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131 STAT. 2231 PUBLIC LAW 115–97—DEC. 22, 2017 ‘‘(B) any person who is related (within the meaning of section 267(b) or 707(b)(1)) to the taxpayer or any 25- percent owner of the taxpayer, and ‘‘(C) any other person who is related (within the meaning of section 482) to the taxpayer. ‘‘(2) 25-PERCENT OWNER.—The term ‘25-percent owner’ means, with respect to any corporation, any person who owns at least 25 percent of— ‘‘(A) the total voting power of all classes of stock of a corporation entitled to vote, or ‘‘(B) the total value of all classes of stock of such corporation. ‘‘(3) SECTION 318 TO APPLY.—Section 318 shall apply for purposes of paragraphs (1) and (2), except that— ‘‘(A) ‘10 percent’ shall be substituted for ‘50 percent’ in section 318(a)(2)(C), and ‘‘(B) subparagraphs (A), (B), and (C) of section 318(a)(3) shall not be applied so as to consider a United States person as owning stock which is owned by a person who is not a United States person. ‘‘(h) EXCEPTION FOR CERTAIN PAYMENTS MADE IN THE ORDINARY COURSE OF TRADE OR BUSINESS.—For purposes of this section— ‘‘(1) IN GENERAL.—Except as provided in paragraph (3), any qualified derivative payment shall not be treated as a base erosion payment. ‘‘(2) QUALIFIED DERIVATIVE PAYMENT.— ‘‘(A) IN GENERAL.—The term ‘qualified derivative pay- ment’ means any payment made by a taxpayer pursuant to a derivative with respect to which the taxpayer— ‘‘(i) recognizes gain or loss as if such derivative were sold for its fair market value on the last business day of the taxable year (and such additional times as required by this title or the taxpayer’s method of accounting), ‘‘(ii) treats any gain or loss so recognized as ordi- nary, and ‘‘(iii) treats the character of all items of income, deduction, gain, or loss with respect to a payment pursuant to the derivative as ordinary. ‘‘(B) REPORTING REQUIREMENT.—No payments shall be treated as qualified derivative payments under subpara- graph (A) for any taxable year unless the taxpayer includes in the information required to be reported under section 6038B(b)(2) with respect to such taxable year such informa- tion as is necessary to identify the payments to be so treated and such other information as the Secretary deter- mines necessary to carry out the provisions of this sub- section. ‘‘(3) EXCEPTIONS FOR PAYMENTS OTHERWISE TREATED AS BASE EROSION PAYMENTS.—This subsection shall not apply to any qualified derivative payment if— ‘‘(A) the payment would be treated as a base erosion payment if it were not made pursuant to a derivative, including any interest, royalty, or service payment, or ‘‘(B) in the case of a contract which has derivative and nonderivative components, the payment is properly allocable to the nonderivative component. VerDate Sep 11 2014 10:09 Oct 18, 2018 Jkt 079139 PO 00097 Frm 00179 Fmt 6580 Sfmt 6581 E:\PUBLAW\PUBL097.115 PUBL097 dkrause on DSKBC28HB2PROD with PUBLAWS