May 13,2004

Summary of Amendments Adopted by the Senate to S.1637, the JOBS Act


From: Finance Committee Staff
Date: May 13, 2004
Re: Summary of amendments to the Senate-passed JOBS Act (S.1637)

SA 2645, SA 2646 (3/3/04)

A package of minor technical edits to the bill.

SA 2646 (3/3/04)

• Provides a 20-year class life for electric utility grading costs and a 15-yearclass life for gas utility grading costs.

• Provides that up to $5,000 of organizational and start-up costs undersections 195, 248, and 709 may be deducted and provides a 15-yearamortization period for costs in excess of deductible amounts.

• Limits section 179 expensing to $25,000 for certain passenger vehicles.

• Provides that all tax-exempt use property subject to a lease have arecovery period of at least 125% of the lease term (including relatedservice contracts).

• Defers deductions on foreign LILOs and SILOs until the taxpayer hasincome, effective for taxable years after 2004.

SA 2647, SA 2651 (3/3/04)

The amendment would extend the R&E credit, increase the alternative incrementalresearch credit rates, and establish a simplified credit for qualified research expenses.The proposal sunsets on 12/31/05.

SA 2651 (3/3/04)

The Bingaman amendment would change the treatment of expenses paid toresearch consortia under the regular credit.

SA 2660, SA 2680, SA 2685 (3/4/04)

Title V amends the Office of Federal Procurement Policy Act to create a generallimitation on the ability of executive agencies to contract for any activities or functionscurrently performed by Federal Government employees or otherwise contract for theprovision of goods or services.

Such contracts may not be performed by a contractor or a subcontractor outside theUnited States unless Federal Government employees previously performed the activity orfunction outside the United States, or unless it is necessary to meet a requirement of theexecutive agency that the contract be performed specifically at a location outside theUnited States.

This general limitation may be waived if the President determines in writing that it is inthe national security interests of the United States that the contract be performed outsidethe United States, or if the head of the executive agency determines and reports to theDirector of the Office of Management and Budget that the property or services needed bythe executive agency are available only by means of performance of the contract outsidethe United States and that no property or services available by means of performance ofthe contract inside the United States would satisfy the executive agency’s need.Title V attaches similar limitations on funds appropriated for financial assistance to aState, but not for the fiscal year of enactment or the fiscal year following the year ofenactment.

Title V exempts certain contracts from the foregoing limitations. Specifically, thelimitations shall not apply to procurement covered by the World Trade OrganizationGovernment Procurement Agreement. In addition, the limitation with respect to Federalcontracts shall not apply to any procurement for national security purposes entered intoby the Department of Defense or any agency or entity thereof, the Department of theArmy, the Department of the Navy, the Department of the Air Force, or any agency orentity of the military departments, the Department of Homeland Security, the Departmentof Energy or any entity thereof (with respect to the national security programs of thatDepartment), or any element of the intelligence community.

In addition, none of the limitations in Title V shall apply to the extent they may beinconsistent with obligations of the United States under international agreements.Title V also imposes quarterly and annual reporting requirements on the Director of theOffice of Management and Budget and the Comptroller General with respect to theadministration of Title V.

SA 2686, SA 2687, SA 2882 (3/22/04)

Accelerates the phase-in of the manufacturing deduction percentage by increasing thepercentage rate from 1% to 5% in 2004, from 2% to 5% in 2005, from 3% to 5% in 2006,maintaining the percentage at 6% in 2007, increasing the percentage rate from 6% to 7%in 2008, and maintaining the percentage at 9% in 2009 and going forward.

SA 2687 (3/22/04)

Except as otherwise provided (e.g., certain energy provisions), the followingprovisions are extended through December 31, 2005.

Provisions That Expired in 2002 and 2003

• Combined employment tax reporting demonstration project(STAWRS). Added in the Taxpayer Relief Act of 1997, STAWRS allowsbusiness taxpayers to file one form for purposes of federal and state taxreporting. The amendment makes STARWS available for all states andmakes the program permanent.

• Tax on failure to comply with mental health parity requirementsapplicable to group health plans. The Mental Health Parity Act of 1996requires health plans to provide the same lifetime or annual dollar limitsfor mental health benefits as for medical services. The Taxpayer ReliefAct of 1997 imposes an excise tax of $100 per day on an employersponsor whose plan fails to meet the requirements. Maximum penaltycannot exceed 10 percent of the health plan’s expenses or $500,000. Theprovision reinstates the Code’s excise tax from the date of enactment to2005 and related ERISA and PHSA provisions from 2004 to 2005.

• Extension and modification of the Work Opportunity Tax Credit(WOTC) and Welfare to Work (WTW). Present-law provisions forWOTC and WTW are extended through 12/31/04. A modified combinedcredit, as proposed in S. 1180, is provided beginning on 1/1/2005. Keymodifications include: expanding eligibility for the WOTC by raising theage ceiling of food stamp recipients from 25 to 40; re-determiningeligibility of qualified ex-felons without regard to family income; andpermitting a second-year of employment for individuals who have familymembers on welfare. (Note: See additional changes made regardingWOTC permanence below)

• Qualified zone academy bonds (QZABs). QZABs are tax credit bondsissued by states or localities principally for school renovation. The bondsallow the holder to claim a tax credit in lieu of earning interest. Theamendment authorizes states to issue up to $400 million of QZABs in2004 and 2005.

• Extension of increased cover over of rum excise tax. All distilledspirits produced in or imported into the U.S. are subject to a tax at the rateof $13.50 per proof gallon. The extension ensures that $13.25 of the$13.50 collected on rum imported into the U.S. is “covered over” (sentback to) the treasuries of Puerto Rico and the Virgin Islands (only $10.50would be required without the extension).

• Enhanced deduction for corporate contributions of computerequipment for educational purposes. The amendment extends aprovision that encourages businesses to contribute computer equipmentand software to elementary, secondary, and post-secondary schools. Asprovided in the CARE Act of 2003, the amendment clarifies that property“assembled by” or “constructed by” the taxpayer is eligible for anenhanced deduction.

• Deduction for certain expenses of elementary and secondary schoolteachers. Extends the $250 above-the-line deduction to teachers andother school professionals for expenses paid or incurred for books,supplies (other than non-athletic supplies for courses of instruction inhealth or physical education), computer equipment (including relatedsoftware and services), other equipment, and supplementary materialsused by the educator in the classroom.

