§ 7518. Tax incentives relating to merchant marine capital construction funds
(a)
Ceiling on deposits
(1)
In general
The amount deposited in a fund established under chapter
535 of title
46 of the United States Code (hereinafter in this section referred to as a “capital construction fund”) shall not exceed for any taxable year the sum of:
(A)
that portion of the taxable income of the owner or lessee for such year (computed as provided in chapter 1 but without regard to the carryback of any net operating loss or net capital loss and without regard to this section) which is attributable to the operation of the agreement vessels in the foreign or domestic commerce of the United States or in the fisheries of the United States,
(B)
the amount allowable as a deduction under section
167 for such year with respect to the agreement vessels,
(2)
Limitations on deposits by lessees
In the case of a lessee, the maximum amount which may be deposited with respect to an agreement vessel by reason of paragraph (1)(B) for any period shall be reduced by any amount which, under an agreement entered into under chapter
535 of title
46, United States Code, the owner is required or permitted to deposit for such period with respect to such vessel by reason of paragraph (1)(B).
(b)
Requirements as to investments
(1)
In general
Amounts in any capital construction fund shall be kept in the depository or depositories specified in the agreement and shall be subject to such trustee and other fiduciary requirements as may be specified by the Secretary.
(2)
Limitation on fund investments
Amounts in any capital construction fund may be invested only in interest-bearing securities approved by the Secretary; except that, if such Secretary consents thereto, an agreed percentage (not in excess of 60 percent) of the assets of the fund may be invested in the stock of domestic corporations. Such stock must be currently fully listed and registered on an exchange registered with the Securities and Exchange Commission as a national securities exchange, and must be stock which would be acquired by prudent men of discretion and intelligence in such matters who are seeking a reasonable income and the preservation of their capital. If at any time the fair market value of the stock in the fund is more than the agreed percentage of the assets in the fund, any subsequent investment of amounts deposited in the fund, and any subsequent withdrawal from the fund, shall be made in such a way as to tend to restore the fund to a situation in which the fair market value of the stock does not exceed such agreed percentage.
(3)
Investment in certain preferred stock permitted
For purposes of this subsection, if the common stock of a corporation meets the requirements of this subsection and if the preferred stock of such corporation would meet such requirements but for the fact that it cannot be listed and registered as required because it is nonvoting stock, such preferred stock shall be treated as meeting the requirements of this subsection.
(c)
Nontaxability for deposits
(1)
In general
For purposes of this title—
(A)
taxable income (determined without regard to this section and chapter
535 of title
46, United States Code) for the taxable year shall be reduced by an amount equal to the amount deposited for the taxable year out of amounts referred to in subsection (a)(1)(A),
(B)
gain from a transaction referred to in subsection (a)(1)(C) shall not be taken into account if an amount equal to the net proceeds (as defined in joint regulations) from such transaction is deposited in the fund,
(C)
the earnings (including gains and losses) from the investment and reinvestment of amounts held in the fund shall not be taken into account,
(D)
the earnings and profits (within the meaning of section
316) of any corporation shall be determined without regard to this section and chapter
535 of title
46, United States Code, and
(E)
in applying the tax imposed by section
531 (relating to the accumulated earnings tax), amounts while held in the fund shall not be taken into account.
(d)
Establishment of accounts
For purposes of this section—
(2)
Capital account
The capital account shall consist of—
(B)
amounts referred to in subsection (a)(1)(C) other than that portion thereof which represents gain not taken into account by reason of subsection (c)(1)(B),
(C)
the percentage applicable under section 243(a)(1) of any dividend received by the fund with respect to which the person maintaining the fund would (but for subsection (c)(1)(C)) be allowed a deduction under section
243, and
(3)
Capital gain account
The capital gain account shall consist of—
(4)
Ordinary income account
The ordinary income account shall consist of—
(B)
(e)
Purposes of qualified withdrawals
(1)
In general
A qualified withdrawal from the fund is one made in accordance with the terms of the agreement but only if it is for:
(B)
the acquisition, construction, or reconstruction of barges and containers which are part of the complement of a qualified vessel, or
(C)
the payment of the principal on indebtedness incurred in connection with the acquisition, construction, or reconstruction of a qualified vessel or a barge or container which is part of the complement of a qualified vessel.
Except to the extent provided in regulations prescribed by the Secretary, subparagraph (B), and so much of subparagraph (C) as relates only to barges and containers, shall apply only with respect to barges and containers constructed in the United States.
(2)
Penalty for failing to fulfill any substantial obligation
Under joint regulations, if the Secretary determines that any substantial obligation under any agreement is not being fulfilled, he may, after notice and opportunity for hearing to the person maintaining the fund, treat the entire fund or any portion thereof as an amount withdrawn from the fund in a nonqualified withdrawal.
(f)
Tax treatment of qualified withdrawals
(2)
Adjustment to basis of vessel, etc., where withdrawal from ordinary income account
If any portion of a qualified withdrawal for a vessel, barge, or container is made out of the ordinary income account, the basis of such vessel, barge, or container shall be reduced by an amount equal to such portion.
(3)
Adjustment to basis of vessel, etc., where withdrawal from capital gain account
If any portion of a qualified withdrawal for a vessel, barge, or container is made out of the capital gain account, the basis of such vessel, barge, or container shall be reduced by an amount equal to such portion.
