Guidance on mortgage assistance programs. This notice provides guidance on the federal tax consequences of payments made to or on behalf of financially distressed homeowners under programs established pursuant to the Treasury Department’s Housing Finance Agency Innovative Fund for the Hardest-Hit Housing Markets (HFA Hardest Hit Fund) and the Department of Housing and Urban Development’s Emergency Homeowners’ Loan Program (EHLP). This notice also provides guidance on the information reporting requirements for these payments.

This notice provides transitional relief from information reporting requirements in section 6045B of the Code that apply to issuers of stock with respect to organizational actions that affect the basis of the stock.

Guidance is provided to individuals who fail to meet the eligibility requirements of section 911(d)(1) of the Code because adverse conditions in a foreign country preclude the individual from meeting those requirements. A current list of countries for tax year 2010 and the dates those countries are subject to the section 911(d)(4) waiver is provided.

This announcement provides conditions under which certain issuers that have purchased their own bonds may enter into a voluntary closing agreement with respect to the extinguishment of such bonds.

This notice provides guidance regarding when securities of the employer are readily tradable on an established securities market or readily tradable on an established market for purposes of certain provisions of the Code relating to employer securities held by certain qualified retirement plans.

Guidance on mortgage assistance programs. This notice provides guidance on the federal tax consequences of payments made to or on behalf of financially distressed homeowners under programs established pursuant to the Treasury Department’s Housing Finance Agency Innovative Fund for the Hardest-Hit Housing Markets (HFA Hardest Hit Fund) and the Department of Housing and Urban Development’s Emergency Homeowners’ Loan Program (EHLP). This notice also provides guidance on the information reporting requirements for these payments.

This notice provides transitional relief from information reporting requirements in section 6045B of the Code that apply to issuers of stock with respect to organizational actions that affect the basis of the stock.

This notice provides guidance on the federal tax consequences of, and information reporting requirements for, payments made to or on behalf of financially distressed homeowners under programs designed by state housing finance agencies (State HFAs)^[1] with funds allocated from the Housing Finance Agency Innovative Fund for the Hardest-Hit Housing Markets (HFA Hardest Hit Fund). This notice applies to the programs designed by State HFAs that are listed in the Appendix to this notice (State Programs).

This notice also provides guidance on the federal tax consequences of, and information reporting requirements for, payments made on behalf of financially distressed homeowners under the Department of Housing and Urban Development’s Emergency Homeowners’ Loan Program (EHLP) and any existing state program receiving funding from the EHLP (the substantially similar state programs or SSSPs).

Specifically, this notice addresses whether—

Disbursements under a Forgivable Loan or a HUD Note are treated as payments to a homeowner and not as disbursements of loan proceeds.

A homeowner who receives or benefits from payments made under the State Programs, the EHLP, or an SSSP excludes the payments from gross income under the general welfare exclusion.

Payments to or on behalf of a homeowner made under the State Programs, the EHLP, and the SSSP are not subject to the information reporting requirements of § 6041.

The Service will not assert penalties under §§ 6721 and 6722 against a mortgage servicer that reports on Forms 1098 payments received under a State Program, the EHLP or an SSSP during calendar year 2010. Additionally, the Service will not assert penalties under §§ 6721 and 6722 against a mortgage servicer that reports on Forms 1098 payments received under a State Program, the EHLP, or an SSSP during calendar years 2011 or 2012 if the servicer notifies homeowners that the amounts reported on the Form 1098 are overstated because they include government subsidy payments.

The Service will not assert penalties under §§ 6721 and 6722 against any State HFA for failing to file and furnish Forms 1098 for calendar year 2010. In addition, the Service will not assert penalties under §§ 6721 and 6722 for calendar years 2011 and 2012 against any State HFA if the State HFA provides each homeowner and the IRS a statement setting forth (1) the homeowner’s name and TIN, and (2) the amount of payments the State HFA made to a mortgage servicer under the State Program or the SSSP during that year (separately stating the amount the State HFA paid and the amount the homeowner paid). The statement the State HFA provides to the IRS must be a single statement that separately lists the names, TINs, and relevant payment amounts for each homeowner. For calendar years 2011 and 2012, HUD should provide each homeowner and the IRS a statement setting forth (1) the homeowner’s name and TIN, and (2) the amount of payments HUD made to the mortgage servicer under the EHLP during that year (separately stating the amount HUD paid and the amount the homeowner paid). The statement HUD provides to the IRS should be a single statement that separately lists the names, TINs, and relevant payment amounts for each homeowner. The IRS intends to issue future published guidance specifying the IRS office where the State HFAs and HUD should send the single statements.