• Expensing of “Brownfields Environmental Remediation Costs. Theamendment extends the current provision allowing full deductibility ofbrownfield remediation expenses in the year incurred.

• Temporary special rules for taxation of life insurance companies.Current law requires a mutual life insurance company to reduce itsdeductions for policyholder dividends by the company=s differentialearnings amount. The amendment extends the current suspension of thosereduced deductions.

• Tax incentives for investment in the District of Columbia. Theamendment extends four provisions intended to encouragesredevelopment, capital investment, and homeownership in financiallydistressed areas of D.C.: (1) designation of D.C. enterprise zone;employment tax credit; additional expensing; (2) tax-exempt D.C.empowerment zone bonds; (3) zero-percent capital gains rate forinvestment in D.C. for property acquired by 12/31/03; for gains through1/1/06; and (4) tax credit for first-time D.C. homebuyers.

• Nonrefundable personal credits against regular and minimum taxliability. Certain credits (including dependent care, elderly and disabled,home mortgages, Hope Scholarship and Lifetime Learning, and DC homebuyer’scredit) are allowed only to the extent that the individual’s regularincome tax liability exceeds the individual’s AMT. EGTRRA providedthat the adoption credit, child credit, and the EITC are allowed to the fullextent of an individual=s regular tax and AMT. The proposal wouldextend the provision to 12/31/04.

• Credit for electricity produced from certain renewable resources.Provides a tax credit for electricity produced from renewable resources,including wind, closed-loop biomass and poultry waste. Extends theplaced-in-service date for qualified facilities by one year to include thosefacilities placed in service prior to January 1, 2005. Note: This is a oneyearextension of present law.

• Taxable income limit on percentage depletion for oil and natural gasproduced from marginal properties. Extends the deduction for thedepletion of oil and gas wells which is currently limited to 100% of the netincome from the property in any year. Note: This is a one-year extensionof present law.

• Elimination of phaseout of credit for qualified electric vehicles. A 10-percent nonrefundable tax credit (maximum credit is $4,000) is availableto buyers of qualified electric vehicles. The credit was scheduled to phaseout between 2004 and 2006. The amendment eliminates the scheduledphaseout.

• Elimination of phaseout for deduction for clean-fuel vehicle property.Certain costs of qualified clean-fuel vehicle property and clean-fuelvehicle refueling property may be expensed when such property is placedin service. The deduction for clean-fuel vehicle property was scheduled tophase out between 2004 and 2006. This amendment eliminates thescheduled phaseout.

Provisions That Expire in 2004

• Extension of New York Liberty Zone tax-exempt bond financing.New York is authorized to issue up to $4 billion of tax-exempt privateactivity bonds to finance construction and rehabilitation of real property inthe “New York Liberty Zone” through 2004. The amendment extends theamount of time for issuing bonds through 2005. The amendment alsomakes two technical clarifications regarding agencies eligible to issuebonds and elections out of the provision.

• Indian employment tax credit. A business tax credit is available for anemployer of qualified employees that work on an Indian reservation. Thecredit is insurance costs paid to qualified employees in the current yearover the amount paid in 1993, up to a maximum of $20,000. Wages forwhich the work opportunity credit is available are not qualified wages andare not eligible for the Indian employment credit.

• Accelerated depreciation for business property on Indianreservations. A special depreciation recovery period is available toqualified Indian reservation property placed in service before January 1,2005. In general, qualified Indian reservation property is property usedpredominantly in the active conduct of a trade of business within an Indianreservation, which is not used outside the reservation on a regular basisand was not acquired from a related person.

• Disclosure of return information relating to student loans. Providesthat consent may be granted by the student that allows the student’staxpayer information to be disclosed to government contractors in order toestablish an income contingent repayment amount for a student loan.Each year the Department of Education and IRS process about 100,000such consents. Extending this provision would remove an administrativeburden and would benefit certain student loan programs from additionaldisclosure authority.

Revenue Offsets

• Car Donations. Proposal limits charitable car donation deductions inexcess of $500 to the gross proceeds received by the charitableorganization upon subsequent sale of the car. The proposal requires thecharity to report to the donor the amount of the sale proceeds within 30days of the date of sale. The proposal also requires the charity to furnishthe following information to the IRS: (i) name and taxpayer identificationnumber of donor, (ii) the vehicle identification number, (iii) certificationthat the vehicle was sold in an arm’s length transaction betweenindependent parties, and (iv) sales price. If the charity retains the vehiclefor use, the taxpayer would be eligible to receive a FMV deductionprovided that the charity and the donor provide the IRS with certificationsregarding the proposed use. Charities are subject to a penalty equal to thegreater of the tax benefit to the donor or gross sales receipts from thevehicle for fraudulent declarations to the donor.

• Continuous Levy Provision. Under present law, if any person is liablefor any federal tax and does not pay it within 10 days of when the tax isassessed and a demand that payment be made, a continuous levy attachesup to 15 percent of any specified payment due the taxpayer. TheAdministration’s proposal would permit a levy of up to 100 percent of aFederal payment to a vendor of goods or services to the government. JCThas scored this at $185 million over 10 years.

• Leasing Provisions Effective Date. The proposal would make theleasing provisions included in S. 1637, as amended by the Grassley-Baucus amendment #2646, effective on November 19, 2003, as announcedby Chairman Grassley on November 18, 2003.

• Addition of vaccines against influenza to list of taxable vaccines (sec.4132(a)(1). Adds to list of current 12 vaccines (e.g., rubella, mumps,Hepatitis B, chicken pox) that are manufactured or produced in the U.S.,or entered into the U.S. for use, and for the purposes of the vaccine injurycompensation trust fund. Effective at beginning of first month at least 4weeks after enactment through December 31, 2013.

• Contingent payment convertible debt. Contingent payment convertibledebt instruments (called Co-Co-Puffs in industry parlance) is a financialinstrument that manipulates the present tax rules in order to obtain aninflated interest deduction for the holder of the instrument. The provisionrequires taxpayers to calculate OID with respect to the yield ofcomparable debt instruments taking into account both the contingency andconvertibility.

