SECTION 3. TRANSACTIONS NO

LONGER CONSIDERED TO BE LISTED TRANSACTIONS

Transactions that are the same as, or substantially similar to, one of the types of transactions described in the list below will no longer be considered listed transactions for purposes of § 1.6011–4(b)(2) and §§ 6111 and 6112. No inference is intended, however, as to whether such transactions are otherwise subject to the disclosure requirements of § 6011, the disclosure requirements of § 6111, or the list maintenance requirements of § 6112.

(1) Transactions described in Part II of Notice 98–5, 1998–1 C.B. 334 (transactions in which the reasonably expected economic profit is insubstantial in comparison to the value of the expected foreign tax credits (identified as “listed transactions” on February 28, 2000)). Notice 2004–19, 2004–1 C.B. 606, withdrew Notice 98–5. Effective for taxable years for which the due date of the return (including extensions, whether or not actually requested) is after February 17, 2004, transactions will not be considered listed transactions for purposes of § 1.6011–4(b)(2) and § 6112 solely because they are the same as or substantially similar to the transactions or arrangements described in Part II of Notice 98–5. In addition, for offers made after February 17, 2004, transactions will not be considered listed transactions for purposes of § 6111 solely because they are the same as or substantially similar to the transactions or arrangements described in Part II of Notice 98–5.

(2) Transactions described in Notice 2002–70, 2002–2 C.B. 765 (transactions involving reinsurance arrangements between a taxpayer and the taxpayer’s own

related to that income (often referred to as “lease strips”)), modifying and superseding Notice 95–53, 1995–2 C.B. 334 (identified as “listed transactions” on February 28, 2000);

(23) Notice 2003–77, 2003–2 C.B. 1182 (certain transactions that use contested liability trusts improperly to accelerate deductions for contested liabilities under § 461(f) (identified as “listed transactions” on November 19, 2003)). See also § 1.461–2. See Rev. Proc. 2004–31, 2004–1 C.B. 986, for procedures which taxpayers must use to change their methods of accounting for deducting under § 461(f) amounts transferred to trusts in transactions described in Notice 2003–77;

(24) Notice 2003–81, 2003–2 C.B. 1223 (certain transactions in which a taxpayer claims a loss upon the assignment of a purported § 1256 contract to a charity but fails to report the recognition of gain when the taxpayer’s obligation under an offsetting non-section 1256 contract terminates (identified as “listed transactions” on December 4, 2003)). Notice 2007–71, 2007–2 C.B. 472, modified and supplemented Notice 2003–81;

(25) Notice 2004–8, 2004–1 C.B. 333 (certain transactions designed to avoid the limitations on contributions to Roth IRAs described in § 408A (identified as “listed transactions” on December 31, 2003));

(26) Rev. Rul. 2004–4, 2004–1 C.B. 414 (transactions that involve segregating the business profits of an ESOP-owned S corporation in a qualified subchapter S subsidiary, so that rank-and-file employees do not benefit from participation in the ESOP (identified as “listed transactions” on January 23, 2004));

(27) Situation 2 of Rev. Rul. 2004–20, 2004–1 C.B. 546, modifying and superseding Rev. Rul. 55–748, 1955–2 C.B. 234 (certain arrangements in which an employer deducts contributions to a qualified pension plan used to pay premiums on life insurance contracts that provide for death benefits in excess of the participant’s death benefit, where under the terms of the plan, the balance of the death benefit proceeds revert to the plan as a return on investment) (identified as “listed transactions” on February 13, 2004)). See also Rev. Rul. 2004–21, 2004–1 C.B. 544, §§ 1.79–1(d)(3), 1.83–3(e) and 1.402(a)–1(a)(1) and (2), and Rev. Proc. 2005–25, 2005–1 C.B. 962, modifying

and superseding Rev. Proc. 2004–16, 2004–1 C.B. 559; (28) Notice 2004–20, 2004–1 C.B. 608 (transactions in which, pursuant to a prearranged plan, a domestic corporation purports to acquire stock in a foreign target corporation and to make an election under § 338 before selling all or substantially all of the target corporation’s assets in a preplanned transaction that generates a taxable gain for foreign tax purposes (but not for U.S. tax purposes) (identified as “listed transactions” on February 17, 2004));

(29) Notice 2004–30, 2004–1 C.B. 828 (transactions in which S corporation shareholders attempt to transfer the incidence of taxation on S corporation income by purportedly donating S corporation nonvoting stock to an exempt organization while retaining the economic benefits associated with that stock (identified as “listed transactions” on April 1, 2004));

(30) Notice 2004–31, 2004–1 C.B. 830 (transactions in which corporations claim inappropriate deductions for payments made through a partnership (identified as “listed transactions” on April 1, 2004));

(31) Notice 2005–13, 2005–1 C.B. 630 (transactions in which a taxpayer enters into a purported sale-lease-back arrangement with a tax-indifferent person in which substantially all of the tax-indifferent person’s payment obligations are economically defeased and the taxpayer’s risk of loss from a decline, and opportunity for profit from an increase, in the value of the leased property are limited (often referred to as “sale-in/lease out” or “SILO” transactions) (identified as “listed transactions” on February 11, 2005));

(32) Notice 2007–57, 2007–2 C.B. 87 (transactions in which a U.S. taxpayer uses offsetting positions with respect to foreign currency or other property for the purpose of importing a loss, but not the corresponding gain, in determining U.S. taxable income (identified as “listed transactions” on June 20, 2007));

(33) Notice 2007–83, 2007–2 C.B. 960 (certain arrangements involving a trust or other fund described in § 419(e)(3) that is purportedly a welfare benefit fund and pays premiums on one or more life insurance policies with respect to which value is accumulated, where the employer has deducted contributions in excess of specified amounts (identified as “listed transactions” on October 17, 2007));

August 3, 2009 172 2009–31 I.R.B.

to identify transactions that have been determined by the Service to be “listed transactions.”

DRAFTING INFORMATION

The principal authors of this notice are Eric P. Ingala and Michael H. Beker of the Office of Associate Chief Counsel (Passthroughs & Special Industries). For further information regarding this notice, contact the authors at (202) 622–3070 (not a toll-free call).

reinsurance company that is subject to little or no federal income tax (identified as “listed transactions” on October 15, 2002)). Notice 2004–65, 2004–2 C.B. 599, modified Notice 2002–70 by removing the identification of transactions that are the same as, or substantially similar to, transactions described in Notice 2002–70 as listed transactions effective for taxable years for which the due date of the return (including extensions, whether or not ac

tually requested) is after September 24, 2004.