V. Revenue Offsets
A. Employer Deduction for Vacation and Severance Pay
For deduction purposes, any method or arrangement that has the effect of a plan deferring
the receipt of compensation or other benefits for employees is treated as a deferred compensation
plan (Sec. 404(b)). In general, contributions under a deferred compensation plan (other than
certain pension, profit-sharing and similar plans) are deductible in the taxable year in which an
amount attributable to the contribution is includible in income of the employee. However, vacation
pay which is treated as deferred compensation is deductible for the taxable year of the employer in
which the vacation pay is paid to the employee (Sec. 404(a)(5)).
Temporary Treasury regulations provide that a plan, method, or arrangement defers the
receipt of compensation or benefits to the extent it is one under which an employee receives
compensation or benefits more than a brief period of time after the end of the employer's taxable
year in which the services creating the right to such compensation or benefits are performed. A
plan, method or arrangement is presumed to defer the receipt of compensation for more than a brief
period of time after the end of an employer's taxable year to the extent that compensation is
received after the 15th day of the 3rd calendar month after the end of the employer's taxable year in
which the related services are rendered (the "2-1/2 month" period). A plan, method or arrangement
is not considered to defer the receipt of compensation or benefits for more than a brief period of
time after the end of the employer's taxable year to the extent that compensation or benefits are
received by the employee on or before the end of the applicable 2-1/2 month period. (Temp.
Treas. Reg. Sec. 1.404(b)-1T A-2).
The Tax Court recently addressed the issue of when vacation pay and severance pay are
considered deferred compensation in Schmidt Baking Co., Inc., 107 T.C. 271 (1996). In Schmidt
Baking, the taxpayer was an accrual basis taxpayer with a fiscal year that ended December 28,
1991. The taxpayer funded its accrued vacation and severance pay liabilities for 1991 by
purchasing an irrevocable letter of credit on March 13, 1992. The parties stipulated that the letter
of credit represented a transfer of substantially vested interest in property to employees for
purposes of section 83, and that the fair market value of such interest was includible in the
employees' gross incomes for 1992 as a result of the transfer. The Tax Court held that the
purchase of the letter of credit, and the resulting income inclusion, constituted payment of the
vacation and severance pay within the 2-1/2 month period. Thus, the vacation and severance pay
were treated as received by the employees within the 2-1/2 month period and were not treated as
deferred compensation. The vacation pay and severance pay were deductible by the taxpayer for
its 1991 fiscal year pursuant to its normal accrual method of accounting.
Description of Proposal
Under the proposal, for purposes of determining whether an item of compensation is
deferred compensation (under Code Sec. 404), the compensation would not be considered to be
paid or received until actually received by the employee. In addition, an item of deferred
compensation would not be considered paid to an employee until actually received by the
employee. The proposal is intended to overrule the result in Schmidt Baking. For example, with
respect to the determination of whether vacation pay is deferred compensation, the fact that the
value of the vacation pay is includible in the income of employees within the applicable 2-1/2
month period would not be relevant. Rather, the vacation pay must have been actually received by
employees within the 2-1/2 month period in order for the compensation not to be treated as
It is intended that similar arrangements, in addition to the letter of credit approach used in
Schmidt Baking, would not constitute actual receipt by the employee, even if there is an income
inclusion. Thus, for example, actual receipt would not include the furnishing of a note or letter or
other evidence of indebtedness of the taxpayer, whether or not the evidence is guaranteed by any
other instrument or by any third party. As a further example, actual receipt would not include a
promise of the taxpayer to provide service or property in the future (whether or not the promise is
evidenced by a contract or other written agreement). In addition, actual receipt would not include
an amount transferred as a loan, refundable deposit, or contingent payment. Amounts set aside in
a trust for employees would not be considered to be actually received by the employee.
The proposal would not change the rule under which deferred compensation (other than
vacation pay and deferred compensation under qualified plans) is deductible in the year includible
in the gross income of employees participating in the plan if separate accounts are maintained for
While Schmidt Baking involved only vacation pay and severance pay, there is concern that
this type of arrangement may be tried to circumvent other provisions of the Code where payment is
required in order for a deduction to occur. Thus, it is intended that the Secretary will prevent the
use of similar arrangements. No inference is intended that the result in Schmidt Baking is present
law beyond its immediate facts or that the use of similar arrangements is permitted under present
The proposal would not affect the determination of whether an item is includible in income.