SA 2882 (3/22/04)

• Five-year carryback of net operation losses. Taxpayers who elect out ofbonus depreciation are allowed to carryback any net operating losses for2003 five years. Taxpayers whose taxable years end in January of 2004are allowed to make a special election to apply this five-year carryback toeither their taxable year ending in January 2003 or their taxable yearending in January 2004, provided they elect out of bonus depreciation forsuch taxable year. The provision also allows an NOL deductionattributable to NOL carrybacks arising in taxable years ending 2003 (or2004 in the case of the special election) as well as NOL carryforwards tothose taxable years, to offset 100 percent of a taxpayer's alternativeminimum taxable income.

SA 3011 (First and Second Manager’s Amendments) (4/8/04)
Note: Amendments adopted above were incorporated into SA 3011

• Airplane Depreciation. The proposal provides that noncommercial transportationaircraft are eligible for an extended placed in service date for bonus depreciation(until 12/31/05).

• Naval Shipbuilding. Under current law, small shipbuilders who enterinto contracts to build ships are permitted to use a method of accounting thatresults in more favorable income tax treatment when reporting their income fromthese contracts. The proposal will provide comparable tax treatment to navalshipbuilders.

• New Homestead. Under current law, there is no special assistance for businessesin counties that are losing population. The proposed amendment would includescaled-back versions of sections 201 and 202 of S. 602. These sections provide acredit with a present value of 70% of qualified expenditures on newly constructedrural investment buildings, and a 30% tax credit for expenditures on starting orexpanding a business, provided that the building or business is in a rural high outmigrationcounty (HOMC). An HOMC is defined as any county that has lost atleast 10% of its population over the last 20 years.

• Brownfield Revitalization. Under current law, income produced from debtfinanced property generally produces UBIT to tax-exempt investors. The proposalwaives UBIT for tax exempt investors that invest in the clean up and remediationof qualified brownfield sites. The proposal is effective beginning January 1, 2005.

• Mortgage Revenue Bonds. Under current law, mortgage revenue bondpayments received after the bond has been outstanding for 10 years must be usedto pay off the bond, rather than issue new mortgages. The proposal would repealthis “10-year rule” for all bonds issued prospectively. In addition, all bondpayments received during the year following date of enactment would be exemptfrom the 10-year rule.

• Private Mortgage Insurance. Under current law, a deduction may be taken formortgage interest, but not for mortgage insurance. The proposal would provide adeduction for private mortgage insurance payments. The deduction begins tophase-out for taxpayers with AGI above $100,000. This provision was alsoincluded in the Senate passed Jobs and Growth package in 2003.

• Tax Benefits for Reservist Employees. Under current law, there is no special taxbenefit for an employer who continues to pay an employee who is a reservist orNational Guard member when they are called to active duty. The proposal wouldprovide a 50% tax credit to employers for wages paid to reservists and NationalGuard members who have been called to active duty; maximum $7,500 peremployee credit.

• IDB’s. Under current law the maximum small issue bond available for qualifiedprojects is $10,000,000. This was set into law in 1978. The ceiling is subject to adollar for dollar reduction for other funding used in the project. Section 301 ofthe bill reported from Committee clarifies that capital expenditures not to exceed$10,000,000 shall not be taken into account when determining whether or not aproject is qualified to take advantage of small issue bonds. This languageeffectively raises the capital expenditure limit to $20,000,000. The manager’samendment contains a provision that would modify the term “manufacturingfacility” to include the manufacture of tangible personal property, softwareproducts, biobased products, and bioenergy production. Under the definition,small issue bonds could also be used for facilities “directly and functionallyrelated to a manufacturing facility.”

• Liberty Zone Bonds. Liberty Zone bond extension / Advance refunding – TheJob Creation and Worker Assistance Act of 2002 authorized issuance during years2002, 2003 and 2004 of $8 billion of tax-exempt private activity bonds to financethe construction and rehabilitation of nonresidential real property and residentialrental real property in the Liberty Zone of New York City. That Act alsopermitted certain bonds for facilities located in New York City to be advancerefunded one additional time prior to January 1, 2005. The proposal extends theLiberty Zone private activity bond period through 2009, and it extends the periodfor additional advance refunding for one year through 2005.

• QZABs. Under current law, QZABs can be used to fund reconstruction for schoolinfrastructure. This amendment would broaden the provision to allow QZABs tobe used for original construction and land acquisition, not just reconstruction.

• Tribal Bonds. The proposal applies the same rules to tribes issuing tax-exemptbonds to finance facilities on Indian reservations that apply to tax-exempt bondsfor states and local governments. The proposal sunsets on December 31, 2005.

• SBIC UBIT. Under current law, most exempt organizations that invest indebenture SBIC’s are subject to UBIT. The proposal amends the definition ofUBIT to exclude income produced from investments in debenture SBIC’s.

• Civil Rights Tax Fairness Act. Under current law, the entire amount of adiscrimination award is subject to taxation. The proposal would allow an abovethe-line deduction for attorney’s fees associated with discrimination suit awards.

• Section 815. Under present law, distributions to shareholders from apolicyholder’s surplus account of a stock life insurance company are subject totax at the corporate rate. The provision suspends the application of the rulesimposing income tax on distributions to shareholders from the policyholder’ssurplus account of a life insurance company for taxable years beginning in 2004or 2005.

• Tax Reform Commission. Under current law, there is no tax reformcommission. The issue of tax law complexity is an ongoing concern for bothtaxpayers and tax professionals. The proposal will establish a bipartisan 15member Commission to develop recommendations on how to comprehensivelyreform the Federal tax system in a manner that generates appropriate revenue forthe Federal Government.

• Dividend Allocation Rule. Treasury regulations provide that net earnings of acooperative are reduced by dividends paid on capital stock or other proprietarycapital interests. The effect of this rule is to reduce the amount of earnings thatthe cooperative can treat as patronage earnings, which further reduces the amountthat the cooperative can deduct as patronage dividends. The provision wouldallow cooperatives to pay dividends on capital stock without those dividendsreducing excludable patronage income to the extent that the cooperativeorganization’s documents direct that dividends do not reduce amount owed topatrons.

• Livestock Involuntary Conversion. Under current law, cattlemen receive taxfreetreatment under section 1033 if they replace livestock with other farmproperty where there has been drought, flood, or other weather-related conditionswithin two years from the date the livestock has been sold. There are situationswhere cattlemen have sold livestock as a result of weather-related conditions, buthave been unable to purchase replacement property because the weather-relatedconditions have continued. The proposal will extend the period for a taxpayer toreplace livestock sold on account of drought, flood, or other weather-relatedconditions from two years to four years.

