IRS Issues Guidance For Determining How Payment Card Transactions Are Reported.

Rev. Proc. 2004-43

SECTION 1. PURPOSE

This revenue procedure provides an optional procedure that payors may use in determining whether payment card transactions are reportable under section 6041 or section 6041A of the Internal Revenue Code. In addition, payors, or their authorized agents, may use this optional procedure in determining whether payment card transactions are reportable payments for purposes of the Internal Revenue Service TIN Matching Program under section 3406.

In general, this revenue procedure classifies businesses by Merchant Category Codes (MCCs) according to whether they predominantly furnish services (for which payments are reportable) or predominantly provide goods (for which payments are not reportable). A payment card organization may assign MCCs, or equivalent Industry Codes, to merchant/payees that accept its payment cards and notify cardholder/payors that use its payment card of the MCC or equivalent Industry Code assigned to a merchant/payee. A cardholder/payor may then rely on the MCC or equivalent Industry Code assigned to a merchant/payee in determining whether a payment card transaction with that merchant/payee is subject to reporting under section 6041 or section 6041A.

SECTION 2. BACKGROUND

.01 Reporting requirements under sections 6041 and 6041A. If a person is engaged in a trade or business and, in the course of that trade or business, pays any person $600 or more of rent, salaries, wages, premiums, annuities, compensation, remunerations, emoluments, or other fixed or determinable gains, profits, and income during a calendar year, section 6041 generally requires the payor to file an information return with the Internal Revenue Service (Service) and to furnish an information statement to the payee.

Section 1.6041-3(c) of the Income Tax Regulations provides an exception to reporting for payments for merchandise, telegrams, telephone, freight, storage and similar charges. Section 1.6041- 3(p)(1) provides an exception to reporting for payments made to a corporation, unless the corporation is engaged in providing medical and health care services or is engaged in the billing and collecting of payments in respect to providing medical and health care services. The same provision also provides that reporting is not required for payments made to a hospital or extended care facility that is a tax- exempt organization described in section 501(c)(3) or to a hospital or extended care facility owned and operated by the United States, a State, the District of Columbia, a possession of the United States, or a political subdivision, agency or instrumentality of any of the foregoing. Section 1.6041-3(p)(2) provides that reporting is not required for payments to an organization exempt from taxation under section 501(a) or an individual retirement plan. Section 1.6041- 3(p)(3) provides that reporting is not required for payments made to the United States. Section 1.6041-3(p)(4) provides that reporting is not required for payments made to a State, the District of Columbia, a possession of the United States, or any political subdivision of the foregoing.

If a person is engaged in a trade or business and, in the course of that trade or business, pays any person $600 or more for services during a calendar year, section 6041A(a) generally requires the payor to file an information return with the Service and to furnish an information statement to the service provider. In general, the exceptions to reporting under section 6041 apply to reporting under section 6041A. However, section 6041A(d)(3) provides that reporting is generally required for payments made by a Federal executive agency to a corporation.

Revenue Ruling 81-232, 1981-2 C.B. 231, involved an insurance company making payments to an automobile repair shop for the repair of an insured automobile. The repair contract required payment of $300 for labor and $700 for parts. The ruling held that the entire payment was reportable under section 6041 because the portion of the payment attributable to parts was merely incidental to the obligation to repair the automobile. The ruling further held that no part of the payment was excepted from the reporting requirements of section 6041 as a payment of a bill for merchandise.

.02 Payment card transactions. A payment card transaction is a transaction in which a cardholder/payor uses a payment card (as defined in section 4.05 of this revenue procedure) to purchase goods or services and a merchant agrees to accept the payment card as a means of obtaining payment. A payment card organization (as defined in section 4.06 of this revenue procedure) sets the standards and provides the mechanism for effecting the payment.

SECTION 3. SCOPE.

This revenue procedure applies to payment card organizations and their members, affiliates, and licensees and to cardholder/payors that purchase goods or services in payment card transactions. In addition, cardholder/payors, or their authorized agents, will be allowed to rely on MCCs or equivalent Industry Codes for purposes of TIN matching with respect to reportable payments as defined in section 3406(b). Currently, the IRS TIN Matching Program is available only for certain reportable payments as defined in section 3406(b), including reportable payments under sections 6041 and 6041A.

SECTION 4. DEFINITIONS

For purposes of this revenue procedure, the terms listed below are defined and applied as follows:

.01 Cardholder. A cardholder (or cardholder/payor) is the person that agrees to make the payment through the payment card organization. Thus, in the case of a payment card issued to an employee of a person that agrees to make payments through the payment card organization, the employer rather than the employee is the cardholder.

.02 Merchant. A merchant (or merchant/payee) is a payee that has agreed to accept the payment card issued by the payment card organization as payment for goods and services.

.03 Merchant Category Code. A Merchant Category Code (MCC) is a classification code that is assigned by a payment card organization to a merchant/payee. The payment card organization assigns the merchant a particular code based on the predominant business activity of the merchant.

.04 Industry Code. An Industry Code is the number that corresponds to, and identifies, a merchant in the same business as a merchant assigned a particular MCC.

.05 Payment Card. A payment card is a card (or an account) issued by a payment card organization to a cardholder/payor, which upon presentation to a merchant/payee, represents an agreement of the cardholder to pay the merchant through the payment card organization.