Thus, for example, using the mechanism in Schmidt Baking for vacation pay would still result in
income inclusion to the employees, but the employer would not be entitled to a deduction for the
vacation pay until actually paid to and received by the employees.
The proposal would be effective for taxable years ending after the date of enactment. Any
change in method of accounting required by the bill is treated as initiated by the taxpayer with the
consent of the Secretary of the Treasury. Any adjustment required by section 481 as a result of the
change will be taken into account in the year of the change.
B. Modify Foreign Tax Credit Carryover Rules
U. S. persons may credit foreign taxes against U.S. tax on foreign source income. The
amount of foreign tax credits that can be claimed in a year is subject to a limitation that prevents
taxpayers from using foreign tax credits to offset U.S. tax on U.S. source income. Separate
foreign tax credit limitations are applied to specific categories of income.
The amount of creditable taxes paid or accrued (or deemed paid) in any taxable year which
exceeds the foreign tax credit limitation is permitted to be carried back two years and forward five
years. The amount carried over may be used as a credit in a carryover year to the extent the
taxpayer otherwise has excess foreign tax credit limitation for such year. The separate foreign tax
credit limitations apply for purposes of the carryover rules.
Description of Proposal
The proposal would reduce the carryback period for excess foreign tax credits from two
years to one year. The proposal also would extend the excess foreign tax credit carryforward
period from five years to seven years.
The proposal would apply to foreign tax credits arising in taxable years beginning after the
date of enactment.
C. Clarify and Expand Mathematical Error Procedures
Taxpayer Identification Numbers ("TIN"s)
The IRS may deny a personal exemption for a taxpayer, the taxpayer's spouse or the
taxpayer's dependents if the taxpayer fails to provide a correct TIN for each person for whom the
taxpayer claims an exemption. This TIN requirement also indirectly effects other tax benefits
currently conditioned on a taxpayer being able to claim a personal exemption for a dependent (e.g.,
head-of-household filing status and the dependent care credit). Other tax benefits, including the
adoption credit, the child tax credit, the Hope Scholarship credit and Lifetime Learning credit, and
the earned income credit also have TIN requirements. For most individuals, their TIN is their
Social Security Number ("SSN"). The mathematical and clerical error procedure currently applies
to the omission of a correct TIN for purposes of personal exemptions and all of the credits listed
above except for the adoption credit.
Mathematical or Clerical Errors
The IRS may summarily assess additional tax due as a result of a mathematical or clerical
error without sending the taxpayer a notice of deficiency and giving the taxpayer an opportunity to
petition the Tax Court. Where the IRS uses the summary assessment procedure for mathematical or
clerical errors, the taxpayer must be given an explanation of the asserted error and a period of 60
days to request that the IRS abate its assessment. The IRS may not proceed to collect the amount of
the assessment until the taxpayer has agreed to it or has allowed the 60-day period for objecting to
expire. If the taxpayer files a request for abatement of the assessment specified in the notice, the
IRS must abate the assessment. Any reassessment of the abated amount is subject to the ordinary
deficiency procedures. The request for abatement of the assessment is the only procedure a
taxpayer may use prior to paying the assessed amount in order to contest an assessment arising out
of a mathematical or clerical error. Once the assessment is satisfied, however, the taxpayer may file
a claim for refund if he or she believes the assessment was made in error.
Description of Proposal
The proposal would provide in the application of the mathematical and clerical error
procedure that a correct TIN is a TIN that was assigned by the Social Security Administration (or
in certain limited cases, the IRS) to the individual identified on the return. For this purpose the IRS
would be authorized to determine that the individual identified on the tax return corresponds in
every aspect (including, name, age, date of birth, and SSN) to the individual to whom the TIN is
issued. The IRS would be authorized to use the mathematical and clerical error procedure to deny
eligibility for the dependent care tax credit, the child tax credit, and the earned income credit even
though a correct TIN has been supplied if the IRS determines that the statutory age restrictions for
eligibility for any of the respective credits is not satisfied (e.g., the TIN issued for the child claimed
as the basis of the child tax credit identifies the child as over the age of 17 at the end of the taxable
The proposal would be effective for taxable years ending after the date of enactment.
D. Freeze Grandfathered Status of Stapled REITs
A real estate investment trust ("REIT") is an entity that receives most of its income from
passive real estate related investments, and the portion of whose income that is distributed to the
investors each year generally is taxed to the investors without being subject to tax at the REIT
level. A REIT must satisfy a number of tests on a year-by-year basis including the source-of
income tests, which require at least 95 percent of its gross income generally must be derived from
rents, dividends, interest and certain other passive sources (the "95-percent test"). In addition, at
least 75 percent of its income generally must be from real estate sources, including rents from real
property and interest on mortgages secured by real property (the "75-percent test").
