Reg. § 1.987-11 Suspended section 987 loss relating to certain elections; loss-to-the-extent-of-gain rule.
(a) In general This section provides rules relating to suspended section loss. of this section provides rules for computing the cumulative suspended section loss with respect to a section QBU or successor suspended loss QBU. of this section provides rules that suspend section loss that would otherwise be recognized when a current rate election is in effect. of this section provides rules that treat net unrecognized section loss and deferred section loss as suspended section loss when an annual recognition election is made or a current rate election is revoked. of this section describes the extent to which suspended section loss is recognized under a loss-to-the-extent-of-gain rule. of this section provides rules for determining recognition groupings based on the source and character of section gain or loss. of this section provides examples illustrating the rules of this section.
(b) Cumulative suspended section 987 loss in a recognition grouping
(1) In general The cumulative suspended section loss in a recognition grouping with respect to a section QBU or a successor suspended loss QBU for the current taxable year is equal to the cumulative suspended section loss in the recognition grouping for the prior taxable year, decreased by the amount of suspended section loss in the recognition grouping that was recognized with respect to the QBU under of this section or under through in the prior taxable year, and increased by the amount that becomes suspended section loss in the recognition grouping with respect to the QBU in the current taxable year (including under ). If the taxable year is the first taxable year of the section QBU (or the first taxable year in which the section regulations apply), the cumulative suspended section loss for the prior taxable year is zero. An owner's (or original suspended loss QBU owner's) total cumulative suspended section loss in a recognition grouping is equal to the sum of its cumulative suspended section gain or loss with respect to each section QBU and successor suspended loss QBU.
(2) Combined QBU For purposes of of this section, in the taxable year of a combination, the cumulative suspended section loss in a recognition grouping with respect to a combined QBU for the prior taxable year is equal to the sum of the cumulative suspended section loss in the recognition grouping with respect to each combining QBU for the prior taxable year; the suspended section loss in a recognition grouping with respect to a combined QBU that was recognized in the prior taxable year is equal to sum of the suspended section loss in the recognition grouping with respect to each combining QBU that was recognized in the prior taxable year.
(3) Separated QBU For purposes of of this section, in the taxable year of a separation, the cumulative suspended section loss in a recognition grouping with respect to a separated QBU for the prior taxable year is equal to the cumulative suspended section loss in the recognition grouping with respect to the separating QBU for the prior taxable year multiplied by the separation fraction; the suspended section loss in a recognition grouping with respect to a separated QBU that was recognized in the prior taxable year is equal to the suspended section loss in the recognition grouping with respect to the separating QBU that was recognized in the prior taxable year multiplied by the separation fraction.
(c) Suspension of section 987 loss for taxable years in which a current rate election is in effect and an annual recognition election is not in effect
(1) In general Except as provided in of this section, in a taxable year in which a current rate election is in effect and an annual recognition election is not in effect, to the extent that an owner's net unrecognized section loss with respect to a section QBU would otherwise be recognized under (including pursuant to ), or its deferred section loss would otherwise be recognized under , the net unrecognized section loss or deferred section loss is not recognized by the owner and instead becomes suspended section loss. See of this section (Example 1) for an illustration of this rule.
(2) De minimis rule of this section does not apply in a taxable year of an owner in which the total amount of net unrecognized section loss or deferred section loss of the owner and all members of the owner's controlled group that would (but for the application of this and ) become suspended section loss under of this section or does not exceed the lesser of—
(i) $3 million; or
(ii) Two percent of the total amount of gross income of the owner and all members of the owner's controlled group for the taxable year.
(3) Taxable year of controlled group members
(i) In general Except as provided in of this section, for purposes of applying of this section with respect to an owner, suspended section loss and gross income of a member of the owner's controlled group is determined by reference to the member's suspended section loss and gross income for its taxable year ending with or within the owner's taxable year.
(ii) Owner is a CFC For purposes of applying of this section with respect to an owner that is a CFC, suspended section loss and gross income of a member of the owner's controlled group is determined by reference to the member's suspended section loss and gross income for its taxable year ending with or within the owner's required year described in section , without regard to section .
