Insurance companies; interest rate tables. Prevailing state assumed interest rates are provided for the determination of reserves under section 807 of the Code for contracts issued in 2004 and 2005. Rev. Rul. 92-19 supplemented in part.

Designation of dividends; regulated investment company (RIC). This ruling provides guidance that allows a RIC, in making the dividend designations permitted by sections 852, 854, and 871 of the Code, to designate the maximum amount permitted under each provision even if the total amount so designated exceeds the total amount of the RIC's dividend distributions. It also allows individual shareholders of the RIC who are U.S. persons to apply designations to the dividends they receive from the RIC that differ from designations applied by shareholders who are nonresident aliens.

Issuers of life insurance contracts that request to enter into a closing agreement with the Internal Revenue Service under Alternative B or C of Rev. Rul. 2005-6 may, in lieu of a paper submission, provide a CD-ROM diskette in read-only format listing the contracts that are the subject of the closing agreement.

This procedure provides the mechanism by which taxpayers may choose to forgo the normally required private letter ruling for switching from the fair market value method to the alternative tax book value method, within a certain limited time period. Section 864(e)(2) requires that interest expense be apportioned on the basis of assets for purposes of computing foreign source taxable income. Taxpayers may elect to compute the value of assets on the basis of fair market value or tax book value. In March 2004, Treasury and the IRS issued temporary and proposed regulations that contained a third method for determining the value of assets, the “alternative tax book value method.”

This document contains corrections to temporary regulations (T.D. 9170, 2005-4 I.R.B. 363) that provide guidance concerning the applicability of section 1374 to S corporations that acquire assets in carryover basis transactions from C corporations on or after December 27, 1994, and to certain corporations that terminate S corporation status and later elect again to become S corporations.

Weighted average interest rate update; corporate bond indices; 30-year Treasury securities. The weighted average interest rate for May 2005 and the resulting permissible range of interest rates used to calculate current liability and to determine the required contribution are set forth.

Election to defer a net experience loss; notice to Pension Benefit Guaranty Corporation; notice to plan participants and beneficiaries; notice to employers; notice to labor organizations. This notice provides guidance regarding the election that can be made for certain multiemployer plans to defer charges with respect to certain net experience losses pursuant to section 412(b)(7)(F) of the Code and section 302(b)(7)(F) of the Employee Retirement Income Security Act of 1974 (ERISA), as well as certification and notification requirements.

EP opinion letters and advisory letters; GUST. This announcement is the formal closing of the GUST program for defined contribution pre-approved plans. The announcement states that after June 15, 2005, the Service will no longer accept those submissions. In addition, this announcement states that October 31, 2005, is the deadline for sponsors and practitioners of mass submitter plans and national sponsor plans for the initial six-year cycle for defined contribution pre-approved plans for the EGTRRA program.

Volume Submitter (VS) practitioners; certain plan amendments. This announcement explains the steps available to VS practitioners to make certain plan amendments on behalf of the adopting employers of their VS specimen plans.

Beacon Ministries of North Carolina, Inc., of Creston, NC; Haysville Tiger Baseball Foundation of Haysville, KS; and National Center for Debt Elimination, Ltd., of North Huntingdon, PA, no longer qualify as organizations to which contributions are deductible under section 170 of the Code.

For purposes of § 807(d)(4) of the Internal Revenue Code, for taxable years beginning after December 31, 2003, this ruling supplements the schedules of prevailing state assumed interest rates set forth in Rev. Rul. 92-19, 1992-1 C.B. 227. This information is to be used by insurance companies in computing their reserves for (1) life insurance and supplementary total and permanent disability benefits, (2) individual annuities and pure endowments, and (3) group annuities and pure endowments. As § 807(d)(2)(B) requires that the interest rate used to compute these reserves be the greater of (1) the applicable federal interest rate, or (2) the prevailing state assumed interest rate, the table of applicable federal interest rates in Rev. Rul. 92-19 is also supplemented.

Following are supplements to schedules A, B, C, and D to Part III of Rev. Rul. 92-19, providing prevailing state assumed interest rates for insurance products with different features issued in 2004 and 2005, and a supplement to the table in Part IV of Rev. Rul. 92-19, providing the applicable federal interest rates under § 807(d) for 2004 and 2005. This ruling does not supplement Parts I and II of Rev. Rul. 92-19.

This is the thirteenth supplement to the interest rates provided in Rev. Rul. 92-19. Earlier supplements were published in Rev. Rul. 93-58, 1993-2 C.B. 241 (interest rates for insurance products issued in 1992 and 1993); Rev. Rul. 94-11, 1994-1 C.B. 196 (1993 and 1994); Rev. Rul. 95-4, 1995-1 C.B. 141 (1994 and 1995); Rev. Rul. 96-2, 1996-1 C.B. 141 (1995 and 1996); Rev. Rul. 97-2, 1997-1 C.B. 134 (1996 and 1997); Rev. Rul. 98-2, 1998-1 C.B. 259 (1997 and 1998); Rev. Rul. 99-10, 1999-1 C.B. 671 (1998 and 1999); Rev. Rul. 2000-17, 2000-1 C.B. 842 (1999 and 2000); Rev. Rul. 2001-11, 2001-1 C.B. 780 (2000 and 2001); Rev. Rul. 2002-12, 2002-1 C.B. 624 (2001 and 2002); Rev. Rul. 2003-24, 2003-1 C.B. 557 (2002 and 2003); and Rev. Rul. 2004-14, 2004-1 C.B. 511 (2003 and 2004).

