[Code of Federal Regulations]
[Title 26, Volume 1]
[Revised as of April 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 26CFR1.274-3]

[Page 612-615]
 
                       TITLE 26--INTERNAL REVENUE
 
    CHAPTER I--INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY 
                               (CONTINUED)
 
PART 1_INCOME TAXES--Table of Contents
 
Sec. 1.274-3  Disallowance of deduction for gifts.

    (a) In general. No deduction shall be allowed under section 162 or 
212 for any expense for a gift made directly or indirectly by a taxpayer 
to any individual to the extent that such expense, when added to prior 
expenses of the

[[Page 613]]

taxpayer for gifts made to such individual during the taxpayer's taxable 
year, exceeds $25.
    (b) Gift defined--(1) In general. Except as provided in subparagraph 
(2) of this paragraph the term gift, for purposes of this section, means 
any item excludable from the gross income of the recipient under section 
102 which is not excludable from his gross income under any other 
provision of chapter 1 of the Code. Thus, a payment by an employer to a 
deceased employee's widow is not a gift, for purposes of this section, 
to the extent the payment constitutes an employee's death benefit 
excludable by the recipient under section 101(b). Similarly, a 
scholarship which is excludable from a recipient's gross income under 
section 117, and a prize or award which is excludable from a recipient's 
gross income under section 74(b), are not subject to the provisions of 
this section.
    (2) Items not treated as gifts. The term gift, for purposes of this 
section, does not include the following:
    (i) An item having a cost to the taxpayer not in excess of $4.00 on 
which the name of the taxpayer is clearly and permanently imprinted and 
which is one of a number of identical items distributed generally by 
such a taxpayer.
    (ii) A sign, display rack, or other promotional material to be used 
on the business premises of the recipient, or
    (iii) In the case of a taxable year of a taxpayer ending on or after 
August 13, 1981, an item of tangible personal property which is awarded 
before January 1, 1987, to an employee of the taxpayer by reason of the 
employee's length of service (including an award upon retirement), 
productivity, or safety achievement, but only to the extent that--
    (A) The cost of the item to the taxpayer does not exceed $400; or
    (B) The item is a qualified plan award (as defined in paragraph (d) 
of this section); or
    (iv) In the case of a taxable year of a taxpayer ending before 
August 13, 1981, an item of tangible personal property having a cost to 
the taxpayer not in excess of $100 which is awarded to an employee of 
the taxpayer by reason of the employee's length of service (including an 
award upon retirement) or safety achievement.

For purposes of paragraphs (b)(2) (iii) and (iv) of this section, the 
term tangible personal property does not include cash or any gift 
certificate other than a nonnegotiable gift certificate conferring only 
the right to receive tangible personal property. Thus, for example, if a 
nonnegotiable gift certificate entitles an employee to choose between 
selecting an item of merchandise or receiving cash or reducing the 
balance due on his account with the issuer of the gift certificate, the 
gift certificate is not tangible personal property for purposes of this 
section. To the extent that an item is not treated as a gift for 
purposes of this section, the deductibility of the expense of the item 
is not governed by this section, and the taxpayer need not take such 
item into account in determining whether the $25 limitation on gifts to 
any individual has been exceeded. For example, if an employee receives 
by reason of his length of service a gift of an item of tangible 
personal property that costs the employer $450, the deductibility of 
only $50 ($450 minus $400) is governed by this section, and the employer 
takes the $50 into account for purposes of the $25 limitation on gifts 
to that employee. The fact that an item is wholly or partially excepted 
from the applicability of this section has no effect in determining 
whether the value of the item is includible in the gross income of the 
recipient. For rules relating to the taxability to the recipient of any 
item described in this subparagraph, see sections 61, 74, and 102 and 
the regulations thereunder. For rules relating to the deductibility of 
employee achievement awards awarded after December 31, 1986, see section 
274 (j).
    (c) Expense for a gift. For purposes of this section, the term 
expense for a gift means the cost of the gift to the taxpayer, other 
than incidental costs such as for customary engraving on jewelry, or for 
packaging, insurance, and mailing or other delivery. A related cost will 
be considered ``incidental'' only if it does not add substantial value 
to the gift. Although the cost of customary gift wrapping will be 
considered an incidental cost, the purchase of an ornamental basket for 
packaging fruit will

