Title 26 — Internal Revenue CodeRelease 119-73
§7871 Indian tribal governments treated as States for certain purposes
Title 26 › Subtitle Subtitle F— - Procedure and Administration › Chapter CHAPTER 80— - GENERAL RULES › Subchapter Subchapter C— - Provisions Affecting More Than One Subtitle › § 7871
Summary
Treats Indian tribal governments like States for many federal tax rules. Gifts or transfers to a tribe can get the same charitable income, estate, and gift tax deductions as gifts to a State. Tribes can also get the same kinds of excise tax exemptions, credits, or refunds as States, but only when the transaction is tied to an essential governmental function. Tribes are treated like States for tax deductions for state and local taxes, for most rules about tax-exempt government bonds, for the tax treatment of tribal colleges and universities that are government agencies, and for some rules about employee benefit plans, employer contributions, discount obligations, taxes on lobbying expenditures, and private foundation rules. Tax-exempt tribal bonds generally must finance essential government functions to be treated like State bonds. Most private activity bonds by tribes are excluded from tax-exempt status, except a special manufacturing exception when many conditions are met: at least 95 percent of net proceeds finance depreciable manufacturing property; the property is on qualified Indian lands and owned and run by the tribe; the issue would not be a private activity bond but for a specific rule; the tribe reasonably expects to meet an employment test; and no principal user is a disallowed private party. The employment test limits outstanding tax-exempt private activity bonds for a facility to no more than 20 times the wages paid the prior year to enrolled tribal members (or their spouses). If the test fails for a year, tax-exempt status ends after that year unless fixed within 90 days. A tribal subdivision counts like a State political subdivision only if the Treasury Secretary, after consulting the Interior Secretary, finds it has substantial delegated government powers. “Essential governmental function” does not include things that State or local governments with general taxing power do not usually do. There is a $2,000,000,000 national limit for tribal economic development bonds. The Treasury Secretary, with Interior, divides that limit among tribes. A tribal economic development bond receives State-like tax treatment and is not allowed to finance gaming buildings or facilities off the reservation. Each tribe may designate bonds only up to its allocated amount. Defined terms (one line each): qualified Indian lands — land held in trust by the United States for a tribe; Indian tribe — any tribe or organized group recognized as eligible for special federal Indian programs; net proceeds — the term’s meaning in federal tax law (section 150(a)(3)).
Full Legal Text
Title 26, §7871
Internal Revenue Code — Source: USLM XML via OLRC
(a)An Indian tribal government shall be treated as a State—
(1)for purposes of determining whether and in what amount any contribution or transfer to or for the use of such government (or a political subdivision thereof) is deductible under—
(A)section 170 (relating to income tax deduction for charitable, etc., contributions and gifts),
(B)section 2055 and 2106(a)(2) (relating to estate tax deduction for transfers of public, charitable, and religious uses), or
(C)section 2522 (relating to gift tax deduction for charitable and similar gifts);
(2)subject to subsection (b), for purposes of any exemption from, credit or refund of, or payment with respect to, an excise tax imposed by—
(A)chapter 31 (relating to tax on special fuels),
(B)chapter 32 (relating to manufacturers excise taxes),
(C)subchapter B of chapter 33 (relating to communications excise tax), or
(D)subchapter D of chapter 36 (relating to tax on use of certain highway vehicles);
(3)for purposes of section 164 (relating to deduction for taxes);
(4)subject to subsection (c), for purposes of section 103 (relating to State and local bonds);
(5)for purposes of section 511(a)(2)(B) (relating to the taxation of colleges and universities which are agencies or instrumentalities of governments or their political subdivisions);
(6)for purposes of—
(A)section 105(e) (relating to accident and health plans),
(B)section 403(b)(1)(A)(ii) (relating to the taxation of contributions of certain employers for employee annuities), and
(C)section 454(b)(2) (relating to discount obligations); and
(7)for purposes of—
(A)chapter 41 (relating to tax on excess expenditures to influence legislation), and
(B)subchapter A of chapter 42 (relating to private foundations).
(b)Paragraph (2) of subsection (a) shall apply with respect to any transaction only if, in addition to any other requirement of this title applicable to similar transactions involving a State or political subdivision thereof, the transaction involves the exercise of an essential governmental function of the Indian tribal government.
(c)(1)Subsection (a) of section 103 shall apply to any obligation (not described in paragraph (2)) issued by an Indian tribal government (or subdivision thereof) only if such obligation is part of an issue substantially all of the proceeds of which are to be used in the exercise of any essential governmental function.
