Revenue Procedures 2008-55

Part III. Administrative, Procedural, and Miscellaneous

Application of Section 382
in the Case of Certain
Acquisitions Made Pursuant
to the Housing and Economic
Recovery Act of 2008
Notice 2008–76
SECTION 1. OVERVIEW
This notice announces that the Internal
Revenue Service (IRS) and the Treasury
Department (Treasury) will issue regula­
tions under section 382(m) of the Inter­
nal Revenue Code (Code) that address the
application of section 382 in the case of
certain acquisitions made pursuant to the
Housing and Economic Recovery Act of
2008.
Pursuant to section 1117(a) and (b) of
the Housing and Economic Recovery Act
of 2008, Pub. L. No. 110–289 (2008), the
Secretary of the Treasury is authorized to
purchase any obligations and other secu­
rities issued by certain entities under the
Housing and Economic Recovery Act of
2008. A purchase that is made pursuant to
this authority is hereinafter referred to as a
“Housing Act Acquisition.”
SECTION 2. REGULATIONS TO BE
ISSUED UNDER SECTION 382(m)
The IRS and Treasury will issue reg­
ulations under section 382(m) providing
that notwithstanding any other provision
of the Code or the regulations thereunder,
for purposes of section 382 and the regu­
lations thereunder, with respect to a corpo­
ration as to which there is a Housing Act
Acquisition, the term “testing date” (as de­
fined in § 1.382–2(a)(4)) shall not include
any date on or after the date on which the
United States (or any agency or instrumen­
tality thereof) (United States) acquires, in
a Housing Act Acquisition, stock (includ­
ing stock described in section 1504(a)(4))
or an option to acquire stock in the corpo­
ration.
SECTION 3. EFFECTIVE DATE
The regulations to be issued under sec­
tion 382(m) that are described in section 2
of this notice will apply on or after Septem­

2008–39 I.R.B.

ber 7, 2008, and will apply unless and until
there is additional guidance.
26 CFR 601.201: Rulings and determination letters.
(Also Part I. Sections 103(c), 105(e), 117(b)(2)(A),
164, 170, 403(b)(1)(A)(ii), 454(b)(2), 511(a)(2)(B),
2055, 2106(a)(2), 2522, 4041(g), 4216, 4253(i),
4483(a), 4911, 4940(c), 4941(d), 4942(f), 4945(f),
4946(c).)

Rev. Proc. 2008–55
SECTION 1. GENERAL
.01 PURPOSE
The purpose of this revenue procedure
is to designate the Indian tribal entities that
appear on the current or future lists of fed­
erally recognized Indian tribes published
annually by the Department of the Inte­
rior, Bureau of Indian Affairs, as Indian
tribal governments for purposes of section
7701(a)(40). Indian tribal governments
are treated as States for certain purposes
under section 7871(a).
.02 BACKGROUND
(1) Internal Revenue Code and Trea­
sury Regulations. The Indian Tribal Gov­
ernmental Tax Status Act of 1982 (Title
II of Pub. L. No. 97–473, 1983–1 C.B.
510, 511, as amended by Pub. L. No.
98–21, 1983–2 C.B. 309, 315) added sec­
tions 7701(a)(40) and 7871 to the Code.
Section 7871(a) provides that Indian tribal
governments (or subdivisions thereof) will
be treated as states for certain enumerated
federal tax purposes. For example, charita­
ble contributions to or for the use of a tribal
government may be deductible under the
federal income, gift, and estate tax laws; a
tribal government is entitled to exemption
from certain excise taxes; taxes imposed
by a tribe may be deductible; and public
activity bonds may be tax exempt obliga­
tions. §§ 7871(a)(1), (a)(3), (a)(4). As
originally enacted in 1982, the provisions
of section 7871 were temporary. These
provisions were made permanent by sec­
tion 1065 of the Tax Reform Act of 1984,
Pub. L. 98–369, 1984–3 (Vol. 1) C.B. 556.
Section 7701(a)(40) defines the term In­
dian tribal government to mean the gov­
erning body of any tribe, band, commu­
nity, village, or group of Indians, or (if ap­
plicable) Alaska Natives, which is deter­

