following the table about executive orders issued by President Trump that affect the issuance of regulations.

 

Title of Regulation

[Health care regs noted with “ACA”]

Status

Citation

IRC Sections

Additional Information

Regulations Regarding Withholding of Tax on Certain U.S. Source Income Paid to Foreign Persons, Information Reporting and Backup Withholding on Payments Made to Certain U.S. Persons, and Portfolio Interest Treatment

Removal of temp regs

 

Final and Temp and Prop regs

TD 9808 (1/6/17)

 

REG-134247-16
 (1/6/17)

871

1441

1461

6041

6042

6045

6049

6050N

3406

“This document contains final and temporary regulations regarding withholding of tax on certain U.S. source income paid to foreign persons, information reporting and backup withholding with respect to payments made to certain U.S. persons, and portfolio interest paid to nonresident alien individuals and foreign corporations. This document finalizes (with minor changes) certain proposed regulations under chapters 3 and 61 and sections 871, 3406, and 6402, and withdraws corresponding temporary regulations. This document also includes temporary regulations providing additional rules under chapter 3 of the Code. The text of the temporary regulations also serves as the text of the proposed regulations set forth in a notice of proposed rulemaking published in the Proposed Rules section of this issue of the Federal Register. The temporary regulations affect persons making payments of U.S. source income to foreign persons.”

  Correction: FR 29719 (6/30/17)

  Correction: FR 43314 (9/15/17)

  Correction: FR 49549 (10/26/17)

Regulations Relating to Information Reporting by Foreign Financial Institutions and Withholding on Certain Payments to Foreign Financial Institutions and Other Foreign Entities

Removal of temp regs

 

Final and Temp and Prop regs

TD 9809 (1/6/17)

 

REG-103477-14
(1/6/17)

1471

1472

1473

1474

“This document contains final and temporary regulations under chapter 4 of Subtitle A (sections 1471 through 1474) regarding information reporting by foreign financial institutions (FFIs) with respect  to U.S. accounts and withholding on  certain payments to FFIs and other  foreign entities. This document finalizes (with changes) certain proposed regulations under chapter 4, and withdraws corresponding temporary regulations. This document also includes temporary regulations providing additional rules under chapter 4. The text of the temporary regulations also serves as the text of proposed regulations set forth in a notice of proposed rulemaking published in the Proposed Rules section of this issue of the Federal Register. The regulations included in this document affect persons making certain U.S.-related payments to FFIs and other foreign persons and payments by FFIs to other persons.”

  Correction: FR 29733 (6/30/17)

  Correction: FR 29728 (6/30/17)

  Correction: FR 43313 (9/15/17)

Certain Transfers of Property to Regulated Investment Companies and Real Estate Investment Trusts

Final regs

TD 9810 (1/18/17)

337

“final regulations effecting the repeal of the General Utilities doctrine by the Tax Reform Act of 1986. The final regulations address the length of time during which a RIC or a REIT may be subject to corporate level tax on certain dispositions of property. The final regulations affect RICs and REITs.”

Application of Modified Carryover Basis to General Basis Rules

Final regs

TD 9811 (1/19/17)

48

179

197

267

273

306

336

355

382

421

423

424

467

617

684

691

742

743

755

955

1001

1014

1223

1245

1250

1254

1296

1312

“final regulations regarding the application of the modified carryover basis rules of section 1022. Specifically, the final regulations modify provisions of the Treasury Regulations involving basis rules by including a reference to section 1022 where appropriate. The regulations will affect property transferred from certain decedents who died in 2010. The regulations reflect changes to the law made by the Economic Growth and Tax Relief Reconciliation Act of 2001 and the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010.”

