TAX REVISION ISSUES-1976
MISCELLANEOUS TAX PROVISIONS
PREPARED FOR THIE USE OF TIHE
COMMITTEE ON FINANCE
BY THE STAFF OF TILIE
JOINT COMMITTEE ON INTERNAL REVENUE
APRIL 26, 1976
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1976
,I / c / 4' '
**' ; : *>.
Introduction ------------------------------------------------------- 1
1. Tax-exempt status of condominium, cooperative, and homineowner asso-
ciations -----------------------------------------------2------- 2
2. Treatment of certain disaster payments---------------------------- 5
3. Tax treatment of certain 1972 disaster loans------------------------ 7
4. Tax treatment of certain debts owed by political parties to accrual basis
taxpayers --------------------------------------- ---------------9
5. Clarification of definition of produced film rents---------------------- 11
6. Prepublication expenses------------------------------------------ 13
7. Real estate investment trusts-------------------------------------- 15
Digitized by the Internet Archive
This pamphlet presents background information with respect to a
series of miscellaneous tax provisions contained in the House-passed
bill (H.R. 10612).
In the case of each of the House-passed provisions, the pamphlet
describes present law, the issues presented and the House-passed pro-
visions. Other possible miscellaneous provisions will be analyzed for
the committee in material to be submitted subsequently.
1. Tax-Exempt Status of Condominium, Cooperative, and Home-
In developing a real estate subdivision, a condominium project, or
a cooperative housing project, it is common for developers to form
owners' associations as an integral part of the overall development.
Generally, membership in the association is open only to owners of
lots or dwelling units and is normally required as a condition of owner-
ship. These associations are formed to allow individual homeowners,
etc., to act together in managing, maintaining, and improving certain
areas where they live. The purposes of the organization may include,
for example, the administration and enforcement of covenants for
preserving the architectural and general appearance of the develop-
mnent, the ownership and management of common areas such as streets,
sidewalks, parks, swimming pools, etc., and the exterior maintenance
and repair of property owned by its members.
The association is funded by either annual or periodic assessments
of the members. Generally, there are two categories of assessments
and expenditures made by the association. First, operating assessments
are made to administer, manage, maintain, and operate the areas and
facilities common to all residential units. This includes the mainte-
nance of parking areas, hallways, elevators, roofs, exterior of build-
ings, etc. Second, capital assessments are made to build up reserves for
the replacement of equipment and facilities used in common. This in-
cludes the equipment and facilities used with respect to swimming
pools, tennis courts, clubhouse facilities, etc.
Under present law, generally a homeowners' association may qualify
as an organization exempt from federal income tax (under sec. 501
(c) (4) of the Code) only if it meets three requirements. First, the
homeowner's association must serve a "community" which bears a rea-
sonable, recognizable relationship to an area ordinarily identified as a
governmental subdivision or unit. Second, it must not conduct activi-
ties directed to the exterior maintenance of any private residence.
Third, common areas for facilities that the homeowner's association
owns and maintains must be for the use and enjoyment of the general
If an association is unable to meet these three requirements, it will
ordinarily be taxed as a corporation. In general, this means that the
excess of current receipts over current expenditures at the end of the
year would be taxable to it, unless the excess is refunded to the mem-
bers or applied to the subsequent year's assessment. With respect to
nasesments for capital improvements, if the assessments are desig-
nated to be used solely for the purpose of making capital improve-
ments and if the association homeowners have an equity interest in the
association, the ass--4cments are not current income to the association
but may be treated as contributions to capital.: Also, to the extent that
the association's accumulated funds earn income, this income is taxable
to the association.
Most homeowners' associations have found it difficult to meet the
three requirements set forth above, and therefore, do not qualify for
tax exemption. To avoid being taxed on the excess of current receipts
over current expenditures, a nonexempt association must refund the
excess to the members or apply the excess to the subsequent year's
Since homeowners' associations generally allow individual home-
owners to act together in order to maintain and improve the area in
which they live, many believe that it is not appropriate to tax the
revenue ies of an association of homeowners who act together if an in-
dividual homeowner acting alone would not be taxed on the same
House b I1
Under the House bill (sec. 1301), if a qualified cooperative housing
association so elects it is not to be taxed on any "exempt function
income". 2 Exempt function income includes membership dues, fees,
and assessments received from persons who own residential units in
the particular condominium, subdivision, or cooperative and who are
members of the association.
