I 
112TH CONGRESS 
2D SESSION 
H. R. 5746 
To amend the Internal Revenue Code of 1986 to modify certain rules 
applicable to real estate investment trusts, and for other purposes. 
IN THE HOUSE OF REPRESENTATIVES 
MAY 15, 2012 
Mr. TIBERI (for himself, Mr. NEAL, Mr. SAM JOHNSON of Texas, Mr. RAN-
GEL, Mr. NUNES, Mr. STARK, Mr. REICHERT, Mr. LEWIS of Georgia, Mr. 
ROSKAM, Mr. BLUMENAUER, Mr. GERLACH, Mr. KIND, Mr. SCHOCK, Mr. 
CROWLEY, Ms. JENKINS, and Mr. PAULSEN) introduced the following 
bill; which was referred to the Committee on Ways and Means 
A BILL 
To amend the Internal Revenue Code of 1986 to modify 
certain rules applicable to real estate investment trusts, 
and for other purposes. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE; ETC. 
(a) SHORT TITLE.—This Act may be cited as the 
‘‘Update and Streamline REIT Act of 2012’’ or the ‘‘US 
REIT Act of 2012’’. 
(b) AMENDMENT OF 1986 CODE.—Except as other-
wise expressly provided, whenever in this Act an amend-
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ment or repeal is expressed in terms of an amendment 
to, or repeal of, a section or other provision, the reference 
shall be considered to be made to a section or other provi-
sion of the Internal Revenue Code of 1986. 
(c) TABLE OF CONTENTS.—The table of contents for 
this Act is as follows: 
Sec. 1. Short title; etc. 
TITLE I—UPDATE OF PROHIBITED TRANSACTION AND RELATED 
PROVISIONS 
Sec. 101. Prohibited transaction safe harbors. 
Sec. 102. Treatment of taxable REIT subsidiaries. 
TITLE II—PREFERENTIAL AND DESIGNATED DIVIDENDS 
Sec. 201. Repeal of preferential dividend rule for publicly offered REITs. 
Sec. 202. Authority for alternative remedies to address certain failures. 
Sec. 203. Treatment of interest-related dividends of specified REITs. 
Sec. 204. Limitations on designation of dividends. 
TITLE III—UPDATE AND MODIFICATION OF REIT INCOME AND 
ASSET TESTS 
Sec. 301. Debt instruments of publicly offered REITs and mortgages treated 
as real estate assets. 
Sec. 302. Asset and income test clarification regarding ancillary personal prop-
erty. 
Sec. 303. Special rules for treatment of timber gains made permanent. 
Sec. 304. Treatment of mineral royalty income as qualifying income. 
Sec. 305. Hedging provisions. 
TITLE IV—EARNINGS AND PROFITS OF REAL ESTATE 
INVESTMENT TRUSTS 
Sec. 401. Modification of real estate investment trust earnings and profits cal-
culation to avoid duplicate taxation. 
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TITLE I—UPDATE OF PROHIB-
ITED TRANSACTION AND RE-
LATED PROVISIONS 
SEC. 101. PROHIBITED TRANSACTION SAFE HARBORS. 
(a) ALTERNATIVE 3-YEAR AVERAGING TEST
FOR 
PERCENTAGE OF ASSETS THAT CAN BE SOLD ANNU-
ALLY.— 
(1) IN
GENERAL.—Clause (iii) of section 
857(b)(6)C) is amended by inserting before the 
semicolon at the end the following: ‘‘, or (IV) the 
trust satisfies the requirements of subclause (II) ap-
plied by substituting ‘20 percent’ for ‘10 percent’ 
and the 3-year average adjusted bases percentage 
for the taxable year (as defined in subparagraph 
(G)) does not exceed 10 percent, or (V) the trust 
satisfies the requirements of subclause (III) applied 
by substituting ‘20 percent’ for ‘10 percent’ and the 
3-year average fair market value percentage for the 
taxable year (as defined in subparagraph (H)) does 
not exceed 10 percent’’. 