Guidance for Determining Stock Ownership; Rules Regarding Inversions and Related Transactions

Removal of temp regs

 

Final and temp regs

TD 9812 (1/18/17)

 

REG-135734-14
 (1/18/17)

 

REG-135734-14
 (1/18/17)

7874

“final regulations that identify certain stock of a foreign corporation that is disregarded in calculating ownership of the foreign corporation for purposes of determining whether it is a surrogate foreign corporation. These regulations also provide guidance on the effect of transfers of stock of a foreign corporation after the foreign corporation has acquired substantially all of the properties of a domestic corporation or of a trade or business of a domestic partnership. These regulations affect certain domestic corporations and partnerships (and certain parties related thereto) and foreign corporations that acquire substantially all of the properties of such domestic corporations or of the trades or businesses of such domestic partnerships. The text of the temporary regulations also serves as the text of the proposed regulations set forth in the notice of proposed rulemaking on Rules Regarding Inversions and Related Transactions in the Proposed Rules section of this issue of the Federal Register.”

  Correction – FR 42233 (9/7/17)

Definitions of Qualified Matching Contributions and Qualified Nonelective Contributions

Prop regs

REG-131654-15
 (1/18/17)

401

“proposed amendments to the definitions of qualified matching contributions (QMACs) and qualified nonelective contributions (QNECs) under regulations relating to certain qualified retirement plans that contain cash or deferred arrangements under section 401(k) or that provide for matching contributions or employee contributions under section 401(m). Under these regulations, employer contributions to a plan would be able to qualify as QMACs or QNECs if they satisfy applicable nonforfeitability and distribution requirements at the time they are allocated to participants’ accounts, but need not meet these requirements when they are contributed to the plan. These regulations would affect participants in, beneficiaries of, employers maintaining, and administrators of tax-qualified plans that contain cash or deferred arrangements or provide for matching contributions or employee contributions.”

Transfers of Certain Property by U.S. Persons to Partnerships with Related Foreign Partners

Final and temp regs

 

Prop regs

TD 9814 (1/19/17)

 

REG-127203-15
 (1/19/17)

197

704

721

6038B

“temporary regulations that address transfers of appreciated property by United States persons (U.S. persons) to partnerships with foreign partners related to the transferor. The regulations override the rules providing for nonrecognition of gain on a contribution of property to a partnership in exchange for an interest in the partnership under section 721(a) pursuant to section 721(c) unless the partnership adopts the remedial method and certain other requirements are satisfied. The document also contains regulations under sections 197, 704, and 6038B that apply to certain transfers described in section 721. The regulations affect U.S. partners in domestic or foreign partnerships. The text of the temporary regulations also serves as the text of the proposed regulations set forth in the notice of proposed rulemaking on this subject in the Proposed Rules section of this issue of the Federal Register. The final regulations revise and add cross- references to coordinate the application of the temporary regulations.”

  Correction – FR 41885 (9/5/17)

Definition of Dependent

Withdrawal prop rulemaking

 

Notice prop rulemaking

REG-137604-07
 (1/19/17)

2

3

21

32

63

151

152

6013

6109

“This document withdraws proposed regulations relating to the definition of an authorized placement agency for purposes of a dependency exemption for a child placed for

adoption that were issued prior to the changes made to the law by the Working Families Tax Relief Act of 2004 (WFTRA). This document contains proposed regulations that reflect changes made by WFTRA and by the Fostering Connections to Success and Increasing Adoptions Act of 2008 (FCSIAA) relating to the dependency exemption. This document also contains proposed regulations that, to reflect current law, amend the regulations relating to the surviving spouse and head of household filing statuses, the tax tables for individuals, the child and dependent care credit, the earned income credit, the standard deduction, joint tax returns, and taxpayer identification numbers for children placed for adoption. These proposed regulations change the IRS’s position regarding the category of taxpayers permitted to claim the childless earned income credit. In determining a taxpayer’s eligibility to claim a dependency exemption, these proposed regulations change the IRS’s position regarding the adjusted gross income of a taxpayer filing a joint return for purposes of the tiebreaker rules and the source of support of certain payments that originated as governmental payments. These regulations provide guidance to individuals who may claim certain child-related tax benefits.”