The association is to be taxed, however, on any net income which is
not exempt function income. For example, any interest earned on
amounts set aside in a sinking fund for future improvements is tax-
able. Simila-rly, any amount paid by persons who are not members of
the association for use of the association's facilities would be taxable.
Deductions are to be allowed for expenses directly connected with the
production of taxable income. The bill provides a $100 deduction
against taxable income so that associations with only a minimal
amount of taxable income will not be subject to tax.
A cooperative housing association is to be taxed as a corporation on
its taxable income. The tax rate to be applied is the corporate rate
without the surtax exemption. If the association has net long-term
capital gain the capital gain portion of the taxable income is normally
to be taxed at a 30-percent rate.
Generally, three different types of homeowners associations may
elect to be tre'oted as tax-exempt cooperative housing associations
under the bill: Cooperative housing corporations, condominium
aananement a::-ociations, and residential real estate management
To qualify for this treatment under the House bill, a cooperative
housing association must meet several requirements. First, the associ-
1 Pv. Rul. 75-370. 1975-35 I.R.B. 6, indicates that special assessments collotedri by a
nionmxempt condominium management association for replacement of the roof and elevators
in the condominium are not includible in the association's gross income, and Rev. Rul. 75-
371, 1975-35 I.R.B. 7. indicates that special assessments collected by such an association
and accumulated for the replacement of personal property used to maintain common areas
are contributions to capital.
2 If the provisiOns of the bill are not met (or an election is not made to be treated
as tax-exemut), a cnripprative housing association is to continue to be treated as it is
presently treated under existing law.
action must be organized and operated to provide for the management,
maintenance, and care of association property. Although the property
maintained by the association is generally property- owned by the as-
sociation and available for common use by all the members, the associ-
ation may maintain areas that are privately owned but affect the
overall appearance and structure of the project.
Second, a cooperative housing association must meet certain income
and expenditure tests.
At least 60 percent of the association's gross income must. consist
solely of membership dues, fees, or assessments from tenant-stock-
holders. owners of residential units, or owners of residences or resi-
dential lots, as the case may be.
Under the expenditure test. at least 90 percent of all of the annual
expenditures of the cooperative housing association must be to manage,
maintain, and care for, or improve, association property. Quiialifying
expenditures include both current and capital expenditures on associa-
In addition to the general requirements, in the case of a condo-
miniu' manan ement association, substantially all of the dwelling
units must be used as residences. Similarly, in the case of a residential
rnal estate management association, substantially all the lots or build-
ings must N, used by individuals for residences. In the case of
a cooperative housing corporation, the corporation must meet the
special definition for cooperative housing corporations under section
The House bill would apply to payments received after December 31,
1973. in taxable years ending after that date.
2. Treatment of Certain Disaster Payments
Under present law (sec. 451(d)), insurance proceeds received by a
taxpayer as a result of destruction or damage to crops may be in-
cluded in income in the year following the year of their receipt, if he
can establish that the income from the crops which were destroyed
or damaged would otherwise have been properly included in income
in the following year.
The provision of present law referred to above was added by the
Tax Reform Act of 1969. The purpose of this provision was to avoid
the doubling up of income for a cosli basis farmer by including crop
insurance proceeds in income in the year they were received rather
than in the year following the year of receipt, which would generally
be the pattern of income receipt from sales of crops.
Because of this doubling up of income in the year of receipt, the
farmer would have only deductions and no income to report in the next
year and therefore would be likely to have a net operating loss to carry
back and offset against income in the prior year. However, the farmer
in such cases was faced with the payment of tax and subsequent filing
for a refund. He also would lose the benefit of his personal exemptions
and his standard or itemized deductions in the year of loss.
The Agriculture and Consumer Protection Act of 1973 provides
that specified payments by the Department of Agriculture are to be
made to farmers in the event that either they are prevented from
planting crops because of drought, flood, or other natural disaster or,
because of the disaster, the total quantity of the planted crops which
are harvested is less than 662-3 percent of the projected yield of the
crop. The crops covered by the- disaster payments are wheat, corn,
grain sorghum, barley, and upland cotton. Premium payments are
not required for this protection.