Rev. Rul. 92-19 is supplemented by the addition to Part III of that ruling of prevailing state assumed interest rates under § 807 for certain insurance products issued in 2003 and 2004 and is further supplemented by an addition to the table in Part IV of Rev. Rul. 92-19 listing applicable federal interest rates. Parts I and II of Rev. Rul. 92-19 are not affected by this ruling.

The principal author of this revenue ruling is Ann H. Logan of the Office of Associate Chief Counsel (Financial Institutions and Products). For further information regarding this revenue ruling, contact her at (202) 622-3970 (not a toll-free call).

(1) In making the dividend designations permitted by §§ 852(b)(3)(C) and (b)(5)(A), 854(b)(1) and (2), and 871(k)(1)(C) and (2)(C) of the Internal Revenue Code, may a regulated investment company (“RIC”) designate the maximum amount permitted under each provision even if the aggregate of all of the amounts so designated exceeds the total amount of the RIC’s dividend distributions?

(2) May individual shareholders of the RIC who are United States persons apply designations to the dividends they receive from the RIC that differ from designations applied by shareholders who are nonresident alien individuals?

R, a domestic corporation, is registered under the Investment Company Act of 1940, 15 U.S.C. 80a-1 et seq., as a management company and has elected to be treated as a RIC under subchapter M, part 1, of the Code. Some of the shareholders of R are individuals who are United States persons, and some of the shareholders are nonresident alien individuals. For its first taxable year beginning after December 31, 2004, R’s taxable income consists of $10,000x of dividend income (all of which is qualified dividend income within the meaning of § 1(h)(11)), $10,000x of interest income (all of which is qualified interest income within the meaning of § 871(k)(1)), $5,000x of net short-term capital gain, and $5,000x of net long-term capital gain. R has general and administrative expenses of $10,000x. R distributes $20,000x to its shareholders for the taxable year, of which $20x is received by shareholder A, an individual who is a United States person, and $20x is received by shareholder B, a nonresident alien individual who does not have any effectively connected income as defined in § 864(c).

Section 854, as amended by the Jobs and Growth Tax Relief Reconciliation Act of 2003 (the “JGTRRA”), Pub. L. No. 108-27, 117 Stat. 752, and the Working Families Tax Relief Act of 2004, Pub. L. No. 108-311, 118 Stat. 1166, provides rules for determining the amount distributed by a RIC to its shareholders that may be treated by the shareholders as qualified dividend income under § 1(h)(11). Under § 1(h)(11), qualified dividend income received by an individual, estate, or trust is subject to a maximum tax rate of 15 percent. Section 854(b)(1)(C) provides that the aggregate amount that may be designated by a RIC as qualified dividend income for purposes of § 1(h)(11) generally shall not exceed the RIC’s qualified dividend income for the taxable year. Section 854 does not require that this amount be reduced by expenses.

Section 871(k), as amended by the American Jobs Creation Act of 2004 (the “AJCA”), Pub. L. No. 108-357, 118 Stat. 1418, provides rules for determining the amount distributed by a RIC to its shareholders that may be treated by the shareholders as interest-related dividends or short-term capital gain dividends. Under § 871(k), an interest-related dividend or a short-term capital gain dividend received by a nonresident alien individual generally is not subject to United States withholding tax.

Section 871(k)(1)(C) limits the amount a RIC may designate as an interest-related dividend to the RIC’s qualified net interest income for the taxable year. Section 871(k)(1)(D) defines qualified net interest income as a RIC’s qualified interest income reduced by the deductions properly allocable to such income.

Section 871(k)(2)(C) limits the amount a RIC may designate as a short-term capital gain dividend to the RIC’s qualified short-term gain for the taxable year. Section 871(k)(2)(D) defines qualified short-term gain as the excess of the RIC’s net short-term capital gain for the year over the RIC’s net long-term capital loss for such year, generally determined without regard to any net capital loss or net short-term capital loss attributable to transactions after October 31 of such year. Section 1222(5) defines net short-term capital gain as the excess of short-term capital gains for the taxable year over short-term capital losses for such year. The Statement of Managers in the Conference Report accompanying the AJCA states, “In computing the amount of short-term capital gain dividends for the year, no reduction is made for the amount of expenses of the RIC allocable to such net gains.” 1 H.R. Rep. No. 548, 108^th Cong., 2d Sess. 166 (2004).

Section 852(b)(3) provides rules for determining the amount distributed by a RIC to its shareholders that may be treated by the shareholders as a capital gain dividend. Section 852(b)(3)(C) limits the amount a RIC may designate as a capital gain dividend to the RIC’s net capital gain for the taxable year, generally determined without regard to any net capital loss or net long-term capital loss attributable to transactions after October 31 of such year. Section 1222(11) defines net capital gain as the excess of the net long-term capital gain for the taxable year over the net short-term capital loss for such year.

