Part III. Administrative, Procedural, and Miscellaneous
Application of Section 382 ber 7, 2008, and will apply unless and until mined by the Secretary, after consultation
in the Case of Certain there is additional guidance. with the Secretary of the Interior, to exer
Acquisitions Made Pursuant cise governmental functions.
Temporary Regulation section
to the Housing and Economic 26 CFR 601.201: Rulings and determination letters.
305.7701–1(a) provides that a governing
(Also Part I. Sections 103(c), 105(e), 117(b)(2)(A),
Recovery Act of 2008 164, 170, 403(b)(1)(A)(ii), 454(b)(2), 511(a)(2)(B), body of a tribe, band, pueblo, community,
2055, 2106(a)(2), 2522, 4041(g), 4216, 4253(i), village, or group of native American In
Notice 2008–76 4483(a), 4911, 4940(c), 4941(d), 4942(f), 4945(f), dians, or Alaska Natives, qualifies as an
4946(c).)
Indian tribal government upon determina
SECTION 1. OVERVIEW tion by the Internal Revenue Service that
Rev. Proc. 2008–55 the governing body exercises governmen
This notice announces that the Internal tal functions. Designation of a governing
Revenue Service (IRS) and the Treasury body as an Indian tribal government will
SECTION 1. GENERAL
Department (Treasury) will issue regula be by revenue procedure. The temporary
tions under section 382(m) of the Inter regulation further provides that if a gov
.01 PURPOSE
nal Revenue Code (Code) that address the erning body is not currently designated
The purpose of this revenue procedure
application of section 382 in the case of by revenue procedure as an Indian tribal
is to designate the Indian tribal entities that
certain acquisitions made pursuant to the government, and such governing body be
appear on the current or future lists of fed
Housing and Economic Recovery Act of lieves that it qualifies for such designation,
erally recognized Indian tribes published
2008. the governing body may apply for a ruling
annually by the Department of the Inte
Pursuant to section 1117(a) and (b) of from the Internal Revenue Service.
rior, Bureau of Indian Affairs, as Indian
the Housing and Economic Recovery Act (2) Federally Recognized Indian Tribe
tribal governments for purposes of section
of 2008, Pub. L. No. 110–289 (2008), the List Act and Associated Regulations. Un
7701(a)(40). Indian tribal governments
Secretary of the Treasury is authorized to der the Federally Recognized Indian Tribe
are treated as States for certain purposes
purchase any obligations and other secu List Act of 1994, Pub. L. 103–454, 108
under section 7871(a).
rities issued by certain entities under the Stat. 4791 (“List Act”), the Secretary of
.02 BACKGROUND
Housing and Economic Recovery Act of the Interior is required to publish annually
(1) Internal Revenue Code and Trea
2008. A purchase that is made pursuant to a list of all federally recognized Indian
sury Regulations. The Indian Tribal Gov
this authority is hereinafter referred to as a tribes. The list must reflect all of the tribes
ernmental Tax Status Act of 1982 (Title
“Housing Act Acquisition.” that the Secretary of the Interior recog
II of Pub. L. No. 97–473, 1983–1 C.B.
510, 511, as amended by Pub. L. No. nizes to be eligible for the programs and
SECTION 2. REGULATIONS TO BE
98–21, 1983–2 C.B. 309, 315) added sec services provided by the United States to
ISSUED UNDER SECTION 382(m)
tions 7701(a)(40) and 7871 to the Code. Indians because of their status as Indi
The IRS and Treasury will issue reg Section 7871(a) provides that Indian tribal ans. 25 USC § 479a–1(b). The United
ulations under section 382(m) providing governments (or subdivisions thereof) will States has a government-to-government
that notwithstanding any other provision be treated as states for certain enumerated relationship with and recognizes the
of the Code or the regulations thereunder, federal tax purposes. For example, charita sovereignty of recognized Indian tribes.
for purposes of section 382 and the regu ble contributions to or for the use of a tribal List Act § 103(2). The Secretary
lations thereunder, with respect to a corpo government may be deductible under the of the Interior recognizes the entities
ration as to which there is a Housing Act federal income, gift, and estate tax laws; a on the list as Indian tribes with a
Acquisition, the term “testing date” (as de tribal government is entitled to exemption government-to-government relationship
fined in § 1.382–2(a)(4)) shall not include from certain excise taxes; taxes imposed with the United States. See 44 Fed.
any date on or after the date on which the by a tribe may be deductible; and public Reg. 7,235 (Feb. 6, 1979); 58 Fed.
