Code of Federal Regulations · Section

§ 1.892-5 — -5 Controlled Commercial Entity

26 C.F.R. § 1.892-5

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(a) In general—(1) General rule and definition of the term controlled commercial entity. (i) Under section 892(a)(2)(A)(ii) and (iii), the exemption generally applicable to a foreign government (as defined in § 1.892-2T) for income described in §§ 1.892-3T and 1.892-3 does not apply to income received by a controlled commercial entity or received (directly or indirectly) from a controlled commercial entity, or to income derived from the disposition of any interest in a controlled commercial entity.

(ii) For purposes of section 892(a)(2)(B) and this section, the term entity includes a corporation, a partnership, a trust (including a pension trust described in § 1.892-2T(c)), and an estate.

(iii) The term controlled commercial entity means any entity (including a controlled entity as defined in § 1.892-2T(a)(3)) engaged in commercial activities (as defined in §§ 1.892-4T and 1.892-4) (whether conducted within or outside the United States) if the foreign government—

(A) Holds (directly or indirectly) any interest in such entity which (by value or voting power) is 50 percent or more of the total of such interests in such entity; or

(B) Holds (directly or indirectly) any other interest in such entity which provides the foreign government with effective control of such entity.

(2) Inadvertent commercial activity—(i) General rule. For purposes of section 892(a)(2)(B) and paragraph (a)(1) of this section, a tested entity that conducts, including by attribution, only inadvertent commercial activity will not be considered to be engaged in commercial activities. However, any income derived from any foreign government's inadvertent commercial activity (including activity attributed from a partnership) will not qualify for exemption from tax under section 892. Commercial activity of a tested entity will be treated as inadvertent commercial activity only if:

(A) Failure to avoid conducting the commercial activity is reasonable as described in paragraph (a)(2)(ii) of this section;

(B) The commercial activity is timely cured as described in paragraph (a)(2)(iii) of this section; and

(C) The record maintenance requirements described in paragraph (a)(2)(iv) of this section are met.

(ii) Reasonable failure to avoid commercial activity—(A) In general. Subject to paragraphs (a)(2)(ii)(B) and (C) of this section, whether a tested entity's failure to prevent its worldwide activities from resulting in commercial activity is reasonable will be determined based on all the facts and circumstances. Due regard will be given to the number of commercial activities conducted during the taxable year and the activities in the immediately preceding taxable year to the extent relevant in characterizing the activities in the current taxable year, as well as the amount of income earned from, and assets used in, the conduct of the commercial activities in relationship to the tested entity's total income and assets. For purposes of this paragraph (a)(2)(ii)(A) and paragraph (a)(2)(ii)(C) of this section, where commercial activity conducted by a partnership is attributed under paragraph (d)(5)(i) of this section to a tested entity owning an interest in the partnership—

(1) Assets used in the conduct of the commercial activity by the partnership are treated as assets used in the conduct of commercial activity by the entity in proportion to the tested entity's interest in the partnership; and

(2) The tested entity's distributive share of the partnership's income from the conduct of the commercial activity is treated as income earned by the tested entity from the conduct of commercial activities.

(B) Continuing due diligence requirement. A failure to avoid commercial activity will not be considered reasonable unless there is continuing due diligence to prevent the tested entity from engaging in commercial activities within or outside the United States as evidenced by having adequate written policies and operational procedures, within the meaning of this paragraph (a)(2)(ii)(B), in place to monitor the tested entity's worldwide activities. A failure to avoid commercial activity will not be considered reasonable if responsible employees have not undertaken reasonable efforts, based on all facts and circumstances, to establish, follow, and enforce such written policies and operational procedures with respect to the tested entity. For purposes of this paragraph (a)(2)(ii)(B), all facts and circumstances are considered in the determination of whether written policies and operational procedures are considered adequate, including whether the written policies and operational procedures:

(1) Prohibit the tested entity from engaging in commercial activities both directly and through investments in entities whose commercial activities would be attributed to the tested entity within the meaning of this section;

(2) Are communicated in writing to all persons who exercise discretionary authority, acting alone or as part of a decisional body, to cause the tested entity to undertake an investment;

(3) Require an advance determination, by receipt of an opinion of counsel or otherwise, as to whether an investment is commercial activity;

(4) Include an annual internal or external audit or review of direct investments and investments in entities whose commercial activities would be attributed to the tested entity within the meaning of this section; and

(5) Require the result of periodic tests to be reviewed and certified by responsible employees who have authority and obligation to cause the curing of any commercial activity disclosed in such procedures.

