[Code of Federal Regulations]
[Title 26, Volume 6]
[Revised as of April 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 26CFR1.441-4T]

[Page 16-21]
 
                       TITLE 26--INTERNAL REVENUE
 
    CHAPTER I--INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY 
                               (CONTINUED)
 
DEFERRED COMPENSATION, ETC.--Table of Contents
 
Sec. 1.441-4T  Taxable year of a personal service corporation (temporary).

    (a) Taxable year. The taxable year of a personal service corporation 
(as defined in paragraph (d) of this section) is--

[[Page 17]]

    (1) The calendar year, or a ``short period'' (as provided in 
Sec. 1.441-1T(b)(1)(i)) ending December 31; or
    (2) A fiscal year, or a short period (other than a short period 
provided in paragraph (a)(1) of this section), if the corporation 
obtains the approval of the Commissioner (in accordance with paragraph 
(c) of this section) for using such fiscal year.
    (b) Change in taxable year required--(1) In general. For any taxable 
year beginning after December 31, 1986, a taxpayer that is a personal 
service corporation for such taxable year must--
    (i) Use a taxable year described in paragraph (a) of this section; 
or
    (ii) Change to such a taxable year by using a short taxable year 
that ends on the last day of a taxable year described in paragraph (a) 
of this section.
    (2) Approval not required for change to a calendar year--(i) In 
general. A personal service corporation may change its taxable year to 
the calendar year without the approval of the Commissioner. In such 
cases, however, the taxpayer should notify the Internal Revenue Service 
of the change in accordance with the provisions of the applicable 
revenue procedure. See, for example, section 5.02(1) of Rev. Proc. 87-
32, 1987-28 I.R.B. 14.
    (ii) Special rule for 52-53-week taxable year ending with reference 
to the month of December. For purposes of this section, a 52-53-week 
taxable year of a personal service corporation ending with reference to 
the month of December shall be treated as the calendar year. In order to 
assist in the processing of the retention or change in taxable year, 
taxpayers should refer to this special rule by either typing or legibly 
printing the following statement at the top of page 1 of the income tax 
return: ``FILED UNDER Sec. 1.441-4T(b)(2)(ii).'' See Sec. 1.441-2T(e) 
for special rules regarding 52-53-week taxable years for personal 
service corporations.
    (3) Examples. The provisions of paragraph (b) of this section may be 
illustrated by the following examples.

    Example (1). X corporation's last taxable year beginning before 
January 1, 1987, ends on January 31, 1987. In addition, X is a personal 
service corporation for its taxable year beginning February 1, 1987, and 
does not obtain the approval of the Commissioner for using a fiscal 
year. Thus, under paragraph (b)(1) of this section, X is required to 
change its taxable year to the calendar year by using a short taxable 
year that begins on February 1, 1987, and ends on December 31, 1987. 
Under paragraph (b)(2)(i) of this section, X may change its taxable year 
without the consent of the Commissioner, but should notify the Internal 
Revenue Service of the change in accordance with section 5.02(1) of Rev. 
Proc. 87-32.
    Example (2). Assume the same facts as in example (1), except that 
for its taxable year beginning February 1, 1987, X obtains the approval 
of the Commissioner to change its annual accounting period to a fiscal 
year ending September 30. Under paragraph (b)(1) of this section, X must 
file a tax return for the short period from February 1, 1987, through 
September 30, 1987.
    Example (3). Assume the same facts as in example (1), except that 
the first taxable year for which X is a personal service corporation is 
the taxable year that begins on February 1, 1990. Thus, for taxable 
years ending before that date, this section does not apply with respect 
to X. For its taxable year beginning on February 1, 1990, however, X 
will be required to comply with paragraph (b) of this section. If X does 
not obtain the approval of the Commissioner to use a fiscal year, X will 
be required to change its taxable year to the calendar year by using a 
short taxable year that ends on December 31, 1990.
    Example (4). Assume the same facts as in example (1), except that X 
desires to change to a 52-53-week taxable year ending with reference to 
the month of December. Pursuant to paragraphs (b)(2)(i) and (b)(2)(ii) 
of this section, X may change its taxable year to a 52-53-week taxable 
year ending with reference to the month of December without the consent 
of the Commissioner, but should notify the Internal Revenue Service of 
the change in accordance with paragraph (b)(2)(ii) of this section.