The Service has ruled that the provisions of present law referred
to above do not apply to the payments provided to the producers
covered by the Agriculture and Consumer Protection Act of 1973 since
the proceeds are not insurance proceeds because no premium was paid
by the farmer. As a result of the Service's position, these payments
must be reported as taxable income in the year of receipt and not in
the year in which the income from the sale of the crops would normally
The House bill (sec. 1302) provides that in the case of a taxpayer
using the cash receipts and disbursements method of accounting,
payments received under the Agricultural Act of 1949, as amended by
the 1973 Act, would be included in the taxable income'of the taxpayer.
at his election, in the year in which the income normally received from
the crops would have been reported. This provision is to apply only to
payments received as a result of (1) destruction or damage to crops
caused by drought, flood or any other natural disaster, or (2) the in-
ability to plant crops because of a natural disaster.
The House bill would apply to amounts received after December 31,
1973 in taxable years ending after that date.
3. Tax Treatment of Certain 1972 Disaster Loans
Under present law (sec. 165), taxpayers are generally allowed to
deduct their losses sustained during the taxable year, including losses
attributable to fire. storm and other casualty, to the extent that the
losses are not compensated for by insurance or otherwise.3 In the
case of any loss attributable to a major disaster which occurred in
an area authorized by the President to receive disaster relief, a special
rule allows the loss. at the election of the taxpayer, to be deducted
on the return for the year immediately before the year of the dis-
aster (that is, the loss may be deducted on the return generally filed in
the year the disaster occurs). Where a deduction resulting from a loss
is claimed in one year, and compensation is paid for the loss in a later
year, the compensation is generally required to be taken into income by
the taxpayer in the later year.
In some cases individuals were hard hit by disasters, such as flood,
and claimed a deduction with respect to the disasters, unaware, in
many cases, that they might later receive compensation, or partial
compensation, for their loss. In some instances, the compensation
may be received in a year for which the taxpayer is in a higher tax
bracket than he was in for the year for which the disaster loss deduc-
tion was claimed. As a result, the taxpayer may be required to pay
more tax, with respect to the compensation or reimbursement, than
would have been owing if he had not claimed the deduction in the
Under the House bill (sec. 1303), a taxpayer who received income
in the form of a cancellation of a disaster loan, or in the form of com-
pensation in settlement of a tort claim with respect to certain disaster
losses sustained in 1972 which were determined by the President to
warrant disaster assistance, would be accorded special tax treatment
if the cancellation or tort settlement does not exceed $5,000. The tax
on the first $5,000 of compensation received in this type of case is not
to exceed the tax which would have been payable if the $5,000 (or
lesser) deduction had not been claimed. This treatment applies only
if the taxpayer elects to come under these provisions. The $5,000
amount would be reduced by $1 for each $1 of the taxpayer's adjusted
gross income over $15,000 ($7,500 in the case of a married taxpayer
filing a separate return) for the year in which the deduction for the
loss was taken.
SIndividuals generally are allowed to deduct their losses of property (not connected
with their trade or business) only to the extent that the loss exceeds $100; losses attrib-
utable to an individual's business are fully deductible.
The election may be made for up to $5,000 of compensation paid in
a year after the year for which the loss deduction is claimed and which
results either (1) from the forgiveness or cancellation of a disaster
loan under section 7 of the Small Business Act or an emergency loan
under subtitle C of the Consolidated Farm and Rural Development
Act, or (2) from a payment made to the taxpayer in settlement of a
tort claim which the taxpayer had against another person.
Any compensation or reimbursement in excess of the $5,000 limita-
tion must be taken inf6o income by the taxpayer for the year in which
the payment is received. ,.
The House bill also provides that any tax with respect to this $5,000
(or lesser) amount still unpaid on October 1,1975, may be paid in three
equal annual installments, with the first installment payable on
April 16, 1976. Also, :no interest on any deficiency with respect to this
$5,000 amount isto be payable for any period prior to April 15,1976,
and no interest is to be payable on any installment payment before the
due date fpr that installment.i "
4. Tax Treatment of Certain Debts Owed by Political Parties to
Accrmal Basis Taxpayers
Present loaw i
Under present lawv (sec. 271), any deduction generally allowable
for bad debts or for worthless securities is not allowed for a worth-
less debt owed by a political party. This rule applies to all taxpayers
other than a bank, but, where the debt arises out of the sale of goods
or services, the rule in practice affects only taxpayers utilizing the
accrual method of accounting (because only these taxpayers would
have taken into income the receipts which give rise to the debt).
