26 USC 852 - Taxation of regulated investment companies and their shareholders

U.S Code last checked for updates: Nov 22, 2024

§ 852.

Taxation of regulated investment companies and their shareholders

(a)

Requirements applicable to regulated investment companies

The provisions of this part (other than subsection (c) of this section) shall not be applicable to a regulated investment company for a taxable year unless—

(1)

the deduction for dividends paid during the taxable year (as defined in section 561, but without regard to capital gain dividends) equals or exceeds the sum of—

(A)

90 percent of its investment company taxable income for the taxable year determined without regard to subsection (b)(2)(D); and

(B)

90 percent of the excess of (i) its interest income excludable from gross income under section 103(a) over (ii) its deductions disallowed under sections 265 and 171(a)(2), and

(2)

either—

(A)

the provisions of this part applied to the investment company for all taxable years ending on or after November 8, 1983, or

(B)

as of the close of the taxable year, the investment company has no earnings and profits accumulated in any taxable year to which the provisions of this part (or the corresponding provisions of prior law) did not apply to it.

The Secretary may waive the requirements of paragraph (1) for any taxable year if the regulated investment company establishes to the satisfaction of the Secretary that it was unable to meet such requirements by reason of distributions previously made to meet the requirements of section 4982.

(b)

Method of taxation of companies and shareholders

(1)

Imposition of tax on regulated investment companies

(2)

Investment company taxable income

The investment company taxable income shall be the taxable income of the regulated investment company adjusted as follows:

(A)

There shall be excluded the amount of the net capital gain, if any.

(B)

The net operating loss deduction provided in section 172 shall not be allowed.

(C)

The deductions for corporations provided in part VIII (except section 248) in subchapter B (section 241 and following, relating to the deduction for dividends received, etc.) shall not be allowed.

(D)

The deduction for dividends paid (as defined in section 561) shall be allowed, but shall be computed without regard to capital gain dividends and exempt-interest dividends.

(E)

The taxable income shall be computed without regard to section 443(b) (relating to computation of tax on change of annual accounting period).

(F)

The taxable income shall be computed without regard to section 454(b) (relating to short-term obligations issued on a discount basis) if the company so elects in a manner prescribed by the Secretary.

(G)

There shall be deducted an amount equal to the tax imposed by subsections (d)(2) and (i) of section 851 for the taxable year.

(3)

Capital gains

(A)

Imposition of tax

(B)

Treatment of capital gain dividends by shareholders

(C)

Definition of capital gain dividend

For purposes of this part—

(i)

In general

(ii)

Excess reported amounts

If the aggregate reported amount with respect to the company for any taxable year exceeds the net capital gain of the company for such taxable year, a capital gain dividend is the excess of—

(I)

the reported capital gain dividend amount, over

(II)

the excess reported amount which is allocable to such reported capital gain dividend amount.

(iii)

Allocation of excess reported amount

(I)

In general

(II)

Special rule for noncalendar year taxpayers

(iv)

Definitions

For purposes of this subparagraph—

(I)

Reported capital gain dividend amount

(II)

Excess reported amount

(III)

Aggregate reported amount

(IV)

Post-December reported amount

(v)

Adjustment for determinations

(vi)

Special rule for losses late in the calendar year

For special rule for certain losses after October 31, see paragraph (8).

(D)

Treatment by shareholders of undistributed capital gains

(i)

Every shareholder of a regulated investment company at the close of the company’s taxable year shall include, in computing his long-term capital gains in his return for his taxable year in which the last day of the company’s taxable year falls, such amount as the company shall designate in respect of such shares in a written notice mailed to its shareholders at any time prior to the expiration of 60 days after close of its taxable year, but the amount so includible by any shareholder shall not exceed that part of the amount subjected to tax in subparagraph (A) which he would have received if all of such amount had been distributed as capital gain dividends by the company to the holders of such shares at the close of its taxable year.

(ii)

For purposes of this title, every such shareholder shall be deemed to have paid, for his taxable year under clause (i), the tax imposed by subparagraph (A) on the amounts required by this subparagraph to be included in respect of such shares in computing his long-term capital gains for that year; and such shareholder shall be allowed credit or refund, as the case may be, for the tax so deemed to have been paid by him.