• National Health Service Corps. Under current law, payments under the NationalHealth Service Corps loan repayment program are taxable as income for therecipient. The proposal would exempt these payments from tax.

• Rural Letter Carriers. Under current law, the deduction allowed to rural lettercarriers for vehicle use is limited to the amount of qualified reimbursement for theuse of a vehicle. The proposal would allow an itemized deduction forunreimbursed vehicle use expenses incurred in performance of duties.

• Bonus Depreciation for Railcars. Under current law, bonus depreciation isavailable only to the initial user of eligible property. The purchaser of an interestin a pool of leases is treated as the initial user of the underlying property providedthat (1) the property was sold in a sale-leaseback within 3 months of the date theproperty was originally placed in service and (2) the interest in the pool of leaseswere sold within 3 months of the sale-leaseback. This provision liberalizes therules for pooled leasing interests where multiple units of property are subject tothe same lease by providing that the sale of the pooled leasing interests must takeplace within 3 months of the sale-leaseback of the final unit (provided the periodof time between the sale-leaseback of the first unit and the final unit does notexceed one year).

• Tribal New Markets Tax Credit. Currently, New Market Tax Credits (NMTC)are available to Community Development Entities (CDEs) that serve census tractswith poverty rates over 20% or median incomes under 80% of the statewideaverage. The credits are distributed by Treasury through a competitiveapplication process. This amendment would add $50 million annually in NMTCsdedicated to CDEs serving Native American reservations with poverty rates over40%.

• Increase Historic Rehabilitation Credit for Certain Low-Income Housing forthe Elderly. This proposal expands the rehabilition percentage from 20 to 25%when historic structures are rehabilitated to provide qualified low-income housingto seniors over 65. It also allows certain property transitioned in the Tax ReformAct of 1986 and related property to qualify for the low-income housing credit.

• Oldsmobile Involuntary Conversions. Under current law, motor vehicle dealersare subject to income tax if they receive termination payments from anautomobile manufacturer when the manufacturer eliminates a brand of vehiclethey carry. The proposal will provide tax-free treatment to motor vehicle dealersfor termination payments they receive from an automobile manufacturer when themanufacturer eliminates a brand of vehicle they carry if the motor vehicle dealerreinvests the proceeds in property used in a motor vehicle dealership within 2years after the date on which the dealer transfers the vehicles in exchange forthe termination payment.

• Modify FSC/ETI Base Year. The JOBS Act repeals FSC/ETI upon the date ofenactment but provides three years of transition relief to beneficiaries ofFSC/ETI. The amount of the transition relief a taxpayer can receive is based onthat taxpayer's FSC/ETI benefit in the taxable year beginning in 2002. Taxpayersare allowed 80% of that 2002 base year amount in 2004 and 2005, and 60% ofthat amount in 2006. This provision replaces the 2002 base year with a three-yearaverage. Thus, a taxpayer's transition relief will now be based on the averageFSC/ETI benefits received by the taxpayer in its taxable years beginning in 2000,2001, and 2002. The three-year 80/80/60 phase-out and the years of the phase-outare unchanged.

• Renewal Communities. Under current law, the boundaries for RenewalCommunities are based on 1990 census data. The proposal would allow RCs touse 2000 census data to define boundaries.

• Definition of Manufacturer Modifications. Companies are eligible for themanufacturing deduction in the JOBS Act based on their total manufacturingincome. This provision allows the manufacturing deduction with respect to filmand video production income to be calculated on a "product line-by-product line"basis. Thus a separate deduction is calculated with respect to this type ofincome in each of the following three categories: (1) theatrical releases, (2)television, and (3) home video. The deduction for other manufacturing incomewould be calculated without respect to the gross income and expenses in thesethree categories.

• Rail Infrastructure Tax Credits. The provision has two components: (1) itprovides $500 million over 3 years in Federal tax credits (50%) to states toallocate for intercity passenger rail capital projects. Credits are apportioned tostates by a formula to fund projects that provide public benefits and are on a staterail plan. Eligible intercity passenger rail projects include planning, trackrehabilitation, upgrade, development and relocation, security and safety projects,passenger equipment acquisition, station improvement and intermodal facilitiesdevelopment, and environmental review and impact mitigation. Voluntary “arm’slength” agreements between states and railroads for eligible projects are requiredbefore tax credits can be used to improve a property. States may transfer credits toentities with federal tax liability to fund eligible projects; and (2) the proposalprovides $500 million in federal tax credits (50%) directly to shortline andregional railroads for qualified railroad rehabilitation costs. Helps to preserverural, local and regional freight rail service across America. Finally, the proposalmakes $100 million in tax credits available to New York to be used on railinfrastructure projects in the New York Liberty Zone. All three provisions areeffective from January 1, 2005 to December 31, 2007.

• Corporate AMT Relief in Lieu of Bonus and Liberalization of the Use ofGeneral Business Credits. Under present law, if a corporation is subject to theAMT in any year, the amount of tax exceeding the corporation’s regular taxliability is allowed as a credit in any subsequent taxable year to the extent thecorporation’s regular tax liability exceeds its tentative minimum tax. Taxpayersare also allowed to claim certain general business credits to the extent thecorporation’s regular tax liability exceeds its tentative minimum tax (the use ofgeneral business credits is also subject to a further limitation not relevant to thisproposal). Unused general business credits can be carried back one year andforward 20 years. The proposal would allow a corporate taxpayer: (1) to elect toclaim a certain amount of accumulated AMT credits it could not otherwise use inlieu of claiming bonus depreciation, and (2) to use a certain amount of generalbusiness credits generated in a taxable year beginning in 2004 to offset incometax liability without regard to the tentative minimum tax limitation.

• Accumulated Earnings Tax. Under current law, corporations, particularlyclosely-held corporations, are not permitted to accumulate cash or cashequivalents in excess of their business needs in order to avoid distributingdividends. This provision creates a temporary safeharbor by clarifying thatbusiness needs includes cost of goods, taxes, interest, and operating expensesincurred in the preceding year.

• Broadband Modification. The proposal makes two modifications to thebroadband expensing proposal in the JOBS bill: (1) the proposal allows exemptentities to take expensing deductions against UBIT; and (2) the proposal movesthe date of enactment from December 31, 2003 to date of enactment.