Dividend Equivalents from Sources within the United States

Final regs and temp regs

 

Prop regs

TD 9815 (1/24/17)

 

REG-135122-16
 (1/24/17)

871

1441

1461

“This document provides guidance to nonresident alien individuals and foreign corporations that hold certain financial products providing for payments that are contingent upon or determined by reference to U.S. source dividend payments. This document also provides guidance to withholding agents that are responsible for withholding U.S. tax with respect to a dividend equivalent, as well as certain other parties to section 871(m) transactions and their agents.”

   Correction – FR 49508 (10/26/17)

Qualifying Income from Activities of Publicly Traded Partnerships With Respect to Minerals or Natural Resources

Final regs

TD 9817 (1/24/17)

7704

“final regulations under section 7704(d)(1)(E) relating to the qualifying income exception for publicly traded partnerships to not be treated as corporations for Federal income tax purposes. Specifically, these regulations define the activities that generate qualifying income from exploration, development, mining or production, processing, refining, transportation, and marketing of minerals or natural resources. These regulations affect publicly traded partnerships and their partners.”

Centralized Partnership Audit Regime

 

 

Note: These proposed regs were released in early January, but then pulled due to EO 13771 (1/30/17) (see below).

Prop reg

REG-136118-15
(6/14/17)

6221

6222

6223

6225

6226

6227

6241

“proposed regulations regarding implementation of section 1101 of the Bipartisan Budget Act of 2015 (BBA), which was enacted into law on November 2, 2015. Section 1101 of the BBA repeals the current rules governing partnership audits and replaces them with a new centralized partnership audit regime that, in general, assesses and collects tax at the partnership level.  These proposed regulations provide rules for partnerships subject to the new regime, including procedures for electing out of the centralized partnership audit regime, filing administrative adjustment requests, and the determination of amounts owed by the partnership or its partners attributable to adjustments that arise out of an examination of a partnership. The proposed regulations also address the scope of the centralized partnership audit regime and provide definitions and special rules that govern its application, including the designation of a partnership representative. The proposed regulations affect partnerships for taxable years beginning after December 31, 2017 and any partnerships that elect application of the centralized partnership audit regime pursuant to § 301.9100–22T for taxable years beginning after November 2, 2015 and before January 1, 2018. This document also provides notice of a public hearing on these proposed regulations. This document also withdraws the notice of proposed rulemaking published in the Federal Register on February 13, 2009 (74 FR 7205), regarding the conversion of partnership items related to listed transactions. “

  Comments due by 8/14/17.

  Hearing scheduled for 9/18/17.

Streamlined Process of Applying for Recognition of Section 501(c)(3) Status

Final regs

 

Removal of temp regs

TD 9819 (6/30/17)

501

508

“final regulations that allow the Commissioner to adopt a streamlined application process that eligible organizations may use to apply for recognition of tax-exempt status under section 501(c)(3). The final regulations affect organizations seeking recognition of tax-exempt status under section 501(c)(3).”

  Effective 6/30/17.

Transactions Involving Transfer of No Net Value

 

“As of July 13, 2017, the proposed revisions to §1.332–2(b) and (e); the

proposed addition of Example 2 to §1.332–2(e); the proposed additions of §1.351–1(a)(1)(iii) and (a)(1)(iv); the proposed addition of Example 4 to §1.351–1(a)(2); the proposed amendments to §1.368-1(a) and (b); the proposed addition of §1.368–1(f); and the proposed revision to §1.368–2(d)(1) in the notice of proposed rulemaking (REG–163314–03) that was published in the Federal Register (70 FR 11903) on March 10, 2005 are withdrawn.”

Partial withdrawal of notice of proposed rulemaking

REG-139633-08
 (7/13/17)

332

351

368

“withdraws the remaining part of a notice of proposed rulemaking containing proposed regulations that would have required an exchange or distribution of net value for

certain corporate formations and reorganizations to qualify for nonrecognition treatment under the Internal Revenue Code (Code). Other parts of the notice of proposed

rulemaking were previously adopted as final regulations. The proposed regulations being withdrawn also addressed the treatment of certain distributions not qualifying for tax-free treatment under section 332 of the Code. The proposed regulations being withdrawn would have affected corporations and their shareholders.”