(d) Suspension of net unrecognized section 987 loss upon making or revoking certain elections
(1) Making an annual recognition election At the beginning of the first taxable year for which an annual recognition election is in effect, an owner's net accumulated unrecognized section loss and deferred section loss are converted into suspended section loss if either—
(i) A current rate election was in effect for the immediately preceding taxable year; or
(ii) A current rate election was not in effect for the immediately preceding taxable year and, as of the beginning of the taxable year, the sum of the owner's net accumulated unrecognized section loss and deferred section loss exceeds the sum of the owner's net accumulated unrecognized section gain and deferred section gain by more than $5 million.
(2) Revoking a current rate election At the beginning of the first taxable year in which a current rate election ceases to be in effect, an owner's net accumulated unrecognized section loss and deferred section loss are converted into suspended section loss. See of this section (Example 3) for an illustration of this rule.
(e) Loss-to-the-extent-of-gain rule
(1) In general An owner of a section QBU (or an original suspended loss QBU owner) only recognizes suspended section loss to the extent described in this (the loss-to-the-extent-of-gain rule). See through for rules requiring the recognition of additional suspended section loss (after the application of the loss-to-the-extent-of-gain rule) in connection with certain transactions.
(2) Separate determination for each recognition grouping The amount of suspended section loss recognized is determined separately for the suspended section loss in each recognition grouping. Because the recognition groupings generally are determined on the basis of the initial assignment of section gain or loss under , the loss-to-the-extent-of-gain rule generally is applied on the basis of the initial assignment of section gain or loss.
(3) Amount of suspended section 987 loss recognized Except as provided in or of this section, the amount of suspended section loss in each recognition grouping that an owner recognizes in a taxable year is equal to the sum (if positive) of the current year gain amount described in of this section and the lookback gain amount described in of this section, but may not exceed the owner's total cumulative suspended section loss in the recognition grouping. If the sum of the current year gain amount and the lookback gain amount is negative, then the amount of suspended section loss recognized under this is zero. See and of this section (Examples 1 and 2) for an illustration of this rule.
(i) Current year gain amount The current year gain amount described in this is equal to the section gain in the recognition grouping that is recognized by the owner in the taxable year, reduced (including below zero) by section loss (other than suspended section loss) in the recognition grouping that is recognized by the owner in the taxable year.
(ii) Lookback gain amount The lookback gain amount described in this is equal to the section gain in the recognition grouping that was recognized by the owner in the lookback period, reduced (including below zero) by section loss (other than suspended section loss described in of this section) in the recognition grouping that was recognized by the owner in the lookback period. The total amount of suspended section loss recognized by reason of the recognition of an amount of section gain cannot, in any event, exceed the amount of section gain recognized.
(iii) Suspended section 987 loss not taken into account
(A) In general For purposes of applying of this section in a taxable year (the current taxable year), suspended section loss recognized during the lookback period is not taken into account if it was recognized under this by reason of the recognition of section gain that was recognized before the lookback period for the current taxable year.
(B) Ordering rule For purposes of this , suspended section loss is treated as recognized by reason of the most recently recognized section gain in the same recognition grouping. See of this section (Example 2) for an illustration of this rule.
(iv) Lookback period
(A) In general Except as provided in of this section, the lookback period with respect to a taxable year of an owner means the three preceding taxable years of the owner (or, if the owner was not in existence for three preceding taxable years, each taxable year in which the owner existed), but it does not include any taxable year beginning before the transition date described in .
(B) Taxable years in which both a current rate election and an annual recognition election are in effect In a taxable year of an owner in which both a current rate election and an annual recognition election are in effect, the lookback period includes all prior taxable years of the owner in which both a current rate election and an annual recognition election were continuously in effect.
(v) Anti-abuse rule If an owner recognizes section gain with a principal purpose of reducing the Federal income tax liability of the owner (or its U.S. shareholders or partners, as applicable), including over multiple taxable years, the section gain is disregarded for purposes of this . For example, this may apply if an owner that is a CFC recognizes section gain that is offset by a tax attribute of one of the CFC's U.S. shareholders that would not otherwise be used (such as excess foreign tax credits with respect to section category income, or a tested loss). In determining whether a principal purpose described in this exists, all relevant facts and circumstances are considered, including the extent to which the transaction giving rise to the recognition of section gain resulted in a sustained economic contraction of the section QBU over a period of at least twelve months.
(4) Suspended section 987 loss recognized with respect to each section 987 QBU and suspended section 987 loss QBU The amount of suspended section loss in a recognition grouping that is recognized by an owner in a taxable year is treated as attributable to each section QBU or successor suspended loss QBU in proportion to the QBU's suspended section loss in that recognition grouping.