Present law for this purpose defines political parties to include all
committees of a political party and all committees, associations, or
other organizations which accept contributions or make expenditures
on behalf of any individual in any Federal, State or local election.
It has been pointed out that the disallowance of a bad debt deduc-
tion for debts owed by political parties means that taxpayers who
are in the business of providing goods or services (such as polling,
media, or organizational services) to political campaigns and candi-
dates are treated less favorably than taxpayers in virtually any other
business because they are not able to deduct b;cd debts which arise
in the ordinary course of their business.
It is noted that this provision disallowing any bad debt deduction
was originally enacted to prevent tax deductions for concealed con-
tributions. However, it is argued that since, in the case of the sale
of goods or services, the deduction is allowed only if the amount
of gross receipts which gave ri.e, to the debt has been included in
taxable income, the effect of the provision is to tax th4c- individuals
on income which they have never received.
Furthermore, since present law does not affect cash basis taxpayers
who sell services for political campaigns (because in that case no
amount is taken into income), it is suggested that the provision dis-
criminates against taxpayers whose business differs from others only
in that they are on the accrual method of accounting.
The House bill (sec. 1304) adds an exception to the provision dis-
allowing a deduction for bad debts owed by political parties. The
exception applies only to taxpayers who use the accrual method of
accounting. These taxpayers are to be allowed a bad debt deduction
with respect to debts which are accrued as a receivable in a bona fide
sale of goods or services in the ordinary course of their trade or busi-
ness. The bill limits this exception to those cases in which 30 percent of
all of the receivables accrued in the ordinary course of all of the trades
or businesses of the taxpayer are due from political parties. Also, the
bad debt deduction is to be allowed only if the taxpayer has made
substantial continuing efforts to collect on the debt.
Under the House bill, this provision applies to taxable years begin-
ning on or after January 1, 1975. It also applies to taxable years be-
ginning before January 1, 1975, for which the assessment of a defi-
ciency, or the making of a refund, or the allowance of a refund or credit
of any overpayment, is not barred on the date of enactment of this
5. Clarification of Definition of Produced Film Rents
Under present law, a corporation which is a personal holding com-
pany is taxed on its undistributed personal holding company income
at a rate of 70 percent. A corporation may be a personal holding
company where five or fewer individuals own 50 percent or more in
value of its outstanding stock and where at least 60 percent of the
corporation's adjusted ordinary gross income comes from specified
types of passive income.
One income category treated as personal holding company income is
"produced film rents." Generally, this category covers payments re-
ceived by the corporation from the distribution and exhibition of
motion picture films if these rents arise from an "interest" in the film
acquired before its production was substantially completed. Produced
film rents are not treated as personal holding company income, how-
ever, if such rents constitute 50 percent or more of the corporation's
ordinary gross income. The qualifying rental interest under this cate-
gory is one which arises from participation in the production of the
Payments received from the use of, or right to use, a film are treated
as copyright royalty income, if the corporation's interest in the film
is acquired after production was substantially completed.
Amounts received under a contract under which thie corporation
is to furnish personal services may also be classified as personal hold-
ing company income.
A question concerning the proper definition of produced film rents,
for purposes of the personal holding company rules, has resulted from
a recent decision by the Tax Court which denied depreciation deduc-
tions to an independent production company which produced an
original motion picture with nonrecourse financing supplied by a
major studio-distributor under an agreement that, on completion, all
rights to the picture except a share in distribution profits vested in the
distributor. The court held that, in these circumstances, the produc-
tion company had no ownership interest in the film after it was com-
pleted and therefore could not depreciate the costs of producing film.
Although this case involved depreciation rather than personal hold-
ing company issues, it appears that the Internal Revenue Service has
interpreted'the decision to require that an "interest" in a film, for
purposes of the definition of produced film rents in sec. 543 (a) (5),
must be a depreciable interest. If a production company has only a
profit participation after the picture is completed and released, but
legally does not have an ownership interest sufficient to claim deprecia-
4 Carnegie Productions, Inc., 59 T.C. 642 (1973).
tion. some revenue agents have treated all of the company's income as
personal service contract income (under sec. 543 (a) (7) of present
The issue is whether this treatment is appropriate, for personal
holding company purposes, or whether a production company's right
to participate in income or profits should be treated as produced film
rents (thus helping the corporation to escape personal holding com-
pany status if the rents exceed 50 percent of the corporation's ordi-
nary gross income), if this income arises from bona fide production
activities in the making of the film (regardless of whether the profits
interest is depreciable).
