and Administration Regulations (26 CFR notices provided after November 25,
packed must be stamped ‘‘Not for part 301) by adding rules under section 2007) beginning on the later of the date
importation into or distribution in FL.’’ 6404(g) relating to the suspension of on which the return is filed or the due
(Approved by the Office of Management and interest, penalties, additions to tax, or date of the return without regard to
Budget under control number 0579–0308) additional amounts with respect to extensions. The suspension period
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Federal Register / Vol. 72, No. 119 / Thursday, June 21, 2007 / Rules and Regulations 34177
begins on the day after the close of the Executive Order 12866. A regulatory (C) Closed transactions.
eighteen-month period (or thirty-six assessment is therefore not required. It ■ Par. 3. Section 301.6404–4T is added
month period) and ends twenty-one has also been determined that section to read as follows:
days after the IRS provides the notice. 553(b) of the Administrative Procedure
This suspension rule applies separately Act (5 U.S.C. chapter 5) does not apply § 301.6404–4T Listed transactions and
with respect to each item or adjustment. to these regulations. For applicability of undisclosed reportable transactions
If, on or after December 21, 2005, a the Regulatory Flexibility Act (5 U.S.C. (temporary).
taxpayer provides to the IRS an chapter 6), please refer to the cross- (a) [Reserved].
amended return or other signed written reference notice of proposed rulemaking (b)(1) through (4) [Reserved].
document showing an additional tax published elsewhere in this issue of the (5) Listed transactions and
liability, then the eighteen-month Federal Register. Pursuant to section undisclosed reportable transactions—(i)
period (or thirty-six month period) does 7805(f) of the Internal Revenue Code, In general. The general rule of
not begin to run with respect to the these regulations will be submitted to suspension under section 6404(g)(1)
items that gave rise to the additional tax the Chief Counsel for Advocacy of the does not apply to any interest, penalty,
liability until that return or other signed Small Business Administration for addition to tax, or additional amount
written document is provided to the comment on its impact on small with respect to any listed transaction as
IRS. business. defined in section 6707A(c) or any
The general rule for suspension does undisclosed reportable transaction. For
not apply to any interest, penalty, Drafting Information purposes of this section, an undisclosed
addition to tax, or additional amount The principal author of these reportable transaction is a reportable
relating to any reportable transaction regulations is Stuart Spielman of the transaction described in the regulations
with respect to which the requirement Office of Associate Chief Counsel under section 6011 that is not
of section 6664(d)(2)(A) is not met or a (Procedure and Administration). adequately disclosed under those
listed transaction as defined in section regulations and that is not a listed
6707A(c). This exception applies to List of Subjects in 26 CFR Part 301 transaction. Whether a transaction is a
interest accruing after October 3, 2004. Employment taxes, Estate taxes, listed transaction or an undisclosed
With respect to interest relating to listed Excise taxes, Gift taxes, Income taxes, reportable transaction is determined as
transactions or undisclosed reportable Penalties, Reporting and recordkeeping of the date the IRS provides notice to
transactions accruing on or before requirements. the taxpayer regarding that transaction
October 3, 2004, the general rule for that specifically states the taxpayer’s
suspension applies only to (1) a Amendments to the Regulations liability and the basis for that liability.
participant in a settlement initiative, (2) ■Accordingly, 26 CFR part 301 is (ii) Effective/applicability dates. (A)
a taxpayer acting reasonably and in amended as follows: These regulations apply to interest
good faith, or (3) a closed transaction. A relating to listed transactions and
participant in a settlement initiative is PART 301—PROCEDURE AND undisclosed reportable transactions
a taxpayer who, as of January 23, 2006, ADMINISTRATION accruing before, on, or after October 3,
was participating in a settlement 2004.
initiative described in IRS ■ Paragraph 1. The authority citation (B) The applicability of these
Announcement 2005–80, 2005–2 CB for part 301 continues to read in part as regulations expires on or before June 21,
967 (see § 601.601(d)(2)(ii)(b)); or had follows: 2010.
entered into a settlement agreement Authority: 26 U.S.C. 7805 * * * (iii) Special rule for certain listed or
under Announcement 2005–80 or any undisclosed reportable transactions.