(2) 3-YEAR
AVERAGE
ADJUSTED
BASES
AND 
FAIR
MARKET
VALUE
PERCENTAGES.—Paragraph 
(6) of section 857(b) is amended by redesignating 
subparagraphs (G) and (H) as subparagraphs (I) 
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and (J), respectively, and by inserting after subpara-
graph (F) the following new subparagraphs: 
‘‘(G) 3-YEAR AVERAGE ADJUSTED BASES 
PERCENTAGE.—The term ‘3-year average ad-
justed bases percentage’ means, with respect to 
any taxable year, the ratio (expressed as a per-
centage) of— 
‘‘(i) the aggregate adjusted bases (as 
determined for purposes of computing 
earnings and profits) of property (other 
than sales of foreclosure property or sales 
to which section 1033 applies) sold during 
the 3 taxable year period ending with such 
taxable year, divided by 
‘‘(ii) the sum of the aggregate ad-
justed bases (as so determined) of all of 
the assets of the trust as of the beginning 
of each of the 3 taxable years which are 
part of the period referred to in clause (i). 
‘‘(H) 3-YEAR
AVERAGE
FAIR
MARKET 
VALUE PERCENTAGE.—The term ‘3-year aver-
age fair market value percentage’ means, with 
respect to any taxable year, the ratio (expressed 
as a percentage) of— 
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‘‘(i) the fair market value of property 
(other than sales of foreclosure property or 
sales to which section 1033 applies) sold 
during the 3 taxable year period ending 
with such taxable year, divided by 
‘‘(ii) the sum of the fair market value 
of all of the assets of the trust as of the 
beginning of each of the 3 taxable years 
which are part of the period referred to in 
clause (i).’’. 
(3) CONFORMING
AMENDMENTS.—Clause (iv) 
of section 857(b)(6)(D) is amended by adding ‘‘or’’ 
at the end of subclause (III) and by adding at the 
end the following new subclauses: 
‘‘(IV) the trust satisfies the re-
quirements of subclause (II) applied 
by substituting ‘20 percent’ for ‘10 
percent’ and the 3-year average ad-
justed bases percentage for the tax-
able year (as defined in subparagraph 
(G)) does not exceed 10 percent, or 
‘‘(V) the trust satisfies the re-
quirements of subclause (III) applied 
by substituting ‘20 percent’ for ‘10 
percent’ and the 3-year average fair 
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market value percentage for the tax-
able year (as defined in subparagraph 
(H)) does not exceed 10 percent,’’. 
(b) APPLICATION OF SAFE HARBORS INDEPENDENT 
OF DETERMINATION WHETHER REAL ESTATE ASSET IS 
INVENTORY PROPERTY.— 
(1) IN GENERAL.—Subparagraphs (C) and (D) 
of section 857(b)(6) are each amended by striking 
‘‘and which is described in section 1221(a)(1)’’ in 
the matter preceding clause (i). 
(2) NO
INFERENCE
FROM
SAFE
HARBORS.— 
Subparagraph (F) of section 857(b)(6) is amended 
to read as follows: 
‘‘(F) NO INFERENCE WITH RESPECT TO 
TREATMENT
AS
INVENTORY
PROPERTY.—The 
determination of whether property is described 
in section 1221(a)(1) shall be made without re-
gard to this paragraph.’’. 
(c) EFFECTIVE DATES.— 
(1) IN GENERAL.—The amendments made by 
subsection (a) shall apply to taxable years beginning 
after the date of the enactment of this Act. 
(2) APPLICATION OF SAFE HARBORS.— 
(A) IN GENERAL.—Except as provided in 
subparagraph (B), the amendments made by 
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subsection (b) shall take effect as if included in 
section 3051 of the Housing Assistance Tax 
Act of 2008. 
(B) RETROACTIVE APPLICATION OF NO IN-
FERENCE NOT APPLICABLE TO CERTAIN TIM-
BER PROPERTY PREVIOUSLY TREATED AS NOT 
INVENTORY PROPERTY.—The amendment made 
by subsection (b)(2) shall not apply to any sale 
of property to which section 857(b)(6)(G) of the 
Internal Revenue Code of 1986 (as in effect on 
the day before the date of the enactment of this 
Act) applies. 
SEC. 102. TREATMENT OF TAXABLE REIT SUBSIDIARIES. 
(a) TAXABLE REIT SUBSIDIARIES TREATED
IN 
SAME MANNER
AS INDEPENDENT CONTRACTORS
FOR 
CERTAIN PURPOSES.— 
(1) MARKETING AND DEVELOPMENT EXPENSES 
UNDER RENTAL PROPERTY SAFE HARBOR.—Clause 
(v) of section 857(b)(6)(C) is amended by inserting 
‘‘or by a taxable REIT subsidiary’’ before the period 
at the end. 