(C) Safe Harbor—(1) In general. Provided that adequate written policies and operational procedures are in place to monitor the tested entity's worldwide activities as required in paragraph (a)(2)(ii)(B) of this section, the tested entity's failure to avoid commercial activity during the taxable year will be considered reasonable if:

(i) The value of the assets used in, or held for use in, all commercial activity does not exceed five percent of the total value of the assets reflected on the tested entity's balance sheet for the taxable year, determined using the average of the value of the assets as of the close of each quarter of the taxable year, as prepared for an applicable financial statement as defined in section 451(b)(3) and § 1.451-3(a), or, if the tested entity is not required to prepare a balance sheet for an applicable financial statement, as reflected in the books of account or records that are adequate and sufficient to establish the amount; and

(ii) The income earned by the tested entity from commercial activity does not exceed five percent of the tested entity's gross income as reflected on its income statement for the taxable year, as prepared for an applicable financial statement as defined in section 451(b)(3) and § 1.451-3(a), or, if the tested entity is not required to prepare an income statement for an applicable financial statement, as reflected in the books of account or records that are adequate and sufficient to establish the amount.

(2) Calculation of total assets and income. For purposes of paragraph (a)(2)(ii)(C)(1) of this section, the amount of total assets includes the value of the tested entity's qualified partnership interests under paragraph (d)(5)(iii) of this section, and the amount of total gross income includes the tested entity's distributive share of income, including income derived from commercial activity, from partnerships in which the tested entity holds a qualified partnership interest under paragraph (d)(5)(iii) of this section.

(iii) Cure requirement. A timely cure is considered to have been made if the tested entity discontinues the conduct of the commercial activity within 180 days of the date of discovery of the commercial activity by responsible employees who are responsible for monitoring and reviewing the tested entity's commercial activity pursuant to paragraph (a)(2)(ii)(B) of this section. For example, if a responsible employee discovers that the partnership in which the tested entity holds an interest as a partner is conducting commercial activity, the entity will satisfy the cure requirement if, within 180 days of that person discovering the commercial activity, the tested entity discontinues the conduct of the activity by divesting itself of its interest in the partnership (including by transferring its interest in the partnership to a related entity), or the partnership discontinues its conduct of commercial activity. The tested entity may, depending on the facts and circumstances, be able to satisfy the cure requirement if, within 180 days of a responsible employee discovering the commercial activity, the tested entity exchanges its interest in the partnership for one that is a qualified partnership interest, within the meaning of paragraph (d)(5)(iii) of this section, of the same partnership (including a deemed exchange from an agreed modification of terms).

(iv) Record maintenance. Adequate records of each discovered commercial activity and the remedial action taken to cure that activity must be maintained. The records must be retained so long as the contents thereof may become material in the administration of section 892.

(v) Definitions. The following definitions apply for purposes of this paragraph (a)(2).

(A) Tested entity. A tested entity means an entity that is engaged, including by attribution under paragraph (d)(5)(i) of this section, in commercial activity without regard to paragraph (a)(2)(i) of this section.

(B) Responsible employees. Responsible employees may include employees of a tested entity or employees of an entity that controls (within the meaning of paragraph (a)(1) of this section) the tested entity.

(C) Reasonable efforts. The term reasonable efforts means exercising ordinary business care and prudence.

(3) Annual determination of controlled commercial entity status—(i) In general. If an entity described in paragraph (a)(1) of this section engages in commercial activities at any time during its taxable year, the entity will be considered a controlled commercial entity for its entire taxable year. An entity that is not engaged in commercial activities during its taxable year will not be considered a controlled commercial entity for its taxable year. For purposes of determining whether an entity is engaged in commercial activities during its taxable year, that entity's activities during its immediately preceding taxable year will also be taken into account to the extent relevant in characterizing the activities in the current taxable year.

(ii) Certain corporate acquisitions—(A) In general. For purposes of paragraph (a)(3)(i) of this section, if the assets of a corporation that is engaged in commercial activity in a taxable year are acquired by another corporation in an acquisition described in section 381(a), then, except as provided in paragraph (a)(3)(ii)(B) of this section, the acquiring corporation will not be treated as conducting commercial activity for the taxable year in which the acquisition occurs solely by reason of acquiring and holding the distributor or transferor corporation's assets, provided that the taxable year of the distributor or transferor corporation ends under section 381(b), and after the acquisition, the acquiring corporation is not the entity that directly continues the distributor or transferor corporation's commercial activity. If the taxable year of the distributor or transferor corporation does not end as a result of such acquisition, the acquiring corporation will be treated as conducting commercial activity for the taxable year in which the acquisition occurs.

