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made by section 362 of the Act, relating to deficiency dividends. (Sec. 856(d)(4) (90 Stat. 1750; 26 U.S.C. 856(d)(4)); sec. 856(e)(5) (88 Stat. 2113; 26 U.S.C. 856(e)(5)); sec. 856(f)(2) (90 Stat. 1751; 26 U.S.C. 856(1)(2)); sec. 856 (g)(2) (90 Stat. 1753; 26 U.S.C. 856(g)(2)); sec. 858(a) (74 Stat. 1008; 26 U.S.C. 858(a)); sec. 859(c) (90 Stat. 1743; 26 U.S.C. 859(c)); sec. 859(e) (90 Stat. 1744; 26 U.S.C. 859(e)); sec. 6001 (68A Stat. 731; 26 U.S.C. 6001); sec. 6011 (68A Stat. 732; 26 U.S.C. 6011); sec, 6071 (68A Stat. 749, 26 U.S.C. 6071); sec. 6091 (68A Stat. 752; 26 U.S.C. 6091); sec. 7805 (68A Stat. 917; 26 U.S.C. 7805), Internal Revenue Code of 1954; 860(e) (92 Stat. 2849, 26 U.S.C. 860(e)); sec. 860(g) (92 Stat. 2850, 26 U.S.C. 860(g))) [T.D. 7767, 46 FR 11265, Feb. 6. 1981, as amended by T.D. 7936, 49 FR 2106, Jan. 18, 1984)

$ 1.856–1 Definition of real estate in

vestment trust. (a) In general. The term “real estate investment trust" means a corporation, trust, or association which (1) meets the status conditions in section 856(a) and paragraph (b) of this section, and (2) satisfies the gross income and asset diversification requirements under the limitations of section 856(c) and $1.856-2. (See, however, paragraph (f) of this section, relating to the requirement that, for taxable years beginning before October 5, 1976, a real estate investment trust must be an unincorporated trust or unincorporated association).

(b) Qualifying conditions. To qualify as a "real estate investment trust”, an organization must be one

(1) Which is managed by one or more trustees or directors,

(2) The beneficial ownership of which is evidenced by transferable shares or by transferable certificates of beneficial interest,

(3) Which would be taxable as a domestic corporation but for the provisions of part II, subchapter M, chapter 1 of the Code,

(4) Which, in the case of a taxable year beginning before October 5, 1976, does not hold any property (other than foreclosure property) primarily for sale to customers in the ordinary course of its trade or business,

(5) Which is neither (i) a financial institution to which section 585, 586, or 593 applies, nor (ii) an insurance company to which subchapter L applies,

(6) The beneficial ownership of which is held by 100 or more persons, and

(7) Which would not be a personal holding company (as defined in section 542) if all of its gross income constituted personal holding company income (as defined in section 543).

(c) Determination of status. The conditions described in subparagraphs (1) through (5) of paragraph (b) of this section must be met during the entire taxable year and the condition described in subparagraph (6) of paragraph (b) of this section must exist during at least 335 days of a taxable year of 12 months or during a proportionate part of a taxable year of less than 12 months. The days during which the latter condition must exist need not be consecutive. In determining the minimum number of days during which the condition described in paragraph (b)(6) of this section is required to exist in a taxable year of less than 12 months, fractional days shall be disregarded. For example, in a taxable year of 310 days, the actual number of days prescribed would be 284 38/73 days (319365 of 335). The fractional day is disregarded so that the required condition in such taxable year need exist for only 284 days.

(d) Rules applicable to status requirements. For purposes of determining whether an organization meets the conditions and requirements in section 856(a), the following rules shall apply.

(1) Trustee. The term “trustee" means a person who holds legal title to the property of the real estate investment trust, and has such rights and powers as will meet the requirement of "centralization of management” under paragraph (c) of $301.7701–2 of this chapter (Regulations on Procedure and Administration). Thus, the trustee must have continuing exclusive authority over the management of the trust, the conduct of its affairs, and (except as limited by section 856(d)(3) and $1.856-4) the management and disposition of the trust property. For example, such authority will be considered to exist even though the trust instrument grants to the shareholders any or all of the following rights and powers: To elect or remove trustees; to terminate the trust; and to ratify amendments to the trust instrument proposed by the trustee. The existence of a mere fiduciary relationship does not, in itself, make one a trustee for purposes of section 856(a)(1). The trustee will be considered to hold legal title to the property of the trust, for purposes of this subparagraph, whether the title is held in the name of the trust itself, in the name of one or more of the trustees, or in the name of a nominee for the exclusive benefit of the trust.