[[Page 614]]

not be considered an incidental cost of packaging if the basket has a 
value which is substantial in relation to the value of the fruit.
    (d) Qualified plan award--(1) In general. Except as provided in 
subparagraph (2) of this paragraph the term qualified plan award, for 
purposes of this section, means an item of tangible personal property 
that is awarded to an employee by reason of the employee's length of 
service (including retirement), productivity, or safety achievement, and 
that is awarded pursuant to a permanent, written award plan or program 
of the taxpayer that does not discriminate as to eligibility or benefits 
in favor of employees who are officers, shareholders, or highly 
compensated employees. The ``permanency'' of an award plan shall be 
determined from all the facts and circumstances of the particular case, 
including the taxpayer's ability to continue to make the awards as 
required by the award plan. Although the taxpayer may reserve the right 
to change or to terminate an award plan, the actual termination of the 
award plan for any reason other than business necessity within a few 
years after it has taken effect may be evidence that the award plan from 
its inception was not a ``permanent'' award plan. Whether or not an 
award plan is discriminatory shall be determined from all the facts and 
circumstances of the particular case. An award plan may fail to qualify 
because it is discriminatory in its actual operation even though the 
written provisions of the award plan are not discriminatory.
    (2) Items not treated as qualified plan awards. The term qualified 
plan award, for purposes of this section, does not include an item 
qualifying under paragraph (d)(1) of this section to the extent that the 
cost of the item exceeds $1,600. In addition, that term does not include 
any items qualifying under paragraph (d)(1) of this section if the 
average cost of all items (whether or not tangible personal property) 
awarded during the taxable year by the taxpayer under any plan described 
in paragraph (d)(1) of this section exceeds $400. The average cost of 
those items shall be computed by dividing (i) the sum of the costs for 
those items (including amounts in excess of the $1,600 limitation) by 
(ii) the total number of those items.
    (e) Gifts made indirectly to an individual--(1) Gift to spouse or 
member of family. If a taxpayer makes a gift to the wife of a man who 
has a business connection with the taxpayer, the gift generally will be 
considered as made indirectly to the husband. However, if the wife has a 
bona fide business connection with the taxpayer independently of her 
relationship to her husband, a gift to her generally will not be 
considered as made indirectly to her husband unless the gift is intended 
for his eventual use or benefit. Thus, if a taxpayer makes a gift to a 
wife who is engaged with her husband in the active conduct of a 
partnership business, the gift to the wife will not be considered an 
indirect gift to her husband unless it is intended for his eventual use 
or benefit. The same rules apply to gifts to any other member of the 
family of an individual who has a business connection with the taxpayer.
    (2) Gift to corporation or other business entity. If a taxpayer 
makes a gift to a corporation or other business entity intended for the 
eventual personal use or benefit of an individual who is an employee, 
stockholder, or other owner of the corporation or business entity, the 
gift generally will be considered as made indirectly to such individual. 
Thus, if a taxpayer provides theater tickets to a closely held 
corporation for eventual use by any one of the stockholders of the 
corporation, and if such tickets are gifts, the gifts will be considered 
as made indirectly to the individual who eventually uses such ticket. On 
the other hand, a gift to a business organization of property to be used 
in connection with the business of the organization (for example, a 
technical manual) will not be considered as a gift to an individual, 
even though, in practice, the book will be used principally by a readily 
identifiable individual employee. A gift for the eventual personal use 
or benefit of some undesignated member of a large group of individuals 
generally will not be considered as made indirectly to the individual 
who eventually uses, or benefits from, such gifts unless, under the 
circumstances of the case, it is reasonably

[[Page 615]]

practicable for the taxpayer to ascertain the ultimate recipient of the 
gift. Thus, if a taxpayer provides several baseball tickets to a 
corporation for the eventual use by any one of a large number of 
employees or customers of the corporation, and if such tickets are 
gifts, the gifts generally will not be treated as made indirectly to the 
individuals who use such tickets.
    (f) Special rules--(1) Partnership. In the case of a gift by a 
partnership, the $25 annual limitation contained in paragraph (a) of 
this section shall apply to the partnership as well as to each member of 
the partnership. Thus, in the case of a gift made by a partner with 
respect to the business of the partnership, the $25 limitation will be 
applied at the partnership level as well as at the level of the 
individual partner. Consequently, deductions for gifts made with respect 
to partnership business will not exceed $25 annually for each recipient, 
regardless of the number of partners.
    (2) Husband and wife. For purposes of applying the $25 annual 
limitation contained in paragraph (a) of this section, a husband and 
wife shall be treated as one taxpayer. Thus, in the case of gifts to an 
individual by a husband and wife, the spouses will be treated as one 
donor; and they are limited to a deduction of $25 annually for each 
recipient. This rule applies regardless of whether the husband and wife 
file a joint return or whether the husband and wife make separate gifts 
to an individual with respect to separate businesses. Since the term 
taxpayer in paragraph (a) of this section refers only to the donor of a 
gift, this special rule does not apply to treat a husband and wife as 
one individual where each is a recipient of a gift. See paragraph (e)(1) 
of this section.
    (g) Cross reference. For rules with respect to whether this section 
or Sec. 1.274-2 applies, see Sec. 1.274-2(b)(1) (iii).

[T.D. 6659, 28 FR 6505, June 25, 1963, as amended by T.D. 8230, 53 FR 
36451, Sept. 20, 1988]