On July 12, 2024, Treasury and the IRS published proposed regulations (the “Proposed Regulations”) that would identify certain basket contract transactions as well as transactions substantially similar thereto as “listed transactions.” Generally, participants in, and material advisors to, these transactions would be required to file disclosures with the IRS pursuant to the tax shelter rules and would face penalties for failing to do so. The Proposed Regulations relate to Notice 2015-73 and Notice 2015-74 (the “Basket Notices”), which identified “basket option contracts” (“Basket Option Trades”) as “listed transactions” and “basket contracts” (“Non-Option Basket Trades”) as “transactions of interest.” Five key aspects of the Proposed Regulations are discussed below.

• The Proposed Regulations would treat Non-Option Basket Trades as listed transactions (rather than as transactions of interest), increasing the maximum penalty for failing to disclose these transactions.
• If finalized in their current form, the Proposed Regulations may require re-filing of disclosures for previously disclosed Non-Option Basket Trades.
• Similar to the multi-factor test in each Basket Notice, the Proposed Regulations use a five-factor test to identify transactions as listed transactions. However, unlike, for example, Notice 2015-74, which identified transactions as transactions of interest only if they satisfied the test in the notice, the broader test employed by the Proposed Regulations would identify as listed transactions both transactions that meet its test and those that do not, provided the latter are “substantially similar” to transactions that do.
• The Proposed Regulations are not effective until the date the final regulations are published in the Federal Register, and they would obsolete Notice 2015-74, leaving uncertain what reporting obligations currently exist.
• For crypto enthusiasts, the Proposed Regulations make clear that the definition of “reference basket” includes “digital assets,” as defined in Code Section 6045(g)(3)(D).

Commentators have widely criticized the overbreadth of the Proposed Regulations, prompting the submission of many negative comments, including some from the NYSBA, SIFMA and ISDA.