For purposes of determining the taxable income of a RIC under subchapter M, § 852(b) separates a RIC’s net capital gain from its other income (identified as “investment company taxable income”). Section 852(b)(3) imposes a tax on the excess of the RIC’s net capital gain over its deduction for dividends paid determined with reference to capital gains dividends only. A RIC is not allowed any deduction for expenses against its net capital gain. A RIC’s investment company taxable income equals its taxable income (exclusive of net capital gain) reduced by allowable expenses and its deduction for dividends paid determined without regard to capital gains dividends and exempt-interest dividends. Thus, the basic pattern for taxing a RIC’s income treats its expenses as allocable only to its investment company taxable income (exclusive of net capital gain).

In this situation, under § 852(b)(3)(C), the maximum amount R may designate as capital gain dividends is $5,000x, which is the amount of R’s net capital gain for the taxable year ($5,000x of net long-term capital gain less $0x of net short-term capital loss). Of the remaining distribution of $15,000x for the taxable year, R applies the rules of §§ 854 and 871 to determine the maximum amounts it may designate as qualified dividend income, short-term capital gain dividends, and interest-related dividends. Under § 854(b)(1)(C), the maximum amount R may designate as distributions of qualified dividend income is $10,000x, which is the amount of R’s qualified dividend income for the taxable year, unreduced by expenses. Under § 871(k)(2)(C), the maximum amount R may designate as short-term capital gain dividends is $5,000x, which is the amount of R’s net short-term capital gain unreduced by expenses allocable to that net gain. Under § 871(k)(1)(C), the maximum amount R may designate as interest-related dividends is $10,000x (the amount of R’s qualified interest income), less the amount of R’s expenses properly allocable to that income. Given the specific provisions of § 852(b)(3) precluding an allocation of expenses to reduce net capital gain, and taking into account the statement in the Conference Report that assumes that a portion of a RIC’s expenses are allocable to its short-term gains, R may reasonably determine that its expenses should be allocated pro rata to the components of its income included in RIC taxable income (qualified dividends, interest, and short-term gains) and that the amount of its expenses properly allocable to interest income is $4,000x. Accordingly, the maximum amount R may designate as interest-related dividends is $6,000x.

The sum ($26,000x) of the maximum amounts computed above of capital gain dividends ($5,000x), distributions of qualified dividend income ($10,000x), short-term capital gain dividends ($5,000x), and interest-related dividends ($6,000x), exceeds the total amount distributed by R for the taxable year ($20,000x). If R uses these maximum amounts in making its dividend designations for the taxable year, the designations that are relevant for each of A and B will not exceed their respective dividend distributions. The reduced tax rate applicable to distributions of qualified dividend income, and thus the designation as such a distribution, apply to individual taxpayers who are United States persons and do not apply to income received by a nonresident alien individual unless the income is effectively connected with the conduct of a trade or business within the United States. In contrast, the exemption from United States withholding tax for interest-related dividends and short-term capital gain dividends received from a RIC applies only to dividends that are received by a nonresident alien individual and that are not effectively connected with the conduct of a trade or business within the United States.

There is no indication that Congress, in enacting the exemption from United States withholding tax in the AJCA for interest-related dividends and short-term capital gain dividends received from a RIC by a nonresident alien individual, intended to reduce the benefits conferred by the JGTRRA for qualified dividend income received from the RIC by individuals who are United States persons. Similarly, there is no indication that Congress intended that the benefits conferred by the JGTRRA for qualified dividend income received from a RIC would apply to reduce the benefits conferred by the AJCA for interest-related dividends and short-term capital gains received from the RIC. To achieve the purposes of the provisions of both the AJCA and the JGTRRA, R may designate each of the maximum amounts described above, and A and B may apply different designations to their distributions.

Therefore, with respect to its dividend distributions of $20,000x for the taxable year, R may designate $5,000x as a capital gain dividend, $10,000x as a distribution of qualified dividend income, $6,000x as an interest related dividend, and $5,000x as a short-term capital gain dividend. These are, respectively, 25 percent, 50 percent, 30 percent, and 25 percent of the $20,000x distribution. If R makes these designations and properly advises its shareholders that these percentages apply to the distributions that each received, then A and B may apply the designations as follows. Of the $20x received by A from R, A may treat 25 percent ($5x) as a capital gain dividend and 50 percent ($10x) as qualified dividend income that is subject to a maximum tax rate of 15 percent. The remaining $5x is reportable as dividend income that is not qualified dividend income. Of the $20x received by B from R, B may treat 25 percent ($5x) as a capital gain dividend, 30 percent ($6x) as an interest-related dividend, and 25 percent ($5x) as a short-term capital gain dividend. The remaining $4x is dividend income that is not qualified dividend income. Assuming all other necessary conditions are satisfied, the $5x of capital gain dividends, the $6x of interest-related dividends, and $5x of short-term capital gain dividends are exempt from United States withholding tax.

(1) In making the dividend designations permitted by §§ 852(b)(3)(C) and (b)(5)(A), 854(b)(1) and (2), and 871(k)(1)(C) and 2(C), a RIC may designate the maximum amount permitted under each provision even if the aggregate of all of the amounts so designated exceeds the total amount of the RIC’s dividend distributions.