(5) Section 381(a) transactions—
(i) In general Except as provided in of this section (or to the extent that other limitations apply), if one corporation (acquiring corporation) acquires the assets of another corporation (transferor corporation) in a transaction described in section , section gain or loss recognized by the transferor corporation during the lookback period is taken into account in determining the lookback gain amount of the acquiring corporation in taxable years ending after the transaction under of this section. If the lookback period for a taxable year of the acquiring corporation is determined under of this section, the lookback period includes each taxable year of the transferor corporation ending with or within the current taxable year of the acquiring corporation or during the acquiring corporation's lookback period. If the lookback period for a taxable year of the acquiring corporation is determined under of this section, the lookback period includes only taxable years of the transferor corporation in which both an annual recognition election and a current rate election were continuously in effect before the transaction (and only if both elections were continuously in effect from the date of the transaction through the current taxable year).
(ii) Limitation for inbound nonrecognition transactions If a foreign corporation ceases to exist in a transaction described in (inbound section liquidation) or (inbound reorganization), section gain recognized by the foreign corporation before the transaction is disregarded for purposes of applying of this section in taxable years ending after the transaction.
(6) Consolidated group members
(i) In general All members of a consolidated group are treated as a single owner for purposes of applying this .
(ii) Suspended section 987 losses arising in separate return limitation years This applies to suspended section losses arising in a separate return limitation year (SRLY, as defined in ) or treated as arising in a SRLY under the principles of (SRLY section losses). The aggregate of a member's SRLY section losses that are included in the determination of consolidated taxable income for all consolidated return years of the group may not exceed the aggregate consolidated net income for all consolidated return years of the group determined by reference to only the member's items of section gain or loss, including the member's section losses actually absorbed by the group in the taxable year (whether or not absorbed by the member). For purposes of applying this , the principles of (including the SRLY subgroup principles of ) apply with appropriate adjustments.
(f) Recognition groupings The term recognition grouping means the section gain or loss (including section gain or loss that is recognized under , deferred section gain or loss, suspended section loss, or pretransition gain or loss that is recognized under ) described in or of this section, as applicable. If an owner has suspended section loss with respect to a terminating QBU in a taxable year ending before the transition date described in , section gain or loss of the owner (other than section gain or loss with respect to the terminating QBU) is assigned to a recognition grouping based on the method that is used to determine the source and character of section gain or loss for that taxable year.
(1) Sourcing and section 904 category Except as provided in of this section, a recognition grouping includes only section gain or loss that is initially assigned to one of the following statutory and residual groupings—
(i) U.S. source income; or
(ii) Foreign source income in a single section category.
(2) Statutory and residual groupings for CFC owners In the case of an owner that is a controlled foreign corporation, a recognition grouping includes only section gain or loss that is initially assigned to one of the statutory and residual groupings described in of this section and that is also initially assigned to one of the following statutory and residual groupings—
(i) Tentative tested income;
(ii) Each separate subpart F income group (as defined in );
(iii) Income described in section (ECI that is excluded from subpart F income); or
(iv) Income not described in through of this section.
(g) Examples The following examples illustrate the application of this section.
(1) Example 1: Suspension of section 987 loss and recognition of suspended section 987 loss
(i) Facts CFC is a controlled foreign corporation that has the U.S. dollar as its functional currency. CFC owns three section QBUs, QBU1, QBU2, and QBU3. QBU1 has the euro as its functional currency, QBU2 has the pound as its functional currency, and QBU3 has the yen as its functional currency. CFC is subject to a current rate election but not an annual recognition election. CFC is also subject to an election under (treating section gain or loss relating to passive foreign personal holding company income as attributable to section transactions). An election has not been made under (GILTI high-tax exclusion) with respect to CFC. In year 1, CFC did not have cumulative suspended section loss with respect to any of its QBUs and did not have outstanding deferred section gain or loss. In the three years before year 2, CFC did not recognize any section gain or loss. In year 2, CFC has net unrecognized section loss of $200 with respect to QBU1, net unrecognized section loss of $1,000 with respect to QBU2, and net unrecognized section gain of $1,000 with respect to QBU3. In year 2, each QBU makes a remittance, and CFC's remittance proportion (determined under ) is 25% with respect to QBU1, 15% with respect to QBU2, and 10% with respect to QBU3. For purposes of , all of QBU1's assets generate foreign source passive category income that corresponds to one or more subpart F income groups described in through , and all of QBU2's and QBU3's assets generate foreign source general category tested income. Another member of CFC's controlled group owns a section QBU with respect to which $10 million of net unrecognized section loss becomes suspended section loss under of this section in year 2.