(2) RULE FOR MARKETING EXPENSES UNDER 
TIMBER PROPERTY SAFE HARBOR REINSTATED AND 
MADE
PERMANENT.—Clause 
(v) 
of 
section 
857(b)(6)(D) is amended by striking ‘‘, or, in the 
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case of a sale on or before the termination date,’’ 
and inserting ‘‘or by’’. 
(3) FORECLOSURE PROPERTY GRACE PERIOD.— 
Subparagraph (C) of section 856(e)(4) is amended 
by inserting ‘‘or through a taxable REIT subsidiary’’ 
after ‘‘receive any income’’. 
(b) TAX
ON REDETERMINED TRS SERVICE IN-
COME.— 
(1) IN GENERAL.—Subparagraph (A) of section 
857(b)(7) is amended by striking ‘‘and excess inter-
est’’ and inserting ‘‘excess interest, and redeter-
mined TRS service income’’. 
(2) REDETERMINED
TRS
SERVICE
INCOME.— 
Paragraph (7) of section 857(b) is amended by re-
designating subparagraphs (E) and (F) as subpara-
graphs (F) and (G), respectively, and inserting after 
subparagraph (D) the following new subparagraph: 
‘‘(E) REDETERMINED
TRS
SERVICE
IN-
COME.— 
‘‘(i) IN GENERAL.—The term ‘redeter-
mined TRS service income’ means gross 
income of a taxable REIT subsidiary of a 
real estate investment trust attributable to 
services provided to, or on behalf of, such 
trust (less deductions properly allocable 
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thereto) to the extent the amount of such 
income (less such deductions) would (but 
for subparagraph (F)) be increased on dis-
tribution, apportionment, or allocation 
under section 482. 
‘‘(ii) COORDINATION WITH REDETER-
MINED RENTS.—Clause (i) shall not apply 
with respect to gross income attributable 
to services furnished or rendered to a ten-
ant of the real estate investment trust (or 
to deductions properly allocable thereto).’’. 
(3) 
CONFORMING
AMENDMENTS.—Subpara-
graphs (B)(i) and (C) of section 857(b)(7) are each 
amended by striking ‘‘subparagraph (E)’’ and insert-
ing ‘‘subparagraph (F)’’. 
(c) EFFECTIVE DATE.—The amendments made by 
this section shall apply to taxable years beginning after 
the date of the enactment of this Act. 
TITLE II—PREFERENTIAL AND 
DESIGNATED DIVIDENDS 
SEC. 201. REPEAL OF PREFERENTIAL DIVIDEND RULE FOR 
PUBLICLY OFFERED REITS. 
(a) IN GENERAL.—Subsection (c) of section 562 is 
amended by inserting ‘‘or a publicly offered REIT (as de-
fined in section 856(c)(5)(K))’’ after ‘‘a publicly offered 
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regulated investment company (as defined in section 
67(c)(2)(B))’’. 
(b) EFFECTIVE DATE.—The amendment made by 
this section shall apply to distributions in taxable years 
beginning after the date of the enactment of this Act. 
SEC. 202. AUTHORITY FOR ALTERNATIVE REMEDIES TO AD-
DRESS CERTAIN FAILURES. 
(a) IN GENERAL.—Subsection (e) of section 562 is 
amended— 
(1) by striking ‘‘In the case of a real estate in-
vestment trust’’ and inserting the following: 
‘‘(1) DETERMINATION OF EARNINGS AND PROF-
ITS
FOR
PURPOSES
OF
DIVIDENDS
PAID
DEDUC-
TION.—In the case of a real estate investment 
trust’’, and 
(2) by adding at the end the following new 
paragraph: 
‘‘(2) AUTHORITY
TO
PROVIDE
ALTERNATIVE 
REMEDIES FOR CERTAIN FAILURES.—In the case of 
a failure of a distribution by a real estate investment 
trust to comply with the requirements of subsection 
(c), the Secretary may provide an appropriate rem-
edy to cure such failure in lieu of not considering 
the distribution to be a dividend for purposes of 
computing the dividends paid deduction if— 
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‘‘(A) the Secretary determines that such 
failure is inadvertent or is due to reasonable 
cause and not due to willful neglect, or 
‘‘(B) such failure is of a type of failure 
which the Secretary has identified for purposes 
of this paragraph as being described in sub-
paragraph (A).’’. 