.06 Payment Card Organization. A payment card organization is an entity that sets the standards and provides the mechanism for effectuating payment between a purchaser and a merchant in a payment card transaction. A payment card organization generally provides the payment mechanism by issuing payment cards, enrolling merchants as authorized acceptors of payment cards for payment for goods or services, and ensuring the system conducts the transactions in accordance with prescribed standards. In any case in which a payment card organization acts through a member, affiliate, or licensee, the action is treated for purposes of this revenue procedure (including this definition) as an action by the payment card organization.

.07 Payment Card Transaction. A payment card transaction is a transaction in which a cardholder/payor uses a payment card (as defined in section 4.05 of this revenue procedure) to purchase goods or services, and a merchant agrees to accept a payment card as a means of obtaining payment.

SECTION 5. APPLICATION

.01 Payment Card Organizations. A payment card organization may assign MCCs, or equivalent Industry Codes, to merchant/payees and notify cardholder/payors of the MCCs or equivalent Industry Codes assigned to merchant/payees. If the MCC or equivalent Industry Code assigned to a merchant/payee is not listed in section 5.03 (an unlisted code) and the payment card organization determines that merchants within the assigned code are similar to merchants within an MCC or equivalent Industry Code that is listed (a listed code), the payment card organization may notify cardholder/payors that they may treat payments to the merchant in the same manner as payments to merchants within the listed code. If the payment card organization determines that merchants within the assigned code are not similar to merchants within any listed code, it should notify cardholder/payors that the treatment of payments to the merchant depends on whether, under the facts and circumstances, information reporting is required with respect to the payments. The payment card organization and its members, affiliates, and licensees must exercise due diligence in verifying the type of business that a merchant conducts. In addition, the payment card organization and its members, affiliates, and licensees must exercise reasonable business judgment in assigning MCCs or equivalent Industry Codes and in determining whether merchants within an unlisted code are similar to merchants within a listed code.

If the Service notifies the payment card organization that the MCC or equivalent Industry Code assigned to a merchant/payee is incorrect, this revenue procedure does not apply to payment card transactions with the merchant/payee occurring more than 60 days after the date of the notification unless the payment card organization has assigned the merchant/payee a new MCC or equivalent Industry Code that is satisfactory to the Service and notified cardholder/payors of the correction. If the payment card organization fails to assign the merchant/payee a new MCC or equivalent Industry Code that is satisfactory to the Service and notify cardholder/payors of the correction during the 60-day period following the date of the notification that a merchant/payee MCC or equivalent Industry Code is incorrect, the payment card organization must notify cardholder/payors before the end of the period that they may no longer rely on the MCC or equivalent Industry Code assigned to the merchant/payee. Similar procedures apply if the payment card organization determines that merchants within the unlisted code assigned to a merchant/payee are similar to merchants within a listed code and the Service notifies the payment card organization that this determination is incorrect.

The Service may assist payment card organizations and their members, affiliates, and licensees in determining whether the MCC or equivalent Industry Code assigned to a merchant/payee is correct or whether merchants within an unlisted code are similar to merchants within a listed code. The Service will periodically update the table in section 5.03 and requests that payment card organizations notify the Service of updates to the MCCs.

02. Cardholder/payors. A cardholder/payor may rely on the MCC or equivalent Industry Code assigned to a merchant/payee in determining whether a payment card transaction with that merchant/payee is subject to information reporting under section 6041 or section 6041A. Thus, if a merchant/payee is assigned an MCC and the table in section 5.03 indicates that payments to merchants in that category are not reportable under section 6041 or section 6041A, a cardholder/payor is not required to report payment card transactions with the merchant/payee. Similarly, an indication in the table that payments to a category of merchants are reportable under section 6041 or section 6041A reflects a determination by the Service that those merchants predominantly furnish services, and cardholder/payors may treat payment card transactions with those merchants as payments for services. Similar procedures apply if the merchant/payee is assigned an unlisted code and the payment card organization notifies the cardholder/payor that it may treat payments to the merchant in the same manner as payments to merchants within a listed code. If the merchant/payee is assigned an unlisted code and the payment card organization notifies the cardholder/payor that the treatment of payments to the merchant depends on the facts and circumstances, the cardholder/payor must determine based on the actual nature of the transaction whether information reporting is required with respect to the payments.

If a cardholder/payor determines that the MCC or equivalent Industry Code assigned by the payment card organization does not reflect the actual nature of the transaction, the cardholder/payor may determine whether information reporting is required based on the actual nature of the transaction. For example, transactions not qualifying for the merchandise exception to information reporting under this revenue procedure may qualify for the exception under the generally applicable rules of sections 6041 and 6041A if, in fact, only merchandise is provided. In addition, other exceptions to information reporting (such as the exception for payments to corporations) may apply.

.03 Table. The following table is used in applying the optional procedure permitted under this revenue procedure.

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This revenue procedure is effective July 14, 2004.

SECTION 7. DRAFTING INFORMATION

The principal author of this revenue procedure is Joseph P. Dewald of the Office of Associate Chief Counsel (Procedure and Administration). For further information regarding this revenue procedure, contact Mr. Dewald at (202) 622-4910 (not a toll-free call).