(2)Except as provided in paragraph (3), subsection (a) of section 103 shall not apply to any private activity bond (as defined in section 141(a)) issued by an Indian tribal government (or subdivision thereof).
(3)(A)In the case of an obligation to which this paragraph applies—
(i)paragraph (2) shall not apply,
(ii)such obligation shall be treated for purposes of this title as a qualified small issue bond, and
(iii)section 146 shall not apply.
(B)This paragraph shall apply to any obligation issued as part of an issue if—
(i)95 percent or more of the net proceeds of the issue are to be used for the acquisition, construction, reconstruction, or improvement of property which is of a character subject to the allowance for depreciation and which is part of a manufacturing facility (as defined in section 144(a)(12)(C)),
(ii)such issue is issued by an Indian tribal government or a subdivision thereof,
(iii)95 percent or more of the net proceeds of the issue are to be used to finance property which—
(I)is to be located on land which, throughout the 5-year period ending on the date of issuance of such issue, is part of the qualified Indian lands of the issuer, and
(II)is to be owned and operated by such issuer,
(iv)such obligation would not be a private activity bond without regard to subparagraph (C),
(v)it is reasonably expected (at the time of issuance of the issue) that the employment requirement of subparagraph (D)(i) will be met with respect to the facility to be financed by the net proceeds of the issue, and
(vi)no principal user of such facility will be a person (or group of persons) described in section 144(a)(6)(B).
(C)An obligation to which this paragraph applies (other than an obligation described in paragraph (1)) shall be treated for purposes of this title as a private activity bond.
(D)(i)The employment requirements of this subparagraph are met with respect to a facility financed by the net proceeds of an issue if, as of the close of each calendar year in the testing period, the aggregate face amount of all outstanding tax-exempt private activity bonds issued to provide financing for the establishment which includes such facility is not more than 20 times greater than the aggregate wages (as defined by section 3121(a)) paid during the preceding calendar year to individuals (who are enrolled members of the Indian tribe of the issuer or the spouse of any such member) for services rendered at such establishment.
(ii)(I)If, as of the close of any calendar year in the testing period, the requirements of this subparagraph are not met with respect to an establishment, section 103 shall cease to apply to interest received or accrued (on all private activity bonds issued to provide financing for the establishment) after the close of such calendar year.
(II)Subclause (I) shall not apply if the requirements of this subparagraph would be met if the aggregate face amount of all tax-exempt private activity bonds issued to provide financing for the establishment and outstanding at the close of the 90th day after the close of the calendar year were substituted in clause (i) for such bonds outstanding at the close of such calendar year.
(iii)For purposes of this subparagraph, the term “testing period” means, with respect to an issue, each calendar year which begins more than 2 years after the date of issuance of the issue (or, in the case of a refunding obligation, the date of issuance of the original issue).
(E)For purposes of this paragraph—
(i)The term “qualified Indian lands” means land which is held in trust by the United States for the benefit of an Indian tribe.
(ii)The term “Indian tribe” means any Indian tribe, band, nation, or other organized group or community which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.
(iii)The term “net proceeds” has the meaning given such term by section 150(a)(3).
(d)For the purposes specified in subsection (a), a subdivision of an Indian tribal government shall be treated as a political subdivision of a State if (and only if) the Secretary determines (after consultation with the Secretary of the Interior) that such subdivision has been delegated the right to exercise one or more of the substantial governmental functions of the Indian tribal government.
(e)For purposes of this section, the term “essential governmental function” shall not include any function which is not customarily performed by State and local governments with general taxing powers.
(f)(1)(A)The Secretary shall allocate the national tribal economic development bond limitation among the Indian tribal governments in such manner as the Secretary, in consultation with the Secretary of the Interior, determines appropriate.
(B)There is a national tribal economic development bond limitation of $2,000,000,000.
(2)In the case of a tribal economic development bond—
(A)notwithstanding subsection (c), such bond shall be treated for purposes of this title in the same manner as if such bond were issued by a State,
(B)the Indian tribal government issuing such bond and any instrumentality of such Indian tribal government shall be treated as a State for purposes of section 141, and
(C)section 146 shall not apply.
(3)(A)For purposes of this section, the term “tribal economic development bond” means any bond issued by an Indian tribal government—
(i)the interest on which would be exempt from tax under section 103 if issued by a State or local government, and
(ii)which is designated by the Indian tribal government as a tribal economic development bond for purposes of this subsection.
(B)Such term shall not include any bond issued as part of an issue if any portion of the proceeds of such issue are used to finance—
(i)any portion of a building in which class II or class III gaming (as defined in section 4 of the Indian Gaming Regulatory Act) is conducted or housed or any other property actually used in the conduct of such gaming, or
(ii)any facility located outside the Indian reservation (as defined in section 168(j)(6)).
