Federal Register / Vol. 73, No. 186 / Wednesday, September 24, 2008 / Rules and Regulations 54945 

Filer and updating company data are set 

forth in the updated EDGAR Filer 

Manual, Volume I: ‘‘General 

Information,’’ Version 5 (September 

2008). The requirements for filing on 

EDGAR are set forth in the updated 

EDGAR Filer Manual, Volume II: 

‘‘EDGAR Filing,’’ Version 9 (September 

2008). Additional provisions applicable 

to Form N–SAR filers are set forth in the 

EDGAR Filer Manual, Volume III: ‘‘N– 

SAR Supplement,’’ Version 1 

(September 2005). All of these 

provisions have been incorporated by 

reference into the Code of Federal 

Regulations, which action was approved 

by the Director of the Federal Register 

in accordance with 5 U.S.C. 552(a) and 

1 CFR part 51. You must comply with 

these requirements in order for 

documents to be timely received and 

accepted. You can obtain paper copies 

of the EDGAR Filer Manual from the 

following address: Public Reference 

Room, Securities and Exchange 

Commission, 100 F Street, NE., Room 

1580, Washington, DC 20549, on official 

business days between the hours of 10 

am and 3 p.m., or by calling Thomson 

Financial at (800) 638–8241. Electronic 

copies are available on the 

Commission’s Web site. The address for 

the Filer Manual is http://www.sec.gov/ 

info/edgar.shtml. You can also inspect 

the document at the National Archives 

and Records Administration (NARA). 

For information on the availability of 

this material at NARA, call (202) 741– 

6030, or go to: http://www.archives.gov/ 

federal_register/ 

code_of_federal_regulations/ 

ibr_locations.html. 

Dated: September 18, 2008. 

By the Commission. 

J. Lynn Taylor, 

Assistant Secretary. 

[FR Doc. E8–22391 Filed 9–23–08; 8:45 am] 

BILLING CODE 8010–01–P 

DEPARTMENT OF THE TREASURY 

Internal Revenue Service 

26 CFR Part 1 

[TD 9321] 

RIN 1545–BE79 

Application of Section 409A to 

Nonqualified Deferred Compensation 

Plans; Correction 

AGENCY: Internal Revenue Service (IRS), 

Treasury. 

ACTION: Correcting amendment. 

SUMMARY: This document contains 

corrections to final regulations (TD 

9321) which were published in the 

Federal Register on April 17, 2007 (72 

FR 19323). The final regulations relate 

to section 409A and nonqualified 

deferred compensation plans. 

DATES: This correction is effective 

September 24, 2008, and applicable on 

April 17, 2007. 

FOR FURTHER INFORMATION: Guy R. 

Traynor, (202) 622–3693 (not a toll-free 

number). 

SUPPLEMENTARY INFORMATION: 

Background 

The final regulations that are subject 

to this document are under section 

409A of the Internal Revenue Code. 

Need for Correction 

As published, final regulations (TD 

9321) contain errors that may prove to 

be misleading and are in need of 

clarification. 

List of Subjects in 26 CFR Part 1 

Income taxes, Reporting and 

recordkeeping requirements. 

Correction of Publication 

■ Accordingly, 26 CFR part 1 is 

corrected by making the following 

correcting amendment. 

PART 1—INCOME TAXES 

■ Paragraph 1. The authority citation 

for part 1 continues to read as follows: 

Authority: 26 U.S.C. 7805 * * * 

■ Par. 2. Section 1.409A–6, paragraph 

(a)(3)(i) is revised to read as follows: 

§ 1.409A–6 Application of section 409A 

and effective dates. 

* * * * * 

(a) * * * 

(3) * * * 

(i) Nonaccount balance plans. The 

amount of compensation deferred before 

January 1, 2005, under a nonqualified 

deferred compensation plan that is a 

nonaccount balance plan (as defined in 

§ 1.409A–1(c)(2)(i)(C)), equals the 

present value of the amount to which 

the service provider would have been 

entitled under the plan if the service 

provider voluntarily terminated services 

without cause on December 31, 2004, 

and received a payment of the benefits 

available from the plan on the earliest 

possible date allowed under the plan to 

receive a payment of benefits following 

the termination of services, and received 

the benefits in the form with the 

maximum value. 