■ Par. 2. Section 301.6404–0T is added With respect to interest relating to listed
other prior or contemporaneous
settlement initiative either formally to read as follows: transactions and undisclosed reportable
published or directly communicated to § 301.6404–0T Table of contents
transactions accruing on or before
taxpayers known to have participated in (temporary). October 3, 2004, the exception to the
a tax shelter promotion. A taxpayer general rule of interest suspension will
This section lists the paragraphs
acting reasonably and in good faith is a not apply to a taxpayer who is a
contained in § 301.6404–4T.
taxpayer who the IRS determines has participant in a settlement initiative
acted reasonably and in good faith, § 301.6404–4T Listed transactions and with respect to that transaction, to any
undisclosed reportable transactions transaction in which the taxpayer has
taking into account all the facts and
(temporary). acted reasonably and in good faith, or to
circumstances surrounding a
(a) [Reserved]. a closed transaction. For purposes of
transaction. A transaction is a ‘‘closed
(b)(1) through (b)(4) [Reserved]. this special rule, a ‘‘participant in a
transaction’’ if, as of December 14, 2005, (5) Listed transactions and undisclosed
the assessment of all federal income reportable transactions.
settlement initiative,’’ a ‘‘taxpayer acting
taxes for the taxable year in which the (i) In general. in good faith,’’ and a ‘‘closed
tax liability to which the interest relates (ii) Effective dates. transaction’’ have the following
is prevented by the operation of any law (iii) Special rule for certain listed or meanings:
or rule of law. A transaction is also a undisclosed reportable transactions. (A) Participant in a settlement
closed transaction if a closing agreement (A) Participant in a settlement initiative. initiative—(1) Participant in a
under section 7121 has been entered (1) Participant in a settlement initiative settlement initiative who, as of January
into with respect to the tax liability who as of January 23, 2006, had not reached 23, 2006, had not reached agreement
agreement with the IRS. with the IRS. A participant in a
arising in connection with the (2) Participant in a settlement initiative
transaction. settlement initiative includes a taxpayer
who, as of January 23, 2006, had reached
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34178 Federal Register / Vol. 72, No. 119 / Thursday, June 21, 2007 / Rules and Regulations
chapter. A taxpayer participates in the (3) Examples. The following examples transaction as implemented by the taxpayer.
initiative by complying with Section 5 illustrate the rules the IRS uses in Appeals determined that the taxpayer’s facts
of the Announcement. A taxpayer is not determining whether a taxpayer has and circumstances were not significantly
a participant in a settlement initiative if, acted reasonably and in good faith. different from those of other taxpayers who
after January 23, 2006, the taxpayer participated in that listed transaction and
Example 1. The taxpayer participated in a
withdraws from or terminates listed transaction. The IRS, in a letter sent thus, were not atypical. In September 2006,
participation in the initiative, or the IRS directly to the taxpayer in July 2005, the taxpayer and Appeals entered into a
determines that a settlement agreement proposed a settlement of the transaction. The closing agreement on terms consistent with
will not be reached under the initiative taxpayer informed the IRS of his interest in those originally proposed in the July 2005
within a reasonable period of time. the settlement within the prescribed time letter. The taxpayer has complied with the
(2) Participant in a settlement period. The revenue agent assigned to the terms of that closing agreement. For purposes
initiative who, as of January 23, 2006, taxpayer’s case was not able to calculate the of the application of section 6404(g)(2)(E),
had reached agreement with the IRS. A taxpayer’s liability under the settlement or this taxpayer is not presumed to have acted
tender a closing agreement to the taxpayer reasonably and in good faith; instead, the IRS
participant in a settlement initiative is until March 2006. The taxpayer promptly
a taxpayer who, as of January 23, 2006, will apply the general rule to determine
executed the closing agreement and returned
had entered into a settlement agreement it to the IRS with a proposal for arrangements whether to suspend interest accruing on or
under Announcement 2005–80 or any to pay the agreed-upon liability. The IRS before October 3, 2004, relating to the
other prior or contemporaneous agreed with the proposed arrangements for transaction in which the taxpayer
settlement initiative either offered full payment. For purposes of the application participated.
