[Title 26 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2006 Edition]
[From the U.S. Government Printing Office]



[[Page i]]



          26


          Part 1 (Sec. Sec.  1.301 To 1.400)

                         Revised as of April 1, 2006


          Internal Revenue
          
          


________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of April 1, 2006
          With Ancillaries
                    Published by
                    Office of the Federal Register
                    National Archives and Records
                    Administration
                    A Special Edition of the Federal Register

[[Page ii]]

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[[Page iii]]




                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 26:
          Chapter I--Internal Revenue Service, Department of 
          the Treasury (Continued)                                   3
  Finding Aids:
      Table of CFR Titles and Chapters........................     559
      Alphabetical List of Agencies Appearing in the CFR......     577
      Table of OMB Control Numbers............................     587
      List of CFR Sections Affected...........................     605

[[Page iv]]





                     ----------------------------

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 26 CFR 1.301-1 
                       refers to title 26, part 
                       1, section 301-1.

                     ----------------------------

[[Page v]]



                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, April 1, 2006), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
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citations for the regulations are referred to by volume number and page 
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inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in 11 separate 
volumes. For the period beginning January 1, 2001, a ``List of CFR 
Sections Affected'' is published at the end of each CFR volume.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Statutory 
Authorities and Agency Rules (Table I). A list of CFR titles, chapters, 
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    An index to the text of ``Title 3--The President'' is carried within 
that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

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appearing in the Code of Federal Regulations.

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mail, [email protected].

[[Page vii]]

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                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

April 1, 2006.

[[Page ix]]



                               THIS TITLE

    Title 26--Internal Revenue is composed of twenty volumes. The 
contents of these volumes represent all current regulations issued by 
the Internal Revenue Service, Department of the Treasury, as of April 1, 
2006. The first thirteen volumes comprise part 1 (Subchapter A--Income 
Tax) and are arranged by sections as follows: Sec. Sec.  1.0-1.60; 
Sec. Sec.  1.61-1.169; Sec. Sec.  1.170-1.300; Sec. Sec.  1.301-1.400; 
Sec. Sec.  1.401-1.440; Sec. Sec.  1.441-1.500; Sec. Sec.  1.501-1.640; 
Sec. Sec.  1.641-1.850; Sec. Sec.  1.851-1.907; Sec. Sec.  1.908-1.1000; 
Sec. Sec.  1.1001-1.1400; Sec. Sec.  1.1401-1.1550; and Sec.  1.1551 to 
end. The fourteenth volume containing parts 2-29, includes the remainder 
of subchapter A and all of Subchapter B--Estate and Gift Taxes. The last 
six volumes contain parts 30-39 (Subchapter C--Employment Taxes and 
Collection of Income Tax at Source); parts 40-49; parts 50-299 
(Subchapter D--Miscellaneous Excise Taxes); parts 300-499 (Subchapter 
F--Procedure and Administration); parts 500-599 (Subchapter G--
Regulations under Tax Conventions); and part 600 to end (Subchapter H--
Internal Revenue Practice).

    The OMB control numbers for Title 26 appear in Sec.  602.101 of this 
chapter. For the convenience of the user, Sec.  602.101 appears in the 
Finding Aids section of the volumes containing parts 1 to 599.

    For this volume, Robert J. Sheehan was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of 
Frances D. McDonald, assisted by Alomha S. Morris.

[[Page 1]]



                       TITLE 26--INTERNAL REVENUE




         (This book contains part 1, Sec. Sec. 1.301 to 1.400)

  --------------------------------------------------------------------
                                                                    Part

chapter i--Internal Revenue Service, Department of the 
  Treasury (Continued)......................................           1

[[Page 3]]



    CHAPTER I--INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY 
                               (CONTINUED)




  --------------------------------------------------------------------


  Editorial Note: IRS published a document at 45 FR 6088, Jan. 25, 1980, 
deleting statutory sections from their regulations. In chapter I cross 
references to the deleted material have been changed to the 
corresponding sections of the IRS Code of 1954 or to the appropriate 
regulations sections. When either such change produced a redundancy, the 
cross reference has been deleted. For further explanation, see 45 FR 
20795, March 31, 1980.

                  SUBCHAPTER A--INCOME TAX (CONTINUED)
Part                                                                Page
1               Income taxes................................           5

Supplementary Publications: Internal Revenue Service Looseleaf 
  Regulations System.

  Additional supplementary publications are issued covering Alcohol and 
Tobacco Tax Regulations, and Regulations Under Tax Conventions.