Notwithstanding the foregoing, for 

any subsequent taxable year of the 

service provider, the grandfathered 

amount may increase to equal the 

present value of the benefit the service 

provider actually becomes entitled to, in 

the form and at the time actually paid, 

determined under the terms of the plan 

(including applicable limits under the 

Internal Revenue Code), as in effect on 

October 3, 2004, without regard to any 

further services rendered by the service 

provider after December 31, 2004, or 

any other events affecting the amount of 

or the entitlement to benefits (other than 

a participant election with respect to the 

time or form of an available benefit). For 

purposes of calculation the present 

value of a benefit under this paragraph 

(c)(3)(i), reasonable actuarial 

assumptions and methods must be used. 

Whether assumptions and methods are 

reasonable for this purpose is 

determined as of each date the benefit 

is valued for purposes of determining 

the grandfathered benefit, provided that 

any reasonable actuarial assumptions 

and methods that were used by the 

service recipient with respect to such 

benefit as of December 31, 2004, will 

continue to be treated as reasonable 

assumptions and methods for purposes 

of calculating the grandfathered benefit. 

Actuarial assumptions and methods 

will be presumed reasonable if they are 

the same as those used to value benefits 

under a qualified plan sponsored by the 

service recipient the benefits under 

which are part of the benefit formula 

under, or otherwise impact the amount 

of benefits under, the nonaccount 

balance nonqualified deferred 

compensation plan. 

* * * * * 

Guy R. Traynor, 

Federal Register Liaison, Legal Processing 

Division, Associate Chief Counsel (Procedure 

and Administration). 

[FR Doc. E8–22383 Filed 9–23–08; 8:45 am] 

BILLING CODE 4830–01–P 

DEPARTMENT OF THE TREASURY 

Internal Revenue Service 

26 CFR Part 1 

[TD 9422] 

RIN 1545–BE95 

S Corporation Guidance Under AJCA 

of 2004 and GOZA of 2005; Correction 

AGENCY: Internal Revenue Service (IRS), 

Treasury. 

ACTION: Correction to final regulations. 

SUMMARY: This document contains a 

correction to final regulations (TD 9422) 

that were published in the Federal 

Register on Thursday, August 14, 2008 

(73 FR 47526) providing guidance 


rwilkins on PROD1PC63 with RULES
54946 Federal Register / Vol. 73, No. 186 / Wednesday, September 24, 2008 / Rules and Regulations 

regarding certain changes made to the 

rules governing S corporations under 

the American Jobs Creation Act of 2004 

and the Gulf Opportunity Zone Act of 

2005. The final regulations replace 

obsolete references in the current 

regulations and allow taxpayers to make 

proper use of the provisions that made 

changes to prior law. The final 

regulations include guidance on the S 

corporation family shareholder rules, 

the definitions of ‘‘powers of 

appointment’’ and ‘‘potential current 

beneficiaries’’ (PCBs) with regard to 

electing small business trusts (ESBTs), 

the allowance of suspended losses to the 

spouse or former spouse of an S 

corporation shareholder, and relief for 

inadvertently terminated or invalid 

qualified subchapter S subsidiary 

(QSub) elections. The final regulations 

affect S corporations and their 

shareholders. 

DATES: The correction is effective 

September 24, 2008, and is applicable 

on August 14, 2008. 

FOR FURTHER INFORMATION CONTACT: 

Charles J. Langley, Jr., (202) 622–3060, 

(not a toll-free number). 

SUPPLEMENTARY INFORMATION: 

Background 

The final regulations (TD 9422) that 

are the subject of this correction are 

under sections 1361, 1362, and 1366 of 

the Internal Revenue Code. 

Need for Correction 

As published, the final regulations 

(TD 9422) contain an error that may 

prove to be misleading and is in need 

of clarification. 

Correction of Publication 

Accordingly, the publication of the 

final regulations (TD 9422), which was 

the subject of FR Doc. E8–18782, is 

corrected as follows: 

On page 47527, column 3, in the 

preamble, under the paragraph heading 

‘‘Drafting Information’’, line 2, the 

language ‘‘proposed regulations is 

Charles J.’’ is corrected to read 

‘‘regulations is Charles J.’’. 

LaNita Van Dyke, 

Chief, Publications and Regulations Branch, 

Legal Processing Division, Associate Chief 

Counsel (Procedure and Administration). 