(iii)

The adjusted basis of such shares in the hands of the shareholder shall be increased, with respect to the amounts required by this subparagraph to be included in computing his long-term capital gains, by the difference between the amount of such includible gains and the tax deemed paid by such shareholder in respect of such shares under clause (ii).

(iv)

In the event of such designation the tax imposed by subparagraph (A) shall be paid by the regulated investment company within 30 days after close of its taxable year.

(v)

The earnings and profits of such regulated investment company, and the earnings and profits of any such shareholder which is a corporation, shall be appropriately adjusted in accordance with regulations prescribed by the Secretary.

(E)

Certain distributions

In the case of a distribution to which section 897 does not apply by reason of the second sentence of section 897(h)(1), the amount of such distribution which would be included in computing long-term capital gains for the shareholder under subparagraph (B) or (D) (without regard to this subparagraph)—

(i)

shall not be included in computing such shareholder’s long-term capital gains, and

(ii)

shall be included in such shareholder’s gross income as a dividend from the regulated investment company.

(4)

Loss on sale or exchange of stock held 6 months or less

(A)

Loss attributable to capital gain dividend

If—

(i)

subparagraph (B) or (D) of paragraph (3) provides that any amount with respect to any share is to be treated as long-term capital gain, and

(ii)

such share is held by the taxpayer for 6 months or less,

then any loss (to the extent not disallowed under subparagraph (B)) on the sale or exchange of such share shall, to the extent of the amount described in clause (i), be treated as a long-term capital loss.

(B)

Loss attributable to exempt-interest dividend

If—

(i)

a shareholder of a regulated investment company receives an exempt-interest dividend with respect to any share, and

(ii)

such share is held by the taxpayer for 6 months or less,

then any loss on the sale or exchange of such share shall, to the extent of the amount of such exempt-interest dividend, be disallowed.

(C)

Determination of holding periods

For purposes of this paragraph, in determining the period for which the taxpayer has held any share of stock—

(i)

the rules of paragraphs (3) and (4) of section 246(c) shall apply, and

(ii)

there shall not be taken into account any day which is more than 6 months after the date on which such share becomes ex-dividend.

(D)

Losses incurred under a periodic liquidation plan

(E)

Exception to holding period requirement for certain regularly declared exempt-interest dividends

(i)

Daily dividend companies

(ii)

Authority to shorten required holding period with respect to other companies

(5)

Exempt-interest dividends

If, at the close of each quarter of its taxable year, at least 50 percent of the value (as defined in section 851(c)(4)) of the total assets of the regulated investment company consists of obligations described in section 103(a), such company shall be qualified to pay exempt-interest dividends, as defined herein, to its shareholders.

(A)

Definition of exempt-interest dividend

(i)

In general

(ii)

Excess reported amounts

If the aggregate reported amount with respect to the company for any taxable year exceeds the exempt interest of the company for such taxable year, an exempt-interest dividend is the excess of—

(I)

the reported exempt-interest dividend amount, over

(II)

the excess reported amount which is allocable to such reported exempt-interest dividend amount.

(iii)

Allocation of excess reported amount

(I)

In general

(II)

Special rule for noncalendar year taxpayers

(iv)

Definitions

For purposes of this subparagraph—

(I)

Reported exempt-interest dividend amount

(II)

Excess reported amount

(III)

Aggregate reported amount

(IV)

Post-December reported amount

(V)

Exempt interest

(B)

Treatment of exempt-interest dividends by shareholders

An exempt-interest dividend shall be treated by the shareholders for all purposes of this subtitle as an item of interest excludable from gross income under section 103(a). Such purposes include but are not limited to—

(i)

the determination of gross income and taxable income,

(ii)

the determination of distributable net income under subchapter J,

(iii)

the allowance of, or calculation of the amount of, any credit or deduction, and

(iv)

the determination of the basis in the hands of any shareholder of any share of stock of the company.

(6)

Section 311(b) not to apply to certain distributions

(7)

Time certain dividends taken into account

For purposes of this title, any dividend declared by a regulated investment company in October, November, or December of any calendar year and payable to shareholders of record on a specified date in such a month shall be deemed—

(A)

to have been received by each shareholder on December 31 of such calendar year, and

(B)

to have been paid by such company on December 31 of such calendar year (or, if earlier, as provided in section 855).

