26 U.S.C. § 7871 | Indian tribal governments treated as States for certain purposes

(a)

General rule

An Indian tribal government shall be treated as a State—

(1)

for purposes of determining whether and in what amount any contribution or transfer to or for the use of such government (or a political subdivision thereof) is deductible under—

(A)

section 170 (relating to income tax deduction for charitable, etc., contributions and gifts),

(B)

sections 2055 and 2106(a)(2) (relating to estate tax deduction for transfers of public, charitable, and religious uses), or

(C)

section 2522 (relating to gift tax deduction for charitable and similar gifts);

(2)

subject to subsection (b), for purposes of any exemption from, credit or refund of, or payment with respect to, an excise tax imposed by—

(A)

chapter 31 (relating to tax on special fuels),

(B)

chapter 32 (relating to manufacturers excise taxes),

(C)

subchapter B of chapter 33 (relating to communications excise tax), or

(D)

subchapter D of chapter 36 (relating to tax on use of certain highway vehicles);

(3)

for purposes of section 164 (relating to deduction for taxes);

(4)

subject to subsection (c), for purposes of section 103 (relating to State and local bonds);

(5)

for purposes of section 511(a)(2)(B) (relating to the taxation of colleges and universities which are agencies or instrumentalities of governments or their political subdivisions);

(6)

for purposes of—

(A)

section 105(e) (relating to accident and health plans),

(B)

section 403(b)(1)(A)(ii) (relating to the taxation of contributions of certain employers for employee annuities), and

(C)

section 454(b)(2) (relating to discount obligations); and

(7)

for purposes of—

(A)

chapter 41 (relating to tax on excess expenditures to influence legislation), and

(B)

subchapter A of chapter 42 (relating to private foundations).

(b)

Additional requirements for excise tax exemptions

Paragraph (2) of subsection (a) shall apply with respect to any transaction only if, in addition to any other requirement of this title applicable to similar transactions involving a State or political subdivision thereof, the transaction involves the exercise of an essential governmental function of the Indian tribal government.

(c)

Additional requirements for tax-exempt bonds

(1)

In general

Subsection (a) of section 103 shall apply to any obligation (not described in paragraph (2)) issued by an Indian tribal government (or subdivision thereof) only if such obligation is part of an issue substantially all of the proceeds of which are to be used in the exercise of any essential governmental function.

(2)

No exemption for private activity bonds

Except as provided in paragraph (3), subsection (a) of section 103 shall not apply to any private activity bond (as defined in section 141(a)) issued by an Indian tribal government (or subdivision thereof).

(3)

Exception for certain private activity bonds

(A)

In general

In the case of an obligation to which this paragraph applies—

(i)

paragraph (2) shall not apply,

(ii)

such obligation shall be treated for purposes of this title as a qualified small issue bond, and

(iii)

section 146 shall not apply.

(B)

Obligations to which paragraph applies

This paragraph shall apply to any obligation issued as part of an issue if—

(i)

95 percent or more of the net proceeds of the issue are to be used for the acquisition, construction, reconstruction, or improvement of property which is of a character subject to the allowance for depreciation and which is part of a manufacturing facility (as defined in section 144(a)(12)(C)),

(ii)

such issue is issued by an Indian tribal government or a subdivision thereof,

(iii)

95 percent or more of the net proceeds of the issue are to be used to finance property which—

(I)

is to be located on land which, throughout the 5-year period ending on the date of issuance of such issue, is part of the qualified Indian lands of the issuer, and

(II)

is to be owned and operated by such issuer,

(iv)

such obligation would not be a private activity bond without regard to subparagraph (C),

(v)

it is reasonably expected (at the time of issuance of the issue) that the employment requirement of subparagraph (D)(i) will be met with respect to the facility to be financed by the net proceeds of the issue, and

(vi)

no principal user of such facility will be a person (or group of persons) described in section 144(a)(6)(B).

For purposes of clause (iii), section 150(a)(5) shall apply.

(C)

Private activity bond rules to apply

An obligation to which this paragraph applies (other than an obligation described in paragraph (1)) shall be treated for purposes of this title as a private activity bond.

(D)

Employment requirements

(i)

In general

The employment requirements of this subparagraph are met with respect to a facility financed by the net proceeds of an issue if, as of the close of each calendar year in the testing period, the aggregate face amount of all outstanding tax-exempt private activity bonds issued to provide financing for the establishment which includes such facility is not more than 20 times greater than the aggregate wages (as defined by section 3121(a)) paid during the preceding calendar year to individuals (who are enrolled members of the Indian tribe of the issuer or the spouse of any such member) for services rendered at such establishment.