(2) Individual shareholders of the RIC who are United States persons may apply designations to the dividends they receive from the RIC that differ from designations applied by shareholders who are nonresident alien individuals.

The principal author of this revenue ruling is Sonja Kotlica of the Office of Associate Chief Counsel (Financial Institutions & Products). For further information regarding this revenue ruling, contact Ms. Kotlica at (202) 622-3960 (not a toll-free call).

This notice provides procedures under which a list identifying the contracts subject to a closing agreement under Rev. Rul. 2005-6, 2005-6 I.R.B. 471, may be submitted to the Internal Revenue Service in electronic format.

Rev. Rul. 2005-6 provides that for purposes of determining whether a contract qualifies as a life insurance contract under § 7702 of the Internal Revenue Code, and as a modified endowment contract (MEC) under § 7702A, charges for qualified additional benefits (QABs) must be taken into account under the expense charge rule of § 7702(c)(3)(B)(ii). The revenue ruling provides three alternatives to life insurance contract issuers whose compliance systems do not currently account for charges for QABs under the expense charge rule of § 7702(c)(3)(B)(ii). Under Alternatives B and C of the ruling an issuer may request relief in the form of a closing agreement under which contracts will not be treated as having failed the requirements of § 7702(a) or as MECs under § 7702A by reason of improperly accounting for charges for existing QABs. The issuer’s request for a closing agreement must include a list identifying the contracts for which relief is requested.

The Internal Revenue Service has learned that, in some cases, a list identifying the contracts subject to a closing agreement may be sufficiently large that it could be burdensome for issuers to provide the list on paper. Accordingly, an issuer may submit the list electronically, in read-only format, on either a CD-ROM or diskette. Adobe Portable Document format is a suitable format. Other formats may be arranged on a case-by-case basis. The issuer must provide a total of 3 CD-ROMs or diskettes, one for each of the three (3) copies of the closing agreement.

The principal author of this notice is Melissa S. Luxner of the Office of Associate Chief Counsel (Financial Institutions & Products). For further information regarding this notice, contact Melissa S. Luxner at (202) 622-3970 (not a toll-free call).

This notice provides guidance as to the corporate bond weighted average interest rate and the permissible range of interest rates specified under § 412(b)(5)(B)(ii)(II) of the Internal Revenue Code. In addition, it provides guidance as to the interest rate on 30-year Treasury securities under § 417(e)(3)(A)(ii)(II), and the weighted average interest rate and permissible ranges of interest rates based on the 30-year Treasury securities rate.

Sections 412(b)(5)(B)(ii) and 412(l) (7)(C)(i), as amended by the Pension Funding Equity Act of 2004, provide that the interest rates used to calculate current liability and to determine the required contribution under § 412(l) for plan years beginning in 2004 or 2005 must be within a permissible range based on the weighted average of the rates of interest on amounts invested conservatively in long term investment grade corporate bonds during the 4-year period ending on the last day before the beginning of the plan year.

Notice 2004-34, 2004-18 I.R.B. 848, provides guidelines for determining the corporate bond weighted average interest rate and the resulting permissible range of interest rates used to calculate current liability. That notice establishes that the corporate bond weighted average is based on the monthly composite corporate bond rate derived from designated corporate bond indices.

The composite corporate bond rate for April 2005 is 5.55 percent. Pursuant to Notice 2004-34, the Service has determined this rate as the average of the monthly yields for the included corporate bond indices for that month.

The following corporate bond weighted average interest rate was determined for plan years beginning in the month shown below.

Section 417(e)(3)(A)(ii)(II) defines the applicable interest rate, which must be used for purposes of determining the minimum present value of a participant’s benefit under § 417(e)(1) and (2), as the annual rate of interest on 30-year Treasury securities for the month before the date of distribution or such other time as the Secretary may by regulations prescribe. Section 1.417(e)-1(d)(3) of the Income Tax Regulations provides that the applicable interest rate for a month is the annual interest rate on 30-year Treasury securities as specified by the Commissioner for that month in revenue rulings, notices or other guidance published in the Internal Revenue Bulletin.

Section 404(a)(1) of the Code, as amended by the Pension Funding Equity Act of 2004, permits an employer to elect to disregard subclause (II) of § 412(b)(5)(B)(ii) to determine the maximum amount of the deduction allowed under § 404(a)(1).

The rate of interest on 30-year Treasury securities for April 2005 is 4.65 percent. Pursuant to Notice 2002-26, 2002-1 C.B. 743, the Service has determined this rate as the monthly average of the daily determination of yield on the 30-year Treasury bond maturing in February 2031.

The following 30-year Treasury rates were determined for the plan years beginning in the month shown below.

The principal authors of this notice are Paul Stern and Tony Montanaro of the Employee Plans, Tax Exempt and Government Entities Division. For further information regarding this notice, please contact the Employee Plans’ taxpayer assistance telephone service at 1-877-829-5500 (a toll-free number), between the hours of 8:00 a.m. and 6:30 p.m. Eastern time, Monday through Friday. Mr. Stern may be reached at 1-202-283-9703. Mr. Montanaro may be reached at 1-202-283-9714. The telephone numbers in the preceding sentences are not toll-free.