(b) EFFECTIVE DATE.—The amendments made by 
this section shall apply to distributions in taxable years 
beginning after the date of the enactment of this Act. 
SEC. 203. TREATMENT OF INTEREST-RELATED DIVIDENDS 
OF SPECIFIED REITS. 
(a) NONRESIDENT ALIEN INDIVIDUALS.— 
(1) IN GENERAL.—Section 871 is amended by 
redesignating subsection (n) as subsection (o) and 
by inserting after subsection (m) the following new 
subsection: 
‘‘(n) INTEREST-RELATED DIVIDENDS OF SPECIFIED 
REITS.— 
‘‘(1) IN GENERAL.—Except as provided in para-
graph (2), no tax shall be imposed under paragraph 
(1)(A) of subsection (a) on any interest-related divi-
dend received from a specified REIT. 
‘‘(2) EXCEPTIONS.—Paragraph (1) shall not 
apply to any dividend described in subsection 
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(k)(1)(B) (determined by treating the specified 
REIT as a regulated investment company). 
‘‘(3) INTEREST-RELATED DIVIDEND.—For pur-
poses of this subsection— 
‘‘(A) IN GENERAL.—The term ‘interest-re-
lated dividend’ means any dividend (or part 
thereof) which is designated by the specified 
REIT as an interest-related dividend in a writ-
ten notice mailed to its shareholders or holders 
of beneficial interests before the expiration of 
60 days after the close of its taxable year. 
‘‘(B) EXCESS REPORTED AMOUNT.—If the 
aggregate amount so designated with respect to 
a taxable year of the trust (including amounts 
so designated with respect to dividends paid 
after the close of the taxable year described in 
section 858) is greater than the qualified net 
interest income of the trust for such taxable 
year, the portion of each distribution which 
shall be an interest-related dividend shall be 
only that portion of the amounts so designated 
which such qualified net interest income bears 
to the aggregate amount so designated. 
‘‘(C) 
QUALIFIED
NET
INTEREST
IN-
COME.—The term ‘qualified net interest in-
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come’ has the meaning given such term by sub-
section (k)(1)(D) (determined by treating the 
specified REIT as a regulated investment com-
pany). 
‘‘(D) TERMINATION.—The term ‘interest- 
related dividend’ shall not include any dividend 
with respect to any taxable year of the trust be-
ginning after the date set forth in clause (v) of 
subsection (k)(1)(C). 
‘‘(4) SPECIFIED
REIT.—For purposes of this 
subsection, the term ‘specified REIT’ means any 
publicly offered REIT (as defined in section 
856(c)(5)(K)) other than any real estate investment 
trust with respect to which any foreign person owns 
(within the meaning of section 856(d)(5)) 50 percent 
or more (determined by vote or value) of the shares, 
or certificates of beneficial interest, in such trust.’’. 
(2) CONFORMING AMENDMENT.—Clause (iv) of 
section 871(k)(1)(E) is amended by striking ‘‘an-
other regulated investment company’’ and inserting 
‘‘a regulated investment company or a specified 
REIT (as defined in subsection (n)(4))’’. 
(b) FOREIGN
CORPORATIONS.—Section 881 is 
amended by redesignating subsection (f) as subsection (g) 
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and by inserting after subsection (e) the following new 
subsection: 
‘‘(f) TAX NOT TO APPLY TO INTEREST-RELATED 
DIVIDENDS OF SPECIFIED REITS.— 
‘‘(1) IN GENERAL.—Except as provided in para-
graph (2), no tax shall be imposed under paragraph 
(1) of subsection (a) on any interest-related dividend 
(as defined in section 871(n)(3)) received from a 
specified REIT (as defined in section 871(n)(4)). 
‘‘(2) EXCEPTIONS AND SPECIAL RULES.—Rules 
similar to the rules of subparagraphs (B) and (C) of 
subsection (e)(1) shall apply for purposes of this 
subsection (determined by treating the specified 
REIT as a regulated investment company).’’. 