(ii)

Failure to meet requirements

(I)

In general

If, as of the close of any calendar year in the testing period, the requirements of this subparagraph are not met with respect to an establishment, section 103 shall cease to apply to interest received or accrued (on all private activity bonds issued to provide financing for the establishment) after the close of such calendar year.

(II)

Exception

Subclause (I) shall not apply if the requirements of this subparagraph would be met if the aggregate face amount of all tax-exempt private activity bonds issued to provide financing for the establishment and outstanding at the close of the 90th day after the close of the calendar year were substituted in clause (i) for such bonds outstanding at the close of such calendar year.

(iii)

Testing period

For purposes of this subparagraph, the term “testing period” means, with respect to an issue, each calendar year which begins more than 2 years after the date of issuance of the issue (or, in the case of a refunding obligation, the date of issuance of the original issue).

(E)

Definitions

For purposes of this paragraph—

(i)

Qualified Indian lands

The term “qualified Indian lands” means land which is held in trust by the United States for the benefit of an Indian tribe.

(ii)

Indian tribe

The term “Indian tribe” means any Indian tribe, band, nation, or other organized group or community which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.

(iii)

Net proceeds

The term “net proceeds” has the meaning given such term by section 150(a)(3).

(d)

Treatment of subdivisions of Indian tribal governments as political subdivisions

For the purposes specified in subsection (a), a subdivision of an Indian tribal government shall be treated as a political subdivision of a State if (and only if) the Secretary determines (after consultation with the Secretary of the Interior) that such subdivision has been delegated the right to exercise one or more of the substantial governmental functions of the Indian tribal government.

(e)

Essential governmental function

For purposes of this section, the term “essential governmental function” shall not include any function which is not customarily performed by State and local governments with general taxing powers.

(f)

Tribal economic development bonds

(1)

Allocation of limitation

(A)

In general

The Secretary shall allocate the national tribal economic development bond limitation among the Indian tribal governments in such manner as the Secretary, in consultation with the Secretary of the Interior, determines appropriate.

(B)

National limitation

There is a national tribal economic development bond limitation of $2,000,000,000.

(2)

Bonds treated as exempt from tax

In the case of a tribal economic development bond—

(A)

notwithstanding subsection (c), such bond shall be treated for purposes of this title in the same manner as if such bond were issued by a State,

(B)

the Indian tribal government issuing such bond and any instrumentality of such Indian tribal government shall be treated as a State for purposes of section 141, and

(C)

section 146 shall not apply.

(3)

Tribal economic development bond

(A)

In general

For purposes of this section, the term “tribal economic development bond” means any bond issued by an Indian tribal government—

(i)

the interest on which would be exempt from tax under section 103 if issued by a State or local government, and

(ii)

which is designated by the Indian tribal government as a tribal economic development bond for purposes of this subsection.

(B)

Exceptions

Such term shall not include any bond issued as part of an issue if any portion of the proceeds of such issue are used to finance—

(i)

any portion of a building in which class II or class III gaming (as defined in section 4 of the Indian Gaming Regulatory Act) is conducted or housed or any other property actually used in the conduct of such gaming, or

(ii)

any facility located outside the Indian reservation (as defined in section 168(j)(6)).

(C)

Limitation on amount of bonds designated

The maximum aggregate face amount of bonds which may be designated by any Indian tribal government under subparagraph (A) shall not exceed the amount of national tribal economic development bond limitation allocated to such government under paragraph (1).

Pub. L. 97–473, title II, § 202(a)Jan. 14, 198396 Stat. 2608 Pub. L. 98–21, title I, § 122(c)(6)Apr. 20, 198397 Stat. 87 Pub. L. 98–369, div. A, title IV, § 474(r)(41)July 18, 198498 Stat. 847 Pub. L. 99–514, title IOct. 22, 1986100 Stat. 2109 Pub. L. 100–203, title X, § 10632(a)Dec. 22, 1987101 Stat. 1330–455 Pub. L. 103–66, title XIII, § 13222(d)Aug. 10, 1993107 Stat. 481 Pub. L. 111–5, div. B, title I, § 1402(a)Feb. 17, 2009123 Stat. 351 Pub. L. 115–141, div. U, title IV, § 401(a)(337)Mar. 23, 2018132 Stat. 1200(Added , , ; amended , , ; , title X, § 1065(b), , , 1048; , §§ 112(b)(4), 123(b)(3), title XIII, § 1301(j)(6), (7), title XVIII, §§ 1878(i), 1899A(65), , , 2113, 2658, 2905, 2962; , (b), , ; , , ; , , ; , , .)