• Conservation Bonds. The provision creates a new category of tax-exempt bonds,the “qualified forest conservation bond,” that permits certain nonprofitorganizations to use tax-exempt bond financing to acquire forest and forest land.The maximum aggregate face amount of bonds that may be issued under the pilotprogram is $1.5 billion. The bond must be issued for a qualified organizationbefore December 31, 2006.

• Equestrian Trade or Business Property. Under current law, horses used in atrade or business qualify as section 1231 property and receive favorable capitalgains treatment when they are sold if the horses are held for 24 months from thedate of their acquisition. The amendment will reduce the holding period to 12months from the date of acquisition and will apply to taxable years beginningafter December 31, 2004.

• Corporate Inversions Notification. The provision would require U.S.corporations to provide a separate document to shareholders 5 days before anyshareholder vote on a corporate inversion (i.e., a transaction governed by section441 of the JOBS Act). This document would disclose: (1) the number ofemployees that would be located in the foreign jurisdiction of re-incorporation,(2) how the rights of shareholders would be impacted, and (3) that shareholderswould be subject to tax on their shares upon the inversion.

• Depreciation of Certain Track Facilities. Track facilities would like to betreated similarly to theme and amusement park facilities for purposes ofcategorical asset depreciation. The proposal will provide that these facilities canbe depreciated over 7-years on a prospective basis only.

• Freeze of Provision Regarding Suspension of Interest. Under current law, ifthe Secretary fails to notify a taxpayer of an understatement on a timely-filed taxreturn within a specified period of time, interest on the understatement issuspended until notice is given. For taxable years beginning before 2004, thespecified period is 18 months from the earlier of the date of filing and the duedate. This period is scheduled to be reduced to 12 months for taxable yearsbeginning in 2004. The provision eliminates the 12-month rule and makes the 18-month rule permanent.

• Grant Treasury Authority to Address Certain Foreign Tax CreditTransactions. This provision gives regulatory authority for the TreasuryDepartment to address certain transactions that involve the inappropriateseparation of foreign taxes from the related foreign income. The provision isdesigned to address certain foreign tax credit structures that allow taxpayers tomanipulate the foreign tax credit rules in a manner inconsistent with the provisionof relief from double taxation. It was included in the President's 2005 budgetproposal.

• First Responders. Under current law, there is no additional tax benefit foremployers who continue to pay reservists called to active duty. The proposalwould allow employers to take a 50% tax credit against their FICA taxes forwages paid to first responders who are called up to duty.

• Water conservation tax credit. Under current law, farmers and ranchers candeduct water conservation equipment as an ordinary business expense. Theproposal would allow farmers and ranchers to take a 30% credit for theinstallation of irrigation equipment which reduces water use by five percentcompared to the original equipment. The credit would be limited to land that hasreceived drought assistance during the past three years. The credit is limited to$500 per acre, and is effective for 2005 and 2006.

• New Markets Tax Credits Targeting: New Markets Tax Credits (NMTC) areawarded through a competitive application process to Community DevelopmentEntities (CDEs) that do economic development activities in low-income areas.The CDEs then sell the credits to investors to raise capital for their programactivities. Under current law, a CDE is qualified to apply for NMTC if itprimarily serves a census tract with poverty rate of 20%, or serves a census tractwith median income below 80% of the statewide average. This provision wouldmake eligible applications from CDEs that target a defined high-povertypopulation that is not in a census tract that meets these requirements. Thisprovision does not change the cap on the total amount of NMTCs available.

• New Markets Tax Credits for High Out-Migration Counties: New MarketsTax Credits (NMTC) are awarded through a competitive application process toCommunity Development Entities (CDEs) that do economic developmentactivities in low-income areas. The CDEs then sell the credits to investors torraise capital for their program activities. Under current law, a CDE is qualified toapply for NMTC if it primarily serves a census tract with poverty rate of 20%, orserves a census tract with median income below 80% of the statewideaverage. This provision would make eligible applications from CDEs that targetcensus tracts in rural counties that have lost over 10 percent of their population inthe last 20 years, and that have median income below 85% of the statewideaverage, rather than 80%. This provision does not change the cap on the totalamount of NMTCs available.

• Section 501(c)(15). The proposal modifies the 501(c)(15) provision in the bill toestablish a special rule for small mutual insurance companies. For a mutualinsurance company with fewer than $150,000 in gross receipts, premiums mustmake up at least 35% of gross receipts instead of 50% required under the proposalin the bill.

• Tribal School Bonds. Under current law, there is no class of bonds designatedfor the purpose of encouraging school construction on Indian reservations. Theproposal creates a new class of bonds- “Qualified Tribal Modernization Bonds”-that produce tax credits to the holders in an amount equal to the applicable creditrate multiplied by the outstanding face amount of the bond. In order for the bondto qualify as a Qualified Tribal Modernization Bond, 95% of the net proceedsmust be used for the construction, rehabilitation, or repair of a tribal schoolfacility funded by the Bureau of Indian Affairs.

• Rail Infrastructure Tax Credits. The proposal decreases the amount of 50%federal tax credits available to New York to be used on rail infrastructure projectsin the New York Liberty Zone between January 1, 2005 and December 31, 2007from $300 million to $200 million.

• Permanence of the Work Opportunity Tax Credit (WOTC) and Welfare-to-Work (WTW). The proposal would make permanent a modified combinedcredit, as proposed in S. 1180.

• Permanent Special Rules for Tax of Life Insurance Companies. Permanentrepeal of rules requiring reduction of deductions for mutual life insurancecompanies. The proposal repeals the present-law provision requiring a mutual lifeinsurance company to reduce its deductions by the differential earnings amount(sec. 809).

• CIAC. The amendment would clarify that water and sewerage service lateralswere intended to be included in earlier legislation passed by Congress thatrestored the historical exclusion of contributions in aid of construction (CIAC)from gross income. Specifically, the bill clarifies current law by specificallystating that “customer service fees” are CIAC. It maintains the position thatservice charges for stopping and starting service are not CIAC (and therefore areincluded in gross income). The effective date for the amendment would be forcontributions made after the date of enactment.

• Civil Rights Tax Fairness. The provision clarifies that the change in taxtreatment applies to federal employment cases in addition to state cases.

• Whistleblowers. The proposal provides greater certainty and independent reviewfor whistleblowers who are seeking a cash award for providing assistance to theIRS. In addition, the proposal creates a Whistleblower Office at the IRS that willbe dedicated to working with whistleblowers providing valuable informationabout tax violations.