[[Page 5]]



                   SUBCHAPTER A_INCOME TAX (CONTINUED)





PART 1_INCOME TAXES--Table of Contents




                        Normal Taxes and Surtaxes

                 CORPORATE DISTRIBUTIONS AND ADJUSTMENTS

                      DISTRIBUTIONS BY CORPORATIONS

                          Effects on Recipients

Sec.
1.301-1 Rules applicable with respect to distributions of money and 
          other property.
1.302-1 General.
1.302-2 Redemptions not taxable as dividends.
1.302-3 Substantially disproportionate redemption.
1.302-4 Termination of shareholder's interest.
1.303-1 General.
1.303-2 Requirements.
1.303-3 Application of other sections.
1.304-1 General.
1.304-2 Acquisition by related corporation (other than subsidiary).
1.304-3 Acquisition by a subsidiary.
1.304-4T Special rule for use of a related corporation to acquire for 
          property the stock of another commonly owned corporation 
          (temporary).
1.304-5 Control.
1.305-1 Stock dividends.
1.305-2 Distributions in lieu of money.
1.305-3 Disproportionate distributions.
1.305-4 Distributions of common and preferred stock.
1.305-5 Distributions on preferred stock.
1.305-6 Distributions of convertible preferred.
1.305-7 Certain transactions treated as distributions.
1.305-8 Effective dates.
1.306-1 General
1.306-2 Exception
1.306-3 Section 306 stock defined.
1.307-1 General.
1.307-2 Exception.

                         effects on corporation

1.312-1 Adjustment to earnings and profits reflecting distributions by 
          corporations.
1.312-2 Distribution of inventory assets.
1.312-3 Liabilities.
1.312-4 Examples of adjustments provided in section 312(c).
1.312-5 Special rule for partial liquidations and certain redemptions.
1.312-6 Earnings and profits.
1.312-7 Effect on earnings and profits of gain or loss realized after 
          February 28, 1913.
1.312-8 Effect on earnings and profits of receipt of tax-free 
          distributions requiring adjustment or allocation of basis of 
          stock.
1.312-9 Adjustments to earnings and profits reflecting increase in value 
          accrued before March 1, 1913.
1.312-10 Allocation of earnings in certain corporate separations.
1.312-11 Effect on earnings and profits of certain other tax-free 
          exchanges, tax-free distributions, and tax-free transfers from 
          one corporation to another.
1.312-12 Distributions of proceeds of loans guaranteed by the United 
          States.
1.312-15 Effect of depreciation on earnings and profits.

              definitions; constructive ownership of stock

1.316-1 Dividends.
1.316-2 Sources of distribution in general.
1.317-1 Property defined.
1.318-1 Constructive ownership of stock; introduction.
1.318-2 Application of general rules.
1.318-3 Estates, trusts, and options.
1.318-4 Constructive ownership as actual ownership; exceptions.

                         Corporate Liquidations

                          effects on recipients

1.331-1 Corporate liquidations.
1.332-1 Distributions in liquidation of subsidiary corporation; general.
1.332-2 Requirements for nonrecognition of gain or loss.
1.332-3 Liquidations completed within one taxable year.
1.332-4 Liquidations covering more than one taxable year.
1.332-5 Distributions in liquidation as affecting minority interests.
1.332-6 Records to be kept and information to be filed with return.
1.332-7 Indebtedness of subsidiary to parent.
1.334-1 Basis of property received in liquidations.

                         effects on corporation

1.337(d)-1 Transitional loss limitation rule.
1.337(d)-1T [Reserved]
1.337(d)-2 Loss limitation window period.
1.337(d)-2T Loss limitation window period (temporary).
1.337(d)-4 Taxable to tax-exempt.
1.337(d)-5 Old transitional rules imposing tax on property owned by a C 
          corporation that becomes property of a RIC or REIT .
1.337(d)-6 New transitional rules imposing tax on property owned by a C 
          corporation that becomes property of a RIC or REIT.

[[Page 6]]

1.337(d)-7 Tax on property owned by a C corporation that becomes 
          property of a RIC or REIT.
1.338-0 Outline of topics.
1.338-1 General principles; status of old target and new target.
1.338-2 Nomenclature and definitions; mechanics of the section 338 
          election.
1.338-3 Qualification for the section 338 election.
1.338-4 Aggregate deemed sale price; various aspects of taxation of the 
          deemed asset sale.
1.338-5 Adjusted grossed-up basis.
1.338-6 Allocation of ADSP and AGUB among target assets.
1.338-6T Allocation of ADSP and AGUB among target assets (temporary).
1.338-7 Allocation of redetermined ADSP and AGUB among target assets.
1.338-8 Asset and stock consistency.
1.338-9 International aspects of section 338.
1.338-10 Filing of returns.
1.338(h)(10)-1 Deemed asset sale and liquidation.
1.338(h)(10)-1T Deemed asset sale and liquidation (temporary).
1.338(i)(1)-1 Effective dates.