Special Enrollment Examination User Fee for Enrolled Agents

Final reg

TD 9820 (7/19/17)

300.4

“final regulation changing the amount of the user fee for the special enrollment examination to become an enrolled agent. The charging of user fees is authorized by the Independent Offices Appropriations Act of 1952. The final regulation affects individuals taking the enrolled agent special enrollment examination.”

  Effective 8/18/17.

  The fee to take the exam is $81 per part. This does not include any fee charged by the exam administrator.

Return Due Date and Extended Due Date Changes

Final and temp regs

 

Prop regs

TD 9821 (7/20/17)

 

REG-128483-15
 (7/20/17)

446

6012

6031

6032

6033

6041

6071

6072

6081

“final and temporary regulations that update the due dates and extensions of time to file certain tax returns and information returns. The dates are updated to reflect the new statutory requirements set by section 2006 of the Surface Transportation and Veterans Health Care Choice Improvement Act of 2015 and section 201 of the Protecting Americans from Tax Hikes Act of 2015. These regulations affect taxpayers who file Form W–2 (series, except Form W–2G), Form W–3, Form 990 (series), Form 1099–MISC, Form 1041, Form 1041–A, Form 1065, Form 1120 (series), Form 4720, Form 5227, Form 6069, Form 8804, or Form 8870.”

Health Insurance Premium Tax Credit

Final regs

 

Removal of temp rgs

TD 9822 (7/26/17)

36B

162(l)

“final regulations relating to the health insurance premium tax credit. These regulations affect individuals who enroll in qualified health plans through Affordable Insurance Exchanges (Exchanges, also called Marketplaces) and claim the premium tax credit and Exchanges that make qualified health plans available to individuals.”

Branded Prescription Drug Fee

Final regs

 

Removal of temp regs

TD 9823 (7/26/17)

6302

7805

“final regulations that define the term controlled group for purposes of the branded prescription drug fee. The final regulations supersede and adopt the text of temporary regulations that define the term controlled group. The final regulations affect persons engaged in the business of manufacturing or importing certain branded prescription drugs.”

Guidance on the Definition of Registered Form

Prop regs

REG-125374-16 (9/19/17)

149

163

165

860D

871

881

1287

6045

6049

“proposed regulations that provide guidance on the definitions of registration-required obligation and registered form, including guidance on the issuance of pass-through certificates and participation interests in registered form. This document also withdraws a portion of previously proposed regulations regarding the definition of a registration-required obligation. The proposed regulations generally are necessary to address changes in market practices as well as issues raised by the statutory repeal of the foreign-targeted bearer obligation exception to the registered form requirement. The proposed regulations will affect issuers and holders of obligations in registered form as well as issuers and holders of registration-required obligations that are not issued in registered form.”

  Correction: FR 44543 (9/25/17)

Use of Truncated Taxpayer Identification Numbers on Forms W–2, Wage and Tax Statement, Furnished to Employees

Prop regs

REG-105004-16 (9/20/17)

6051

6052

6109

“proposed amendments to the regulations under sections 6051 and 6052 of the Code. To aid employers’ efforts to protect employees from identity theft, these proposed regulations would amend existing regulations to permit employers to voluntarily truncate employees’ social security numbers (SSNs) on copies of Forms W–2, Wage and Tax Statement, that are furnished to employees so that the truncated SSNs appear in the form of IRS truncated

taxpayer identification numbers (TTINs). These proposed regulations also would amend the regulations under section 6109 to clarify the application of the truncation rules to Forms W–2 and to add an example illustrating the application of these rules. Additionally, these proposed amendments would delete obsolete provisions and update cross references in the regulations under sections 6051 and 6052. These proposed regulations affect employers who are required to furnish Forms W–2 and employees who receive Forms W–2.”