(B) Exception. If the acquisition described in paragraph (a)(3)(ii)(A) of this section to which section 381(a) applies is between corporations that are controlled by the same foreign sovereign within the meaning of paragraph (a)(1) of this section, the acquiring corporation will be treated as conducting commercial activity for the taxable year of the acquiring corporation in which such acquisition occurs regardless of whether the taxable year of the distributor or transferor corporation ends as described in section 381(b) or whether the acquiring corporation directly continues the distributor or transferor corporation's commercial activity.

(b) Entities treated as engaged in commercial activity—(1) United States real property holding corporations—(i) General rule. Except as provided in paragraph (b)(1)(ii) of this section, a corporation that is a United States real property holding corporation as defined in section 897(c)(2), is treated as engaged in commercial activity and, therefore, is a controlled commercial entity if the requirements of paragraph (a)(1)(iii)(A) or (B) of this section are satisfied.

(ii) Exceptions. Paragraph (b)(1)(i) of this section does not apply to the following—

(A) Corporations that are foreign; or

(B) A corporation that is a United States real property holding corporation, as defined in section 897(c)(2), solely by reason of its direct or indirect ownership interest in one or more other corporations that are not controlled by the foreign government (as determined under paragraph (a)(1) of this section). For this purpose, the phrase solely by reason of its direct or indirect ownership interest in one or more other corporations that are not controlled by the foreign government (as determined under paragraph (a)(1) of this section) means disregarding any ownership interests, held directly or indirectly, in noncontrolled corporations (as determined under paragraph (a)(1) of this section), after applying the asset test under section 897(c)(2) and § 1.897-2.

(2) Central banks. For further guidance, see § 1.892-5T(b)(2).

(3) Pension trusts. For further guidance, see § 1.892-5T(b)(3).

(c) Control—(1) Attribution. For further guidance, see § 1.892-5T(c)(1).

(2) Effective control. For further guidance, see § 1.892-5T(c)(2).

(d) Related controlled entities—(1) Brother/sister entities. For further guidance, see § 1.892-5T(d)(1).

(2) Parent/subsidiary entities. For further guidance, see § 1.892-5T(d)(2).

(3) [Reserved]

(4) Illustrations. For further guidance, see § 1.892-5T(d)(4).

(5) Partnerships—(i) General rule. Except as provided in paragraphs (d)(5)(ii) and (iii) of this section, the commercial activities of an entity classified as a partnership for Federal tax purposes are attributable to its partners for purposes of section 892. For example, if an entity described in paragraph (a)(1)(iii)(A) or (B) of this section holds an interest as a general or limited partner in a partnership that is engaged in commercial activities, except as provided in paragraphs (d)(5)(ii) and (iii) of this section, the partnership's commercial activities are attributed to that entity for purposes of determining if the entity is a controlled commercial entity within the meaning of section 892(a)(2)(B) and paragraph (a)(1) of this section.

(ii) Trading activity exception. An entity not otherwise engaged in commercial activities will not be considered to be engaged in commercial activities solely because the entity is a member of a partnership (whether domestic or foreign) that effects transactions in stocks, bonds, other securities (as defined in § 1.892-3T(a)(3)), partnership equity interests, commodities (as defined in § 1.892-4(c)(2)), or financial instruments (as defined in § 1.892-3(a)(4)) for the partnership's own account or solely because an employee of such partnership, or a broker, commission agent, custodian, or other agent, pursuant to discretionary authority granted by such partnership, effects such transactions for the account of the partnership. This paragraph (d)(5)(ii) does not apply to any member in the case of a partnership that is a dealer in stocks, bonds, other securities, partnership equity interests, commodities, or financial instruments, as determined under the principles of § 1.864-2(c)(2)(iv)(a).