(2) Beneficial ownership. Beneficial ownership shall be evidenced by transferable shares, or by transferable certificates of beneficial interest, and (subject to the provisions of paragraph (c) of this section) must be held by 100 or more persons, determined without reference to any rules of attribution. Provisions in the trust instrument or corporate charter or bylaws which permit the trustee or directors to redeem shares or to refuse to transfer shares in any case where the trustee or directors, in good faith, believe that a failure to redeem shares or that a transfer of shares would result in the loss of status as a real estate investment trust will not render the shares "nontransferable.” For purposes of the regulations under part II of subchapter M, the terms "stockholder," "stockholders," "shareholder,” and “shareholders” include holders of beneficial interest in a real estate investment trust, the terms "stock," "shares," and “shares of stock” include certificates of beneficial interest, and the term "shares" includes shares of stock.

(3) Unincorporated organization tarable as a domestic corporation. The determination of whether an unincorporated organization would be taxable as a domestic corporation, in the absence of the provisions of part II of subchapter M, shall be made in accordance with the provisions of section 7701(a) (3) and (4) and the regulations thereunder and for such purposes an otherwise qualified real estate investment trust is deemed to satisfy the “objective to carry business" requirement of paragraph (a) of $301.7701–2 of this chapter. (Regulations on Procedure and Administration).

(4) Property held for sale to customers. In the case of a taxable year beginning before October 5, 1976, a real estate investment trust may not hold any prop

erty (other than foreclosure property) primarily for sale to customers in the ordinary course of its trade or business. Whether property is held for sale to customers in the ordinary course of the trade or business of a real estate investment trust depends upon the facts and circumstances in each case.

(5) Personal holding company. A corporation, trust, or association, even though it may otherwise meet the requirements of part II of subchapter M, will not be a real estate investment trust if, by considering all of its gross income as personal holding company income under section 543, it would be a personal holding company as defined in section 542. Thus, if at any time during the last half of the trust's taxable year more than 50 percent in value of its outstanding stock is owned (directly or indirectly under the provisions of section 544) by or for not more than 5 individuals, the stock ownership requirement in section 542(a)(2) will be met and the trust would be a personal holding company. See $1.857–8, relating to record requirements for purposes of determining whether the trust is a personal holding company.

(e) Other rules applicable. To the extent that other provisions of chapter 1 of the Code are not inconsistent with those under part II of subchapter M there of and the regulations thereunder, such provisions will apply with respect to both the real estate investment trust and its shareholders in the same manner that they would apply to any other organization which would be taxable as a domestic corporation. For example:

(1) Taxable income of a real estate investment trust is computed in the same manner as that of a domestic corporation;

(2) Section 301, relating to distributions of property, applies to distributions by a real estate investment trust in the same manner as it would apply to a domestic corporation;

(3) Sections 302, 303, 304, and 331 are applicable in determining whether distributions by a real estate investment trust are to be treated as in exchange for stock;

(4) Section 305 applies to distributions by a real estate investment trust of its own stock;

on

(5) Section 311 applies to distribu- satisfies the other requirements of part tions by a real estate investment trust; II of subchapter M for the taxable year,

(6) Except as provided in section will not be considered a "real estate in857(d), earnings and profits of a real es- vestment trust" for such year, within tate investment trust are computed in the meaning of such part II, unless it the same manner as in the case of a do- elects to be a real estate investment mestic corporation;

trust for such taxable year, or has (7) Section 316, relating to the defini- made such an election for a previous tion of a dividend, applies to distribu- taxable year which has not been termitions by a real estate investment trust; nated or revoked under section 856(g)(1) and

or (2). The election shall be made by (8) Section 341, relating to collapsible the trust by computing taxable income corporations, applies to gain on the as a real estate investment trust in its sale or exchange of, or a distribution return for the first taxable year for which is in exchange for, stock in a which it desires the election to apply, real estate investment trust in the

even though it may have otherwise same manner that it would apply to a

qualified as a real estate investment domestic corporation.