768

mined by the Secretary, after consultation
with the Secretary of the Interior, to exer­
cise governmental functions.
Temporary
Regulation
section
305.7701–1(a) provides that a governing
body of a tribe, band, pueblo, community,
village, or group of native American In­
dians, or Alaska Natives, qualifies as an
Indian tribal government upon determina­
tion by the Internal Revenue Service that
the governing body exercises governmen­
tal functions. Designation of a governing
body as an Indian tribal government will
be by revenue procedure. The temporary
regulation further provides that if a gov­
erning body is not currently designated
by revenue procedure as an Indian tribal
government, and such governing body be­
lieves that it qualifies for such designation,
the governing body may apply for a ruling
from the Internal Revenue Service.
(2) Federally Recognized Indian Tribe
List Act and Associated Regulations. Un­
der the Federally Recognized Indian Tribe
List Act of 1994, Pub. L. 103–454, 108
Stat. 4791 (“List Act”), the Secretary of
the Interior is required to publish annually
a list of all federally recognized Indian
tribes. The list must reflect all of the tribes
that the Secretary of the Interior recog­
nizes to be eligible for the programs and
services provided by the United States to
Indians because of their status as Indi­
ans. 25 USC § 479a–1(b). The United
States has a government-to-government
relationship with and recognizes the
sovereignty of recognized Indian tribes.
List Act § 103(2).
The Secretary
of the Interior recognizes the entities
on the list as Indian tribes with a
government-to-government relationship
with the United States. See 44 Fed.
Reg. 7,235 (Feb. 6, 1979); 58 Fed.
Reg. 54,364 (Oct. 21, 1993); and 60
Fed. Reg. 9,250 (Feb. 16, 1995). The
government-to-government relationship
of a tribe that is on this list may not be
terminated except by an Act of Congress.
List Act § 103(4).
The Department of the Interior pub­
lishes its list annually in the Federal Reg­
ister. The most recent list was published in
73 Fed. Reg. 18,553 (April 4, 2008).
(3) Previous Revenue Procedures. The
Internal Revenue Service has issued three

September 29, 2008

revenue procedures listing Indian tribal en­
tities recognized as Indian tribal govern­
ments for purposes of section 7701(a)(40).
See Rev. Proc. 83–87, 1983–2 C.B. 606;
Rev. Proc. 2001–15, 2001–1 C.B. 465;
Rev. Proc. 2002–64, 2002–2 C.B. 717.
For each of the 2001 and 2002 revenue
procedures, the Indian tribal entities listed
were also the Indian tribes on the most re­
cent annual list published by the Depart­
ment of the Interior pursuant to the List
Act.
SECTION 2. APPLICATION
.01 In general, an Indian tribal entity
that appears on the most recent list pub­
lished by the Department of the Interior
in the Federal Register pursuant to the re­
quirements of the List Act is designated an
Indian tribal government for purposes of
section 7701(a)(40). Tribal entities not ap­
pearing on the list that believe they qual­
ify to be recognized as Indian tribes may
contact the Office of Federal Acknowledg­
ment in the Department of the Interior for
information on how to apply for recogni­

September 29, 2008

tion pursuant to Department of the Inte­
rior procedures. Tribal entities not appear­
ing on the list may apply for a ruling on
whether they qualify as Indian tribal gov­
ernments under section 7701(a)(40) pur­
suant to all applicable rules set forth in the
Statement of Procedural Rules (26 CFR
Part 601), and guidelines set forth in Rev.
Proc. 84–37, 1984–1 C.B. 513, as mod­
ified by Rev. Proc. 86–17, 1986–1 C.B.
550, and Rev. Proc. 2008–1, 2008–1
I.R.B. 1.
.02 A tribe that does not appear on the
most recent list published by the Depart­
ment of the Interior in the Federal Regis­
ter pursuant to the requirements of the List
Act will nonetheless be treated as an In­
dian tribal government for purposes of sec­
tion 7701(a)(40) if the tribe has been ac­
knowledged as a federally recognized In­
dian tribe, as stated in a letter from the De­
partment of the Interior.
.03 Qualification as an Indian tribal
government does not necessarily establish
that a tribe qualifies for a particular tax
benefit. For example, when a tribal en­
tity seeks exemption from excise taxes,

769

the entity must be able to demonstrate
that the underlying transaction involves
the exercise of an essential governmental
function of the Indian tribal government.
§ 7871(b).
SECTION 3. EFFECT ON OTHER
DOCUMENTS
Rev. Proc. 2002–64 is superseded.
SECTION 4. EFFECTIVE DATE
This revenue procedure is effective on
the date of publication.
SECTION 6. DRAFTING
INFORMATION
The principal author of this revenue
procedure is Carol Cook of the Office
of the Division Counsel/Associate Chief
Counsel (Tax Exempt & Government En­
tities). For further information regarding
this revenue procedure, contact Ms. Cook
at (202) 622–1124 (not a toll-free call).

2008–39 I.R.B.