House bill .. "
Under the House bill (sec. 1305), in the case of a producer who nc-
etivsy participates in the production of a film, the term L"produced film
rents" for purpoc:,s of personal holding compa, inconme would in-
clude an interest in the proceeds or profits fro;n the film. hut only to
the extent such inter(.t is aritt rbut able to such active participation.
This provision would apply to taxable years e-din'r on or after
December 31, 1975.
6. Prepublication Expenses
Present law (sec. 174(a)(1)) permits, under certain circumstances,
a deduction for research and experimental expenditures otherwise
chargeable to a taxpayer's capital account. The regulations under this
provision define research and experimental expenditures as expendi-
tures incurred in connection with a taxpayer's trade or business which
represent research and development costs in the experimental or lab-
oratory sense. Specifically excluded are expenditures for re.eat-ch in
connection with literary, historical, or similar project -.
In Rev. Rul. 73-395,5 the Internal Revenue Service held that the
costs incurred by an accrual basis taxpayer in the writing, editing, de-
sign and art work directly attributable to the development of text-
books and visual aids do not constitute research and experimental ex-
penditiires under section 174. The Service further held that the.e costs
cannot be inventoried (under sec. 471) but instead repr(-,nt expendi-
tures that mist be capitalized (under sec. 263) and may be depreciated
(under sec. 167 (a)).
However, the ruling also stated that expenditures inc,'irred in the
actual printing and publishing of textbooks and visual aids should
be inventoried (under se'. 471) with a part of the costs being" appor-
tioned to the books and visual aids still on hand at the end of the tax-
able year. Also, expenditures for manuscripts and visual aids that are
abandoned may be deductible as losses (under sec. 1;65).
In addition, the Service announced (in Rev. Rul. 73-3T") that it
would not follow the decision of the United States District Court,
Central District, California, in Stern v. United States,6 which held
that a taxpayer, in the business of writing books, could deduct travel-
ing expenses incurred while researching, writing and arranging ma-
terial for a book.7
On March 17, 1976, the Internal Revenue Service announced 8 that
it has begun a study project as a result of questions regarding the
application of Rev. Rul. 73-395 to certain prepublication expenses
of the publishing industry. The Service will study the application
of sections 162 (dealing with the deduction of trade or business ex-
penses), 263 (treatment of capital expenditures), and 471 (general
rule for inventories) to prepublication costs within different segments
of the industry.
5 1973-2 C.B. 87.
6 1971-1, U.S.T.C. 9375. The case involved two issues: (1) whether the taxpayer was
prnp:ed in the business of writing, and (2) whether traveling expenseP were d(d-14tiblp as
ordinary and necessary business expenses or constituted non-deductible expenditures for
thp improvement of a capital asset.
7Thti Government said that it did not appeal the case because it had erroneously stipu-i-
lated to the effort that "if the taxpayer was determined to be in the business of being a
writer, the travelin- expenses in question were ordinary and necessary."
s Press Release IL-1575.
The Service stated that the application of these sections is not
adequately explained in Rev. Rul. 73-395, and that the project is
expected to result in the publication of regulations and/or additional
revenue rulings. It is also likely that Rev. Rul. 73-395 will be modified
and clarified or superseded.
Pending completion of this project, the Service is suspending audit
and appellate activity with respect to cases in which the deductibility
of these prepublication expenses is an issue. No further action will
be taken in these cases except as necessary to protect the interest of
The announcement did not indicate whether the Service, as part
of the project, will reconsider its determination not to follow the
The treatment of prepublication expenditures involves two general
issues: first, whether it is desirable to require the capitalization of
prepublication expenses; and second, the correct application of the
Internal Reveue Code to those expenses.
The interpretative issue arises because historically industry mem-
bers claim that they generally have deducted prepublication expenses
currently and that until the publication of Rev. Rul. 73-395 the
Service has seldom questioned this practice. Rev. Rul. 73-395 gen-
erally requires capitalization.
Rev. Rul. 73-395 also affects writers. Taxpayers in the business
of writing claim that prepublication expenditures are trade or busi-
ness expenses which are currently deductible (under sec. 162), as
the Stcn, case held, and do not constitute capital expenditures.