trust for a prior year. No other method (f) Unincorporated status required for

of making such election is permitted. certain taxable years. In the case of a An election cannot be revoked with retaxable year beginning before October

spect to a taxable year beginning be5, 1976, a real estate investment trust

fore October 5, 1976. Thus, the failure of must be an unincorporated trust or un

an organization to be a qualified real incorporated association. Accordingly, estate investment trust for a taxable in applying the regulations under part

year beginning before October 5, 1976, II of subchapter M of the Code with re

does not have the effect of revoking a spect to such a taxable year, the term

prior election by the organization to be "an unincorporated trust or unincor

a real estate investment trust, even porated association" is to be sub- though the organization is not taxable stituted for the term “a corporation, under part II of subchapter M for such trust, or association" each place it ap- taxable year. See section 856(g) and pears, and the references to “directors"

$1.856-8 for rules under which an elecand “corporate charter or bylaws” are

tion may be revoked with respect to to be disregarded.

taxable years beginning after October (Sec. 856(d)(4) (90 Stat. 1750; 26 U.S.C.

4, 1976. 856(d)(4)); sec. 856(e)(5) (88 Stat. 2113; 26 (c) Gross income requirements. Section U.S.C. 856(e)(5)); sec. 856(1)(2) (90 Stat. 1751; 26 856(c) (2), (3), and (4), provides that a U.S.C. 856(f)(2)); sec. 856(g)(2) (90 Stat. 1753; 26 corporation, trust, or association is not U.S.C. 856(g)(2)); sec. 858(a) (74 Stat. 1008; 26

a “real estate investment trust" for a U.S.C. 858(a)); sec. 859(C) (90 Stat. 1743; 26

taxable year unless it meets certain reU.S.C. 859(c)); sec. 859(e) (90 Stat. 1744; 26 U.S.C. 859(e)); sec. 6001 (68A Stat. 731; 26

quirements with respect to the sources U.S.C. 6001); sec. 6011 (68A Stat. 732; 26 U.S.C.

of its gross income for the taxable 6011); sec. 6071 (68A Stat. 749, 26 U.S.C. 6071);

year. In determining whether the gross sec. 6091 (68A Stat. 752; 26 U.S.C. 6091); sec. income of a real estate investment 7805 (68A Stat. 917, 26 U.S.C. 7805). Internal trust satisfies the percentage requireRevenue Code of 1954)

ments of section 856(C) (2), (3), and (4), [T.D. 6598, 27 FR 4082, Apr. 28, 1962, as amend- the following rules shall apply: ed by T.D. 6928, 32 FR 13221, Sept. 19, 1967; (1) Gross income. For purposes of both T.D. 7767, 46 FR 11265, Feb. 6, 1981)

the numerator and denominator in the

computation of the specified percent$ 1.856-2 Limitations.

ages, the term "gross income” has the (a) Effective date. The provisions of same meaning as that term has under part II, subchapter M, chapter 1 of the section 61 and the regulations thereCode, and the regulations thereunder under. Thus, in determining the gross apply only to taxable years of a real es- income requirements under section tate investment trust beginning after 856(c) (2), (3), and (4), a loss from the December 31, 1960.

sale or other disposition of stock, secu(b) Election. Under the provisions of rities, real property, etc. does not enter section 856(c)(1), a trust, even though it into the computation.

(2) Lapse of options. Under section 856(C)(6)(C), the term "interests in real property” includes options to acquire land or improvements thereon, and options to acquire leaseholds of land and improvements thereon. However, where a corporation, trust, or association writes an option giving the holder the right to acquire land or improvements thereon, or writes an option giving the holder the right to acquire a leasehold of land or improvements thereon, any income that the corporation, trust, or association recognizes because the option expires unexercised is not considered to be gain from the sale or other disposition of real property (including interests in real property) for purposes of section 856(c) (2)(D) and (3)(C). The rule in the preceding sentence also applies for purposes of section 856(c)(4)(C) in determining gain from the sale or other disposition of real property for the 30-percent-of-gross-income limitation.

(3) Commitment fees. For purposes of section 856(c) (2)(G) and (3)(G), if consideration is received or accrued for an agreement to make a loan secured by a mortgage covering both real property and other property, or for an agreement to purchase or lease both real property and other property, an apportionment of the consideration is required. The apportionment of consideration received or accrued for an agreement to make a loan secured by a mortgage covering both real property and other property shall be made under the principles of $1.856-5(c), relating to the apportionment of interest income.

(4) Holding period of property. For purposes of the 30-percent limitation of section 856(C)(4), the determination of the period for which property described in such section has been held is governed by the provisions of section 1223 and the regulations thereunder.