      Collapsible Corporations; Foreign Personal Holding Companies

1.341-1 Collapsible corporations; in general.
1.341-2 Definitions.
1.341-3 Presumptions.
1.341-4 Limitations on application of section.
1.341-5 Application of section.
1.341-6 Exceptions to application of section.
1.341-7 Certain sales of stock of consenting corporations.
1.342-1 General.

                               definition

1.346-1 Partial liquidation.
1.346-2 Treatment of certain redemptions.
1.346-3 Effect of certain sales.

               Corporate Organizations and Reorganizations

                         corporate organizations

1.351-1 Transfer to corporation controlled by transferor.
1.351-2 Receipt of property.
1.351-3 Records to be kept and information to be filed.

              effects on shareholders and security holders

1.354-1 Exchanges of stock and securities in certain reorganizations.
1.355-0 Table of contents.
1.355-1 Distribution of stock and securities of controlled corporation.
1.355-2 Limitations.
1.355-3 Active conduct of a trade or business.
1.355-4 Non pro rata distributions, etc.
1.355-5 Records to be kept and information to be filed.
1.355-6 Recognition of gain on certain distributions of stock or 
          securities in controlled corporation.
1.355-7 Recognition of gain on certain distributions of stock or 
          securities in connection with an acquisition.
1.356-1 Receipt of additional consideration in connection with an 
          exchange.
1.356-2 Receipt of additional consideration not in connection with an 
          exchange.
1.356-3 Rules for treatment of securities as ``other property''.
1.356-4 Exchanges for section 306 stock.
1.356-5 Transactions involving gift or compensation.
1.356-6 Rules for treatment of nonqualified preferred stock as other 
          property.
1.356-7 Rules for treatment of nonqualified preferred stock and other 
          preferred stock received in certain transactions.
1.357-1 Assumption of liability.
1.357-2 Liabilities in excess of basis.
1.358-1 Basis to distributees.
1.358-2 Allocation of basis among nonrecognition property.
1.358-3 Treatment of assumption of liabilities.
1.358-4 Exceptions.
1.358-5 [Reserved]
1.358-5T Special rules for assumption of liabilities (temporary).
1.358-6 Stock basis in certain triangular reorganizations.
1.358-7 Transfers by partners and partnerships to corporations.

                         effects on corporation

1.361-1 Nonrecognition of gain or loss to corporations.
1.362-1 Basis to corporations.
1.362-2 Certain contributions to capital.
1.367(a)-1T Transfers to foreign corporations subject to section 367(a): 
          In general (temporary).
1.367(a)-2T Exception for transfers of property for use in the active 
          conduct of a trade or business (temporary).
1.367(a)-3 Treatment of transfers of stock or securities to foreign 
          corporations.
1.367(a)-4T Special rules applicable to specified transfers of property 
          (temporary).
1.367(a)-5T Property subject to section 367(a)(1) regardless of use in 
          trade or business (temporary).
1.367(a)-6T Transfer of foreign branch with previously deducted losses 
          (temporary).
1.367(a)-8 Gain recognition agreement requirements.
1.367(b)-0 Table of contents.
1.367(b)-1 Other transfers.
1.367(b)-2 Definitions and special rules.

[[Page 7]]

1.367(b)-3 Repatriation of foreign corporate assets in certain 
          nonrecognition transactions.
1.367(b)-3T Repatriation of foreign corporate assets in certain 
          nonrecognition transactions (temporary).
1.367(b)-4 Acquisition of foreign corporate stock or assets by a foreign 
          corporation in certain nonrecognition transactions.
1.367(b)-5 Distributions of stock described in section 355.
1.367(b)-6 Effective dates and coordination rules.
1.367(b)-12 Subsequent treatment of amounts attributed or included in 
          income.
1.367(b)-13 Special rules for determining basis and holding period.
1.367(d)-1T Transfers of intangible property to foreign corporations 
          (temporary).
1.367(e)-0 Outline of Sec. Sec. 1.367(e)-1 and 1.367(e)-2.
1.367(e)-1 Distributions described in section 367(e)(1).
1.367(e)-2 Distributions described in section 367(e)(2).