[FR Doc. E8-22381 Filed 9–23–08; 8:45 am] 

BILLING CODE 4830–01–P 

DEPARTMENT OF JUSTICE 

28 CFR Part 0 

[Docket No. ENRD 100; AG Order No. 3001– 

2008] 

Authority To Compromise Civil Claims 

Under the Comprehensive 

Environmental Response, 

Compensation and Liability Act and To 

Make an Administrative Change to the 

Code of Federal Regulations 

AGENCY: Department of Justice. 

ACTION: Final rule. 

SUMMARY: This rule amends our 

regulations to reflect the name of the 

Environment and Natural Resources 

Division, which was formerly known as 

the Land and Natural Resources 

Division. The Department of Justice 

officially changed the name of the 

Division in the early 1990s, but all of 

the pertinent parts of part 0 were not 

amended accordingly. 

This order further amends our 

regulations to authorize the Assistant 

Attorney General for the Environment 

and Natural Resources Division to 

approve certain settlements under the 

Comprehensive Environmental 

Response, Compensation and Liability 

Act (CERCLA). 

DATES: Effective Date: September 24, 

2008. 

FOR FURTHER INFORMATION CONTACT: 

Bruce S. Gelber, Chief, Environmental 

Enforcement Section, Environment and 

Natural Resources Division, Department 

of Justice, P.O. Box 7611, Washington, 

DC 20044–7611 (202–514–4624). 

SUPPLEMENTARY INFORMATION: In subpart 

Y of 28 CFR part 0, the Attorney General 

has delegated to the various Assistant 

Attorneys General certain of his 

authority to compromise and close civil 

claims. Section 0.160(a)(1) authorizes 

the various Assistant Attorneys General 

to ‘‘[a]ccept offers in compromise of 

claims asserted by the United States in 

all cases in which the difference 

between the gross amount of the original 

claim and the proposed settlement does 

not exceed $2,000,000 or 15 percent of 

the original claim, whichever is 

greater.’’ 

Administrative Changes 

In the early 1990s, the name of the 

Land and Natural Resources Division 

was changed to the Environment and 

Natural Resources Division to better 

reflect the broader responsibilities of the 

Division since its inception in 1909. The 

administrative change in this rule 

corrects the name of the Division 

throughout part 0, where the former 

name remains. 

Changes to Section 0.160 

CERCLA was enacted in 1980 in 

response to the discovery of significant 

human health hazards at a number of 

sites where hazardous wastes had been 

dumped or buried. Public Law 96–510 

(42 U.S.C. 9601, et seq.). The law 

created a ‘‘Superfund’’ to help pay the 

costs of investigating and cleaning up 

these sites, 26 U.S.C. 9507, and also 

imposed liability for the costs of 

cleanup on the parties who were 

responsible for creating these sites, 42 

U.S.C. 9607(a). These parties (referred to 

collectively as ‘‘potentially responsible 

parties’’) include: The current owners 

and operators of a facility from which 

there is a release or threatened release 

of a hazardous substance into the 

environment; those who owned or 

operated the facility at the time 

hazardous substances were disposed of 

at that facility; those who generated the 

hazardous substances and arranged for 

their treatment or disposal by a third 

party; and those who transported the 

hazardous substances for treatment or 

disposal, if they selected the site. 42 

U.S.C. 9607(a). 

While the courts have agreed 

uniformly that liability under CERCLA 

is joint and several when the harm at 

the site is indivisible, 42 U.S.C. 9613(f) 

provides for the equitable allocation of 

response costs among the jointly and 

severally liable parties. A single case 

under CERCLA can involve numerous 

(sometimes hundreds of) separate 

responsible parties whose liability can 

be equitably allocated or determined to 

be de minimis for purposes of reaching 

a settlement of their liability. Indeed, 

Congress encourages the Environmental 

Protection Agency to reach expedited 

settlements with de minimis parties. 42 

U.S.C. 9622(g). However, based on the 

total claim at the site, some of these 

settlements will result in differences 

between the original claim and the 

proposed settlement that are greater 

than $2 million (or 15 percent of the 

original claim). Many settlements are 

made with parties who do not have the 

financial ability to pay the equitable 

allocated amount. Some non-de minimis 

settlements result in compromises of 

our original claim as a result of the 

responsible party’s ability to pay. These 

types of settlements with individual 

parties are common in multi-party 

CERCLA litigation and seldom raise 

issues significant enough to warrant 

Associate Attorney General review. In 

order to increase efficiency in the 

approval process, this rule amends 

Section 0.160 of Subpart Y to authorize 

the Assistant Attorney General, 

Environment and Natural Resources 


rwilkins on PROD1PC63 with RULES