PART I—RULES OF GENERAL APPLICATION TO BANKING INSTITUTIONS
Editorial Notes
Amendments
1986—
1976—
1969—
§581. Definition of bank
For purposes of sections 582 and 584, the term "bank" means a bank or trust company incorporated and doing business under the laws of the United States (including laws relating to the District of Columbia) or of any State, a substantial part of the business of which consists of receiving deposits and making loans and discounts, or of exercising fiduciary powers similar to those permitted to national banks under authority of the Comptroller of the Currency, and which is subject by law to supervision and examination by State or Federal authority having supervision over banking institutions. Such term also means a domestic building and loan association.
(Aug. 16, 1954, ch. 736,
Editorial Notes
Amendments
1976—
1962—
§582. Bad debts, losses, and gains with respect to securities held by financial institutions
(a) Securities
Notwithstanding sections 165(g)(1) and 166(e), subsections (a) and (b) of section 166 (relating to allowance of deduction for bad debts) shall apply in the case of a bank to a debt which is evidenced by a security as defined in section 165(g)(2)(C).
(b) Worthless stock in affiliated bank
For purposes of section 165(g)(1), where the taxpayer is a bank and owns directly at least 80 percent of each class of stock of another bank, stock in such other bank shall not be treated as a capital asset.
(c) Bond, etc., losses and gains of financial institutions
(1) General rule
For purposes of this subtitle, in the case of a financial institution referred to in paragraph (2), the sale or exchange of a bond, debenture, note, or certificate or other evidence of indebtedness shall not be considered a sale or exchange of a capital asset. For purposes of the preceding sentence, any regular or residual interest in a REMIC shall be treated as an evidence of indebtedness.
(2) Financial institutions to which paragraph (1) applies
(A) In general
For purposes of paragraph (1), the financial institutions referred to in this paragraph are—
(i) any bank (and any corporation which would be a bank except for the fact it is a foreign corporation),
(ii) any financial institution referred to in section 591,
(iii) any small business investment company operating under the Small Business Investment Act of 1958, and
(iv) any business development corporation.
(B) Business development corporation
For purposes of subparagraph (A), the term "business development corporation" means a corporation which was created by or pursuant to an act of a State legislature for purposes of promoting, maintaining, and assisting the economy and industry within such State on a regional or statewide basis by making loans to be used in trades and businesses which would generally not be made by banks within such region or State in the ordinary course of their business (except on the basis of a partial participation), and which is operated primarily for such purposes.
(C) Limitations on foreign banks
In the case of a foreign corporation referred to in subparagraph (A)(i), paragraph (1) shall only apply to gains and losses which are effectively connected with the conduct of a banking business in the United States.
(Aug. 16, 1954, ch. 736,
Editorial Notes
References in Text
The Small Business Investment Act of 1958, referred to in subsec. (c)(2)(A)(iii), is
Amendments
2004—Subsec. (c)(1).
1996—Subsec. (c)(1).
1990—Subsec. (c)(1).
Subsec. (c)(2).
Subsec. (c)(3).
"(A) The term 'qualifying security' means a bond, debenture, note, or certificate or other evidence of indebtedness held by a bank on July 11, 1969.
"(B) The amount treated as capital gain or loss from the sale or exchange of a qualifying security shall be determined by multiplying the amount of capital gain or loss from the sale or exchange of such security (determined without regard to this subsection) by a fraction, the numerator of which is the number of days before July 12, 1969, that such security was held by the bank, and the denominator of which is the number of days the security was held by the bank."
Subsec. (c)(4).
Subsec. (c)(5).
1988—Subsec. (a).
1986—Subsec. (c)(1).
Subsec. (c)(5).
1984—Subsec. (c)(2).
1976—Subsec. (c)(2).
Subsec. (c)(4).
1969—
Subsec. (c).
1958—Subsec. (c).
Statutory Notes and Related Subsidiaries
Effective Date of 2004 Amendment
Amendment by
Effective Date of 1996 Amendment
Amendment by
Effective Date of 1988 Amendment
Amendment by
Effective Date of 1986 Amendment
Amendment by section 671(b)(4) of
Amendment by section 901(d)(3) of
Effective Date of 1984 Amendment
Amendment by
Effective Date of 1976 Amendment
"(1) The amendment made by subsection (a) [amending this section] shall apply with respect to taxable years beginning after July 11, 1969.
"(2) If the refund or credit of any overpayment attributable to the application of the amendment made by subsection (a) to any taxable year is otherwise prevented by the operation of any law or rule of law (other than section 7122 of the Internal Revenue Code of 1986 [formerly I.R.C. 1954], relating to compromises) on the day which is one year after the date of the enactment of this Act [Oct. 4, 1976], such credit or refund shall be nevertheless allowed or made if claim therefor is filed on or before such day."