The preceding sentence shall apply only if such dividend is actually paid by the company during January of the following calendar year.

(8)

Elective deferral of certain late-year losses

(A)

In general

(B)

Qualified late-year loss

For purposes of this paragraph, the term “qualified late-year loss” means—

(i)

any post-October capital loss, and

(ii)

any late-year ordinary loss.

(C)

Post-October capital loss

For purposes of this paragraph, the term “post-October capital loss” means—

(i)

any net capital loss attributable to the portion of the taxable year after October 31, or

(ii)

if there is no such loss—

(I)

any net long-term capital loss attributable to such portion of the taxable year, or

(II)

any net short-term capital loss attributable to such portion of the taxable year.

(D)

Late-year ordinary loss

(E)

Post-October specified loss

For purposes of this paragraph, the term “post-October specified loss” means the excess (if any) of—

(i)

the specified losses (as defined in section 4982(e)(5)(B)(ii)) attributable to the portion of the taxable year after October 31, over

(ii)

the specified gains (as defined in section 4982(e)(5)(B)(i)) attributable to such portion of the taxable year.

(F)

Post-December ordinary loss

For purposes of this paragraph, the term “post-December ordinary loss” means the excess (if any) of—

(i)

the ordinary losses not described in subparagraph (E)(i) and attributable to the portion of the taxable year after December 31, over

(ii)

the ordinary income not described in subparagraph (E)(ii) and attributable to such portion of the taxable year.

(G)

Special rule for companies determining required capital gain distributions on taxable year basis

In the case of a company to which an election under section 4982(e)(4) applies—

(i)

if such company’s taxable year ends with the month of November, the amount of qualified late-year losses (if any) shall be computed without regard to any income, gain, or loss described in subparagraphs (C) and (E), and

(ii)

if such company’s taxable year ends with the month of December, subparagraph (A) shall not apply.

(9)

Dividends treated as received by company on ex-dividend date

For purposes of this title, if a regulated investment company is the holder of record of any share of stock on the record date for any dividend payable with respect to such stock, such dividend shall be included in gross income by such company as of the later of—

(A)

the date such share became ex-dividend with respect to such dividend, or

(B)

the date such company acquired such share.

(c)

Earnings and profits

(1)

Treatment of nondeductible items

(A)

Net capital loss

If a regulated investment company has a net capital loss for any taxable year—

(i)

such net capital loss shall not be taken into account for purposes of determining the company’s earnings and profits, and

(ii)

any capital loss arising on the first day of the next taxable year by reason of clause (ii) or (iii) of section 1212(a)(3)(A) shall be treated as so arising for purposes of determining earnings and profits.

(B)

Other nondeductible items

(i)

In general

(ii)

Coordination with treatment of net capital losses

(2)

Coordination with tax on undistributed income

For purposes of applying this chapter to distributions made by a regulated investment company with respect to any calendar year, the earnings and profits of such company shall be determined without regard to any net capital loss attributable to the portion of the taxable year after October 31, without regard to any late-year ordinary loss (as defined in subsection (b)(8)(D)), without regard to any capital loss arising on the first day of the taxable year by reason of clauses (ii) and (iii) of section 1212(a)(3)(A), and with such other adjustments as the Secretary may prescribe. The preceding sentence shall apply—

(A)

only to the extent that the amount distributed by the company with respect to the calendar year does not exceed the required distribution for such calendar year (as determined under section 4982 by substituting “100 percent” for each percentage set forth in section 4982(b)(1)), and

(B)

except as provided in regulations, only if an election under section 4982(e)(4) is not in effect with respect to such company.

(3)

Distributions to meet requirements of subsection (a)(2)(B)

Any distribution which is made in order to comply with the requirements of subsection (a)(2)(B)—

(A)

shall be treated for purposes of this subsection and subsection (a)(2)(B) as made from earnings and profits which, but for the distribution, would result in a failure to meet such requirements (and allocated to such earnings on a first-in, first-out basis), and

(B)

to the extent treated under subparagraph (A) as made from accumulated earnings and profits, shall not be treated as a distribution for purposes of subsection (b)(2)(D) and section 855.