(5) Rents from real property and interest. See $$ 1.856-4 and 1.856-5 for rules relating to rents from real property and interest.

(d) Diversification of investment requirements-(1) 75-percent test. Section 856(c)(5)(A) requires that at the close of each quarter of the taxable year at least 75 percent of the value of the total assets of the trust be represented by one or more of the following:

(i) Real estate assets;
(ii) Government securities; and

(iii) Cash and cash items (including receivables). For purposes of this subparagraph the term “receivables” means only those receivables which arise in the ordinary course of the trust's operation and does not include receivables purchased from another person. Subject to the limitations in section 856(c)(5)(B) and subparagraph (2) of this paragraph, the character of the remaining 25 percent (or less) of the value of the total assets is not restricted.

(2) Limitations on certain securities, Under Section 856(c)(5)(B), not more than 25 percent of the value of the total assets of the trust may be represented by securities other than those described in section 856(c)(5)(A). The ownership of securities under the 25percent limitation in section 856(c)(5)(B) is further limited in respect of any one issuer to an amount not greater in value than 5 percent of the value of the total assets of the trust and to not more than 10 percent of the outstanding voting securities of such issuer. Thus, if the real estate investment trust meets the 75-percent asset diversification requirement in section 856(c)(5)(A), it will also meet the first test under section 856(c)(5)(B) since it will, of necessity, have not more than 25 percent of its total assets represented by securities other than those described in section 856(c)(5)(A). However, the trust must also meet two additional tests under section 856(c)(5)(B), i.e. it cannot own the securities of any one issuer in an amount (i) greater in value than 5 percent of the value of the trust's total assets, or (ii) representing more than 10 percent of the outstanding voting securities of such issuer.

(3) Determination of investment status. The term “total assets" means the gross assets of the trust determined in accordance with generally accepted accounting principles. In order to determine the effect, if any, which an acquisition of any security or other property may have with respect to the status of a trust as a real estate investment trust, section 856(c)(5) requires a revaluation of the trust's assets at the end

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of the quarter in which such acquisition was made. A revaluation of assets is not required at the end of any quarter during which there has been no acquisition of a security or other property since the mere change in market value of property held by the trust does not, of itself, affect the status of the trust as a real estate investment trust. A change in the nature of “cash items”, for example, the prepayment of insurance or taxes, does not constitute the acquisition of “other property” for purposes of this subparagraph. A real estate investment trust shall keep sufficient records as to investments so as to be able to show that it has complied with the provisions of section 856(c)(5) during the taxable year. Such records shall be kept at all times available for inspection by any internal revenue officer or employee and shall be retained so long as the contents thereof may become material in the administration of any internal revenue law.

(4) Nlustrations. The application of section 856(C)(5) and this paragraph may be illustrated by the following examples:

Example 1. Real Estate Investment Trust M, at the close of the first quarter of its taxable year, has its assets invested as follows:

Cash
Government securities
Real estate assets
Securities of Corporation S
Securities of Corporation L
Securities of Corporation U
Securities of Corporation M (which equals 25 per-

cent of Corporation M's outstanding voting securities)

4

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Trust G meets the 75-percent requirement of section 856(c)(5)(A), but does not meet the requirements of section 856(c)(5)(B) because its investment in the voting securities of Corporation M exceeds 10 percent of Corporation M's outstanding voting securities.

Example 4. Real Estate Investment Trust R, at the close of the first quarter of its taxable year (i.e. calendar year), is a qualified real estate investment trust and has its assets invested as follows: Cash

$5,000 Government securities

4,000 Receivables

4,000 Real estate assets

68,000 Securities of Corporation P

4,000 Securities of Corporation O

5,000 Securities of Corporation U

5,000 Securities of Corporation T

5.000

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During the second calendar quarter the stock in Corporation P increases in value to $50,000 while the value of the remaining assets has not changed. If Real Estate Investment Trust R has made no acquisition of stock or other property during such second quarter it will not lose its status as a real estate investment trust merely by reason of the appreciation in the value of P's stock. If, during the third quarter, Trust R acquires stock of Corporation S worth $2,000, such acquisition will necessitate a revaluation of all of the assets of Trust R as follows: Cash

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$3,000 Government securities

4,000 Receivables

4,000 Real estate assets

68,000 Securities in Corporation P

50,000 Securities in Corporation O

5,000 Securities in Corporation U

5,000 Securities in Corporation T

5,000 Securities in Corporation S

2,000

Total assets

146,000

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