(ii) Analysis
(A) Application of §§ 1.987-5 and 1.987-6 and paragraph (c) of this section In year 2, CFC recognizes $100 of section gain with respect to QBU3 (10% of $1,000) under . Under , , and , the section gain is initially characterized as foreign source general category tentative tested income. If a current rate election was not in effect, in year 2 CFC would recognize $50 of section loss with respect to QBU1 (25% of $200) and $150 of section loss with respect to QBU2 (15% of $1,000). However, under of this section, these amounts instead become suspended section loss. The de minimis rule under of this section does not apply because a member of CFC's controlled group has more than $3 million of section loss that is suspended in year 2 under of this section. Under and , the $50 of suspended section loss with respect to QBU1 is initially characterized as foreign source passive category income assigned to a subpart F income group described in through , and is treated as foreign currency loss of the CFC attributable to section transactions not directly related to the business needs of the CFC because an election under is in effect. Under , , and , the $150 of suspended section loss with respect to QBU2 is initially characterized as foreign source general category tentative tested income.
(B) Cumulative suspended section 987 loss Under of this section, in year 2, CFC's cumulative suspended section loss in the recognition grouping of foreign source passive category income in a separate subpart F income group for foreign currency gains of CFC with respect to QBU1 is $50, the amount that became suspended section loss in the recognition grouping in year 2. In addition, CFC's total cumulative suspended section loss in that recognition grouping is $50. Similarly, CFC's cumulative suspended section loss in the recognition grouping of foreign source general category tentative tested income with respect to QBU2 is $150, the amount that became suspended section loss in the recognition grouping in year 2. In addition, CFC's total cumulative suspended section loss in that recognition grouping is $150.
(C) Current year gain amount and lookback gain amount Under of this section, in year 2, CFC recognizes suspended section loss in a recognition grouping to the extent of the sum of the current year gain amount described in of this section and the lookback gain amount described in of this section. In the recognition grouping of foreign source general category tentative tested income, the current year gain amount described in of this section is equal to the section gain of $100 recognized by CFC in year 2 with respect to QBU3. The current year gain amount for all other recognition groupings is zero. During the lookback period (the three years before year 2), CFC did not recognize any section gain or loss. Therefore, the lookback gain amount described in of this section is zero for all recognition groupings.
(D) Recognition of suspended section 987 loss In year 2, CFC has $50 of total cumulative suspended section loss in the recognition grouping of foreign source passive category income in a separate subpart F income group for foreign currency gains of CFC and $150 of total cumulative suspended section loss in the recognition grouping of foreign source general category tentative tested income. In the recognition grouping of foreign source general category tentative tested income, CFC has a current year gain amount of $100 and a lookback gain amount of zero ($100 in total). Therefore, CFC recognizes $100 of suspended section loss in that recognition grouping. Under of this section, the cumulative suspended section loss that is recognized by CFC is attributable to QBU2, because QBU2 is CFC's only QBU with cumulative suspended section loss in the recognition grouping of foreign source general category tentative tested income. Because no election under applies in year 2, both the $100 of recognized section gain and the $100 of recognized section loss are allocated to foreign source general category tested income. See . The amounts of suspended section loss not recognized (that is, $50 of suspended section loss assigned to foreign source passive category income in the subpart F income group for foreign currency gains of CFC with respect to QBU1 and $50 of suspended section loss assigned to foreign source general category tentative tested income with respect to QBU2) remain suspended.
(2) Example 2: Recognition of suspended section 987 loss by reason of gain recognized during the lookback period
(i) Facts CFC is a controlled foreign corporation that has the U.S. dollar as its functional currency. CFC owns QBU1, a section QBU with the euro as its functional currency, and CFC has no other QBUs. Assume that all section gain or loss (including suspended section loss) is assigned to the same recognition grouping. CFC is subject to a current rate election but not an annual recognition election. Before year 1, QBU1 does not have cumulative suspended section loss. In year 1, CFC recognizes section gain of $10 million with respect to QBU1. In year 3, CFC recognizes section gain of $15 million with respect to QBU1. In year 4, QBU1 has net unrecognized section loss, and $10 million of the net unrecognized section loss becomes suspended section loss under of this section. In year 6, an additional $10 million of net unrecognized section loss with respect to QBU1 becomes suspended section loss under of this section.