(iii) Qualified partnership interest exception—(A) General rule. An entity that is not otherwise engaged in commercial activities (including, for example, performing services for a partnership as described in section 707(a) or section 707(c)) will not be deemed to be engaged in commercial activities solely because it holds a qualified partnership interest in a partnership, notwithstanding that the entity may be considered as being engaged in a trade or business within the United States under section 875(1). Nevertheless, pursuant to section 892(a)(2)(A)(i), a foreign government member's distributive share of partnership income will be treated as from commercial activity, and thus will not be exempt from taxation under section 892 to the extent that the partnership derived such income from the conduct of commercial activity. For example, where a controlled entity described in § 1.892-2T(a)(3) that is not otherwise engaged in commercial activities holds a qualified partnership interest in a partnership that is a dealer in stocks, bonds, other securities, partnership equity interests, commodities, or financial instruments in the United States, although the controlled entity partner will not be deemed to be engaged in commercial activities solely because of its interest in the partnership, its distributive share of partnership income derived from the partnership's activity as a dealer will not be exempt from tax under section 892 because it was derived from the conduct of commercial activity.

(B) Qualified partnership interest—(1) In general. Solely for purposes of paragraph (d)(5)(iii) of this section, an interest classified as equity in an entity classified as a partnership for Federal tax purposes is treated as a qualified partnership interest if the holder of such interest has limited liability within the meaning of § 301.7701-3(b)(2)(ii) of this chapter, does not possess the legal authority to bind or to act on behalf of the partnership, does not control the partnership within the meaning of paragraph (a)(1) of this section, and does not have rights to participate in the management and conduct of the partnership's business at any time during the partnership's taxable year.

(2) Rights to participate in the management and conduct of a partnership's business—(i) In general. Rights to participate in the management and conduct of a partnership's business mean rights to participate in the day-to-day management or operation of the partnership's business, including, for example, the right to participate in ordinary-course personnel and compensation decisions, or take active roles in formulating the partnership's business strategy or in respect of the partnership's acquisition or disposition of a specific investment. The existence of these rights is determined based on all facts and circumstances. In addition to the conduct of relevant parties, such determination shall consider the totality of all rights arising from all direct or indirect interests of the holder of the partnership, including rights provided under the law of the jurisdiction in which the partnership is organized, the partnership's governing documents, contractual agreements such as side letters, shareholders' agreements, and agreements with creditors of the partnership.

(ii) Rights to participate in the monitoring or protection of a partner's capital investment. Rights to participate in the management and conduct of a partnership's business generally do not include participation rights with respect to monitoring or protecting the partner's capital investment in the partnership, but only if such rights do not include rights to participate in the day-to-day management or operation of the partnership's business and do not result in effective control under paragraph (a)(1)(iii)(B) of this section. These rights may, subject to the limitations of the previous sentence, include oversight and supervision rights in the case of major strategic decisions such as: admission or expulsion of a partner; hiring or firing key strategic personnel; amendment of the partnership agreement; dissolution, merger, or conversion of the partnership; unusual and non-ordinary course deviations from previously determined investment parameters; extending the term of the partnership's governing agreement; and disposition of all or substantially all of the partnership's property outside of the ordinary course of the partnership's activities.

(iii) Holding more than one interest in a partnership. If a foreign sovereign holds directly or indirectly interests in a partnership through one or more integral parts or controlled entities (within the meaning of § 1.892-2T) or entities controlled by such foreign sovereign under paragraph (a)(1) of this section, then such interests are aggregated for purposes of this paragraph (d)(5)(iii)(B)(2). For example, if a controlled entity (within the meaning of § 1.892-2T) of a foreign sovereign or an entity controlled by the foreign sovereign under paragraph (a)(1) of this section holds a partnership interest that is not a qualified partnership interest, then any other equity interest held in the same partnership by any other controlled entities of the foreign sovereign is also not treated as a qualified partnership interest. Furthermore, if a foreign sovereign directly or indirectly holds more than one interest in a partnership through one or more integral parts or controlled entities (within the meaning of § 1.892-2T) or entities controlled by such foreign sovereign under paragraph (a)(1) of this section and those partnership interests in the aggregate result in a disqualification from qualified partnership interest, then each such interest in the partnership is not treated as a qualified partnership interest.

(C) Safe harbor for de minimis interests. For purposes of this paragraph (d)(5)(iii), a holder of an interest classified as equity in an entity classified as a partnership for Federal tax purposes is treated as holding a qualified partnership interest (within the meaning of paragraph (d)(5)(iii)(B) of this section) if the holder at all times during the partnership's taxable year:

(1) Has limited liability within the meaning of § 301.7701-3(b)(2)(ii) of this chapter;

(2) Does not possess the legal authority to bind or to act on behalf of the partnership;

(3) Is not the partnership's managing partner, managing member, or an equivalent role under applicable law; and

(4) Does not own, directly or indirectly (under the principles of paragraph (d)(5)(iii)(B)(2)(iii) of this section), more than five percent of either the partnership's capital interests or the partnership's profits interests.