Effective Date of 1969 Amendment
"(1)
"(2)
Effective Date of 1958 Amendment
Amendment by
Savings Provision
For provisions that nothing in amendment by
[§583. Repealed. Pub. L. 94–455, title XIX, §1901(a)(82), Oct. 4, 1976, 90 Stat. 1778 ]
Section, act Aug. 16, 1954, ch. 736,
Statutory Notes and Related Subsidiaries
Effective Date of Repeal
Repeal effective with respect to taxable years beginning after Dec. 31, 1976, see section 1901(d) of
§584. Common trust funds
(a) Definitions
For purposes of this subtitle, the term "common trust fund" means a fund maintained by a bank—
(1) exclusively for the collective investment and reinvestment of moneys contributed thereto by the bank in its capacity—
(A) as a trustee, executor, administrator, or guardian, or
(B) as a custodian of accounts—
(i) which the Secretary determines are established pursuant to a State law which is substantially similar to the Uniform Gifts to Minors Act as published by the American Law Institute, and
(ii) with respect to which the bank establishes, to the satisfaction of the Secretary, that it has duties and responsibilities similar to duties and responsibilities of a trustee or guardian; and
(2) in conformity with the rules and regulations, prevailing from time to time, of the Board of Governors of the Federal Reserve System or the Comptroller of the Currency pertaining to the collective investment of trust funds by national banks.
For purposes of this subsection, two or more banks which are members of the same affiliated group (within the meaning of section 1504) shall be treated as one bank for the period of affiliation with respect to any fund of which any of the member banks is trustee or two or more of the member banks are cotrustees.
(b) Taxation of common trust funds
A common trust fund shall not be subject to taxation under this chapter and for purposes of this chapter shall not be considered a corporation.
(c) Income of participants in fund
Each participant in the common trust fund in computing its taxable income shall include, whether or not distributed and whether or not distributable—
(1) as part of its gains and losses from sales or exchanges of capital assets held for not more than 1 year, its proportionate share of the gains and losses of the common trust fund from sales or exchanges of capital assets held for not more than 1 year,
(2) as part of its gains and losses from sales or exchanges of capital assets held for more than 1 year, its proportionate share of the gains and losses of the common trust fund from sales or exchanges of capital assets held for more than 1 year, and
(3) its proportionate share of the ordinary taxable income or the ordinary net loss of the common trust fund, computed as provided in subsection (d).
The proportionate share of each participant in the amount of dividends received by the common trust fund and to which section 1(h)(11) applies shall be considered for purposes of such paragraph as having been received by such participant.
(d) Computation of common trust fund income
The taxable income of a common trust fund shall be computed in the same manner and on the same basis as in the case of an individual, except that—
(1) there shall be segregated the gains and losses from sales or exchanges of capital assets;
(2) after excluding all items of gain and loss from sales or exchanges of capital assets, there shall be computed—
(A) an ordinary taxable income which shall consist of the excess of the gross income over deductions; or
(B) an ordinary net loss which shall consist of the excess of the deductions over the gross income; and
(3) the deduction provided by section 170 (relating to charitable, etc., contributions and gifts) shall not be allowed.
(e) Admission and withdrawal
No gain or loss shall be realized by the common trust fund by the admission or withdrawal of a participant. The admission of a participant shall be treated with respect to the participant as the purchase of, or an exchange for, the participating interest. The withdrawal of any participating interest by a participant shall be treated as a sale or exchange of such interest by the participant.
(f) Different taxable years of common trust fund and participant
If the taxable year of the common trust fund is different from that of a participant, the inclusions with respect to the taxable income of the common trust fund, in computing the taxable income of the participant for its taxable year, shall be based upon the taxable income of the common trust fund for any taxable year of the common trust fund ending within or with the taxable year of the participant.
(g) Net operating loss deduction
The benefit of the deduction for net operating losses provided by section 172 shall not be allowed to a common trust fund, but shall be allowed to the participants in the common trust fund under regulations prescribed by the Secretary.
(h) Nonrecognition treatment for certain transfers to regulated investment companies
(1) In general
If—
(A) a common trust fund transfers substantially all of its assets to one or more regulated investment companies in exchange solely for stock in the company or companies to which such assets are so transferred, and
(B) such stock is distributed by such common trust fund to participants in such common trust fund in exchange solely for their interests in such common trust fund,
no gain or loss shall be recognized by such common trust fund by reason of such transfer or distribution, and no gain or loss shall be recognized by any participant in such common trust fund by reason of such exchange.