    (c) Approval of a fiscal year. A personal service corporation must 
establish to the satisfaction of the Commissioner a business purpose for 
using a fiscal year under paragraph (a)(2) of this section. Business 
purpose is established to the satisfaction of the Commissioner in the 
case of a personal service corporation that--
    (1) Requests to use, or is using, a fiscal year that coincides with 
its natural business year, as defined in section 4.01(1) of Rev. Proc. 
87-32, or successor revenue procedures, or
    (2) Receives permission from the Commissioner to use the fiscal year 
by establishing a business purpose for the fiscal year under section 
6.01 of Rev.

[[Page 18]]

Proc. 87-32, or successor revenue procedures. See also Rev. Rul. 87-57, 
1987-28 I.R.B. 7. See Announcement 87-82 for modifications to Rev. Proc. 
87-32 regarding due dates for personal service corporations filing 
applications and income tax returns for certain short taxable years 
beginning after December 31, 1986.
    (d) Personal service corporation for a taxable year--(1) In general. 
For purposes of this section, a taxpayer is a personal service 
corporation for a taxable year only if--
    (i) The taxpayer is a C corporation (as defined in section 
1361(a)(2)) for the taxable year;
    (ii) The principal activity of the taxpayer during the testing 
period for the taxable year is the performance of personal services;
    (iii) During the testing period for the taxable year, such services 
are substantially performed by employee-owners; and
    (iv) Employee-owners, as defined in paragraph (h) of this section, 
own (as determined under the attribution rules of section 318, except 
that ``any'' shall be substituted for ``50 percent'' in section 
318(a)(2)(C)) more than 10 percent of the fair market value of the 
outstanding stock in the taxpayer on the last day of the testing period 
for the taxable year.
    (2) Testing period--(i) In general. Except as otherwise provided in 
paragraph (d)(2)(ii) of this section, the testing period for a taxable 
year is the taxable year preceding such taxable year.
    (ii) New corporations. The testing period for a taxpayer's first 
taxable year is the period beginning on the first day of such taxable 
year and ending on the earlier of--
    (A) The last day of such taxable year; or
    (B) The last day of the calendar year in which such taxable year 
begins.
    (3) Examples. The provisions of paragraph (d)(2) of this section may 
be illustrated by the following examples.

    Example (1). Corporation A has been in existence since 1980 and has 
used a January 31 taxable year for all taxable years beginning before 
1987. For purposes of determining whether A is a personal service 
corporation for the taxable year beginning February 1, 1987, A's testing 
period under paragraph (d)(2)(i) of this section is the taxable year 
ending January 31, 1987.
    Example (2). B corporation's first taxable year begins on June 1, 
1987, and B desires to use a September 30 taxable year. However, if B is 
a personal service corporation, it must obtain the Commissioner's 
approval to use a September 30 taxable year. Pursuant to paragraph 
(d)(2)(ii) of this section, B's testing period for its first taxable 
year beginning June 1, 1987, is the period June 1, 1987 through 
September 30, 1987. Thus, if, based upon such testing period, B is a 
personal service corporation, B must obtain the Commissioner's 
permission to use a September 30 taxable year.
    Example (3). The facts are the same as in Example (2), except that B 
desires to use a March 31 taxable year. Pursuant to paragraph (d)(2)(ii) 
of this section, B's testing period for its first taxable year beginning 
June 1, 1987, is the period June 1, 1987, through December 31, 1987. 
Thus, if, based upon such testing period, B is a personal service 
corporation, B must obtain the Commissioner's permission to use a March 
31 fiscal year.

    (e) Determination of whether an activity during the testing period 
is treated as the performance of personal services--(1) Activities 
described in section 448(d)(2)(A). For purposes of this section, any 
activity of the taxpayer described in section 448(d)(2)(A) or the 
regulations thereunder will be treated as the performance of personal 
services. Therefore, any activity of the taxpayer that involves the 
performance of services in the fields of health, law, engineering, 
architecture, accounting, actuarial science, performing arts, or 
consulting (as such fields are defined in the regulations interpreting 
section 448) will be treated as the performance of personal services for 
purposes of this section.
    (2) Activities not described in section 448(d)(2)(A). For purposes 
of this section, any activity of the taxpayer not described in section 
448(d)(2)(A) or the regulations thereunder will not be treated as the 
performance of personal services.
    (f) Principal activity--(1) General rule. For purposes of this 
section, the principal activity of a corporation for any testing period 
will be considered to be the performance of personal services if the 
cost of the corporation's compensation (the ``compensation cost'') for 
such testing period that is attributable to its activities that are 
treated as the performance of personal services under paragraph (e) of 
this section exceeds 50