Editorial Notes

References in Text

section 2703 of Title 25Section 4 of the Indian Gaming Regulatory Act, referred to in subsec. (f)(3)(B)(i), is classified to , Indians.

Amendments

Pub. L. 115–1412018—Subsec. (c)(3)(D)(ii)(II). substituted “the calendar year” for “the calender year”.

Pub. L. 111–52009—Subsec. (f). added subsec. (f).

Pub. L. 103–661993—Subsec. (a)(6)(B) to (D). redesignated former subpars. (C) and (D) as (B) and (C), respectively, and struck out former subpar. (B) which read as follows: “section 162(e) (relating to appearances, etc., with respect to legislation),”.

Pub. L. 100–203, § 10632(b)(2)1987—Subsec. (c)(2). , substituted “Except as provided in paragraph (3), subsection (a)” for “Subsection (a)”.

Pub. L. 100–203, § 10632(b)(1)Subsec. (c)(3). , added par. (3).

Pub. L. 100–203, § 10632(a)Subsec. (e). , added subsec. (e).

Pub. L. 99–514, § 1301(j)(6)1986—Subsec. (a)(4). , substituted “(relating to State and local bonds)” for “(relating to interest on certain governmental obligations)”.

Pub. L. 99–514, § 123(b)(3)section 112(b)(4) of Pub. L. 99–514Subsec. (a)(6). , redesignated subpars. (C) to (E), as previously redesignated by , as (B) to (D), respectively, and struck out previously redesignated subpar. (B), which read as follows: “section 117(b)(2)(A) (relating to scholarships and fellowship grants),”.

Pub. L. 99–514, § 112(b)(4), redesignated subpars. (B) to (F) as (A) to (E), respectively, and struck out former subpar. (A) which read as follows: “section 24(c)(4) (defining State for purposes of credit for contribution to candidates for public offices),”.

Pub. L. 99–514, § 1878(i)Pub. L. 98–369, § 1065(b), made technical amendment to directory language of . See 1984 Amendment note below.

Pub. L. 99–514, § 1899A(65)Subsec. (a)(6)(D). , substituted “; and” for period at end.

Pub. L. 99–514, § 1301(j)(7)Subsec. (c)(2). , amended par. (2) generally. Prior to amendment, par. (2) read as follows: “Subsection (a) of section 103 shall not apply to any of the following issued by an Indian tribal government (or subdivision thereof):

“(A) An industrial development bond (as defined in section 103(b)(2)).

l“(B) An obligation described in section 103()(1)(A) (relating to scholarship bonds).

“(C) A mortgage subsidy bond (as defined in paragraph (1) of section 103A(b) without regard to paragraph (2) thereof).”

Pub. L. 98–369, § 474(r)(41)1984—Subsec. (a)(6)(A). , substituted “section 24(c)(4)” for “section 41(c)(4)”.

Pub. L. 98–369, § 1065(b)Pub. L. 99–514, § 1878(i)Subsec. (a)(6)(B) to (F). , as amended by , added subpars. (B), (D), and (F), and redesignated former subpars. (B) and (C) as (C) and (E), respectively.

Pub. L. 98–211983—Subsec. (a)(6). redesignated subpars. (B) to (D) as (A) to (C), respectively, and struck out former subpar. (A), which referred to section 37(e)(9)(A) (relating to certain public retirement systems).

Statutory Notes and Related Subsidiaries

Effective Date of 2009 Amendment

Pub. L. 111–5, div. B, title I, § 1402(c)Feb. 17, 2009123 Stat. 352

Feb. 17, 2009“The amendment made by subsection (a) [amending this section] shall apply to obligations issued after the date of the enactment of this Act [].”

, , , provided that:

Effective Date of 1993 Amendment

Pub. L. 103–66Dec. 31, 1993section 13222(e) of Pub. L. 103–66 section 162 of this titleAmendment by applicable to amounts paid or incurred after , see set out as a note under .

Effective Date of 1987 Amendment

Pub. L. 100–203, title X, § 10632(c)Dec. 22, 1987101 Stat. 1330–457

October 13, 1987“The amendments made by this section [amending this section] shall apply to obligations issued after .”