(D) Tiered partnerships. The rules of this paragraph (d)(5)(iii) apply in cases where a partnership (lower-tier partnership) that conducts commercial activity has a partner that is a partnership (upper-tier partnership). If an upper-tier partnership holds no interest in the lower-tier partnership other than a qualified partnership interest, within the meaning of paragraph (d)(5)(iii)(B) or (C) of this section, the lower-tier partnership's commercial activity is not attributed to the upper-tier partnership. Nevertheless, the upper-tier partnership's distributive share of the lower-tier partnership's income that is derived from the conduct of commercial activity will not be exempt from tax under section 892.

(iv) Illustration. The following examples illustrate the application of this paragraph (d)(5):

(A) Example 1—(1) Facts. K is a controlled entity of a foreign sovereign under § 1.892-2T(a)(3). K holds a 20 percent equity interest in Opco, a domestic limited liability company that is classified as a partnership for Federal tax purposes. Opco owns and manages an office building that produces income from rental and advertising activities that constitute commercial activity under § 1.892-4. Under the governing agreement and the applicable law of Opco, K is not liable for the debts of or claims against Opco by reason of being a member, does not possess the legal authority to bind or act on behalf of Opco, and does not control Opco within the meaning of paragraph (a)(1) of this section. K is not the managing member of, and does not hold an equivalent role under applicable law in, Opco. Pursuant to a side letter between K and Opco, K, however, has rights to review and advise on Opco's material business contracts and business expenses.

(2) Analysis. Opco's commercial activity is attributable to K under paragraph (d)(5)(i) of this section unless K's interest in Opco is a qualified partnership interest. K's interest in Opco does not satisfy the safe harbor under paragraph (d)(5)(iii)(C) of this section because K holds a 20 percent equity interest in Opco. Under all facts and circumstances as provided in paragraph (d)(5)(iii)(B) of this section, K's rights to review and advise on Opco's material business contracts and business expenses constitutes the right to participate in the day-to-day management and operation of Opco's business. As a result, K's interest in Opco is not a qualified partnership interest. Therefore, Opco's commercial activity is attributable to K under paragraph (d)(5)(i) of this section, and K will be treated as a controlled commercial entity.

(B) Example 2—(1) Facts. The facts are the same as in paragraph (c)(5)(iv)(A) of this section (Example 1), except that K does not have rights to review and advise on Opco's material business contracts and business expenses. Instead, K is a member of Opco's member committee that only has the ability to make non-binding recommendations, but not decisions in respect of investor-level strategic matters such as dissolution of the partnership, deviations from previously determined investment parameters, and extending the term of the partnership's governing agreement. The extent of K's membership and participation in Opco's member committee does not result in control over Opco within the meaning of paragraph (a)(1) of this section. K does not otherwise have control over Opco within the meaning of paragraph (a)(1) of this section.

(2) Analysis. Although K is on Opco's member committee, the committee only has the ability to make non-binding recommendations but not decisions of an investor-level nature in respect of strategic matters, and not in respect of Opco's day-to-day operations. As a result, Opco's commercial activities will not be attributable to K pursuant to paragraph (d)(5)(iii)(A) of this section. Accordingly, if K is not treated as engaged in any other activities that are commercial activities, K will not be a controlled commercial entity. The portion of K's distributive share of income from Opco, however, that is derived from commercial activity will not be exempt from tax under section 892.

(e) Applicability date. Except as otherwise provided in this paragraph (e), this section applies to taxable years beginning on or after December 15, 2025. See §§ 1.892-5 and 1.892-5T, as contained in 26 CFR in part 1 in effect on April 1, 2025, for the rules that apply to taxable years beginning before December 15, 2025. A taxpayer may choose to apply this section to a taxable year beginning before December 15, 2025, if the period of limitations on assessment of the taxable year is open under section 6501 and the taxpayer and entities that are related (within the meaning of section 267(b) or section 707(b)) to the taxpayer apply this section and §§ 1.892-3(a)(4) and 1.892-4 in their entirety to the taxable year and all succeeding taxable years beginning before December 15, 2025. The rule in paragraph (a)(1)(ii) of this section applies on or after January 14, 2002.

26 C.F.R. § 1.892-4T 26 C.F.R. § 1.892-5T

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