Withholding on Payments of Certain Gambling Winnings

Final regs

TD 9824 (9/27/17)

3402

3406

“final regulations with respect to the withholding from, and the information reporting on, certain payments of

gambling winnings from horse races, dog races, and jai alai and on certain other payments of gambling winnings.

The final regulations affect both payers and payees of the gambling winnings.”

Public Approval of Tax-Exempt Private Activity Bonds

Prop regs

REG-128841-07 (9/28/17)

147

“proposed regulations to update and streamline the public approval requirement provided in section 147(f) applicable

to tax-exempt private activity bonds issued by State and local governments. The proposed regulations would update the existing regulations on the public approval requirement to reflect statutory changes, to streamline the public

approval process, and to reduce burden on State and local governments that issue tax-exempt private activity bonds.

This document also withdraws two previous notices of proposed rulemaking on this topic. The proposed regulations affect State and local governments that issue tax-exempt private activity bonds.”

Streamlining the Section 754 Election Statement

Prop reg

REG-116256-17 (10/12/17)

754

“proposed amendments to the regulation relating to the requirements for making a valid election under section 754. The proposed regulation affects partnerships and their partners by removing a regulatory burden in  making an election to adjust the basis of partnership property.”

   Effective for tax years ending on or after date published as a final reg. However, taxpayers may rely on the proposed reg for periods preceding this date.

Treatment of Transactions in Which Federal Financial Assistance is Provided

Final regs

TD 9825 (10/19/17)

597

“final regulations under section 597. These final regulations amend existing regulations that address the federal income tax treatment of transactions in which federal financial assistance (FFA) is provided to banks and domestic building and loan associations, and they clarify the federal income tax consequences of those transactions to banks, domestic building and loan associations, and related parties. These regulations affect banks, domestic building and loan associations, and related parties.”

Religious Exemptions and Accommodations for Coverage of Certain Preventive Services under the Affordable Care Act

 

[ACA]

Interim final rules with request for comments

 

and

 

Prop regs

TD 9827 (10/13/17)

 

REG-115615-17 (10/13/17)

 

9815

“The United States has a long history of providing conscience protections in the regulation of health care for entities and individuals with objections based on religious beliefs or moral convictions. These interim final rules expand exemptions to protect moral convictions for certain entities and individuals whose health plans are subject to a mandate of contraceptive coverage through guidance issued pursuant to the Patient Protection and Affordable Care Act. These rules do not alter the discretion of the Health Resources and Services Administration, a component of the United States Department of Health and Human Services, to maintain the guidelines requiring contraceptive coverage where no regulatorily recognized objection exists. These rules also provide certain morally objecting entities access to the voluntary ‘‘accommodation’’ process regarding such coverage. These rules do not alter multiple other Federal programs that provide free or subsidized contraceptives for women at risk of unintended pregnancy.”

Moral Exemptions and Accommodations for Coverage of Certain Preventive Services under the Affordable Care Act

 

[ACA]

TD 9828 (10/13/17)

 

REG-129631-17 (10/13/17)

9815

Definition of Political Subdivision

Withdrawal of prop reg

REG-129067-15 (10/20/17)

103

“This document withdraws a notice of proposed rulemaking regarding the definition of a political subdivision for purposes of tax-exempt bonds.” That proposed rule was originally published in the Federal Register at REG–129067–15 (2/23/16).

 

   See information below regarding EO 13789.

Estate, Gift, and Generation-skipping Transfer Taxes: Restrictions on Liquidation of an Interest

Withdrawal of prop reg

REG-163113-02 (10/20/17)

2704

“This document withdraws proposed regulations concerning the estate, gift and generation-skipping  transfer (GST) tax treatment of lapses of liquidation rights in family-controlled entities, as well as the valuation of  interests in family-controlled corporations and partnerships for estate, gift, and GST tax purposes. Specifically, the proposed regulations would have treated certain lapses of liquidation rights as transfers occurring at death. The proposed regulations also addressed the treatment of restrictions on liquidation and withdrawal in determining the value of transferred interests in family-controlled entities. This withdrawal affects certain transferors of interests in corporations and partnerships.” The proposed rule was originally published in the Federal Register at REG-163113-02 (8/4/16).