This notice sets forth guidance regarding the election that can be made for certain multiemployer plans to defer charges with respect to net experience losses pursuant to § 412(b)(7)(F) of the Internal Revenue Code (Code) and section 302(b)(7)(F) of the Employee Retirement Income Security Act of 1974 (ERISA), as added by section 104 of the Pension Funding Equity Act of 2004 (PFEA), Pub. L. 108-218.

Section 412 of the Code sets forth minimum funding standards that apply to defined benefit plans. The minimum funding standards are implemented by a series of charges and credits to a funding standard account as described in § 412(b). One of the charges to the funding standard account specified in § 412(b) pertains to net experience losses. Section 412(b)(2)(B)(iv) requires that net experience losses for any plan year be amortized in equal annual installments. The amortization period for net experience losses for multiemployer plans is 15 years.

Section 412(b)(7)(F) provides an election for certain multiemployer plans that permits the deferral of a portion of the amortization charge arising from the net experience loss for the first plan year beginning after December 31, 2001 (the 2002 loss). The § 412(b)(7)(F) election to defer a portion of the amortization charge of the 2002 loss is available for an eligible multiemployer plan (as that term is described below) with respect to plan years beginning after June 30, 2003, and before July 1, 2005. Section 412(b)(7)(F)(iii) contains restrictions on plan amendments that increase benefit liabilities during the period the § 412(b)(7)(F) deferral election is in effect.

Section 302 of ERISA contains minimum funding standard requirements that are parallel to those under § 412 of the Code, and section 302(b)(7)(F) of ERISA provides an election that is parallel to the election under § 412(b)(7)(F) of the Code. Under section 101 of Reorganization Plan No. 4 of 1978, 1979-1 C.B. 480, the Secretary of the Treasury has sole interpretive authority over the subject matter addressed in this Notice 2005-40. Accordingly, unless otherwise specified, all references in this Notice 2005-40 to § 412 of the Code also apply to the parallel provisions of section 302 of ERISA.

Section 302(b)(7)(F)(vi) of ERISA requires that, if a plan sponsor elects to defer a net experience loss charge under section 302(b)(7) of ERISA and § 412(b)(7) of the Code for any plan year, the plan administrator must provide written notices of the election to: (1) the participants and beneficiaries under the plan, (2) each labor organization representing such participants or beneficiaries, (3) each employer that has an obligation to contribute under the plan, and (4) the Pension Benefit Guaranty Corporation (PBGC). The notices must be provided within 30 days of the filing of the election for such year, and the notices of the election must include specified information. Section 104(a)(2) of PFEA amended section 502(c)(4) of ERISA to provide that, if any person fails to provide any of these notices required under section 302(b)(7)(F)(vi) of ERISA on a timely basis that person may be liable to the Department of Labor (DOL) for a penalty of up to $1,000 a day from the date of the failure to provide the proper notice.

Section 1.412(c)(3)-1(d)(1)(i) of the Income Tax Regulations provides that, except as otherwise provided by the Commissioner, a reasonable funding method does not anticipate changes in plan benefits that become effective, whether or not retroactively, in a future plan year or that become effective after the first day of, but during, a current plan year.

Rev. Rul. 77-2, 1977-1 C.B. 120, provides guidance regarding the minimum funding requirements with respect to a change in the benefit structure of a qualified pension plan that becomes effective during a plan year. Section 2.02 of Rev. Rul. 77-2 provides that, in the case of a change in the benefit structure that becomes effective as of a date during a plan year (but subsequent to the first day in such plan year), the charges and credits to the funding standard account shall not reflect the change in such benefit structure for the portion of such plan year prior to the effective date of such change, and shall reflect the change in such benefit structure for the portion of the plan year subsequent to the effective date of the change. Section 3 of Rev. Rul. 77-2 provides that, in determining the charges and credits for the plan year, in lieu of using the rule of section 2.02 of Rev. Rul. 77-2, a plan is permitted to disregard a change in benefit structure that is adopted after the valuation date for the year.

Section 412(c)(8) of the Code provides that any amendment applying to a plan year that is adopted after the close of the plan year but no later than 2¹/₂ months after the close of the plan year and that does not reduce the accrued benefit of any participant determined as of the beginning of the first plan year to which the amendment relates is, at the election of the plan administrator, deemed to have been made on the first day of such plan year (subject to additional restrictions on plan amendments that reduce benefits). Pursuant to Rev. Rul. 79-325, 1979-2 C.B. 190, and Rev. Proc. 94-42, 1994-1 C.B. 717, § 412(c)(8) also applies to plan amendments adopted during the plan year to which the amendment relates.

The collection of information contained in this notice has been reviewed and approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act (44 U.S.C. 3507) under control number 1545-1935.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number.

The collection of information in this notice is in Q&A-11, Q&A-14, Q&A-15, Q&A-17, and Q&A-27 of section II. This information is required to enable delegates of the Commissioner, Tax Exempt and Government Entities Division of the Internal Revenue Service to monitor and make valid determinations with respect to whether a multiemployer plan may elect to defer certain charges to the multiemployer plan’s funding standard account. As a result of such elections, the net experience loss of a multiemployer plan’s funding standard account will be deferred and charges for these multiemployer plans will be based on amounts specified under § 412(b)(7) of the Code and section 302(b)(7) of ERISA. Such an election may cause the excise tax for failure to meet the minimum funding standards not to be incurred. The likely respondents are businesses and other for-profit institutions or nonprofit institutions.