                        special rule; definitions

1.368-1 Purpose and scope of exception of reorganization exchanges.
1.368-2 Definition of terms.
1.368-3 Records to be kept and information to be filed with returns.

                       Insolvency Reorganizations

1.371-1 Exchanges by corporations.
1.371-2 Exchanges by security holders.
1.372-1 Corporations.
1.374-1 Exchanges by insolvent railroad corporations.
1.374-2 Basis of property acquired after December 31, 1938, by railroad 
          corporation in a receivership or railroad reorganization 
          proceeding.
1.374-3 Records to be kept and information to be filed.
1.374-4 Property acquired by electric railway corporation in corporate 
          reorganization proceeding.

                               Carryovers

1.381(a)-1 General rule relating to carryovers in certain corporate 
          acquisitions.
1.381(b)-1 Operating rules applicable to carryovers in certain corporate 
          acquisitions.
1.381(c)(1)-1 Net operating loss carryovers in certain corporate 
          acquisitions.
1.381(c)(1)-2 Net operating loss carryovers; two or more dates of 
          distribution or transfer in the taxable year.
1.381(c)(2)-1 Earnings and profits.
1.381(c)(3)-1 Capital loss carryovers.
1.381(c)(4)-1 Method of accounting.
1.381(c)(5)-1 Inventories.
1.381(c)(6)-1 Depreciation method.
1.381(c)(8)-1 Installment method.
1.381(c)(9)-1 Amortization of bond discount or premium.
1.381(c)(10)-1 Deferred exploration and development expenditures.
1.381(c)(11)-1 Contributions to pension plan, employees' annuity plans, 
          and stock bonus and profit-sharing plans.
1.381(c)(12)-1 Recovery of bad debts, prior taxes, or delinquency 
          amounts.
1.381(c)(13)-1 Involuntary conversions.
1.381(c)(14)-1 Dividend carryover to personal holding company.
1.381(c)(15)-1 Indebtedness of certain personal holding companies.
1.381(c)(16)-1 Obligations of distributor or transferor corporation.
1.381(c)(17)-1 Deficiency dividend of personal holding company.
1.381(c)(18)-1 Depletion on extraction of ores or minerals from the 
          waste or residue of prior mining.
1.381(c)(19)-1 Charitable contribution carryovers in certain 
          acquisitions.
1.381(c)(21)-1 Pre-1954 adjustments resulting from change in method of 
          accounting.
1.381(c)(22)-1 Successor life insurance company.
1.381(c)(23)-1 Investment credit carryovers in certain corporate 
          acquisitions.
1.381(c)(24)-1 Work incentive program credit carryovers in certain 
          corporate acquisitions.
1.381(c)(25)-1 Deficiency dividend of a qualified investment entity.
1.381(c)(26)-1 Credit for employment of certain new employees.
1.381(d)-1 Operations loss carryovers of life insurance companies.
1.382-1 Table of contents.
1.382-1T [Reserved]
1.382-2 General rules for ownership change.
1.382-2T Definition of ownership change under section 382, as amended by 
          the Tax Reform Act of 1986 (temporary).
1.382-3 Definitions and rules relating to a 5-percent shareholder.
1.382-4 Constructive ownership of stock.
1.382-5 Section 382 limitation. [Reserved]
1.382-6 Allocation of income and loss to periods before and after the 
          change date for purposes of section 382.
1.382-7 Built-in gains and loses. [Reserved]
1.382-8 Controlled groups. [Reserved]
1.382-9 Special rules under section 382 for corporations under the 
          jurisdiction of a court in a title 11 or similar case.
1.382-10 [Reserved]
1.382-10T Special rules of determining time and maner of acquisition of 
          an interest in a loss corporation (temporary).
1.382-11 Effective dates. [Reserved]
1.383-0 Effective date.
1.383-1 Special limitations on certain capital losses and excess 
          credits.