(2) Basis rules
(A) Regulated investment company
The basis of any asset received by a regulated investment company in a transfer referred to in paragraph (1)(A) shall be the same as it would be in the hands of the common trust fund.
(B) Participants
The basis of the stock which is received in an exchange referred to in paragraph (1)(B) shall be the same as that of the property exchanged. If stock in more than one regulated investment company is received in such exchange, the basis determined under the preceding sentence shall be allocated among the stock in each such company on the basis of respective fair market values.
(3) Treatment of assumptions of liability
(A) In general
In determining whether the transfer referred to in paragraph (1)(A) is in exchange solely for stock in one or more regulated investment companies, the assumption by any such company of a liability of the common trust fund shall be disregarded.
(B) Special rule where assumed liabilities exceed basis
(i) In general
If, in any transfer referred to in paragraph (1)(A), the assumed liabilities exceed the aggregate adjusted bases (in the hands of the common trust fund) of the assets transferred to the regulated investment company or companies—
(I) notwithstanding paragraph (1), gain shall be recognized to the common trust fund on such transfer in an amount equal to such excess,
(II) the basis of the assets received by the regulated investment company or companies in such transfer shall be increased by the amount so recognized, and
(III) any adjustment to the basis of a participant's interest in the common trust fund as a result of the gain so recognized shall be treated as occurring immediately before the exchange referred to in paragraph (1)(B).
If the transfer referred to in paragraph (1)(A) is to two or more regulated investment companies, the basis increase under subclause (II) shall be allocated among such companies on the basis of the respective fair market values of the assets received by each of such companies.
(ii) Assumed liabilities
For purposes of clause (i), the term "assumed liabilities" means any liability of the common trust fund assumed by any regulated investment company in connection with the transfer referred to in paragraph (1)(A).
(C) Assumption
For purposes of this paragraph, in determining the amount of any liability assumed, the rules of section 357(d) shall apply.
(4) Common trust fund must meet diversification rules
This subsection shall not apply to any common trust fund which would not meet the requirements of section 368(a)(2)(F)(ii) if it were a corporation. For purposes of the preceding sentence, Government securities shall not be treated as securities of an issuer in applying the 25-percent and 50-percent test and such securities shall not be excluded for purposes of determining total assets under clause (iv) of section 368(a)(2)(F).
(i) Taxable year of common trust fund
For purposes of this subtitle, the taxable year of any common trust fund shall be the calendar year.
(Aug. 16, 1954, ch. 736,
Editorial Notes
Amendments
2003—Subsec. (c).
1999—Subsec. (h)(3)(A).
Subsec. (h)(3)(B)(ii).
"(I) any liability of the common trust fund assumed by any regulated investment company in connection with the transfer referred to in paragraph (1)(A), and
"(II) any liability to which property so transferred is subject."
Subsec. (h)(3)(C).
1996—Subsecs. (h), (i).
1988—Subsec. (h).
1986—Subsec. (c).
1984—Subsec. (c)(1)(A), (B).
1983—Subsec. (c)(2).
1981—Subsec. (c)(2).
1980—Subsec. (c)(2).
1977—Subsec. (d)(4).
1976—Subsec. (a).
Subsec. (a)(1).
Subsec. (c)(1)(A), (B).
Subsec. (c)(2).
Subsec. (e).
Subsec. (g).
1964—Subsec. (c)(2).
1962—Subsec. (a)(2).
Statutory Notes and Related Subsidiaries
Effective Date of 2003 Amendment
Amendment by
Effective Date of 1999 Amendment
Amendment by
Effective Date of 1996 Amendment
Effective Date of 1988 Amendment
"(i) a participant in a common trust fund shall be treated in the same manner as a partner, and
"(ii) subparagraph (C) thereof shall be applied by substituting 'December 31, 1987' for 'December 31, 1986' and as if it did not contain the election to include all income in the short taxable year."
Effective Date of 1986 Amendment
Amendment by section 612(b)(2) of
Effective Date of 1984 Amendment
Amendment by
Effective Date of 1983 Amendment
Amendment by
Effective Date of 1981 Amendment
Amendment by section 301(b)(3) of
Effective and Termination Dates of 1980 Amendment
Amendment by
Effective Date of 1977 Amendment
Amendment by
Effective Date of 1976 Amendment
Amendment by section 1901(b)(1)(G) of
Effective Date of 1964 Amendment
Amendment by
§585. Reserves for losses on loans of banks
(a) Reserve for bad debts
(1) In general
Except as provided in subsection (c), a bank shall be allowed a deduction for a reasonable addition to a reserve for bad debts. Such deduction shall be in lieu of any deduction under section 166(a).