The estimated total annual reporting and/or recordkeeping burden is 960 hours.

The estimated annual burden per respondent/recordkeeper varies from 60 to 180 hours, depending on individual circumstances, with an estimated average of 80 hours. The estimated number of respondents and/or recordkeepers is 12.

The estimated frequency of responses is occasional.

Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally tax returns and tax return information are confidential, as required by 26 U.S.C. § 6103.

The principal authors of this notice are Michael Rubin of the Employee Plans, Tax Exempt and Government Entities Division and Linda S. F. Marshall of the Office of the Division Counsel/Associate Chief Counsel (Tax Exempt and Government Entities). Mr. Rubin may be reached at 202-283-9888 (not a toll-free number).

This revenue procedure sets forth the administrative procedure under which a taxpayer described in § 3 of this revenue procedure may obtain automatic consent to change from the fair market value method to the alternative tax book value method of valuing assets for purposes of apportioning expenses pursuant to § 1.861-9T(g) of the Temporary Income Tax Regulations. Accordingly, taxpayers that change from the fair market value method to the alternative tax book value method pursuant to this revenue procedure will be treated as expressly authorized by the Commissioner to change methods. This automatic consent procedure applies to changes in apportionment method requested for taxable years beginning on or after March 26, 2004, but before March 26, 2006, and for which a return has not previously been filed.

.01 Section 864(e)(2) of the Internal Revenue Code provides that allocation and apportionment of interest expense is made on the basis of assets rather than on the basis of gross income. For this purpose, §§ 1.861-8T(c)(2) and 1.861-9T(g)(1)(ii) of the temporary regulations permit a taxpayer to elect to compute the value of its assets under either the tax book value method or the fair market value method. A taxpayer using the tax book value method may elect to change to the fair market value method at any time. See Rev. Proc. 2003-37, 2003-1 C.B. 950. However, § 1.861-8T(c)(2) provides that a taxpayer electing to use the fair market value method must continue to use that method unless expressly authorized by the Commissioner to change methods.

.02 On March 26, 2004, the Treasury Department and the Internal Revenue Service (IRS) published temporary regulations in the Federal Register (T.D. 9120, 2004-19 C.B. 881 [69 FR 15673]). These regulations amended §1.861-9T by adding §1.861-9T(i). Section 1.861-9T(i) provides an alternative method of determining the tax book value of assets (the “alternative tax book value method”). Prior to the issuance of the temporary regulations, a taxpayer could value assets under one of two methods: the fair market value method and the regular tax book value method. The alternative tax book value method set forth in the temporary regulations is a third method which allows a taxpayer to elect to determine the tax book value of its tangible property that is subject to a depreciation deduction under § 168 as though all such property had been depreciated using the straight line method, conventions, and recovery periods of the alternative depreciation system of § 168(g). The alternative tax book value method therefore provides a taxpayer with the option of determining the adjusted bases of both foreign and domestic assets under one consistent depreciation method and helps minimize basis disparities that may arise under the regular tax book value method. The alternative tax book value method applies solely for purposes of apportioning expenses (including the calculation of the alternative minimum tax foreign tax credit pursuant to § 59(a) of the Code) under the asset method described in § 1.861-9T(g).

.03 Section 1.861-9T(i)(2)(i) generally allows a taxpayer to elect to value its assets using the alternative tax book value method with respect to any taxable year beginning on or after March 26, 2004. However, under § 1.861-8T(c)(2), a taxpayer using the fair market value method must obtain the consent of the Commissioner to change methods, including a change to the alternative tax book value method.

.04 The preamble to the temporary regulations states that the Treasury Department and the IRS intend to issue a revenue procedure to provide temporary rules granting taxpayers automatic consent to change from the fair market value method to the alternative tax book value method. Accordingly, this revenue procedure provides temporary rules for obtaining automatic consent to change from the fair market value method to the alternative tax book value method of valuing assets pursuant to § 1.861-9T(g)(1)(ii). Notwithstanding these temporary rules for obtaining automatic consent, a taxpayer may request, under the regular ruling process, the consent of the Commissioner to change from the fair market value method to the regular tax book value method or the alternative tax book value method. These temporary rules do not affect the ability of taxpayers currently valuing assets under the regular tax book value method to make a change to the alternative tax book value method with respect to any taxable year beginning on or after March 26, 2004.

.01 This revenue procedure applies to any taxpayer requesting to change from the fair market value method to the alternative tax book value method of asset valuation for a taxable year beginning on or after March 26, 2004, but before March 26, 2006, for which no return has previously been filed.

.01 A taxpayer within the scope of this revenue procedure is granted the consent of the Commissioner to change to the alternative tax book value method provided that the other conditions of this § 4 are satisfied.

.02 A corporation described in § 3.01 shall request to change to the alternative tax book value method on a timely filed Form 1118 by selecting that asset valuation method on Part II of Schedule H and attaching to Form 1118 the statement set forth in § 4.04. In the case of such taxpayers electronically filing Form 1118, the statement must be included in the electronic version of Form 1118.