For taxable years 2010, 2011, and 2012, this notice provides a safe harbor method pursuant to which a homeowner may deduct on his or her federal income tax return an amount equal to the sum of all payments the homeowner actually makes during that year to the mortgage servicer, HUD, or the State HFA on the home mortgage, but not in excess of the sum of the amounts shown on Form 1098, Mortgage Interest Statement, in box 1 (mortgage interest received), box 4 (mortgage insurance premiums) for years 2010 and 2011 only, and box 5 (real property taxes). This safe harbor method of computing the homeowner’s deduction applies for a taxable year if (1) the homeowner meets the requirements of §§ 163 and 164 to deduct all of the mortgage interest on the loan and all of the real property taxes on the principal residence, and (2) the homeowner participates in the EHLP, an SSSP, or a State Program described in the Appendix to this notice in which the program payments could be used to pay interest on the home mortgage.

The principal author of this notice is Shareen S. Pflanz of the Office of Associate Chief Counsel (Income Tax & Accounting). For further information regarding this notice, contact Shareen S. Pflanz at (202) 622-4920 (not a toll-free call).

This notice provides transitional relief from information reporting requirements in section 6045B of the Internal Revenue Code (“Code”) that apply to issuers of stock with respect to organizational actions that affect the basis of the stock. This notice provides that, for organizational actions occurring in 2011, the Internal Revenue Service will not impose penalties against issuers for missing the deadline to file a return reporting the action or make the return publicly available provided that the issuer files the return with the Service or makes it publicly available by January 17, 2012. This notice does not apply to an issuer’s requirement to furnish the same information to the issuer’s stockholders and nominees of its stockholders.

Section 403 of the Energy Improvement and Extension Act of 2008, Div. B of Pub. L. No. 110-343, 122 Stat. 3765, enacted on October 3, 2008, added section 6045B to the Code. Section 6045B provides that, for organizational actions beginning in 2011, an issuer of stock must file a return with the Service to describe any organizational action (such as a stock split, merger, or acquisition) that affects the basis of a specified security. Under section 6045B(d) and section 6045(g)(3)(B), in 2011 a specified security is limited to stock in a corporation. The issuer generally must file the return within 45 days after the organizational action. The issuer must also furnish a corresponding statement to each nominee of the stockholder (or to each stockholder if there is no nominee) by January 15th of the year following the calendar year of the organizational action.

Alternately, the issuer is not required to file an issuer return with the Service if it posts the return on its primary public Web site in a readily accessible format by the filing date. Treas. Reg. § 1.6045B-1(a)(3).

The requirements under section 6045B do not apply to issuers of stock in a regulated investment company until 2012.

Under the 45-day deadline, the earliest date that an issuer must file a return is February 15, 2011, for an organizational action that took place on January 1, 2011.

The Service is developing the form and manner of an issuer return contemplated by section 6045B(a), as well as considering what additional information, if any, to be provided on such return.

Section 6721 imposes a penalty on any issuer of stock that does not timely file a correct issuer return with the Service as required by section 6045B(a). The Service expects issuers to make a good-faith effort to comply with the requirements of section 6045B(a); however, until an alternative form is developed and made available by the Service, issuer compliance with section 6045B(a) may be currently satisfied only through public reporting of information, as contemplated by section 6045B(e). Accordingly, the Service will not impose penalties under section 6721 for a failure to file an issuer return with the Service within 45 days of an organizational action taken in 2011, provided that the issuer files the issuer return with the Internal Revenue Service (or posts the return on its Web site as provided in the regulations) by January 17, 2012. This transitional relief does not apply to issuers of stock in a regulated investment company, which are not subject to the issuer reporting requirements for 2011 organizational actions.

The principal author of this notice is Carlton King of the Office of Associate Chief Counsel (Procedure & Administration). For further information regarding this notice, please contact Carlton King at (202) 622-4910 (not a toll-free call).

This notice provides guidance regarding when securities of the employer are readily tradable on an established securities market or readily tradable on an established market for purposes of certain provisions of the Internal Revenue Code relating to employer securities held by certain qualified retirement plans.

Section 4975(e)(7) defines an employee stock ownership plan (ESOP) as a defined contribution plan (1) which is a stock bonus plan which is qualified under § 401(a), or a stock bonus and a money purchase plan both of which are qualified under § 401(a), and which are designed to invest primarily in qualifying employer securities as defined in § 4975(e)(8), and (2) which is otherwise defined in regulations prescribed by the Secretary. Section 4975(e)(7) also states that an employee stock ownership plan must satisfy certain requirements in § 409, including the requirements of § 409(h). In addition, § 401(a)(23) generally provides that a stock bonus plan is not a qualified plan under § 401(a) unless the plan meets certain requirements, including the requirements of § 409(h).