(4)

Regulated investment company

(d)

Distributions in redemption of interests in unit investment trusts

In the case of a unit investment trust—

(1)

which is registered under the Investment Company Act of 1940 (15 U.S.C. 80a–1 and following) and issues periodic payment plan certificates (as defined in such Act), and

(2)

substantially all of the assets of which consist of securities issued by a management company (as defined in such Act),

section 562(c) (relating to preferential dividends) shall not apply to a distribution by such trust to a holder of an interest in such trust in redemption of part or all of such interest, with respect to the capital gain net income of such trust attributable to such redemption.

(e)

Procedures similar to deficiency dividend procedures made applicable

(1)

In general

If—

(A)

there is a determination that the provisions of this part do not apply to an investment company for any taxable year (hereinafter in this subsection referred to as the “non-RIC year”), and

(B)

such investment company meets the distribution requirements of paragraph (2) with respect to the non-RIC year,

for purposes of applying subsection (a)(2) to subsequent taxable years, the provisions of this part shall be treated as applying to such investment company for the non-RIC year. If the determination under subparagraph (A) is solely as a result of the failure to meet the requirements of subsection (a)(2), the preceding sentence shall also apply for purposes of applying subsection (a)(2) to the non-RIC year and the amount referred to in paragraph (2)(A)(i) shall be the portion of the accumulated earnings and profits which resulted in such failure.

(2)

Distribution requirements

(A)

In general

The distribution requirements of this paragraph are met with respect to any non-RIC year if, within the 90-day period beginning on the date of the determination (or within such longer period as the Secretary may permit), the investment company makes 1 or more qualified designated distributions and the amount of such distributions is not less than the excess of—

(i)

the portion of the accumulated earnings and profits of the investment company (as of the date of the determination) which are attributable to the non-RIC year, over

(ii)

any interest payable under paragraph (3).

(B)

Qualified designated distribution

For purposes of this paragraph, the term “qualified designated distribution” means any distribution made by the investment company if—

(i)

section 301 applies to such distribution, and

(ii)

such distribution is designated (at such time and in such manner as the Secretary shall by regulations prescribe) as being taken into account under this paragraph with respect to the non-RIC year.

(C)

Effect on dividends paid deduction

(3)

Interest charge

(A)

In general

If paragraph (1) applies to any non-RIC year of an investment company, such investment company shall pay interest at the underpayment rate established under section 6621—

(i)

on an amount equal to 50 percent of the amount referred to in paragraph (2)(A)(i),

(ii)

for the period—

(I)

which begins on the last day prescribed for payment of the tax imposed for the non-RIC year (determined without regard to extensions), and

(II)

which ends on the date the determination is made.

(B)

Coordination with subtitle F

(4)

Provision not to apply in the case of fraud

(5)

Determination

(f)

Treatment of certain load charges

(1)

In general

If—

(A)

the taxpayer incurs a load charge in acquiring stock in a regulated investment company and, by reason of incurring such charge or making such acquisition, the taxpayer acquires a reinvestment right,

(B)

such stock is disposed of before the 91st day after the date on which such stock was acquired, and

(C)

the taxpayer acquires, during the period beginning on the date of the disposition referred to in subparagraph (B) and ending on January 31 of the calendar year following the calendar year that includes the date of such disposition, stock in such regulated investment company or in another regulated investment company and the otherwise applicable load charge is reduced by reason of the reinvestment right,

the load charge referred to in subparagraph (A) (to the extent it does not exceed the reduction referred to in subparagraph (C)) shall not be taken into account for purposes of determining the amount of gain or loss on the disposition referred to in subparagraph (B). To the extent such charge is not taken into account in determining the amount of such gain or loss, such charge shall be treated as incurred in connection with the acquisition referred to in subparagraph (C) (including for purposes of reapplying this paragraph).

(2)

Definitions and special rules

For purposes of this subsection—

(A)

Load charge

(B)

Reinvestment right

(C)

Nonrecognition transactions

(g)

Special rules for fund of funds

(1)

In general

In the case of a qualified fund of funds—

(A)

such fund shall be qualified to pay exempt-interest dividends to its shareholders without regard to whether such fund satisfies the requirements of the first sentence of subsection (b)(5), and

(B)

such fund may elect the application of section 853 (relating to foreign tax credit allowed to shareholders) without regard to the requirement of subsection (a)(1) thereof.