The House bill was passed before the Service announced its study
project on the tax treatment of prepublication of expenditures and
Rev. Rul. 73-395.
The bill (sec. 1306) allows taxpayers to treat their prepublication
expenditures in the manner in which they have been applied consist-
ently by the taxpayer in the past until new regulations are issued with
retard to these expenditures after the date of enactment of the bill.
Any regulations issued by the Internal Revenue Service would apply
only to taxable years beginning after their issuance. Until these regu-
lation; are issued, the Internal Revenue Service would administer
the application of sections 162, 174 and 263 to publishers' prepublica-
tion expenditures without regard to Rev. Rul. 73-395. In addition, as
indicated above, the Service would administer these sections in the
same manner as they were consistently applied by taxpayers prior to
the issuance of Rev. Ru]. 73-395. If a taxpayer did not consistently
follow a specific tax accounting method, his returns would be treated
by the Service in accord with usual administrative procedures.
The prepublication expenditures affected by thle House bill are those
paid or inmrred in connection with the taxpayer's trade or business of
publishing for the writin-, edition compiling, illustrating, designing
or other development or improvement of a book. teaching aid, or
7. Real Estate Investment Trusts
Under present law, real estate investment trusts ("REITs") are
provided with the same general conduit treatment that is applied to
mutual funds. Therefore, if a trust meets the qualifications for REIT
status, the income of the REIT which is distributed to its owners
each year generally is taxed to them without being subjected to a tax
at the REIT level (the REIT being subject to tax only on the income
which it retains and on certain income from property which qualifies
as foreclosure property). Thus, the REIT provides a means whereby
numerous small investors can invest in real estate assets under pro-
fessional management and allows them to spread the risk of loss by
the greater diversification of investment which can be secured through
the means of collectively financing projects which the investors could
not undertake individually.
In order to qualify for conduit treatment, a REIT must so elect
and must satisfy four tests on a year-by-year basis; organizational
structure, source of income, nature of assets, and distribution of in-
come. These conditions are intended to allow the special tax treatment
for a REIT only if there really is a pooling of investments which is
evidenced by its organizational structure, if its investments are basi-
cally in the real estate field, and if its income is clearly passive income
from real estate investment, as contrasted with income from the
operation of business involving real estate. In addition, substantially
all of the income of the REIT must be passed through to its share-
holders on a current basis.
With respect to the organizational stricture, a REIT, in general,
must be an unincorporated trust or association (which would be tax-
able as a corporation but for the REIT provisions) managed by one
or more trustees, the beneficial ownership of which is evidenced by
transferable shares or certificates of ownership held by 100 or more
persons, and which would not be a personal holding company even
if all its adjusted gross income constituted personal holding company
With respect to the income requirements, at least 75 percent of the
income of the REIT must be from rents from real property, interest
on obligations secured by real property, gain from the sale or other
disposition of real property (or interests therein, including mort-
gages), distributions from other REITs, and abatements or refunds
of taxes on real property and income and gain derived from property
which qualifies as foreclosure property. An additional 15 percent of
REIT income must come from these sources, or from other interest,
dividends, or gains from the sale of securities. Income from the sale or
other disposition of stock or securities held less than 6 months, or real
property held less than 4 years (except in the case of involuntary con-
versions) must be less than 30 percent of the REIT's income.
With respect to the asset requirements, a REIT must have at least
75 percent of the value of its assets in real estate, cash and cash items,
and Government securities. However, not more than 5 percent of the
assets can be in securities of any one nongovernment, non-REIT issuer,
and these holdings may not exceed 10 percent of the outstanding voting
securities of such issuer. Also, no property of the REIT other than
foreclosure'property, may be held primarily for sale to customers.
In addition, a REIT is required to distribute at least 90 percent of
its income (other than capital gains income and certain net income
from foreclosure property, less the tax imposed on such income by
section 857) to its shareholders during the taxable year, or declare
it as a dividend by the due date, for filing its tax return for the year
(including aniy extension) and pay the dividend within 12 months
from the close of the taxable year.
If all of these conditions are met, then the REIT generally is quali-
fied for the special conduit treatment which allows the income that is
distributed to the shareholders to be taxed to them without being sub-
jected to a tax at the trust level, so that the REIT is only taxed on the
undistributed income and certain income from foreclosure property.