[[Page 8]]

1.383-2 Limitations on certain capital losses and excess credits in 
          computing alternative minimum tax. [Reserved]

    Authority: 26 U.S.C. 7805, unless otherwise noted.
    Section 1.301-1 also issued under 26 U.S.C. 357(d)(3).
    Section 1.301-1T also issued under 26 U.S.C. 357(d)(3).
    Section 1.304-5 also issued under 26 U.S.C. 304.
    Section 1.305-3 also issued under 26 U.S.C. 305.
    Section 1.305-5 also issued under 26 U.S.C. 305.
    Section 1.305-7 also issued under 26 U.S.C. 305.
    Section 1.337(d)-1 also issued under 26 U.S.C. 337(d).
    Section 1.337(d)-2 also issued under 26 U.S.C. 337(d).
    Section 1.337(d)-4 also issued under 26 U.S.C. 337.
    Section 1.337(d)-5 also issued under 26 U.S.C. 337.
    Section 1.337(d)-6 also issued under 26 U.S.C. 337.
    Section 1.337(d)-7 also issued under 26 U.S.C. 337.
    Section 1.338-1 also issued under 26 U.S.C. 337(d), 338, and 1502.
    Section 1.338-2 also issued under 26 U.S.C. 337(d), 338, and 1502.
    Section 1.338-3 also issued under 26 U.S.C. 337(d), 338, and 1502.
    Section 1.338-4 also issued under 26 U.S.C. 337(d), 338, and 1502.
    Section 1.338-5 also issued under 26 U.S.C. 337(d), 338, and 1502.
    Section 1.338-6 also issued under 26 U.S.C. 337(d), 338, and 1502.
    Section 1.338-6T also issued under 26 U.S.C. 337(d), 338, and 1502.
    Section 1.338-7 also issued under 26 U.S.C. 337(d), 338, and 1502.
    Section 1.338-8 also issued under 26 U.S.C. 337(d), 338, and 1502.
    Section 1.338-9 also issued under 26 U.S.C. 337(d), 338, and 1502.
    Section 1.338-10 also issued under 26 U.S.C. 337(d), 338, and 1502.
    Section 1.338(h)(10)-1 also issued under 26 U.S.C. 337(d), 338, and 
1502.
    Section 1.338(h)(10)-1T also issued under 26 U.S.C. 337(d), 338 and 
1502.
    Section 1.338(i)-1 also issued under 26 U.S.C. 337(d), 338, and 
1502.
    Section 1.351-1 also issued under 26 U.S.C. 351.
    Section 1.351-2 also issued under 26 U.S.C. 351(g)(4).
    Section 1.354-1 also issued under 26 U.S.C. 351(g)(4).
    Section 1.355-1 also issued under 26 U.S.C. 351(g)(4).
    Section 1.355-6 also issued under 26 U.S.C. 355(d)(9).
    Section 1.356-6 also issued under 26 U.S.C. 351(g)(4).
    Section 1.355-7 also issued under 26 U.S.C. 355(e)(5).
    Section 1.356-7 also issued under 26 U.S.C. 351(g)(4).
    Section 1.358-2 also issued under 26 U.S.C. 358.
    Section 1.358-5T also issued under 26 U.S.C. 358(h)(2).
    Section 1.358-7 also issued under Public Law 106-554, 114 Stat. 
2763, 2763A-638 (2001).
    Section 1.367(a)-3 also issued under 26 U.S.C. 367(a) and (b).
    Section 1.367(a)-8 also issued under 26 U.S.C. 367(a) and (b).
    Section 1.367(b)-1 also issued under 26 U.S.C. 367(a) and (b).
    Section 1.367(b)-2 also issued under 26 U.S.C. 367(a) and (b).
    Section 1.367(b)-3 also issued under 26 U.S.C. 367(a) and (b).
    Section 1.367(b)-3T also issued under 26 U.S.C. 367(a) and (b).
    Section 1.367(b)-4 also issued under 26 U.S.C. 367(a) and (b).
    Section 1.367(b)-7 also issued under 26 U.S.C. 367(a) and (b).
    Section 1.367(b)-8 also issued under 26 U.S.C. 367(b).
    Section 1.367(b)-9 also issued under 26 U.S.C. 367(b).
    Section 1.367(b)-12 also issued under 26 U.S.C. 367(a) and (b).
    Section 1.367(b)-13 also issued under 26 U.S.C. 367(b).
    Section 1.367(e)-1 also issued under 26 U.S.C. 367(e)(1).
    Section 1.367(e)-2 also issued under 26 U.S.C. 367(e)(2).
    Section 1.382-2 also issued under 26 U.S.C. 382(k)(1), (l)(3), (m), 
and 26 U.S.C. 383.
    Section 1.382-2T also issued under 26 U.S.C. 382(g)(4)(C), (i), 
(k)(1) and (6), (l)(3), (m), and 26 U.S.C. 383.
    Section 1.382-3 also issued under 26 U.S.C. 382(m).
    Section 1.382-4 also issued under 26 U.S.C. 382(l)(3) and 382(m).
    Section 1.382-5 also issued under 26 U.S.C. 382(m).
    Section 1.382-5T also issued under 26 U.S.C. 382(m).
    Section 1.382-6 also issued under 26 U.S.C. 382(b)(3)(A), 26 
U.S.C.(d)(1), 26 U.S.C. 382(m), and 26 U.S.C.383(d).
    Section 1.382-8 also issued under 26 U.S.C. 382(m).
    Section 1.382-8T also issued under 26 U.S.C. 382(m).
    Section 1.382-9 also issued under 26 U.S.C. 382(l)(3) and (m).
    Section 1.382-10T is also issued under 26 U.S.C. 382(m).
    Section 1.383-1 also issued under 26 U.S.C. 383.