In a stapled REIT structure, both the shares of a REIT and a C corporation are subject to a
provision that they may not be sold separately. Thus, the REIT and the C corporation have
identical ownership at all times. In the Deficit Reduction Act of 1984 (the "1984 Act"), Congress
provided that, in applying the tests for REIT status, all stapled entities are treated as one entity.
Although the 1984 Act generally was effective upon enactment, it included a grandfather rule that
provided that the new provision did not apply to a REIT that was a part of a group of stapled
entities if the group of entities was stapled on June 30, 1983, and included a REIT on that date.
Description of Proposal
The proposal would limit the tax benefits of the existing stapled REITs that qualify under
the 1984 Act's grandfather rules. Under the proposal, the REIT and all stapled entities would be
treated as a single entity for purposes of determining REIT status with respect to real property
interests held by the REIT, a stapled entity, or a subsidiary or partnership in which a 10-percent or
greater interest is owned by a stapled entity (the "REIT group"), unless the real property interest is
a grandfathered property. Thus, the activities and gross income of a REIT group with respect to
non-grandfathered real property interests held by any member of the REIT group would be treated
as activities and income of the REIT for purposes of the provisions of the REIT rules that depend
on the REIT's gross income (i.e., the 95-percent test and the 75-percent test).
If a REIT or stapled entity owns, directly or indirectly, a 10-percent-or-greater interest in a
subsidiary or partnership that holds a real property interest, the above rules would apply with
respect to a proportionate part of the subsidiary's or partnership's property, activities and gross
income. The bill would not apply to a stapled REIT's ownership of a corporate subsidiary,
although a stapled REIT would be subject to the normal restrictions on a REIT's ownership of
stock in a corporation. Similar rules attributing the proportionate part of the subsidiary's or
partnership's real estate interests and gross income would apply when a REIT or stapled entity
acquires a 10-percent-or-greater interest (or in the case of a previously-owned entity, acquires an
additional interest) after March 26, 1998, with exceptions for interests acquired pursuant to
agreements or announcements described below.
Under the proposal, grandfathered properties generally are those properties that had been
acquired by a member of the REIT group on or before March 26, 1998. In addition, grandfathered
properties include properties acquired by a member of the REIT group after March 26, 1998,
pursuant to a written agreement which was binding on March 26, 1998, and all times thereafter.
Grandfathered properties also include certain properties, the acquisition of which were described in
a public announcement or in a filing with the Securities and Exchange Commission on or before
March 26, 1998. While a property does not lose its status as a grandfathered property by reason of
a repair to, an improvement of, or a lease of, a grandfathered property, a property loses its status
as a grandfathered property to the extent that there is an expansion that either (1) is beyond the
boundaries of the land of the otherwise grandfathered property or (2) is an improvement of an
otherwise grandfathered property that is placed in service after December 31, 1999, which changes
the use of the property and whose cost is greater than 200 percent of (a) the undepreciated cost of
the property (prior to the improvement) or (b) in the case of property acquired where there is a
substituted basis, the fair market value of the property on the date that the property was acquired by
the stapled entity or the REIT.
If a stapled REIT is not stapled as of March 26, 1998, or if it fails to qualify as a REIT as
of such date or any time thereafter, no properties of any member of the REIT group would be
treated as grandfathered properties, and thus the general provisions of the proposal described
above would apply to all properties held by the group.
Special rules would apply where the REIT or a stapled entity acquires a mortgage interest
after March 26, 1998, where a member of the REIT group performs services with respect to the
property secured by the mortgage. In such cases, all interest on the mortgage and all gross income
received by a member of the REIT group from the activity would be treated as income of the REIT
that does not qualify as a type of income that counts toward the 75-percent and 95-percent tests.
An exception would be provided for mortgages the interest on which does not exceed an arm's
length rate and which would be treated as interest for purposes of the REIT rules (e.g., the 75
percent and 95-percent tests, above). The exception for existing mortgages would cease to apply if
the mortgage is refinanced and the principal amount is increased in such refinancing.
The Secretary of the Treasury would be given authority to prescribe such guidance as may
be necessary or appropriate to carry out the purposes of the provision, including guidance to
prevent the double counting of income and to prevent transactions that would avoid the purposes of
The proposal would be effective for taxable years ending after March 26, 1998.