 

    See information below regarding EO 13789.

Employee Benefit Plans, Participants, and Beneficiaries Affected by Hurricane Maria 

Extension of time frames

FR 55507 (11/22/17)

Hurricane Maria

 

“This document announces the extension of certain time frames under the Employee Retirement Income Security Act and the Internal Revenue Code for group health plans, disability and other welfare plans, pension plans, participants and beneficiaries of these plans, and group health insurance issuers directly affected by Hurricane Maria.”

Centralized Partnership Audit Regime: International Tax Rules

 

Prop regs

REG–119337–17 (11/30/17)

6221

6225

6226

6227

“proposed regulations implementing section 1101 of the Bipartisan Budget Act of 2015 (BBA), which was enacted into law on November 2, 2015. Section 1101 of the BBA repeals the current rules governing partnership audits and replaces them with a new centralized partnership audit regime that, in general, assesses and collects tax at the partnership level. These proposed regulations provide rules addressing how certain international rules operate in the context of the centralized partnership audit regime, including rules relating to the withholding of tax on foreign persons, withholding of tax to enforce reporting on certain foreign accounts, and the treatment of creditable foreign tax expenditures of a partnership.”

Few regulations were issued in the first seven months of 2017 primarily due to executive orders from President Trump, summarized below.

  1. EO 13771 (1/30/17) – Reducing Regulation and Controlling Regulatory Costs [link on White House website]

This is the EO commonly referred to the 2 for 1 approach in that for any new regulation, two old ones must be pulled.

“for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.”

This EO focuses on the costs of regulations in determining if the 1 for 2 substitute is appropriate. The OMB Director is required to issue guidance to the heads of agencies on implementation. This memo was issued 4/5/17 (M-17-21), which includes definitions, references to other regulatory guidance, and 39 Q&As. This memo supplements interim guidance that was released 2/2/17. Per M-17-21, these two memos are mostly consistent, but if there is any conflict, the 4/5/17 memo (M-17-21) supersedes the earlier guidance (per the Introduction to M-17-21).

Comments submitted on the memos can be found at https://www.regulations.gov/docket?D=OMB-2017-0002.

Observations: Guidance is needed from OMB and Treasury on the effect of EY 13771 on tax regulations. It has been questioned whether most tax regulations are “significant regulatory actions” because they are mostly issued in response to laws passed by Congress.

Every spring, IRS and Treasury issue a notice calling for suggestions for their Priority Guidance Plan. For 2017, the call was about a month later than usual (Notice 2017-28 (4/21/17); the call in 2016 via Notice 2016-26 was released 3/18/16). Notice 2017-28 includes a new criterion that commentators should consider in providing input to the IRS on the next version of the Plan. This item is:

“Whether the recommended guidance would be in accordance with Executive Order 13771, Executive Order 13777 (82 FR 12285), or other executive orders.”

  1. EO 13777 (2/24/17) – Enforcing the Regulatory Reform Agenda. [link on White House website]

Calls upon agencies to oversee certain regulatory reform initiatives and policies by 4/25/17. Such actions include forming a task force to review regulations that harm job creation, are outdated or ineffective, where costs exceed benefits, or that are inconsistent with other initiatives.

  1. EO 13789 (4/21/17) – Identifying and Reducing Tax Regulatory Burdens. [link on White House website]

Calls for review of regulations issued in 2016. Per the EO:

“The Federal tax system should be simple, fair, efficient, and pro-growth.  The purposes of tax regulations should be to bring clarity to the already complex Internal Revenue Code (title 26, United States Code) and to provide useful guidance to taxpayers.  Contrary to these purposes, numerous tax regulations issued over the last several years have effectively increased tax burdens, impeded economic growth, and saddled American businesses with onerous fines, complicated forms, and frustration.  Immediate action is necessary to reduce the burden existing tax regulations impose on American taxpayers and thereby to provide tax relief and useful, simplified tax guidance.”