.03 A taxpayer, other than a corporation, described in § 3.01 shall request to change to the alternative tax book value method on a timely filed Form 1116 by attaching to Form 1116 the statement set forth in § 4.04. In the case of such taxpayers electronically filing Form 1116, the statement must be entered into the Election Explanation Record of the electronic version of Form 1040, Form 1041, or other relevant form.

.04 The statement referred to in §§ 4.02 and 4.03 shall provide as follows: “For the immediately preceding tax year, [name of taxpayer] valued assets for expense apportionment purposes using the fair market value method. Pursuant to Rev. Proc. 2005-28, [name of taxpayer] is changing from the fair market value method to the alternative tax book value method of asset valuation. This change to the alternative tax book value method applies prospectively beginning with [name of taxpayer]’s [XXXX] taxable year.”

.05 Any taxpayer that changes to the alternative tax book value method under this revenue procedure must maintain all documentation necessary to establish its change in valuation methods and its eligibility for the benefits of this revenue procedure.

.01 This revenue procedure is effective for requests to change from the fair market value method to the alternative tax book value method for taxable years beginning on or after March 26, 2004, but before March 26, 2006, for which no return has previously been filed.

The collections of information contained in this revenue procedure have been reviewed and approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act (44 U.S.C. § 3507) under control number 1545-1944.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number.

The collections of information in this revenue procedure are in § 4. They are required to enable the IRS to determine whether the taxpayer is eligible for an automatic change from the fair market value method to the alternative tax book value method. The information will also inform revenue agents as to the years for which the alternative tax book value method is being adopted. The collections of information are required in order to obtain the benefit of the alternative tax book valuation method. The likely respondents are businesses.

The estimated total annual reporting and/or recordkeeping burden is 100 hours. The estimated annual burden per respondent and/or recordkeeper is an estimated average of .5 hours. The estimated number of respondents and/or recordkeepers is 200. The estimated frequency of response is occasional.

Books and records relating to a collection of information must be retained as long as their statements may become material in the administration of any internal revenue law. Generally, tax returns and tax information are confidential, as required by 26 U.S.C. § 6103.

The principal author of this revenue procedure is Margaret A. Hogan of the Office of Associate Chief Counsel (International). For further information regarding this revenue procedure, contact Margaret A. Hogan at (202) 622-3850 (not a toll-free call).

Internal Revenue Service (IRS), Treasury.

Correcting amendment.

This document corrects temporary regulations (T.D. 9170, 2005-4 I.R.B. 363) that were published in the Federal Register on Wednesday, December 22, 2004 (69 FR 76612). The document contains temporary regulations providing guidance concerning the applicability of section 1374 to S corporations that acquire assets in carryover basis transactions from C corporations on or after December 27, 1994, and to certain corporations that terminate S corporation status and later elect again to become S corporations.

This document is effective on December 22, 2004.

The Service announced the opening of the initial (i.e., EGTRRA^[1]) six-year amendment/approval cycle for defined contribution pre-approved (i.e., master and prototype (M&P) and volume submitter (VS)) plans in Rev. Proc. 2005-16, 2005-10 I.R.B. 674. Effective on February 17, 2005, Rev. Proc. 2005-16 modified and superseded Rev. Proc. 2000-20, 2000-1 C.B. 553. Accordingly, pursuant to this Announcement 2005-36, the GUST^[2] defined contribution pre-approved program will close as of June 15, 2005.

Applications for:

may be submitted through June 15, 2005. Any application for a defined contribution pre-approved plan (as described in the preceding two bullets) postmarked after June 15, 2005, will be returned along with the user fee. In addition, any application for a defined contribution pre-approved plan which previously received a GUST opinion or advisory letter (except for plans described in the second bullet) will be returned along with the user fee.

In the case of submissions described in the preceding two bullets that were previously returned after Rev. Proc. 2005-16 was issued, the applicants are permitted to resubmit their pre-approved applications, but not later than June 15, 2005. M&P sponsors and VS practitioners should send their applications to the respective Service offices which processed previous GUST applications.

The Service will announce at a later date the closing of the GUST programs for defined benefit pre-approved plans and for individually designed plans.

In the draft revenue procedure attached to Announcement 2004-71, 2004-40 I.R.B. 569, the Service proposed October 31, 2005, as the end of the submission period for sponsors and practitioners of mass submitter plans and national sponsor plans. Pursuant to this Announcement 2005-36, the deadline for mass submitter plan and national sponsor plan applications is October 31, 2005. Rev. Proc. 2005-16 stated that the end of the submission period for sponsors and practitioners of defined contribution pre-approved plans is January 31, 2006; this later deadline, however applies only for submissions of defined contribution non-mass submitter pre-approved plans.

Section 15.05 of Rev. Proc. 2005-16, 2005-10 I.R.B. 674, effective February 17, 2005, permits a Volume Submitter (VS) plan to include a provision (“implementing amendment”) that authorizes the VS practitioner to amend the plan on behalf of adopting employers. This announcement explains how a VS practitioner adopts the implementing amendment, describes the type of amendments that can be made on behalf of adopting employers, provides practitioners with interim relief of 60 days to adopt the implementing amendment in certain cases, and contains sample language for the implementing amendment.