(2)

Qualified fund of funds

(Aug. 16, 1954, ch. 736, 68A Stat. 271; July 11, 1956, ch. 573, § 2(a), 70 Stat. 530; Pub. L. 85–866, title I, §§ 39(a), 101(a), (b), Sept. 2, 1958, 72 Stat. 1638, 1674; Pub. L. 86–779, § 10(b)(2), (3), Sept. 14, 1960, 74 Stat. 1009; Pub. L. 88–272, title II, § 229(a)(1), (2), (b), Feb. 26, 1964, 78 Stat. 99; Pub. L. 91–172, title V, § 511(c)(2), Dec. 30, 1969, 83 Stat. 637; Pub. L. 94–455, title XIV, § 1402(b)(1)(N), (2), title XIX, §§ 1901(a)(110)(A), (B)(i), (C), (b)(1)(V), (6)(B), (33)(I), (J), (N), 1906(b)(13)(A), title XXI, § 2137(a)–(c), Oct. 4, 1976, 90 Stat. 1732, 1783, 1792, 1794, 1801, 1802, 1834, 1930, 1931; Pub. L. 95–600, title III, §§ 301(b)(11), 362(c), title VII, § 701(s)(2), Nov. 6, 1978, 92 Stat. 2822, 2851, 2911; Pub. L. 96–222, title I, § 104(a)(3)(B), Apr. 1, 1980, 94 Stat. 215; Pub. L. 97–424, title V, § 547(b)(2), Jan. 6, 1983, 96 Stat. 2199; Pub. L. 98–369, div. A, title I, § 55(a), title X, §§ 1001(b)(11), (e), 1071(a)(2)–(4), (b)(1), July 18, 1984, 98 Stat. 571, 1011, 1012, 1049, 1050, 1052; Pub. L. 99–514, title III, § 311(b)(1), title VI, §§ 631(e)(11), 651(b)(1)(A), (2), (3), 655(a)(1), (2), title XI, § 1173(b)(1)(B), title XV, § 1511(c)(6), title XVIII, §§ 1804(c)(1)–(5), 1878(j), Oct. 22, 1986, 100 Stat. 2219, 2274, 2296, 2298, 2299, 2515, 2745, 2799, 2800, 2905; Pub. L. 100–647, title I, §§ 1006(l)(1)(A), (3), (4), (7)–(10), 1011B(h)(4), 1018(p), Nov. 10, 1988, 102 Stat. 3413–3415, 3491, 3585; Pub. L. 101–239, title VII, § 7204(b)(1), (c)(1), Dec. 19, 1989, 103 Stat. 2334, 2335; Pub. L. 103–66, title XIII, § 13221(c)(1), Aug. 10, 1993, 107 Stat. 477; Pub. L. 104–188, title I, § 1602(b)(3), Aug. 20, 1996, 110 Stat. 1833; Pub. L. 105–34, title XI, § 1122(c)(2), (3), title XII, § 1254(b)(2), Aug. 5, 1997, 111 Stat. 977, 1033; Pub. L. 106–170, title V, § 566(a)(1), (c), Dec. 17, 1999, 113 Stat. 1950; Pub. L. 109–222, title V, § 505(c)(1), May 17, 2006, 120 Stat. 356; Pub. L. 110–172, § 11(a)(17)(A), Dec. 29, 2007, 121 Stat. 2486; Pub. L. 111–325, title II, § 201(c), title III, §§ 301(a)(1), (b), 302(a), (b)(1), 303(a), 308(a)–(b)(2), 309(a), (b), title V, § 502(a), Dec. 22, 2010, 124 Stat. 3541, 3542, 3547, 3548, 3550–3552, 3554; Pub. L. 113–295, div. A, title II, § 205(a)(2), (c), Dec. 19, 2014, 128 Stat. 4025, 4026; Pub. L. 115–97, title I, § 13001(b)(2)(J), (4), Dec. 22, 2017, 131 Stat. 2096, 2098; Pub. L. 115–141, div. U, title IV, § 401(a)(144), (145), Mar. 23, 2018, 132 Stat. 1191.)

cite as: 26 USC 852