The Treasury Department “shall immediately review all significant tax regulations issued … on or after January 1, 2016, and, … identify in an interim report to the President all such regulations that:

(i)    impose an undue financial burden on United States taxpayers;

(ii)   add undue complexity to the Federal tax laws; or

(iii)  exceed the statutory authority of the Internal Revenue Service.”

This report was due by 6/20/17. Within 150 days of the EO, Treasury is to submit a report to the President with specific actions to mitigate the burden of regs identified in the interim report.

In addition, the “Secretary shall cause section 32.1.5.4.7.5.3 of the Internal Revenue Manual to be revised, if necessary to fulfill the directives in subsection (c) of this section.”

Observation: This EO is likely aimed at reconsideration of the Section 385 regulations (TD 9790 (10/21/16) and Reg-130314-16 (10/21/16)), and perhaps others. Click here for a list of tax regulations released in 2016 and 2017.

Action on EO 13789: Some interested parties submitted comments to Treasury suggesting regulations that should be pulled or examined. In Notice 2017-38 (7/7/17), explaining EO 13789 and noting eight regulations that likely fit the EO’s criteria. Notice 2017-38 states that 105 regulations were issued by IRS and Treasury from 1/1/16 through 4/21/17. Only one of these regulations (the Section 385 regulations) were designated as “significant” by OMB per EO 12866. Per EO 13789, regulations did not have to be “significant” per the EO 12866 standard to be identified as problematic. Of the total, Treasury found 53 to be “minor or technical in nature” with little public comment. Treasury examined the remaining 52 against the EO 13789 criteria, with eight meeting the criteria.

Treasury sought comments on whether any of the eight regulations “should be rescinded or modified, and in the latter case, how the regulations should be modified in order to reduce burdens and complexity.” Comments were due by 8/7/17.

Following are the eight regulations identified by Treasury in Notice 2017-38 along with what some commentators identified as falling under EO 13789. The comments were provided prior to the issuance of Notice 2017-38.

Notice 2017-38 Regulations

Topic and Links

AICPA

5/16/17

SIFMA
6/2/17

U.S. Chamber of Commerce (5/16/17)

Business Roundtable (5/25/17)

SVTDG (6/12/17)

§103
(REG–129067–15)

Definition of political subdivision

Proposed regs (REG–129067–15 (2/23/16))

 

 

X

 

 

§337(d)
(TD 9770)

Certain property transfers to RICs and REITs

Final, temp and proposed regs - TD 9770 (6/8/16)

REG–126452–15 (6/8/16)

 

 

 

 

 

§7602
(TD 9778)

Summons interview

Final regs; removal of temp regs. TD 9778 (7/13/16)

 

 

X

 

X

§2704
(REG-163113-02)

Estate, GST and gift valuation

Proposed regulations REG-163113-02 (8/4/16)

X

 

X

 

 

§752
(TD 9788)

Partnership recourse liabilities

Final, temp and prop regs TD 9788 (10/5/16)

REG-122855-15 (10/5/16)

 

 

X

Also
TD 9787 on disguised sales

 

 

§385
(TD 9790)

Treatment of certain corporate interest as stock or debt

Final, temp and prop regs TD 9790 (10/21/16)

Reg-130314-16 (10/21/16)

X

X

X

X

X

§987
(TD 9794)

Currency gain/loss for qualified business unit

Final regs TD 9794 (12/8/16)

 

 

 

X

X

§367
(TD 9803)

Certain transfers of property to foreign corporations

Final regs TD 9803 (12/16/16)

X

X

X

X

X

 

 

3 additional projects noted*

2 additional projects noted**

6 additional projects noted***

1
additional projects noted****

5 additional projects noted****

 

*Additional regulations identified by AICPA:

**Additional regulations identified by the Securities Industry and Financial Markets Association (SIFMA):

***Additional regulations identified by the US Chamber of Commerce:

 

****Additional regulations identified by the Business Roundtable:

 

*****Additional regulations identified by the Silicon Valley Tax Directors Group (SVTDG):

A group of various industry associations, including the National Association of Manufacturers and Information Technology Industry Council, sent a letter to Secretary Mnuchin on 7/19/17 calling for rescission of the §385 regulations.