United States (or any agency or instrumen activity bonds may be tax exempt obliga Reg. 54,364 (Oct. 21, 1993); and 60
tality thereof) (United States) acquires, in tions. §§ 7871(a)(1), (a)(3), (a)(4). As Fed. Reg. 9,250 (Feb. 16, 1995). The
a Housing Act Acquisition, stock (includ originally enacted in 1982, the provisions government-to-government relationship
ing stock described in section 1504(a)(4)) of section 7871 were temporary. These of a tribe that is on this list may not be
or an option to acquire stock in the corpo provisions were made permanent by sec terminated except by an Act of Congress.
ration. tion 1065 of the Tax Reform Act of 1984, List Act § 103(4).
Pub. L. 98–369, 1984–3 (Vol. 1) C.B. 556. The Department of the Interior pub
SECTION 3. EFFECTIVE DATE Section 7701(a)(40) defines the term In lishes its list annually in the Federal Reg
dian tribal government to mean the gov ister. The most recent list was published in
The regulations to be issued under sec erning body of any tribe, band, commu 73 Fed. Reg. 18,553 (April 4, 2008).
tion 382(m) that are described in section 2 nity, village, or group of Indians, or (if ap (3) Previous Revenue Procedures. The
of this notice will apply on or after Septem plicable) Alaska Natives, which is deter Internal Revenue Service has issued three
2008–39 I.R.B. 768 September 29, 2008
revenue procedures listing Indian tribal en tion pursuant to Department of the Inte the entity must be able to demonstrate
tities recognized as Indian tribal govern rior procedures. Tribal entities not appear that the underlying transaction involves
ments for purposes of section 7701(a)(40). ing on the list may apply for a ruling on the exercise of an essential governmental
See Rev. Proc. 83–87, 1983–2 C.B. 606; whether they qualify as Indian tribal gov function of the Indian tribal government.
Rev. Proc. 2001–15, 2001–1 C.B. 465; ernments under section 7701(a)(40) pur § 7871(b).
Rev. Proc. 2002–64, 2002–2 C.B. 717. suant to all applicable rules set forth in the
For each of the 2001 and 2002 revenue Statement of Procedural Rules (26 CFR SECTION 3. EFFECT ON OTHER
procedures, the Indian tribal entities listed Part 601), and guidelines set forth in Rev. DOCUMENTS
were also the Indian tribes on the most re Proc. 84–37, 1984–1 C.B. 513, as mod
cent annual list published by the Depart ified by Rev. Proc. 86–17, 1986–1 C.B. Rev. Proc. 2002–64 is superseded.
ment of the Interior pursuant to the List 550, and Rev. Proc. 2008–1, 2008–1
SECTION 4. EFFECTIVE DATE
Act. I.R.B. 1.
.02 A tribe that does not appear on the This revenue procedure is effective on
SECTION 2. APPLICATION most recent list published by the Depart the date of publication.
ment of the Interior in the Federal Regis
.01 In general, an Indian tribal entity ter pursuant to the requirements of the List SECTION 6. DRAFTING
that appears on the most recent list pub Act will nonetheless be treated as an In INFORMATION
lished by the Department of the Interior dian tribal government for purposes of sec
in the Federal Register pursuant to the re tion 7701(a)(40) if the tribe has been ac The principal author of this revenue
quirements of the List Act is designated an knowledged as a federally recognized In procedure is Carol Cook of the Office
Indian tribal government for purposes of dian tribe, as stated in a letter from the De of the Division Counsel/Associate Chief
section 7701(a)(40). Tribal entities not ap partment of the Interior. Counsel (Tax Exempt & Government En
pearing on the list that believe they qual .03 Qualification as an Indian tribal tities). For further information regarding
ify to be recognized as Indian tribes may government does not necessarily establish this revenue procedure, contact Ms. Cook
contact the Office of Federal Acknowledg that a tribe qualifies for a particular tax at (202) 622–1124 (not a toll-free call).
ment in the Department of the Interior for benefit. For example, when a tribal en
information on how to apply for recogni tity seeks exemption from excise taxes,
September 29, 2008 769 2008–39 I.R.B.