Treasury Notice 2008-83 nixed in House economic recovery bill

The House passed an economic stimulus bill today. It includes the slap-down of Treasury Notice 2008-83 that the House Ways and Means Committee had previously included. I hope the conference with the Senate disallows all reliance on the notice.

H.R.1

American Recovery and Reinvestment Act of 2009 (Introduced in House)


PART 4–CLARIFICATION OF REGULATIONS RELATED TO LIMITATIONS ON CERTAIN BUILT-IN LOSSES FOLLOWING AN OWNERSHIP CHANGE

SEC. 1431. CLARIFICATION OF REGULATIONS RELATED TO LIMITATIONS ON CERTAIN BUILT-IN LOSSES FOLLOWING AN OWNERSHIP CHANGE.

    (a) Findings- Congress finds as follows:
    • (1) The delegation of authority to the Secretary of the Treasury under section 382(m) of the Internal Revenue Code of 1986 does not authorize the Secretary to provide exemptions or special rules that are restricted to particular industries or classes of taxpayers.
    • (2) Internal Revenue Service Notice 2008-83 is inconsistent with the congressional intent in enacting such section 382(m).
    • (3) The legal authority to prescribe Internal Revenue Service Notice 2008-83 is doubtful.
    • (4) However, as taxpayers should generally be able to rely on guidance issued by the Secretary of the Treasury legislation is necessary to clarify the force and effect of Internal Revenue Service Notice 2008-83 and restore the proper application under the Internal Revenue Code of 1986 of the limitation on built-in losses following an ownership change of a bank.
    (b) Determination of Force and Effect of Internal Revenue Service Notice 2008-83 Exempting Banks From Limitation on Certain Built-in Losses Following Ownership Change-
    • (1) IN GENERAL- Internal Revenue Service Notice 2008-83–
      • (A) shall be deemed to have the force and effect of law with respect to any ownership change (as defined in section 382(g) of the Internal Revenue Code of 1986) occurring on or before January 16, 2009, and
      • (B) shall have no force or effect with respect to any ownership change after such date.
    • (2) BINDING CONTRACTS- Notwithstanding paragraph (1), Internal Revenue Service Notice 2008-83 shall have the force and effect of law with respect to any ownership change (as so defined) which occurs after January 16, 2009 if such change–
      • (A) is pursuant to a written binding contract entered into on or before such date, or
      • (B) is pursuant to a written agreement entered into on or before such date and such agreement was described on or before such date in a public announcement or in a filing with the Securities and Exchange Commission required by reason of such ownership change.

Update: This made it through the Senate and conference session, and was signed into law by President Obama.