• Railroad REIT. This measure allows a state-owned and operated railroad that isheld inside a real estate investment trust (REIT) to be converted into a stateowned tax-exempt corporation, with the conversion being treated as a tax-freereorganization.

• Built-In Loss Modification. Sec. 431 of the bill limits the transfer andimportation of built in losses. This provision modifies that section’s effectivedate to apply to transactions after December 31, 2003.

• Subpart F Exception for Active Aircraft and Vessel Leasing. The proposalmoves the effective date for this provision up one year. Thus, the exception foractive aircraft and vessel leasing would be effective for taxable years beginningafter December 31, 2005.

• Postponement of Treasury Regulation 1.883-1. On August 26, 2003, theInternal Revenue Service issued final regulations under section 883 of the InternalRevenue Code to provide an exemption for United States source income earnedby qualified foreign corporations from the international operation of ships andaircraft. The exemption is allowed only if that corporation’s country ofincorporation grants a similar exemption for U.S. owned ships and aircraft.Treasury Regulation 1.883-1 through 1.883-5 identifies items of income thatconstitute income from the international operation of a ship or aircraft and otherincome incidental to such operations. The regulations also establish newstandards for reporting and documentation. These regulations became effective inAugust and are applicable to taxable years beginning on or after September 25,2003. The proposal delays the effective date for Treasury Regulation 1.883-1through 1.883-5 for taxable years beginning after September 24, 2004.

Energy tax Package

• Section 45 Credits for Renewable Electricity Production. The amendmentmirrors the section 45 provision in the Finance Committee bill from 2003. Itvaries from the conference report to H.R. 6 in several respects: (1) no inflationadjustment; (2) no credit for electricity produced from landfill gas; and (3) creditrates and durations were scaled back for several fuel types in the conferencereport. It does include AMT relief for section 45. Certain tax-exemptorganizations (e.g., municipal power authorities, electric cooperatives, and theTennessee Valley Authority) would be eligible to obtain certifications for thesecredits and sell, trade, or assign them, or use them to offset certain debt payments. 
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• Alternative Motor Vehicles and Fuel IncentivesThe alternative vehicles and fuels provisions are similar to the Finance Committeepackage. The package includes several provisions that were dropped inconference, including the new tax credits for electric vehicles, the retail credit foralternative fuels, and the credit for investments in alternative fuel equipment.

o Vehicles Credits. The amendment provides tax credits for the purchaseof three different types of advanced technology vehicles: hybrid motorvehicles, alternative fuel motor vehicles, and fuel cell motor vehicles, andit modifies the current-law credit for electric motor vehicles. In general,the credit amount is determined by calculation of a base credit forattainment of a particular technology and an additional credit if the vehicleattains certain improvements in fuel economy. In addition, all vehicleswould need to meet minimum emissions standards to qualify.

o Hybrid vehicles. Hybrid vehicles run partially on a rechargeable energystorage system (current hybrids use electricity) and partially on an internalcombustion engine (gasoline or diesel). The base credit for purchase of alight duty or passenger hybrid vehicle ranges from $100 to $400,depending on the amount of power the vehicle derives from therechargeable energy source. The credit would be increased by an amountbetween $500 and $3,000 if the vehicle meets certain fuel economyincreases. For passenger and light duty vehicles, the credit would bedetermined as follows:

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o Dedicated alternative fuel vehicles. Alternative fuel vehicles that runexclusively on natural gas, liquified natural gas, ethanol, methanol, andliquified propane gas would qualify for a base credit of 40% of theincremental cost of the vehicle over the vehicle cost when fitted as apetroleum fuel vehicle. The additional credit equals 30% of theincremental cost of the vehicle but is only available if the vehicle meetsthe most stringent emissions standard classification (other than the zeroemissions vehicle classification) under the Clean Air Act. The amount ofthe maximum incremental costs and maximum credit amounts for thealternative fuel vehicles are shown here:

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o Fuel cell vehicles. Fuel cell vehicles use hydrogen fuel to generateelectricity. They are zero emissions vehicles and the only byproduct ofthe chemical electrical production process is water. It is anticipated thatfuel cell vehicles will come to market later in the budget window. Theproposal provides a base credit for fuel cell vehicles of $4,000 for eachqualified light duty vehicle (larger base credits ranging from $10,000 to$40,000 are available for purchase of large trucks and buses). Theadditional credit for passenger and light duty fuel cell vehicles equalsbetween $1,000 and $4,000 if the vehicle meets certain fuel economyincreases (of between 150% and 300+% of 2000 average). No additionalcredit is available for large trucks and buses.

o Battery Electric Vehicles. Battery electric vehicles “plug in” rather thanrecharge on their own like hybrid vehicles. The provision would modifythe current-law credit by extending from 2004 through 2006 and making ita $3,500 base credit. The credit allowable for low-speed electric vehiclesequal to the lesser of 10% of the purchase price or $1,500. The provisionalso allows an additional credit if the vehicle is capable of driving over100 miles on a single charge of the vehicle’s rechargeable energy storagesystem.

• Alternative Fuel and Infrastructure Incentives. The package includesincentives for alternative fuels and alternative fuel refueling infrastructure.

o Infrastructure. The provision allows an installation credit for alternativefuel property, not to exceed $1,000 for residential property and $30,000for retail.

o Alternative fuel incentives. “Alternative fuel” means compressed naturalgas, liquefied natural gas, liquefied petroleum gas, hydrogen, and anyliquid at least 85 percent of the volume of which consists of methanol orethanol. The provision provides retailers with a credit per gallon ofalternative fuel sold by the retailer in 2005 or 2006. The credit amount is50 cents.

o Small ethanol producer credit. The provision clarifies that the smallproducers tax credit flows through to members of a cooperative. It alsochanges the definition of a small producer from a producer whose capacityis 30 million gallons to a producer whose capacity is 60 million gallons. Italso allows the small producer credit to be claimed against the AMT.

• Conservation and Energy Efficiency. The efficiency provisions in the bill trackwhat was in the Senate Finance Committee bill, which is generally broader thanwhat was in the conference report. The package includes (as did the Financepackage) the credit for energy-efficient heating and cooling equipment, the creditfor microturbines, and the deduction for water submeters, which were all droppedin conference. It also includes the full deduction for commercial buildings, thefull credit for residential 30% credit for wind and fuel cells, and the full credit forappliances, which were carved back in the conference report. The one provisionthat is smaller in this bill is the credit for existing energy efficient homes, whichwas expanded during conference negotiations.