through published guidance or, if the of section 6404(g)(2)(E), the taxpayer has Example 5. The facts are the same as in
initiative was not formally published, acted reasonably and in good faith. Interest Example 4, except that Appeals agrees that
direct contact with taxpayers known to accruing on or before October 3, 2004, atypical facts were present that warrant
relating to the transaction in which the additional concessions by the government. A
have participated in a tax shelter
taxpayer participated will be suspended. settlement is reached on terms more
promotion. Example 2. The facts are the same as in
(B) Taxpayer acting in good faith—(1) favorable to the taxpayer than those proposed
Example 1, except that the letter was sent by
In general. The IRS may suspend in the July 2005 letter. For purposes of the
the IRS in February 2006, and the closing
interest relating to a listed transaction or application of section 6404(g)(2)(E), this
agreement was tendered to the taxpayer in
an undisclosed reportable transaction April 2006. For purposes of the application taxpayer is presumed to have acted
accruing on or before October 3, 2004, of section 6404(g)(2)(E), the taxpayer has reasonably and in good faith, and absent
if the taxpayer has acted reasonably and acted reasonably and in good faith. Interest evidence of rare or unusual circumstances
in good faith. The IRS’ determination of accruing on or before October 3, 2004, harmful to tax administration, is eligible for
whether a taxpayer has acted reasonably relating to the transaction in which the suspension of interest accruing on or before
and in good faith will take into account taxpayer participated will be suspended. October 3, 2004, relating to the transaction in
Example 3. The taxpayer participated in a which the taxpayer participated.
all the facts and circumstances
listed transaction. In response to an offer of
surrounding the transaction. The facts settlement extended by the IRS in August (C) Closed transactions. A transaction
and circumstances include, but are not 2005, the taxpayer informed the IRS of her is considered closed for purposes of this
limited to, whether the taxpayer interest in entering into a closing agreement
disclosed the transaction and the clause if, as of December 14, 2005, the
on the terms proposed by the IRS. The
taxpayer’s course of conduct after being revenue agent assigned to the transaction
assessment of all federal income taxes
identified as participating in the calculated the taxpayer’s liability under the for the taxable year in which the tax
transaction, including the taxpayer’s settlement and tendered a closing agreement liability to which the interest relates is
response to opportunities afforded to to the taxpayer in November 2005. The prevented by the operation of any law
the taxpayer to settle the transaction, taxpayer executed the closing agreement but or rule of law, or a closing agreement
failed to make any arrangement for payment under section 7121 has been entered
and whether the taxpayer engaged in
of the agreed-upon liability stated in the
unreasonable delay at any stage of the into with respect to the tax liability
closing agreement. Taking into account all
matter. the facts and circumstances surrounding the arising in connection with the
(2) Presumption. If a taxpayer and the transaction, the taxpayer did not act transaction.
IRS promptly enter into a settlement reasonably and in good faith. Interest (c) [Reserved].
agreement with respect to a transaction accruing on or before October 3, 2004,
on terms proposed by the IRS or, in the relating to the transaction in which the Kevin M. Brown,
event of atypical facts and taxpayer participated will not be suspended. Deputy Commissioner for Services and
circumstances, on terms more favorable Example 4. The taxpayer participated in a Enforcement.
to the taxpayer, and the taxpayer has listed transaction. In a letter sent by the IRS
directly to the taxpayer in July 2005, the IRS Approved: June 15, 2007.
complied with the terms of that
extended an offer of settlement. The July Eric Solomon,
agreement without unreasonable delay,
2005 letter informed the taxpayer that, absent Assistant Secretary of the Treasury (Tax
the taxpayer will be presumed to have atypical facts and circumstances, the
acted reasonably and in good faith Policy).
taxpayer should not expect resolution of the
except in rare and unusual [FR Doc. E7–12081 Filed 6–20–07; 8:53 am]
tax issues on more favorable terms than
circumstances. Rare and unusual proposed in the letter. The taxpayer declined BILLING CODE 4830–01–P
circumstances must involve specific the proposed settlement terms of the letter
actions involving harm to tax and proceeded to Appeals to present what
administration. Even if a taxpayer does the taxpayer claimed were atypical facts and
not qualify for the presumption circumstances. The administrative file did
described in this paragraph not contain sufficient information bearing on
atypical facts and circumstances, and the
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