(2) Bank
For purposes of this section—
(A) In general
The term "bank" means any bank (as defined in section 581).
(B) Banking business of United States branch of foreign corporation
The term "bank" also includes any corporation to which subparagraph (A) would apply except for the fact that it is a foreign corporation. In the case of any such foreign corporation, this section shall apply only with respect to loans outstanding the interest on which is effectively connected with the conduct of a banking business within the United States.
(b) Addition to reserves for bad debts
(1) General rule
For purposes of subsection (a), the reasonable addition to the reserve for bad debts of any financial institution to which this section applies shall be an amount determined by the taxpayer which shall not exceed the addition to the reserve for losses on loans determined under the experience method as provided in paragraph (2).
(2) Experience method
The amount determined under this paragraph for a taxable year shall be the amount necessary to increase the balance of the reserve for losses on loans (at the close of the taxable year) to the greater of—
(A) the amount which bears the same ratio to loans outstanding at the close of the taxable year as (i) the total bad debts sustained during the taxable year and the 5 preceding taxable years (or, with the approval of the Secretary, a shorter period), adjusted for recoveries of bad debts during such period, bears to (ii) the sum of the loans outstanding at the close of such 6 or fewer taxable years, or
(B) the lower of—
(i) the balance of the reserve at the close of the base year, or
(ii) if the amount of loans outstanding at the close of the taxable year is less than the amount of loans outstanding at the close of the base year, the amount which bears the same ratio to loans outstanding at the close of the taxable year as the balance of the reserve at the close of the base year bears to the amount of loans outstanding at the close of the base year.
For purposes of this paragraph, the base year shall be the last taxable year before the most recent adoption of the experience method, except that for taxable years beginning after 1987 the base year shall be the last taxable year beginning before 1988.
(3) Regulations; definition of loan
The Secretary shall define the term loan and prescribe such regulations as may be necessary to carry out the purposes of this section.
(c) Section not to apply to large banks
(1) In general
In the case of a large bank, this section shall not apply (and no deduction shall be allowed under any other provision of this subtitle for any addition to a reserve for bad debts).
(2) Large banks
For purposes of this subsection, a bank is a large bank if, for the taxable year (or for any preceding taxable year beginning after December 31, 1986)—
(A) the average adjusted bases of all assets of such bank exceeded $500,000,000, or
(B) such bank was a member of a parent-subsidiary controlled group and the average adjusted bases of all assets of such group exceeded $500,000,000.
(3) 4-year spread of adjustments
(A) In general
Except as provided in paragraph (4), in the case of any bank which for its last taxable year before the disqualification year maintained a reserve for bad debts—
(i) the provisions of this subsection shall be treated as a change in the method of accounting of such bank for the disqualification year,
(ii) such change shall be treated as having been made with the consent of the Secretary, and
(iii) the net amount of adjustments required by section 481(a) to be taken into account by the taxpayer shall be taken into account in each of the 4 taxable years beginning with the disqualification year with—
(I) the amount taken into account for the 1st of such taxable years being the greater of 10 percent of such net amount or such higher percentage of such net amount as the taxpayer may elect, and
(II) the amount taken into account in each of the 3 succeeding taxable years being equal to the applicable fraction (determined in accordance with the following table for the taxable year involved) of the portion of such net amount not taken into account under subclause (I).
| The applicable | |
| If the case of the— | fraction is— |
| 1st succeeding year | 2/9 |
| 2nd succeeding year | 1/3 |
| 3rd succeeding year | 4/9. |
(B) Suspension of recapture for taxable year for which bank is financially troubled
(i) In general
In the case of a bank which is a financially troubled bank for any taxable year—
(I) no adjustment shall be taken into account under subparagraph (A) for such taxable year, and
(II) such taxable year shall be disregarded in determining whether any other taxable year is a taxable year for which an adjustment is required to be taken into account under subparagraph (A) or the amount of such adjustment.
(ii) Exception for elective recapture for 1st year
Clause (i) shall not apply to the 1st taxable year referred to in subparagraph (A)(iii)(I) if the taxpayer elects a higher percentage in accordance with such subparagraph.
(iii) Financially troubled bank
For purposes of clause (i), the term "financially troubled bank" means any bank if, for the taxable year, the nonperforming loan percentage of such bank exceeds 75 percent.
(iv) Nonperforming loan percentage
For purposes of clause (iii), the term "nonperforming loan percentage" means the percentage determined by dividing—
(I) the sum of the outstanding balances of nonperforming loans of the bank as of the close of each quarter of the taxable year, by
(II) the sum of the amounts of equity of the bank as of the close of each such quarter.
