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Federal Register / Vol. 86, No. 111 / Friday, June 11, 2021 / Rules and Regulations Background Section 205 of the Taxpayer Certainty and Disaster Tax Relief Act of 2019, enacted as Division Q of the Further Consolidated Appropriations Act, 2020, Public Law 11694, 133 Stat. 2534, 3226, amended section 7508A of the Code, relating to the discretionary authority of the Secretary of the Treasury or her delegate Secretary to postpone certain time-sensitive tax deadlines by reason of a federally declared disaster, by adding section 7508Ad. This provision provides qualified taxpayers a mandatory 60-day period that is to be disregarded in the same manner as a period specified under section 7508Aa.
On January 13, 2021, the IRS
published in the Federal Register a notice of proposed rulemaking REG
11505720, 86 FR 2607 to interpret and implement sections 165i5 and 7508Ad. Five responsive written comments were received. No commenter requested a public hearing, so none was held.
As described more fully in the preamble to the proposed regulations, section 7508Ad is ambiguous in at least two important respectsthe timesensitive acts to be postponed beyond the pension-related actions described in section 7508Ad4 are not specified and it is unclear how the mandatory 60day postponement period is to be calculated when the disaster declaration specified in section 7508Ad does not contain an incident date. The legislative history is also insufficient to explain these areas of ambiguity.
These final regulations amend the Procedure and Administration Regulations 26 CFR part 301 under section 7508A and the Income Tax Regulations 26 CFR part 1 under section 165 to clarify the definition of the term federally declared disaster.
As described further below, the Department of the Treasury Treasury Department and the IRS have modified proposed 301.7508A1g4iii, Example 3, in these final regulations to better illustrate the calculation of the mandatory 60-day postponement period and to correct typographical errors. No other changes have been adopted.

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Comments on the Proposed Regulations Section 1.16511b1
The proposed regulations provided that a federally declared disaster includes both a major disaster and an emergency declared under sections 401
or 501, respectively, of the Robert T.
Stafford Disaster Relief and Emergency Assistance Act Stafford Act, Public Law 100707,102 Stat. 4689 1988.

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One commenter said it approved of the proposed regulations including emergency declarations in the definition of a federally declared disaster under section 165i5A. However, another commenter was critical of this portion of the proposed regulations and recommended that it be stricken. This second commenter said emergency declarations are governed by a different set of rules than major disaster declarations, pointing out that emergency declarations i do not need to be preceded by a governors request for Stafford Act relief but may instead be declared sua sponte by the President, ii may only result if not followed up by a major disaster declaration in Federal assistance to local governmental entities as opposed to assistance to individuals, and iii may be issued before a disaster. This commenter further opined that President Trumps letter of March 13, 2020, declaring an emergency under the Stafford Act with respect to the COVID
19 pandemic, was not authorized by Congress to serve as a disaster declaration under sections 165i5A
and 7508A of the Code.
The comment from the second commenter is not adopted in the final regulations. In the Explanation of Provisions section of the preamble to the proposed regulations, Part III.
Federally Declared Disasters, this issue is already addressed in detail. There is no provision in the Stafford Act to declare a disaster. The legislative history of the Stafford Act indicates that the term disaster is an umbrella term that includes both an emergency and a major disaster. The Conference Report to the Disaster Relief and Emergency Assistance Act of 1974, Public Law 93
288, 88 Stat. 143 1974, clarified the definitional section of the Stafford Act, stating: It was the intention of the conferees not to define the term disaster specifically; whenever used in this legislation such term includes an emergency or a major disaster. H.R.
Rep. 931037, p. 26 May 13, 1974.
The opening section of the Stafford Act, titled Congressional findings and declarations, uses the generic term disaster in laying out the key congressional findings and declarations that underlie the rest of the chapters provisions. Stafford Act section 101a, 42 U.S.C. 5121a. In multiple revenue rulings, the IRS has provided that, for the purposes of section 165i, a federally declared disaster includes an emergency or a major disaster declared under the Stafford Act. Several of these revenue rulings are cited in the preamble to the proposed regulations.

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The differences noted by the commenter between emergencies and major disasters under the Stafford Act are not material to their treatment under sections 165i5A and 7508A of the Code. Most disaster declarations announced by the Federal Emergency Management Agency FEMA for particular states also provide only public assistance, and no individual assistance, to particular counties in the state under the Stafford Act. In addition, most emergency declarations announced by FEMA are under section 501a of the Stafford Act, and begin with a request from a governor or other chief executive of a state, territory, or tribal government. As noted in the preamble to the proposed regulations, it is rare for an emergency declaration to be made without such a request. The President is authorized to make an emergency declaration under section 501b of the Stafford Act when the United States will have the primary responsibility for response to the emergency. There is no difference in the need for affected persons in a state threatened with a disaster to receive relief from time-sensitive deadlines to perform specified acts under the Code when the request for such relief originates with the states governor or is independently raised by the President.
Consequently, the final regulations make no changes to this portion of the proposed regulations.
Section 301.7508A1g12
The proposed regulations provided that excluding the pension-related acts described in section 7508Ad4 the time-sensitive tax acts that are postponed for the mandatory 60-day postponement period are the acts, if any, that the Secretary determines to be postponed under section 7508Aa or b.
One commenter expressed a general concern that this provision had the potential to reduce section 7508Ad to a nullity. A second commenter expressed its concerns specifically in terms of what it contended was a clear reading of the statute and its legislative history. This commenter said it was clear that Congress intended to postpone the timely performance of all of the time-sensitive tax acts, both taxpayer and government acts, listed in section 7508a1 of the Code. However, this second commenter recommended that the final regulations provide that the government may take advantage of the postponement periods for government-initiated actions only if a taxpayer first acts in reliance on the automatic postponement periods for the taxpayers time-sensitive tax acts.

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