Final Report – On 10/2/17, Treasury released its second report to President Trump – Identifying and Reducing Tax Regulatory Burdens – Executive Order 13789. This report includes the Secretary’s findings to take action on 8 regulations. Treasury states that it received over 140 comments on its 6/22/17 report which discussed the 8 possible regulations to take action on. The 8 regulations are:

Regulation

Action

Rationale

§2704 – Prop. Regs on Restrictions on Liquidation of an Interest for Estate, Gift and GST Taxes (REG-163113-02)

Withdraw entirely

Note: This reg was formally withdrawn by REG-163113-02 (10/20/17).

The regs’ “approach to  the  problem  of  artificial  valuation  discounts is unworkable.”

§103 – Prop. Regs on Definition of Political Subdivision (REG-129067-15)

Withdraw entirely

Note: This reg was formally withdrawn by REG-129067-15 (10/20/17).

“regulations having as far-reaching an impact

on existing legal structures as the proposed regulations are not justified.”

§7602 – Final Regs on Participation of a Person

Described in §6103(n) in a Summons Interview (TD 9778)

Revoke in part

“Treasury and IRS are looking into proposing a prospectively effective amendment to these regulations in order to narrow their scope by prohibiting the IRS from enlisting outside attorneys to participate in an examination, including a summons interview. Under the amendment currently contemplated by Treasury and the IRS, outside attorneys would not be permitted to question witnesses on behalf of the IRS, nor would they be permitted to play a behind-the-scenes role, such as by reviewing summoned records or consulting on IRS legal strategy.” There is concern over the IRS “losing control of its own investigation.”

§707 and §752 Regs on Treatment of Partnership Liabilities (TD 9788)

Revoke in part

No substantial changes are expected to the bottom dollar guarantee regs. “Treasury and the IRS are reviewing and considering ways to rationalize and lessen the burden of partnership tax regulations governing liabilities and allocations more generally. In their review, Treasury and the IRS will take into account the ways in which the rules under different sections of the Internal Revenue Code interact, and may propose further changes to the relevant liability or allocation regulations.”

§385 – Final and Temp Regs on Treatment of Certain Interest in Corporations as Stock or Indebtedness (TD 9790)

Revoke in part

“Treasury has consistently affirmed that legislative changes can most effectively address the distortions and base erosion caused by excessive earnings stripping, as well as the general tax incentives for U.S. companies to engage in inversions. … after careful consideration, Treasury believes that proposing to revoke the existing distribution regulations before the enactment of fundamental tax reform, could make existing problems worse.  If legislation does not entirely eliminate the need for the distribution regulations, Treasury will reassess the distribution rules and Treasury and the IRS may then propose more streamlined and targeted regulations.”

§367 – Final Regs on Treatment of Certain Transfers of Property to Foreign Corporations (TD 9803)

Substantially revise

“an exception to the current regulations may be justified by both the structure of the statute and its legislative history.”

§337(d) – Temp Regs on Certain Transfers of Property to Regulated Investment Companies (RICs) and Real Estate Investment Trusts (REITs) (T.D. 9770)

Substantially revise

The current regs “may produce inappropriate results in some cases.”

§987 – Final regs on Income and Currency Gain or Loss With Respect to a Section 987 Qualified Business Unit  (T.D. 9794)

Substantially revise

“After reviewing these comments and meeting with a significant number of affected taxpayers

in different industries, Treasury and the IRS believe that the regulations have proved difficult

to apply for many taxpayers.”

 

This page last updated October 8, 2017

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Last Modified: Dec 8, 2017