There are 3 steps to implement these procedures:

For a defined contribution VS plan, the implementing amendment will be reviewed as part of the Economic Growth and Tax Relief Reconciliation Act of 2001, Pub. L. 107-16 (EGTRRA) submission of the VS plan under Rev. Proc. 2005-16 if the plan is amended by the date the VS practitioner submits a timely application for an advisory letter. (Applications are due October 31, 2005, for mass submitter and national sponsor applications and January 31, 2006, for other defined contribution pre-approved plans.) With respect to a defined benefit VS plan, which has a later submission date, the implementing amendment will also be reviewed as part of the EGTRRA submission if the plan is amended by the date the VS practitioner submits a timely application for a defined benefit plan.

Section 15.05 of Rev. Proc. 2005-16 provides that the authority to amend on behalf of employers extends to changes in the Code, regulations, revenue rulings, and other statements published by the Service, including model, sample or other required good faith amendments, and corrections of prior approved plans. The practitioner must make all required and discretionary amendments for adopting employers. Depending on the circumstances, the employer may also need to sign the amendments. For example, the employer would sign a good faith amendment that requires the adopting employer to choose some optional provisions. As described in section 15.05, if the employer makes certain amendments causing it to be considered an individually designed plan, the practitioner’s authority to amend on behalf of that particular employer no longer applies.

Under Notice 2005-5, 2005-3 I.R.B. 337, plan amendments complying with automatic rollover provisions under § 401(a)(31)(B) of the Code must be adopted by the end of the first plan year ending on or after March 28, 2005. It is possible certain practitioners may have amended VS plans on behalf of employers to comply with the automatic rollover provisions before amending the VS plan to include an implementing amendment. If this was done, the VS practitioner should comply with the above procedures by receiving the signed authorization form from all of the employers and adopting the implementing amendment giving the practitioner the general authority to make amendments for adopting employers (see sample language below) within 60 calendar days of May 9, 2005. This implementing amendment should be effective as of the date the practitioner first made the specific plan amendment on behalf of employers to comply with the automatic rollover provisions. For example, a practitioner who, on or after February 17, 2005, but before May 9, 2005, adopted a plan amendment on behalf of employers to reduce the mandatory cash-out amount to $1000, must comply with the procedures described above except that for purposes of this specific amendment reducing the mandatory cash-out amount, the practitioner will be deemed to have received timely authorization if the practitioner receives the signed authorization form from all of the employers and adopts the implementing amendment within 60 calendar days of May 9, 2005.

Practitioners may or may not be able to adopt this sample language verbatim, depending on the circumstances.

The practitioner will amend the plan on behalf of all adopting employers, including those employers who have adopted the plan prior to this amendment, for changes in the Code, regulations, revenue rulings, other statements published by the Internal Revenue Service, including model, sample or other required good faith amendments, but only if their adoption will not cause such plan to be individually designed, and for corrections of prior approved plans. These amendments will be applied to all employers who have adopted the plan.

The practitioner will no longer have the authority to amend the plan on behalf of any adopting employer as of either: (1) the date the Service requires the employer to file Form 5300 as an individually designed plan as a result of an employer amendment to the plan to incorporate a type of plan not allowable in the Volume Submitter program, as described in Rev. Proc. 2005-16, or (2) as of the date the plan is otherwise considered an individually designed plan due to the nature and extent of the amendments. If the employer is required to obtain a determination letter for any reason in order to maintain reliance on the advisory letter, the practitioner’s authority to amend the plan on behalf of the adopting employer is conditioned on the plan receiving a favorable determination letter.

The VS practitioner will maintain, or have maintained on its behalf, a record of the employers that have adopted the plan, and the VS practitioner will make reasonable and diligent efforts to ensure that adopting employers have actually received and are aware of all plan amendments and that such employers adopt new documents when necessary. This amendment supersedes other provisions of the plan to the extent those other provisions are inconsistent with this amendment.

The names of organizations that no longer qualify as organizations described in section 170(c)(2) of the Internal Revenue Code of 1986 are listed below.

Generally, the Service will not disallow deductions for contributions made to a listed organization on or before the date of announcement in the Internal Revenue Bulletin that an organization no longer qualifies. However, the Service is not precluded from disallowing a deduction for any contributions made after an organization ceases to qualify under section 170(c)(2) if the organization has not timely filed a suit for declaratory judgment under section 7428 and if the contributor (1) had knowledge of the revocation of the ruling or determination letter, (2) was aware that such revocation was imminent, or (3) was in part responsible for or was aware of the activities or omissions of the organization that brought about this revocation.

If on the other hand a suit for declaratory judgment has been timely filed, contributions from individuals and organizations described in section 170(c)(2) that are otherwise allowable will continue to be deductible. Protection under section 7428(c) would begin on May 23, 2005, and would end on the date the court first determines that the organization is not described in section 170(c)(2) as more particularly set forth in section 7428(c)(1). For individual contributors, the maximum deduction protected is $1,000, with a husband and wife treated as one contributor. This benefit is not extended to any individual, in whole or in part, for the acts or omissions of the organization that were the basis for revocation.