(c) WITHHOLDING.— 
(1) NONRESIDENT ALIENS.—Paragraph (12) of 
section 1441(c) is amended— 
(A) by striking ‘‘section 871(k)’’ in sub-
paragraph (A) and inserting ‘‘subsection (k) or 
(n) of section 871’’, 
(B) by inserting ‘‘or real estate investment 
trust (as the case may be)’’ after ‘‘regulated in-
vestment company’’ in subparagraph (B), and 
(C) by striking ‘‘REGULATED INVESTMENT 
COMPANIES’’ in the heading thereof and insert-
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ing ‘‘REGULATED INVESTMENT COMPANIES AND 
REAL ESTATE INVESTMENT TRUSTS’’. 
(2) FOREIGN
CORPORATIONS.—Subsection (a) 
of section 1442 is amended— 
(A) by striking ‘‘sections 871(a) and 
871(k)’’ and inserting ‘‘subsections (a), (k), and 
(n) of section 871’’, 
(B) by striking ‘‘sections 881(a) and 
881(e)’’ and inserting ‘‘subsections (a), (e), and 
(f) of section 881’’, and 
(C) by inserting ‘‘or real estate investment 
trust (as the case may be)’’ after ‘‘regulated in-
vestment company’’. 
(d) EFFECTIVE DATE.— 
(1) IN GENERAL.—The amendments made by 
this section shall apply to distributions made after 
the date of the enactment of this Act. 
(2) TRANSITION RULE.—In the case of a tax-
able year which includes the date of the enactment 
of this Act, qualified net interest income (as defined 
in section 871(n)(3)(C) of the Internal Revenue 
Code of 1986, as added by this section) shall be de-
termined by taking into account only items properly 
includible in gross income for the portion of such 
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taxable year after such date (and deductions prop-
erly allocable to such income). 
SEC. 204. LIMITATIONS ON DESIGNATION OF DIVIDENDS. 
(a) IN GENERAL.—Section 857 is amended by redes-
ignating subsection (g) as subsection (h) and by inserting 
after subsection (f) the following new subsection: 
‘‘(g) LIMITATIONS
ON
DESIGNATION
OF
DIVI-
DENDS.— 
‘‘(1) OVERALL
LIMITATION.—The aggregate 
amount of dividends designated by a real estate in-
vestment trust under section 857(b)(3)(C), section 
857(c)(2)(A), and section 871(n)(3) with respect to 
any taxable year may not exceed the dividends paid 
by such trust with respect to such year. For pur-
poses of the preceding sentence, dividends paid after 
the close of the taxable year described in section 858 
shall be treated as paid with respect to such year. 
‘‘(2) PROPORTIONALITY.—The Secretary may 
prescribe regulations or other guidance requiring the 
proportionality of the designation of particular types 
of dividends among shares or beneficial interests of 
a real estate investment trust.’’. 
(b) EFFECTIVE DATE.—The amendments made by 
this section shall apply to distributions in taxable years 
beginning after the date of the enactment of this Act. 
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TITLE III—UPDATE AND MODI-
FICATION OF REIT INCOME 
AND ASSET TESTS 
SEC. 301. DEBT INSTRUMENTS OF PUBLICLY OFFERED 
REITS AND MORTGAGES TREATED AS REAL 
ESTATE ASSETS. 
(a) DEBT INSTRUMENTS
OF PUBLICLY OFFERED 
REITS TREATED AS REAL ESTATE ASSETS.— 
(1) IN GENERAL.—Subparagraph (B) of section 
856(c)(5) is amended— 
(A) by striking ‘‘and shares’’ and inserting 
‘‘, shares’’, and 
(B) by inserting ‘‘, and debt instruments 
issued by publicly offered REITs’’ before the 
period at the end of the first sentence. 
(2) INCOME
FROM
NONQUALIFIED
DEBT
IN-
STRUMENTS
OF
PUBLICLY
OFFERED
REITS
NOT 
QUALIFIED FOR PURPOSES OF SATISFYING THE 75 
PERCENT GROSS INCOME TEST.—Subparagraph (H) 
of section 856(c)(3) is amended by inserting ‘‘(other 
than a nonqualified publicly offered REIT debt in-
strument)’’ after ‘‘real estate asset’’. 
(3) 25 PERCENT ASSET LIMITATION ON HOLD-
ING OF NONQUALIFIED DEBT INSTRUMENTS OF PUB-
LICLY OFFERED REITS.—Subparagraph (B) of sec-
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