Conservation and Efficiency Provisions

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• Clean Coal Incentives. The amendment mirrors the Finance Committee taxpackage. The package includes the production and investment tax credits forclean coal facilities and advanced clean coal facilities. It does not include theshorter amortization period for pollution control equipment, which was addedafter the clean coal incentives were scaled back in conference.

The clean coal tax incentives include three tax credits available to taxpayersreceiving a certificate from the Secretary of the Treasury. The credits apply toelectricity generating facilities totaling no more than 7,500 MW of generatingcapacity nationwide.

o Clean coal production tax credit. The first incentive is a productioncredit for electricity generated from facilities retrofitted, repowered orreplaced with clean coal technology (currently available technology)within 10 years of the date of enactment. The credit is available for 10years to facilities with a capacity of 300 MW or less. Total capacity ofqualifying units is limited to 4,000 MW. Qualifying facilities mustimprove efficiency by 5% and achieve specific emission requirements.The qualifying design heat rate is adjusted for the heat content of the coal.

o Advanced clean coal investment tax credit. The second incentive is a10% investment tax credit for advanced clean coal technology. Qualifyingfacilities must meet certain capacity standards, thermal efficiencystandards, and emissions standards. To qualify for the investment taxcredit, the same facilities must also qualify for the production tax creditfor advanced clean coal technology (described below).

o Advanced clean coal production tax credit. The third incentive is aproduction tax credit for electricity generated from advanced clean coaltechnology units. The credit amount varies depending upon the year thefacility was placed in service, whether the facility produces solelyelectricity or electricity and fuels or chemicals, and the rated thermalefficiency of the facility. The credit would be claimed for a 10-yearperiod commencing with the date the facility is placed in service andwould be reduced for the second 5 years of eligible production. Theinvestment tax credit and production tax credit for advanced clean coaltechnologies are capped together at 4,000 MW nationwide. As noted, afacility must qualify for both credits to receive either credit.

o Certain tax-exempt organizations (e.g., municipal power authorities,electric cooperatives, and the Tennessee Valley Authority) would beeligible to obtain certifications for these credits and sell, trade, or assignthem, or use them to offset certain debt payments.

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• Oil & Gas Provisions. The oil and gas provisions are substantially similar to theFinance Committee bill from 2003 and to the conference report to H.R. 6. Themajor differences from the conference report are as follows: (1) no AMT relieffor intangible drilling costs; (2) more limited section 29 credits for existingfacilities; (3) no AMT relief for gas gathering lines and distribution lines; (4) nosuspension of the 65% of taxable income limitation for purposes of percentagedepletion; and (5) includes Alaska natural gas production tax credit.

o Tax credit for oil and gas production from marginal wells. This is a $3per barrel credit for the production of oil and $0.50 per 1,000 cubic feet ofnatural gas. The credit is only available if the price of oil is below $18 ($2for natural gas). A “qualified marginal well” must satisfy severalrequirements relating to the amount of production and effluent.

o Natural gas gathering lines treated as seven-year property. Theprovision establishes a 7-year recovery period and a class life of 14 yearsfor gathering lines.

o Natural gas distribution lines treated as fifteen-year property. Theprovision establishes a 15-year recovery period and a class life of 35 yearsfor distribution lines.

o Expensing of capital costs incurred and credit for production incomplying with EPA sulfur regulations. These provisions permit smallbusiness refiners to claim an immediate deduction (i.e., expensing) for upto 75 percent of the costs paid to comply with the EPA sulfur regulations.

In addition, a small business refiner may claim a credit equal to 5 cents pergallon. The total production credit is limited to 25 percent of the capitalcosts incurred to come into compliance with the EPA requirements. Asmall business refiner employs not more than 1,500 employees directly inrefining and has average daily refinery runs less than 205,000 barrels. Theallowable deduction and production credit are both phased out on a prorata basis from 155,000 barrels. In addition, the production credit may bepassed through to members of a cooperative. The provision is effectivefor expenses paid after December 31, 2002 and before January 1, 2006.

o Determination of small refiner exception to oil depletion deduction.The provision modifies the definition of small refiners for purposes ofdetermining whether they are eligible for percentage depletion to berefiners with an average daily run less than 60,000 barrels (under currentlaw small refiners are limited to those with daily maximum runs less than50,000 barrels).

o Percentage depletion. The provision extends through 2006 a suspensionof the 100% of net income limit on percentage depletion deduction withrespect to marginal production. Under current law, the amount deductedgenerally may not exceed 100% of the net income from that property inany year. The 100% net-income limitation for marginal wells wassuspended for 1998 through 2003.

o Delay rental payments. This provision allows taxpayers to amortize over2 years “delay rental payments” (payments made by oil and gas producersunder production contracts with mineral owners when the producer delaysmineral production, thus delaying payments of royalties under thecontract).

o Geological and geophysical expenditures (G&G costs). G&G costs areincurred for the purpose of obtaining data when exploring for minerals.The provision allows taxpayers to amortize over 2 years G&G costsincurred in connection with oil and gas exploration in the U.S.

o Section 29. The amendment provides a three-year placed in servicewindow for new wells, at a credit of $3 per barrel (or Btu equivalent) forproduction from all section 29 sources except synthetic fuels from coal(synthetic fuels from coal must meet new requirements). The credit is notadjusted for inflation. All production is subject to a 200,000 cubic feetdaily average cap. The provision also adds viscous oil, refined coal,coalmine gas, and agricultural waste as new nonconventional sources. Forcoalmine methane, the gas may be captured from an existing mine, but themethane capture has to be new. The provision also allows taxpayers toclaim a tax credit on qualifying liquid, gaseous, or solid synthetic fuelsproduced from coal (including lignite) for facilities placed in service afterDecember 31, 2004 and before January 1, 2007. A qualifying fuel mustemit 20% less NOX and either SO2 or mercury than the feedstock, and itmust sell at a price that is 50% higher than the feedstock. The credit isavailable for 5 years of production. Fuel produced from high carbon flyash is included as a qualifying fuel derived from coal. The proposal alsoextends the time period for which the credit may be claimed for certainfuels. Facilities placed in service after December 31, 1979 and beforeJanuary 1, 1993, which produce coke, coke gas, or natural gas andbyproducts produced by coal gasification from lignite, are eligible for thecredit on qualified fuels produced and sold before January 1, 2006, and the200,000 cubic feet limit does not apply to this production. Section 29 isalso added to the list of general business credits, allowing the credit to becarried forward.