[[Page 19]]

percent of the corporation's total compensation cost for such testing 
period.
    (2) Compensation cost. For purposes of this section, the 
compensation cost of a corporation for a taxable year is equal to the 
sum of the following amounts allowable as a deduction, allocated to a 
long-term contract, or otherwise chargeable to a capital account by the 
corporation during such taxable year--
    (i) Wages and salaries, and
    (ii) Any other amounts attributable to services performed for or on 
behalf of the corporation by a person who is an employee of the 
corporation (including an owner of the corporation who is treated as an 
employee under paragraph (h)(2) of this section) during the testing 
period. Such amounts include, but are not limited to, amounts 
attributable to deferred compensation, commissions, bonuses, 
compensation includible in income under section 83, compensation for 
services based on a percentage of profits, and the cost of providing 
fringe benefits that are includible in income.

However, for purposes of this section, compensation cost does not 
include amounts attributable to a plan qualified under section 401(a) or 
403(a), or to a simplified employee pension plan defined in section 
408(k).
    (3) Attribution of compensation cost to personal service activity--
(i) Employees involved only in the performance of personal services. The 
compensation cost for employees involved only in the performance of 
activities that are treated as personal services under paragraph (e) of 
this section, or employees involved only in supporting the work of such 
employees, shall be considered to be attributable to the corporation's 
personal service activity.
    (ii) Employees involved only in activities that are not treated as 
the performance of personal services. The compensation cost for 
employees involved only in the performance of activities that are not 
treated as personal services under paragraph (e) of this section, or for 
employees involved only in supporting the work of such employees, shall 
not be considered to be attributable to the corporation's personal 
service activity.
    (iii) Other employees. The compensation cost for any employee who is 
not described in either paragraph (f)(3)(i) or paragraph (f)(3)(ii) of 
this section (``a mixed activity employee'') shall be allocated as 
follows--
    (A) Compensation cost attributable to personal service activity. 
That portion of the compensation cost for a mixed activity employee that 
is attributable to the corporation's personal service activity equals 
the compensation cost for such employee multiplied by the percentage of 
the total time worked for the corporation by such employee during the 
year that is attributable to activities of the corporation that are 
treated as the performance of personal services under paragraph (e) of 
this section. Such percentage shall be determined by the taxpayer in any 
reasonable and consistent manner. Time logs are not required unless 
maintained for other purposes;
    (B) Compensation cost not attributable to personal service activity. 
That portion of the compensation cost for a mixed activity employee that 
shall not be considered to be attributable to the corporation's personal 
service activity is the compensation cost for such employee less the 
amount determined in paragraph (f)(3)(iii)(A) of this section.
    (g) Services substantially performed by employee-owners--(1) General 
rule. Personal services are substantially performed during the testing 
period by employee-owners of the corporation if more than 20 percent of 
the corporation's compensation cost for such period attributable to its 
activities that are treated as the performance of personal services 
(within the meaning of paragraph (e) of this section), is attributable 
to personal services performed by employee-owners.
    (2) Compensation cost attributable to personal services. For 
purposes of paragraph (g)(1) of this section--
    (i) The corporation's compensation cost attributable to its 
activities that are treated as the performance of personal services 
shall be determined under paragraph (f)(3) of this section; and
    (ii) The portion of the amount determined under paragraph (g)(2)(i) 
of this section that is attributable to personal services performed by 
employee-owners

[[Page 20]]

shall be determined by the taxpayer in any reasonable and consistent 
manner.
    (3) Examples. The provisions of paragraph (g) of this section may be 
illustrated by the following examples.