, , , provided that:

Effective Date of 1986 Amendment

section 112(b)(4) of Pub. L. 99–514Dec. 31, 1986section 151(a) of Pub. L. 99–514 section 1 of this titleAmendment by applicable to taxable years beginning after , see , set out as a note under .

section 123(b)(3) of Pub. L. 99–514Dec. 31, 1986Aug. 16, 1986section 151(d) of Pub. L. 99–514 section 1 of this titleAmendment by applicable to taxable years beginning after , but only in the case of scholarships and fellowships granted after , see , set out as a note under .

Pub. L. 99–514Aug. 15, 1986Pub. L. 99–514 section 141 of this titleAmendment by section 1301(j)(6), (7) of applicable to bonds issued after , except as otherwise provided, see sections 1311 to 1318 of , set out as an Effective Date; Transitional Rules note under .

section 1878(i) of Pub. L. 99–514 Pub. L. 98–369, div. A section 1881 of Pub. L. 99–514 section 48 of this titleAmendment by effective, except as otherwise provided, as if included in the provisions of the Tax Reform Act of 1984, , to which such amendment relates, see , set out as a note under .

Effective Date of 1984 Amendment

section 474(r)(41) of Pub. L. 98–369Dec. 31, 1983section 475(a) of Pub. L. 98–369 section 21 of this titleAmendment by applicable to taxable years beginning after , and to carrybacks from such years, see , set out as a note under .

Pub. L. 98–369, div. A, title X, § 1065(c)July 18, 198498 Stat. 1048

December 31, 1984“The amendment made by subsection (b) [amending this section] shall apply to taxable years beginning after .”

, , , provided that:

Effective Date of 1983 Amendment

Pub. L. 98–21Dec. 31, 1983section 105(d)(6) of this titleApr. 20, 1983Dec. 31, 1983section 122(d) of Pub. L. 98–21 section 22 of this titleAmendment by applicable to taxable years beginning after , except that if an individual’s annuity starting date was deferred under as in effect on the day before , such deferral shall end on the first day of such individual’s first taxable year beginning after , see , set out as a note under .

Effective Date

Pub. L. 97–473, title II, § 204Jan. 14, 198396 Stat. 2611 Pub. L. 98–369, div. A, title X, § 1065(a)July 18, 198498 Stat. 1048 Pub. L. 99–514, § 2Oct. 22, 1986100 Stat. 2095

section 1 of this title“The amendments made by this title [enacting this section, amending sections 41, 103, 164, 170, 2055, 2106, 2522, 4227, 4484, 6420, 6421, 6424, 6427, and 7701 of this title, and enacting provisions set out as a note under ]—

“(1)

26 U.S.C. 1December 31, 1982 insofar as they relate to chapter 1 of the Internal Revenue Code of 1986 [formerly I.R.C. 1954] [ et seq.] (other than section 103 thereof), shall apply to taxable years beginning after ,

“(2)

December 31, 1982 insofar as they relate to section 103 of such Code, shall apply to obligations issued after ,

“(3)

26 U.S.C. 2001December 31, 1982 insofar as they relate to chapter 11 of such Code [ et seq.], shall apply to estates of decedents dying after ,

“(4)

26 U.S.C. 2501December 31, 1982 insofar as they relate to chapter 12 of such Code [ et seq.], shall apply to gifts made after , and

“(5)

26 U.S.C. 4041January 1, 1983 insofar as they relate to taxes imposed by subtitle D of such Code [ et seq.], shall take effect on .”

, , , as amended by , , ; , , , provided that:

Short Title

Pub. L. 97–473 section 1 of this titleFor short title of title II of as the “Indian Tribal Governmental Tax Status Act of 1982”, see Short Title of 1983 Amendments note set out under .

Pub. L. 99–514Applicability of Certain Amendments by in Relation to Treaty Obligations of United States

section 123(b)(3) of Pub. L. 99–514Oct. 22, 1986Pub. L. 100–647 section 861 of this titleFor nonapplication of amendment by to the extent application of such amendment would be contrary to any treaty obligation of the United States in effect on , see section 1012(aa)(3), (4) of , set out as a note under .

Plan Amendments Not Required Until January 1, 1989

Pub. L. 99–514Jan. 1, 1989section 1140 of Pub. L. 99–514 section 401 of this titleFor provisions directing that if any amendments made by subtitle A or subtitle C of title XI [§§ 1101–1147 and 1171–1177] or title XVIII [§§ 1800–1899A] of require an amendment to any plan, such plan amendment shall not be required to be made before the first plan year beginning on or after , see , as amended, set out as a note under .