(4)
Adjustment to basis of vessels, etc., where withdrawals pay principal on debt
If any portion of a qualified withdrawal to pay the principal on any indebtedness is made out of the ordinary income account or the capital gain account, then an amount equal to the aggregate reduction which would be required by paragraphs (2) and (3) if this were a qualified withdrawal for a purpose described in such paragraphs shall be applied, in the order provided in joint regulations, to reduce the basis of vessels, barges, and containers owned by the person maintaining the fund. Any amount of a withdrawal remaining after the application of the preceding sentence shall be treated as a nonqualified withdrawal.
(5)
Ordinary income recapture of basis reduction
If any property the basis of which was reduced under paragraph (2), (3), or (4) is disposed of, any gain realized on such disposition, to the extent it does not exceed the aggregate reduction in the basis of such property under such paragraphs, shall be treated as an amount referred to in subsection (g)(3)(A) which was withdrawn on the date of such disposition. Subject to such conditions and requirements as may be provided in joint regulations, the preceding sentence shall not apply to a disposition where there is a redeposit in an amount determined under joint regulations which will, insofar as practicable, restore the fund to the position it was in before the withdrawal.
(g)
Tax treatment of nonqualified withdrawals
(1)
In general
Except as provided in subsection (h), any withdrawal from a capital construction fund which is not a qualified withdrawal shall be treated as a nonqualified withdrawal.
(2)
Ordering rule
Any nonqualified withdrawal from a fund shall be treated—
For purposes of this section, items withdrawn from any account shall be treated as withdrawn on a first-in-first-out basis; except that (i) any nonqualified withdrawal for research, development, and design expenses incident to new and advanced ship design, machinery and equipment, and (ii) any amount treated as a nonqualified withdrawal under the second sentence of subsection (f)(4), shall be treated as withdrawn on a last-in-first-out basis.
(3)
Operating rules
For purposes of this title—
(A)
any amount referred to in paragraph (2)(A) shall be included in income as an item of ordinary income for the taxable year in which the withdrawal is made,
(B)
any amount referred to in paragraph (2)(B) shall be included in income for the taxable year in which the withdrawal is made as an item of gain realized during such year from the disposition of an asset held for more than 6 months, and
(C)
for the period on or before the last date prescribed for payment of tax for the taxable year in which this withdrawal is made—
(i)
no interest shall be payable under section
6601 and no addition to the tax shall be payable under section
6651,
(ii)
interest on the amount of the additional tax attributable to any item referred to in subparagraph (A) or (B) shall be paid at the applicable rate (as defined in paragraph (4)) from the last date prescribed for payment of the tax for the taxable year for which such item was deposited in the fund, and
(4)
Interest rate
For purposes of paragraph (3)(C)(ii), the applicable rate of interest for any nonqualified withdrawal—
(B)
made in a taxable year beginning after 1971, shall be determined and published jointly by the Secretary of the Treasury or his delegate and the applicable Secretary and shall bear a relationship to 8 percent which the Secretaries determine under joint regulations to be comparable to the relationship which the money rates and investment yields for the calendar year immediately preceding the beginning of the taxable year bear to the money rates and investment yields for the calendar year 1970.
(5)
Amount not withdrawn from fund after 25 years from deposit taxed as nonqualified withdrawal
(A)
In general
The applicable percentage of any amount which remains in a capital construction fund at the close of the 26th, 27th, 28th, 29th, or 30th taxable year following the taxable year for which such amount was deposited shall be treated as a nonqualified withdrawal in accordance with the following table:
If the amount remains in the fund
The applicable
at the close of the—
percentage is—
26th taxable year 20 percent
27th taxable year 40 percent
28th taxable year 60 percent
29th taxable year 80 percent
30th taxable year 100 percent.
(B)
Earnings treated as deposits
The earnings of any capital construction fund for any taxable year (other than net gains) shall be treated for purposes of this paragraph as an amount deposited for such taxable year.
(C)
Amounts committed treated as withdrawn
For purposes of subparagraph (A), an amount shall not be treated as remaining in a capital construction fund at the close of any taxable year to the extent there is a binding contract at the close of such year for a qualified withdrawal of such amount with respect to an identified item for which such withdrawal may be made.
(D)
Authority to treat excess funds as withdrawn
If the Secretary determines that the balance in any capital construction fund exceeds the amount which is appropriate to meet the vessel construction program objectives of the person who established such fund, the amount of such excess shall be treated as a nonqualified withdrawal under subparagraph (A) unless such person develops appropriate program objectives within 3 years to dissipate such excess.
(6)
Nonqualified withdrawals taxed at highest marginal rate
(A)
In general
In the case of any taxable year for which there is a nonqualified withdrawal (including any amount so treated under paragraph (5)), the tax imposed by chapter 1 shall be determined—
(B)
Tax benefit rule
If any portion of a nonqualified withdrawal is properly attributable to deposits (other than earnings on deposits) made by the taxpayer in any taxable year which did not reduce the taxpayer’s liability for tax under chapter 1 for any taxable year preceding the taxable year in which such withdrawal occurs—
(ii)
an amount equal to such portion shall be treated as allowed as a deduction under section
172 for the taxable year in which such withdrawal occurs.
(h)
Certain corporate reorganizations and changes in partnerships
Under joint regulations—
(1)
a transfer of a fund from one person to another person in a transaction to which section
381 applies may be treated as if such transaction did not constitute a nonqualified withdrawal, and
(i)
Definitions
For purposes of this section, any term defined in section 607(k) of the Merchant Marine Act, 1936 which is also used in this section (including the definition of “Secretary”) shall have the meaning given such term by such section
607
(k) as in effect on the date of the enactment of this section.