Otherwise, a trust that does not meet the requirements for qualifica-
tion as a REIT would be treated as a corporation, in which case all of
its income would be taxed to the REIT, not just the undistributed
Although the provisions have been amended from time to time, until
1974 the basic rules with respect to REITs have remained the same
since their enactment in 1960. (In 1974, the Congress dealt with the
difficulty a REIT may have in meeting the income and asset tests if
it must foreclose on a mortgage that it owns or reacquire prIoperty
which it owns and has leased). Since 1960, the REIT industry has
grown enormously in size and is responsible for a large portion of the
investment in the real estate field in the United States today. How-
ever, industry representatives have stated that problems have arisen
with respect to the REIT provisions which could significantly affect
the industry if they are not modified.
These problems relate to the fact that under present law if a REIT
does not meet the various income, asset, and distribution tests. The
REIT will be disqualified from using the special tax provisions even
in cases where the failure to meet a requirement occurred after -A good
faith, reasonable effort on the part of the REIT to comply. Disquali-
fication would have the effect of not only changing the tax status of
the REIT itself, subjecting its income to tax at corporate rates, but
also could adversely affect the interests of the public shareholders of
the REIT. Questions have been raised as to whether it is appropriate
to disqualify a REIT in such circumstances.
In genera], the House bill secss. 1601-1606) makes the following
changes with respect to the provisions of the tax law relating to
(1) As discussed above, under present law, a REIT generally is
required to distribute 90 percent of its taxable income each year to its
shareholders. If it does not meet this requirement, the trust will be
disqualified as a REIT and thus must pay tax on its income as if it
were a regular corporation. Under the House bill, a REIT will not be
disqualified if it is determined, on audit, that the failure to meet the
90-percent distribution requirement was due to reasonable cause. In this
case, the REIT is to be allowed to distribute deficiency dividends to
its shareholders to avoid disqualification. However, interest and penal-
ties are to be imposed on the amount of the adjustment under this
(2) Under present law certain percentages of a REIT's income must
be derived from designated sources. The House bill provides that if a
REIT were found to have failed to meet the income source tests, it
would not be disqualified, but would be allowed to pay tax on the
amount by which it failed to meet the income source tests. This provi-
sion would be available only if the REIT initially had reasonable
ground to believe that it had met the income source tests.
(3) Present law prohibits a REIT from holding property (other
than foreclosure property) for sale to customers. The House bill
eliminates the "holding" prohibition and substitutes a limit on the
amount of income a REIT can derive from property so held. Under
the House bill, a REIT could have a de miJmis amount (up to one
percent) of its gross income from such sources, and this income would
be subject to corporate tax. Any income from such sources in excess
of one percent would be subject to an additional tax under the provi-
sions discussed above, but would not disqualify the REIT, provided
the REIT had reasonable grounds to believe that the excess income
was not holding-for-sale income.
(4) The House bill also provides that certain types of income that
customarily are earned in a real estate business but which do not now
qualify under the income source tests are to be treated as qualifying
income. These include (a) certain rents from personal property leased
together with the real property; (b) charges for services customarily
furnished in connection with the rental of real property whether or
not such charges are separately stated; and (c) commitment fees re-
ceived for entering into agreements to make loans secured by real
(5) The income source requirements are increased by the House
bill so that at least 95 percent of the REIT's income must be from
passive sources. Also, all income, other than passive income, would be
subject to corporate tax.
(6) Under the House bill, a REIT would be permitted to operate in
corporate form; under present law, a REIT must operate as a trust
(7) Under the House bill, a REIT would be required to designate
the year to which a dividend payment relates. (Under present law,
a dividend may relate either to the year in which it is paid, or the
immediately preceding year in most cases.) Also, a REIT is to be
subject to a 3 percent charge on the amount by which it fails to dis-
tribute at least 75 percent of its income in the year received. In addi-
tion, a new REIT would be required to be on a calander year for tax
(8) Certain other changes are made concerning technical rules ap-
plicable to REIT's, including changes in the rules regarding income
from sale of mortgages held for less than four years, and regarding
options to purchase real property.
Under the House bill, the provisions outlined above would apply
generally to taxable years of real estate investment trusts beginning
after the date of enactment.
UNIVERSITY OF FLORIDA
I3I 1262 III7125 7512
3 1262 07125 7512