(C)The maximum aggregate face amount of bonds which may be designated by any Indian tribal government under subparagraph (A) shall not exceed the amount of national tribal economic development bond limitation allocated to such government under paragraph (1).
Legislative History
Notes & Related Subsidiaries
Editorial Notes
References in Text
section 4 of the Indian Gaming Regulatory Act, referred to in subsec. (f)(3)(B)(i), is classified to section 2703 of Title 25, Indians.
Amendments
2018—Subsec. (c)(3)(D)(ii)(II). Pub. L. 115–141 substituted “the calendar year” for “the calender year”. 2009—Subsec. (f). Pub. L. 111–5 added subsec. (f). 1993—Subsec. (a)(6)(B) to (D). Pub. L. 103–66 redesignated former subpars. (C) and (D) as (B) and (C), respectively, and struck out former subpar. (B) which read as follows: “section 162(e) (relating to appearances, etc., with respect to legislation),”. 1987—Subsec. (c)(2). Pub. L. 100–203, § 10632(b)(2), substituted “Except as provided in paragraph (3), subsection (a)” for “Subsection (a)”. Subsec. (c)(3). Pub. L. 100–203, § 10632(b)(1), added par. (3). Subsec. (e). Pub. L. 100–203, § 10632(a), added subsec. (e). 1986—Subsec. (a)(4). Pub. L. 99–514, § 1301(j)(6), substituted “(relating to State and local bonds)” for “(relating to interest on certain governmental obligations)”. Subsec. (a)(6). Pub. L. 99–514, § 123(b)(3), redesignated subpars. (C) to (E), as previously redesignated by section 112(b)(4) of Pub. L. 99–514, as (B) to (D), respectively, and struck out previously redesignated subpar. (B), which read as follows: “section 117(b)(2)(A) (relating to scholarships and fellowship grants),”. Pub. L. 99–514, § 112(b)(4), redesignated subpars. (B) to (F) as (A) to (E), respectively, and struck out former subpar. (A) which read as follows: “section 24(c)(4) (defining State for purposes of credit for contribution to candidates for public offices),”. Pub. L. 99–514, § 1878(i), made technical amendment to directory language of Pub. L. 98–369, § 1065(b). See 1984 Amendment note below. Subsec. (a)(6)(D). Pub. L. 99–514, § 1899A(65), substituted “; and” for period at end. Subsec. (c)(2). Pub. L. 99–514, § 1301(j)(7), amended par. (2) generally. Prior to amendment, par. (2) read as follows: “Subsection (a) of section 103 shall not apply to any of the following issued by an Indian tribal government (or subdivision thereof): “(A) An industrial development bond (as defined in section 103(b)(2)). “(B) An obligation described in section 103(l)(1)(A) (relating to scholarship bonds). “(C) A mortgage subsidy bond (as defined in paragraph (1) of section 103A(b) without regard to paragraph (2) thereof).” 1984—Subsec. (a)(6)(A). Pub. L. 98–369, § 474(r)(41), substituted “section 24(c)(4)” for “section 41(c)(4)”. Subsec. (a)(6)(B) to (F). Pub. L. 98–369, § 1065(b), as amended by Pub. L. 99–514, § 1878(i), added subpars. (B), (D), and (F), and redesignated former subpars. (B) and (C) as (C) and (E), respectively. 1983—Subsec. (a)(6). Pub. L. 98–21 redesignated subpars. (B) to (D) as (A) to (C), respectively, and struck out former subpar. (A), which referred to section 37(e)(9)(A) (relating to certain public retirement systems).
Statutory Notes and Related Subsidiaries
Effective Date
of 2009 Amendment Pub. L. 111–5, div. B, title I, § 1402(c), Feb. 17, 2009, 123 Stat. 352, provided that: “The amendment made by subsection (a) [amending this section] shall apply to obligations issued after the date of the enactment of this Act [Feb. 17, 2009].”
Effective Date
of 1993 AmendmentAmendment by Pub. L. 103–66 applicable to amounts paid or incurred after Dec. 31, 1993, see section 13222(e) of Pub. L. 103–66 set out as a note under section 162 of this title.
Effective Date
of 1987 Amendment Pub. L. 100–203, title X, § 10632(c), Dec. 22, 1987, 101 Stat. 1330–457, provided that: “The
Amendments
made by this section [amending this section] shall apply to obligations issued after October 13, 1987.”