    Example (1). For its taxable year beginning February 1, 1987, 
Corporation A's testing period is the taxable year ending January 31, 
1987. During such testing period, A's only activity was the performance 
of personal services. The total compensation cost of A (including 
compensation cost attributable to employee-owners) for the testing 
period was $1,000,000. The total compensation cost attributable to 
employee-owners of A for the testing period was $210,000. Pursuant to 
paragraph (g)(1) of this section, the employee-owners of A substantially 
performed the personal services of A during the testing period because 
the compensation cost of A's employee-owners was more than 20 percent of 
the total compensation cost for all of A's employees (including 
employee-owners).
    Example (2). Corporation B has the same facts as corporation A in 
example (1), except that during the taxable year ending January 31, 
1987, B also participated in an activity that would not be characterized 
as the performance of personal services under this section. The total 
compensation cost of B (including compensation cost attributable to 
employee-owners) for the testing period was $1,500,000 ($1,000,000 
attributable to B's personal service activity and $500,000 attributable 
to B's other activity). The total compensation cost attributable to 
employee-owners of B for the testing period was $250,000 ($210,000 
attributable to B's personal service activity and $40,000 attributable 
to B's other activity). Pursuant to paragraph (g)(1) of this section, 
the employee-owners of B substantially performed the personal services 
of B during the testing period because more than 20 percent of B's 
compensation cost during the testing period attributable to its personal 
service activities was attributable to personal services performed by 
employee-owners ($210,000).

    (h) Employee-owner defined--(1) General rule. For purposes of this 
section, a person is an employee-owner of a corporation for a testing 
period if--
    (i) The person is an employee of the corporation on any day of the 
testing period, and
    (ii) The person owns any outstanding stock of the corporation on any 
day of the testing period.
    (2) Special rule for independent contractors who are owners. Any 
person who is an owner of the corporation within the meaning of 
paragraph (h)(1)(ii) of this section and who performs personal services 
for or on behalf of the corporation shall be treated as an employee for 
purposes of this section, even if the legal form of that person's 
relationship to the corporation is such that he or she would be 
considered an independent contractor for other purposes.
    (i) Special rules for affiliated group filing consolidated return--
(1) In general. For purposes of applying this section to the members of 
an affiliated group of corporations filing a consolidated return for the 
taxable year--
    (i) The members of the affiliated group shall be treated as a single 
corporation;
    (ii) The employees of the members of the affiliated group shall be 
treated as employees of such single corporation; and
    (iii) All of the stock, of the members of the affiliated group, that 
is not owned by any other member of the affiliated group shall be 
treated as the outstanding stock of such corporation.
    (2) Examples. The provisions of this paragraph (i) may be 
illustrated by the following examples.

    Example (1). The affiliated group AB, consisting of corporation A 
and its wholly owned subsidiary B, filed a consolidated Federal income 
tax return for the taxable year ending January 31, 1987, and AB is 
attempting to determine whether it is affected by this section for its 
taxable year beginning February 1, 1987. During the testing period 
(i.e., the taxable year ending January 31, l987), A did not perform 
personal services while B's only activity was the performance of 
personal services. On the last day of the testing period, employees of A 
did not own any stock in A while some of B's employees own stock in A. 
In the aggregate, B's employees own 9 percent of A's stock on the last 
day of the testing period. Pursuant to paragraph (i)(1) of this section, 
this section is effectively applied on a consolidated basis to members 
of an affiliated group filing a consolidated Federal income tax return. 
Since the only employee-owners of AB are the employees of B and since 
B's employees do not own more than 10 percent of AB on the last day of 
the testing period, AB is not subject to the provisions of this section. 
Thus, AB is not required to determine on a consolidated basis whether, 
during the testing period, (a) its principal activity is the providing 
of personal services, or (b) the personal services are substantially 
performed by employee-owners.
    Example (2). The facts are the same as in example (1), except that 
on the last day of the testing period A owns only 80 percent of

[[Page 21]]

B. The remaining 20 percent of B is owned by employees of B. The fair 
market value of A, including its 80 percent interest in B, as of the 
last day of the testing period, is $1,000,000. In addition, the fair 
market value of the 20 percent interest in B owned by B's employees is 
$5,000 as of the last day of the testing period. Pursuant to paragraph 
(d)(1)(iv) and paragraph (i)(1) of this section, AB must determine 
whether the employee-owners of A and B (i.e., B's employees) own more 
than 10 percent of the fair market value of A and B as of the last day 
of the testing period. Since the $14,000 [($100,000.09)+ $5,000] fair 
market value of the stock held by B's employees is greater than 10 
percent of the $105,000 ($100,000+$5,000) aggregate fair market value of 
A and B as of the last day of the testing period, AB may be subject to 
this section if, on a consolidated basis during the testing period, (a) 
the principal activity of AB is the performance of personal services and 
(b) the personal services are substantially performed by employee-
owners.

    (j) Effective date. This section applies to taxable years beginning 
after December 31, 1986.

[T.D. 8167, 52 FR 48528, Dec. 23, 1987]