(ii) Analysis
(A) Recognition of suspended section 987 loss in year 4 In year 4, CFC's total cumulative suspended section loss is $10 million (that is, the loss that becomes suspended in year 4). The current year gain amount under of this section is zero, because CFC does not recognize section gain in year 4. The lookback period under of this section is three years (years 1 through 3). The lookback gain amount under of this section is $25 million (the sum of the $10 million of section gain recognized in year 1 and the $15 million of section gain recognized in year 3). Therefore, under of this section, CFC recognizes suspended section loss of $10 million. Under of this section, the suspended section loss is considered to be recognized by reason of the section gain recognized in year 3, which is the most recent taxable year in which section gain was recognized.
(B) Recognition of suspended section 987 loss in year 6 In year 6, CFC's total cumulative suspended section loss is $10 million (that is, the loss that becomes suspended in year 6). The current year gain amount under of this section is zero, because CFC does not recognize section gain in year 6. The lookback period under of this section is three years (years 3 through 5). The lookback gain amount under of this section is $5 million (the sum of the section gain of $15 million recognized in year 3 and the suspended section loss of $10 million recognized in year 4 by reason of the section gain recognized in year 3). Therefore, under of this section, CFC recognizes $5 million of suspended section loss in year 6.
(iii) Alternative facts Assume the facts are the same as described in of this section, with the following modifications. In year 1, CFC recognizes section gain of $10 million with respect to QBU1. CFC does not recognize section gain in year 3. In year 4, $10 million of net unrecognized section loss with respect to QBU1 becomes suspended section loss under of this section. In year 5, CFC recognizes section gain of $15 million with respect to QBU1. In year 6, $10 million of net unrecognized section loss with respect to QBU1 becomes suspended section loss under of this section.
(iv) Analysis of alternative facts
(A) Recognition of suspended section 987 loss in year 4 In year 4, CFC's total cumulative suspended section loss is $10 million (that is, the loss that becomes suspended in year 4). The current year gain amount under of this section is zero, because CFC does not recognize section gain in year 4. The lookback period under of this section is three years (years 1 through 3). The lookback gain amount under of this section is $10 million (equal to the $10 million of section gain recognized in year 1). Therefore, under of this section, CFC recognizes suspended section loss of $10 million in year 4. Under of this section, the suspended section loss is considered to be recognized by reason of the section gain recognized in year 1, which is the most recent taxable year in which section gain was recognized.
(B) Recognition of suspended section 987 loss in year 6 In year 6, CFC's total cumulative suspended section loss is $10 million (that is, the loss that becomes suspended in year 6). The current year gain amount under of this section is zero because CFC does not recognize section gain in year 6. The lookback period under of this section is three years (years 3 through 5). The lookback gain amount under of this section is $15 million (equal to the section gain of $15 million recognized in year 5). Under of this section, the suspended section loss recognized in year 4 is not taken into account in determining the lookback gain amount, because it was recognized by reason of the section gain recognized in year 1 (before the beginning of the lookback period for year 6). Therefore, under of this section, CFC recognizes $10 million of suspended section loss in year 6.
(3) Example 3: Suspension of section 987 loss when a current rate election is revoked
(i) Facts U.S. Corp is a domestic corporation that owns all of the interests in DE1. DE1 owns Business A, which is a section QBU of U.S. Corp. In year 1, U.S. Corp made a current rate election but not an annual recognition election. In year 9, U.S. Corp has net unrecognized section loss of $2 million with respect to Business A, which is not recognized or suspended in year 9. U.S. Corp revokes its current rate election effective for year 10. In year 10, before the application of this section, U.S. Corp has net accumulated unrecognized section loss of $2 million.
(ii) Analysis Under of this section, U.S. Corp's net accumulated unrecognized section loss of $2 million with respect to Business A is converted into suspended section loss at the beginning of year 10, the first taxable year in which the current rate election ceases to be in effect.
[T.D. 10016, 89 FR 100165, Dec. 11, 2024]