Section 401(a)(22) generally provides that a defined contribution plan (other than a profit sharing plan) must meet the requirements of § 409(e) (which relates to passthrough of voting rights) if it is established by an employer whose stock is not readily tradable on an established market, and after acquiring securities of the employer, more than 10 percent of the total assets of the plan are securities of the employer.

Section 409(h) provides generally that a plan satisfies the requirements of § 409(h) if the plan offers a participant who is entitled to a distribution the right to demand payment in the form of employer securities and, if the employer securities are not readily tradable on an established market, the participant must also have the right to require that the employer repurchase the employer securities under a fair valuation formula (put option).

Section 401(a)(35)(A) provides that a trust which is part of an applicable defined contribution plan is not a qualified trust under § 401(a) unless the plan satisfies certain diversification requirements set forth in § 401(a)(35)(B), (C), and (D). Subject to certain exceptions, an applicable defined contribution plan under § 401(a)(35) is a defined contribution plan that holds any publicly traded employer securities. A publicly traded employer security is defined in § 401(a)(35)(G)(v) as an employer security under section 407(d)(1) of ERISA which is readily tradable on an established securities market.

Section 401(a)(28) provides that an ESOP, and a tax credit employee stock ownership plan under § 409(a), is not a qualified plan under § 401(a) unless the plan meets the requirements of § 401(a)(28)(B) and (C). Section 401(a)(28)(B) imposes certain diversification requirements with respect to certain participants. Section 401(a)(28)(B) was amended by the Pension Protection Act of 2006, Pub. L. 109-280, 120 Stat. 780 (PPA ’06) to not apply to a plan to which § 401(a)(35) applies. For employer securities that are not readily tradable on an established securities market, § 401(a)(28)(C) requires all valuations with respect to activities carried on by the plan to be made by an independent appraiser that meets requirements similar to the requirements of regulations under § 170(a)(1).

Section 404(k) generally permits an income tax deduction for the amount of any applicable dividend paid in cash by a C corporation with respect to applicable employer securities. For this purpose, applicable employer securities are generally defined to mean employer securities as defined in § 409(l) held by an ESOP.

Section 4975(e)(8), as amended by the Technical Corrections Act of 1979, P.L. 96-22 (1980), provides that qualifying employer securities must meet the definition set forth in § 409(l). Section 409(l)(1) defines employer securities as common stock issued by the employer (or by a corporation that is a member of the same controlled group) which is readily tradable on an established securities market and provides special rules for an employer that has no class of stock which is readily tradable on an established securities market. In the absence of any guidance of general applicability, some plans may have applied the definition of “publicly traded” at § 54.4975-7(b)(1)(iv) of the Excise Tax Regulations (issued before enactment of the Technical Corrections Act of 1979) to determine whether employer securities are readily tradable on an established securities market within the meaning of § 409(l)(1).

Section 1042 generally provides that, if the taxpayer or executor so elects, gain on the sale of qualified employer securities which would be recognized as long-term capital gain is recognized only to the extent the gain exceeds the cost of qualified replacement property acquired within the replacement period. This treatment applies only if the sale is to an ESOP or eligible worker-owned cooperative that holds at least 30 percent of the corporation’s stock after the sale, and various other conditions in § 1042(b) are satisfied. In addition, under § 1042(c), the only securities eligible for this treatment are employer securities defined under § 409(l) and issued by a domestic C corporation that has no stock outstanding that is readily tradable on an established securities market.

Final regulations under § 401(a)(35) were issued on May 18, 2010 (75 FR 27927). Under § 1.401(a)(35)-1(f)(5), a security is readily tradable on an established securities market if the security is traded on a national securities exchange that is registered under section 6 of the Securities Exchange Act of 1934 (15 U.S.C. 78f). The regulations also treat a security as readily tradable on an established securities market if the security is traded on a foreign national securities exchange that is officially recognized, sanctioned, or supervised by a governmental authority and where the security is deemed by the Securities and Exchange Commission (SEC) as having a ready market under SEC Rule 15c3-1 (17 CFR 240.15c3-1). Under the current SEC rules, a security that is included on the FTSE Group (FTSE) All-World Index is deemed to have a ready market. Section 1.401(a)(35)-1 is effective for plan years beginning on or after January 1, 2011.