Effective Date
of 1986 AmendmentAmendment by section 112(b)(4) of Pub. L. 99–514 applicable to taxable years beginning after Dec. 31, 1986, see section 151(a) of Pub. L. 99–514, set out as a note under section 1 of this title. Amendment by section 123(b)(3) of Pub. L. 99–514 applicable to taxable years beginning after Dec. 31, 1986, but only in the case of scholarships and fellowships granted after Aug. 16, 1986, see section 151(d) of Pub. L. 99–514, set out as a note under section 1 of this title. Amendment by section 1301(j)(6), (7) of Pub. L. 99–514 applicable to bonds issued after Aug. 15, 1986, except as otherwise provided, see sections 1311 to 1318 of Pub. L. 99–514, set out as an
Effective Date
Transitional Rules note under section 141 of this title. Amendment by section 1878(i) of Pub. L. 99–514 effective, except as otherwise provided, as if included in the provisions of the Tax Reform Act of 1984, Pub. L. 98–369, div. A, to which such amendment relates, see section 1881 of Pub. L. 99–514, set out as a note under section 48 of this title.
Effective Date
of 1984 AmendmentAmendment by section 474(r)(41) of Pub. L. 98–369 applicable to taxable years beginning after Dec. 31, 1983, and to carrybacks from such years, see section 475(a) of Pub. L. 98–369, set out as a note under section 21 of this title. Pub. L. 98–369, div. A, title X, § 1065(c),
July 18, 1984, 98 Stat. 1048, provided that: “The amendment made by subsection (b) [amending this section] shall apply to taxable years beginning after
December 31, 1984.”
Effective Date
of 1983 AmendmentAmendment by Pub. L. 98–21 applicable to taxable years beginning after Dec. 31, 1983, except that if an individual’s annuity starting date was deferred under section 105(d)(6) of this title as in effect on the day before Apr. 20, 1983, such deferral shall end on the first day of such individual’s first taxable year beginning after Dec. 31, 1983, see section 122(d) of Pub. L. 98–21, set out as a note under section 22 of this title.
Effective Date
Pub. L. 97–473, title II, § 204, Jan. 14, 1983, 96 Stat. 2611, as amended by Pub. L. 98–369, div. A, title X, § 1065(a), July 18, 1984, 98 Stat. 1048; Pub. L. 99–514, § 2, Oct. 22, 1986, 100 Stat. 2095, provided that: “The
Amendments
made by this title [enacting this section, amending section 41, 103, 164, 170, 2055, 2106, 2522, 4227, 4484, 6420, 6421, 6424, 6427, and 7701 of this title, and enacting provisions set out as a note under section 1 of this title]— “(1) insofar as they relate to chapter 1 of the Internal Revenue Code of 1986 [formerly I.R.C. 1954] [26 U.S.C. 1 et seq.] (other than section 103 thereof), shall apply to taxable years beginning after
December 31, 1982, “(2) insofar as they relate to section 103 of such Code, shall apply to obligations issued after
December 31, 1982, “(3) insofar as they relate to chapter 11 of such Code [26 U.S.C. 2001 et seq.], shall apply to estates of decedents dying after
December 31, 1982, “(4) insofar as they relate to chapter 12 of such Code [26 U.S.C. 2501 et seq.], shall apply to gifts made after
December 31, 1982, and “(5) insofar as they relate to taxes imposed by subtitle D of such Code [26 U.S.C. 4041 et seq.], shall take effect on
January 1, 1983.”
Short Title
For
Short Title
of title II of Pub. L. 97–473 as the “Indian Tribal Governmental Tax Status Act of 1982”, see
Short Title
of 1983
Amendments
note set out under section 1 of this title. Applicability of Certain
Amendments
by Pub. L. 99–514 in Relation to Treaty Obligations of United StatesFor nonapplication of amendment by section 123(b)(3) of Pub. L. 99–514 to the extent application of such amendment would be contrary to any treaty obligation of the United States in effect on Oct. 22, 1986, see section 1012(aa)(3), (4) of Pub. L. 100–647, set out as a note under section 861 of this title. Plan
Amendments
Not Required Until January 1, 1989For provisions directing that if any
Amendments
made by subtitle A or subtitle C of title XI [§§ 1101–1147 and 1171–1177] or title XVIII [§§ 1800–1899A] of Pub. L. 99–514 require an amendment to any plan, such plan amendment shall not be required to be made before the first plan year beginning on or after Jan. 1, 1989, see section 1140 of Pub. L. 99–514, as amended, set out as a note under section 401 of this title.
Reference
Citations & Metadata
Citation
26 U.S.C. § 7871
Title 26 — Internal Revenue Code
Last Updated
Apr 6, 2026
Release point: 119-73