In the case of a bank which is a member of a parent-subsidiary controlled group for the taxable year, the preceding sentence shall be applied with respect to such group.
(v) Other definitions
For purposes of this subparagraph—
(I) Nonperforming loans
The term "nonperforming loan" means any loan which is considered to be nonperforming by the primary Federal regulatory agency with respect to the bank.
(II) Equity
The term "equity" means the equity of the bank as determined for Federal regulatory purposes.
(C) Coordination with estimated tax payments
For purposes of applying section 6655(e)(2)(A)(i) with respect to any installment, the determination under subparagraph (B) of whether an adjustment is required to be taken into account under subparagraph (A) shall be made as of the last day prescribed for payment of such installment.
(4) Elective cut-off method
If a bank makes an election under this paragraph for the disqualification year—
(A) the provisions of this subsection shall not be treated as a change in the method of accounting of the taxpayer for purposes of section 481,
(B) the taxpayer shall continue to maintain its reserve for loans held by the bank as of the 1st day of the disqualification year and charge against such reserve any losses resulting from loans held by the bank as of such 1st day, and
(C) no deduction shall be allowed under this section (or any other provision of this subtitle) for any addition to such reserve for the disqualification year or any subsequent taxable year.
If the amount of the reserve referred to in subparagraph (B) as of the close of any taxable year exceeds the outstanding balance (as of such time) of the loans referred to in subparagraph (B), such excess shall be included in gross income for such taxable year.
(5) Definitions
For purposes of this subsection—
(A) Parent-subsidiary controlled group
The term "parent-subsidiary controlled group" means any controlled group of corporations described in section 1563(a)(1). In determining the average adjusted bases of assets held by such a group, interests held by one member of such group in another member of such group shall be disregarded.
(B) Disqualification year
The term "disqualification year" means, with respect to any bank, the 1st taxable year beginning after December 31, 1986, for which such bank was a large bank if such bank maintained a reserve for bad debts for the preceding taxable year.
(C) Election made by each member
In the case of a parent-subsidiary controlled group, any election under this section shall be made separately by each member of such group.
(Added
Editorial Notes
Amendments
1996—Subsec. (a)(2)(A).
1990—Subsec. (b)(1).
"(A) for taxable years beginning before 1988 the addition to the reserve for losses on loans determined under the percentage method as provided in paragraph (2), or
"(B) the addition to the reserve for losses on loans determined under the experience method as provided in paragraph (3)."
Subsec. (b)(2).
Subsec. (b)(3).
"(A) a loan to a bank (as defined in section 581),
"(B) a loan to a domestic branch of a foreign corporation to which subsection (a)(2) applies,
"(C) a loan secured by a deposit (i) in the lending bank, or (ii) in an institution described in subparagraph (A) or (B) if the lending bank has control over withdrawal of such deposit,
"(D) a loan to or guaranteed by the United States, a possession or instrumentality thereof, or a State or a political subdivision thereof,
"(E) a loan evidenced by a security as defined in section 165(g)(2)(C),
"(F) a loan of Federal funds, and
"(G) commercial paper, including short-term promissory notes which may be purchased on the open market." Former par. (3) redesignated (2).
Subsec. (b)(4).
1988—Subsec. (c)(3)(A)(iii)(I).
Subsec. (c)(3)(B)(ii).
Subsec. (c)(4).
Subsec. (c)(5)(C).
1987—Subsec. (c)(3)(C).
1986—Subsec. (a).
"(1) any bank (as defined in section 581) other than an organization to which section 593 applies, and
"(2) any corporation to which paragraph (1) would apply except for the fact that it is a foreign corporation, and in the case of any such foreign corporation this section shall apply only with respect to loans outstanding the interest on which is effectively connected with the conduct of a banking business within the United States."
Subsec. (b)(1).
Subsec. (c).
1981—Subsec. (b)(2).
1976—Subsec. (b)(3), (4).
Statutory Notes and Related Subsidiaries
Effective Date of 1996 Amendment
Amendment by
Effective Date of 1988 Amendment
Amendment by
Effective Date of 1987 Amendment
Effective Date of 1986 Amendment
Amendment by
Effective Date of 1981 Amendment
Effective Date
Savings Provision
For provisions that nothing in amendment by
[§586. Repealed. Pub. L. 99–514, title IX, §901(c), Oct. 22, 1986, 100 Stat. 2378 ]
Section, added
Statutory Notes and Related Subsidiaries
Effective Date of Repeal
Repeal applicable to taxable years beginning after Dec. 31, 1986, see section 901(e) of