Under this notice, the terms readily tradable on an established securities market and readily tradable on an established market, with respect to employer securities, each mean employer securities that are readily tradable on an established securities market within the meaning of § 1.401(a)(35)-1(f)(5) for purposes of the following provisions: (1) § 401(a)(22); (2) § 401(a)(28)(C); (3) § 409(h)(1)(B); (4) § 409(l); and (5) § 1042(c)(1)(A).

This notice is effective for plan years beginning on or after January 1, 2012. However, this notice is not effective until plan years beginning on or after January 1, 2013 for any plan that is sponsored by an employer with respect to which, on March 14, 2011, neither the employer nor any member of its controlled group (within the meaning of § 409(l)) has any common stock that is readily tradable on an established securities market within the meaning of § 1.401(a)(35)-(1)(f)(5)(A) (relating to securities that are traded on a national securities exchange that is registered under section 6 of the Securities Exchange Act of 1934), but the employer or a member of its controlled group has common stock that is readily tradable on an established securities market within the meaning of § 1.401(a)(35)-(1)(f)(5)(B) (relating to securities that are traded on a foreign national securities exchange that is officially recognized, sanctioned, or supervised by a governmental authority and is deemed by the SEC as having a “ready market” under SEC Rule 15c3-1, within the meaning of § 1.401(a)(35)-(1)(f)(5)(B)). Taxpayers (including any employer sponsoring a plan described in the preceding sentence) can rely on this notice for periods after March 14, 2011.

The principal author of this notice is Robert Gertner of the Employee Plans, Tax Exempt and Government Entities Division. For further information regarding this notice, please contact the Employee Plans taxpayer assistance answering service at 1-877-829-5500 (a toll-free number) or e-mail Mr. Gertner at RetirementPlanQuestions@irs.gov.

.01 This revenue procedure provides information to any individual who failed to meet the eligibility requirements of section 911(d)(1) of the Internal Revenue Code because adverse conditions in a foreign country precluded the individual from meeting those requirements for taxable year 2010.

.02 This revenue procedure lists the countries for which the eligibility requirements of section 911(d)(1) are waived for taxable year 2010.

.01 Section 911(a) of the Code allows a “qualified individual,” as defined in section 911(d)(1), to exclude foreign earned income and housing cost amounts from gross income. Section 911(c)(4) of the Code allows a qualified individual to deduct housing cost amounts from gross income.

.02 Section 911(d)(1) of the Code defines the term “qualified individual” as an individual whose tax home is in a foreign country and who is (A) a citizen of the United States and establishes to the satisfaction of the Secretary of the Treasury that the individual has been a bona fide resident of a foreign country or countries for an uninterrupted period that includes an entire taxable year, or (B) a citizen or resident of the United States who, during any period of 12 consecutive months, is present in a foreign country or countries during at least 330 full days.

.03 Section 911(d)(4) of the Code provides an exception to the eligibility requirements of section 911(d)(1). An individual will be treated as a qualified individual with respect to a period in which the individual was a bona fide resident of, or was present in, a foreign country, if the individual left the country during a period for which the Secretary of the Treasury, after consultation with the Secretary of State, determines that individuals were required to leave because of war, civil unrest, or similar adverse conditions that precluded the normal conduct of business. An individual must establish that but for those conditions the individual could reasonably have been expected to meet the eligibility requirements.

.04 For 2010, the Secretary of the Treasury, in consultation with the Secretary of State, has determined that war, civil unrest, or similar adverse conditions precluded the normal conduct of business in the following countries beginning on the specified date:

Accordingly, for purposes of section 911 of the Code, an individual who left one of the foregoing countries on or after the specified departure date during 2010 shall be treated as a qualified individual with respect to the period during which that individual was present in, or was a bona fide resident of, such foreign country, if the individual establishes a reasonable expectation of meeting the requirements of section 911(d) but for those conditions.

.06 To qualify for relief under section 911(d)(4) of the Code, an individual must have established residency, or have been physically present, in the foreign country on or prior to the date that the Secretary of the Treasury determines that individuals were required to leave the foreign country. Individuals who establish residency, or are first physically present, in the foreign country after the date that the Secretary prescribes shall not be treated as qualified individuals under section 911(d)(4) of the Code. For example, individuals who are first physically present or establish residency in Cote d’Ivoire after December 19, 2010, are not eligible to qualify for the exception provided in section 911(d)(4) of the Code for taxable year 2010.

A taxpayer who needs assistance on how to claim this exclusion, or on how to file an amended return, should contact a local IRS Office or, for a taxpayer residing or traveling outside the United States, the nearest overseas IRS office.

The principal author of this revenue procedure is Kate Y. Hwa of the Office of Associate Chief Counsel (International). For further information regarding this revenue procedure, contact Ms. Hwa at (202) 622-3840 (not a toll-free call).