o Alaska natural gas. The amendment provides a credit for production ofAlaska natural gas. The proposal provides a credit per million Btu ofnatural gas for Alaska natural gas entering a pipeline during the 15-yearperiod beginning the later of January 1, 2010, or the initial date for theinterstate transportation of Alaska natural gas. Taxpayers may claim thecredit against both the regular and minimum tax. The maximum creditamount for any month is 52-cents (indexed for inflation) per million Btuof natural gas. The credit phases out as the price at the wellhead risesabove 83-cents per million Btu. The credit is not available if the price atthe wellhead rises above $1.35 (indexed for inflation) per million Btu.The bill treats certain Alaska pipeline property as seven-year property,establishing a 7-year recovery period and a class life of 22 years forgathering lines. The bill also adds an investment tax credit for a gastreatment facility in Alaska.

o Safe harbor for natural gas prepayments. The provision creates a safeharbor exception to the general rule that tax-exempt bond-financedprepayments violate the arbitrage restrictions. Certain prepayments fornatural gas are exempt from arbitrage rules and are not treated as privateloans for purposes of the private business tests.

• Electric Utility Restructuring Provisions. The energy tax package does notinclude the provision in the conference agreement to reduce the depreciationperiod for electricity transmission lines.

o Transco. The provision permits a taxpayer to elect to recognize gain froman electric transmission transaction ratably over an 8-year periodbeginning in the year of sale. An electric transmission transaction is thesale or other disposition of property used in the trade or business ofproviding electric transmission services, or an ownership interest in suchan entity, to a FERC approved transmission company prior to January 1,2008.

o Cooperatives. The provision modifies the 85/15 test to ensure thatcooperatives do not lose their tax exempt status because they receiveincome from non-members or participate in “open access” as a result ofderegulation.

o Modify treatment of nuclear decommissioning funds. The proposalmodifies the rules for qualified nuclear decommissioning funds, which arefunds created by a taxpayer, restricted to certain kinds of investments, andused exclusively for payment of decommissioning costs. The proposalrepeals the cost of service requirement for contributions to a qualifiedfund. It clarifies that no gain or loss is recognized upon the transfer ofqualified funds if it is in connection with the transfer of the related powerplant. Finally, the proposal permits the transfer of pre-1984decommissioning costs to a qualified fund.

Additional Provisions

o GAO study. The provision directs GAO to study annually theeffectiveness of the alternative vehicles and fuel incentives and theconservation and energy efficiency provisions. Specifically, it wouldreport on the beneficiaries, the foregone revenue, the energy savings, andthe tangible environmental benefits resulting from the provisions.

o Motor fuel excise tax on railroads and inland waterwaytransportation. The provision amends the Internal Revenue Code of1986 to repeal the 4.3-cent motor fuel excise tax on railroads and inlandwaterway transportation, which remain in the general fund of theTreasury.

o Distributions from publicly-traded partnerships. The provision treatsdistributions as qualifying income of regulated investment companies.Revenue Offsets

• Modification to Leasing Provision. The JOBS Act currently includes aprovision limiting losses with respect to certain leases with tax-exempt entities.The original JOBS Act provision was replaced on the floor by UnanimousConsent with the version of the leasing provision developed by the TreasuryDepartment. The Treasury version accepted by U.C. uses the same loss limitationto deny taxpayers the benefits of covered leases, but it also carves out non-abusiveleases that meet certain criteria. To be carved-out, leases must meet the followingfour criteria: (1) the property may not be financed by tax-exempt bonds, (2) thetax exempt entity may not enter certain types of arrangements to "monetize" itslease obligations, (3) the lessor must make a "substantial" equity investment in theproperty, and (4) the lessee may not bear more than a minimal risk of loss. Thisprovision adds a fifth requirement. In the case of property with more than a 7-year class life, any purchase option must be exercised at a fair market value pricein addition to meeting the other four criteria.

• No Contract Manufacturing for Foreign Base Company Sales. Subpart Frequires the domestic parent of a foreign subsidiary to pay tax currently onforeign base company sales income (FBCSI). FBCSI is, generally, sales incomereceived by a foreign subsidiary located in a country that is neither the origin northe destination of the goods, where the goods are either purchased from or sold toa related party. Under current law, some companies use contract manufacturingarrangements to treat manufacturing that takes place outside the foreign sub'scountry as if it occurred inside the foreign sub's country, thereby avoiding theFBCSI rules. This provision prevents such use of contract manufacturingarrangements to circumvent the FBSCI rules.

• NESTEG Deferred Comp Package. Under current law, compensation deferredunder a nonqualified deferred compensation plan is taxed when there is no longera “substantial risk of forfeiture”. The proposal clarifies that a substantial risk offorfeiture does not exist if distributions can be made for any reason other thanpassage of a certain period of time, termination of employment, death, disabilityor unforeseen hardship, or change of control (subject to a 1 year deferral forsection 16(a) individuals). There is also no substantial risk of forfeiture if fundsare held in an off-shore rabbi trust, or if participants have investment options thatare not comparable to qualified plan investment options. In addition, the gains onstock options or restricted stock cannot be deferred by electing future payment.

• NESTEG Imported Pensions Basis Step Up. Under current law, distributionsfrom retirement plans are generally includible in income, except to the extent theamount received represents investment in the contract (i.e., the participant'sbasis). The proposal ensures that an amount distributed from a foreign pensionplan is included in the calculation of the recipient’s basis only to the extent thatthe recipient previously has been subject to taxation on such amount, either in theUnited States or the foreign jurisdiction.

• SILOs. The proposal changes the effective date of the provision limiting the taxbenefits of leases with tax-exempt entities. The new effective date would applysolely with respect to leases of foreign-use property. Thus, abusive leases ofdomestic-use property would continue to be subject to the loss limitation if thetransaction was undertaken after November 18, 2003. The modification providesthat losses with respect to foreign-use property SILOs would be limited starting in2005, regardless of when the lease was entered into.

• VEETC. Under current law, the excise tax on gasoline is 18.4 cents per gallon.The tax is collected on a quarterly basis using the Form 720. The tax is depositedinto the General Fund (GF). One-tenth of a cent