The Treasury Department and the Internal Revenue Service (“IRS”) issued Notice 2008-41, 2008-1 C.B. 742 (April 14, 2008), as modified by Notice 2008-88, 2008-42 I.R.B. 933 (October 20, 2008), and Notice 2010-7, 2010-3 I.R.B. 296 (January 19, 2010), to provide relief from liquidity constraints in the tax-exempt bond market during the financial crisis. The notices provided certain temporary rules that allowed state and local governmental issuers to purchase and hold their own tax-exempt bonds for temporary holding periods without resulting in a retirement of the purchased tax-exempt bonds solely for the purposes of § 103 and §§ 141-150 of the Internal Revenue Code, as amended (“Code”). Section 3.2 of Notice 2010-7 provides in relevant part that the permitted holding period during which a state or local governmental issuer may hold its own tax-exempt bonds under the special rules in § 3.1 of Notice 2008-88 expires on December 31, 2010. Separately, certain special rules of continuing application allow state and local governmental issuers to hold their own “qualified tender bonds” for a temporary period pursuant to the exercise of a “qualified tender right” (as defined in § 3.2 of Notice 2008-41) without causing a reissuance or retirement of those bonds. After December 31, 2010, except for tax-exempt bonds held pursuant to rules of continuing application for qualified tender bonds, a state or local governmental issuer generally may not purchase and hold its own tax-exempt bonds without causing a retirement or extinguishment of such bonds (any such bonds so held are referred to as “extinguished bonds”).

For various reasons beyond their control, some issuers that previously purchased their own tax-exempt bonds in the financial crisis pursuant to Notices 2008-41, 2008-88, and 2010-7 were unable to resell the bonds by December 31, 2010. In addition, other issuers may currently need to purchase and hold their own tax-exempt bonds due to certain current market challenges. Some of these issuers have approached the IRS about the possibility of entering into a voluntary closing agreement that would allow them to continue to purchase or hold their own tax-exempt bonds under § 103 of the Code after December 31, 2010.

.01 Pursuant to the TEB VCAP program set forth in Notice 2008-31, 2008-1 C.B. 592 (March 17, 2008), the IRS will consider requests from issuers of extinguished bonds for a voluntary closing agreement.

.02 The closing agreement will provide that the extinguished bonds will be treated as remaining outstanding for purposes of § 103 and §§ 141-150 during the period beginning on the later of January 1, 2011 or the date the issuer purchases its own bonds and ending on the earlier of: (1) the date that is 180 days after the execution of the closing agreement by the IRS and the issuer or such earlier date as requested by the issuer (the “Closing Date”); (2) the date that the bonds are successfully resold to a third party; (3) the date that the bonds are successfully currently refunded for purposes of §§ 103 and 141-150; or (4) the date that the bonds are cancelled on the books and records of the issuer.

.03 The closing agreement will be conditioned on:

(A) The authorizing body of the issuer submitting its adopted resolution (the “Authorizing Resolution”) of its intent to resell or currently refund the extinguished bonds as tax-exempt bonds within the relevant period described in section 2.02 above. Such resolution shall be based on the opinion of its financial advisor or other expert that the resale or refunding of the bonds is likely to be successful within such period.

(B) The issuer’s representations that the bonds to be resold or currently refunded by the issuer: (1) are outstanding for purposes of State law and constitute legal, valid, and binding obligations of the issuer under applicable State law; and (2) assuming that the bonds are treated as remaining outstanding for purposes of § 103 and §§ 141-150, qualify as tax-exempt obligations of the issuer under § 103 of the Code. The issuer may make these representations itself or the issuer may satisfy the requirement for these representations through submission of an unqualified bond counsel opinion from a nationally recognized public finance attorney or law firm that addresses these representations.

(C) The payment of a fee by the issuer equal to the par value of the outstanding bonds to be held by the issuer multiplied by one thirty-fifth of one percent (.029%) for each month from the later of January 1, 2011 or the date of purchase of the extinguished bonds and continuing through the Closing Date.

.04 The TEB VCAP request must be submitted no later than December 31, 2012 under the operating procedures described in section 7.2.3 of the Internal Revenue Manual.

.05 Generally, a complete VCAP request will be processed and a closing agreement will be sent to the issuer for its execution within 45 days of the receipt of the complete submission. An issuer must submit payment, in accordance with the closing agreement, prior to returning the executed closing agreement to the IRS for its subsequent execution.

The principal author of this announcement is Sandra H. Westin of the IRS Office of Tax Exempt Bonds. For further information regarding this announcement, contact Sandra Westin at (415) 522-6065 (not a toll-free call).