[[Page 9]]

    Section 1.383-2 also issued under 26 U.S.C. 383.

    Source: T.D. 6500, 25 FR 11607, Nov. 26, 1960; 25 FR 14021, Dec. 31, 
1960, unless otherwise noted.

                 CORPORATE DISTRIBUTIONS AND ADJUSTMENTS

                      DISTRIBUTIONS BY CORPORATIONS

                          Effects on Recipients



Sec. 1.301-1  Rules applicable with respect to distributions of money 
and other property.

    (a) General. Section 301 provides the general rule for treatment of 
distributions on or after June 22, 1954, of property by a corporation to 
a shareholder with respect to its stock. The term property is defined in 
section 317(a). Such distributions, except as otherwise provided in this 
chapter, shall be treated as provided in section 301(c). Under section 
301(c), distributions may be included in gross income, applied against 
and reduce the adjusted basis of the stock, treated as gain from the 
sale or exchange of property, or (in the case of certain distributions 
out of increase in value accrued before March 1, 1913) may be exempt 
from tax. The amount of the distributions to which section 301 applies 
is determined in accordance with the provisions of section 301(b). The 
basis of property received in a distribution to which section 301 
applies is determined in accordance with the provisions of section 
301(d). Accordingly, except as otherwise provided in this chapter, a 
distribution on or after June 22, 1954, of property by a corporation to 
a shareholder with respect to its stock shall be included in gross 
income to the extent the amount distributed is considered a dividend 
under section 316. For examples of distributions treated otherwise, see 
sections 116, 301(c)(2), 301(c)(3)(B), 301(e), 302(b), 303, and 305. See 
also part II (relating to distributions in partial or complete 
liquidation), part III (relating to corporate organizations and 
reorganizations), and part IV (relating to insolvency reorganizations), 
subchapter C, chapter 1 of the Code.
    (b) Time of inclusion in gross income and of determination of fair 
market value. A distribution made by a corporation to its shareholders 
shall be included in the gross income of the distributees when the cash 
or other property is unqualifiedly made subject to their demands. 
However, if such distribution is a distribution other than in cash, the 
fair market value of the property shall be determined as of the date of 
distribution without regard to whether such date is the same as that on 
which the distribution is includible in gross income. For example, if a 
corporation distributes a taxable dividend in property (the adjusted 
basis of which exceeds its fair market value on December 31, 1955) on 
December 31, 1955, which is received by, or unqualifiedly made subject 
to the demand of, its shareholders on January 2, 1956, the amount to be 
included in the gross income of the shareholders will be the fair market 
value of such property on December 31, 1955, although such amount will 
not be includible in the gross income of the shareholders until January 
2, 1956.
    (c) Application of section to shareholders. Section 301 is not 
applicable to an amount paid by a corporation to a shareholder unless 
the amount is paid to the shareholder in his capacity as such.
    (d) Distributions to corporate shareholders. (1) If the shareholder 
is a corporation, the amount of any distribution to be taken into 
account under section 301(c) shall be:
    (i) The amount of money distributed,
    (ii) An amount equal to the fair market value of any property 
distributed which consists of any obligations of the distributing 
corporation, stock of the distributing corporation treated as property 
under section 305(b), or rights to acquire such stock treated as 
property under section 305(b), plus
    (iii) In the case of a distribution not described in subdivision 
(iv) of this subparagraph, an amount equal to (a) the fair market value 
of any other property distributed or, if lesser, (b) the adjusted basis 
of such other property in the hands of the distributing corporation 
(determined immediately before the distribution and increased for any 
gain recognized to the distributing corporation under section 311 (b), 
(c), or (d), or under section 341(f), 617(d), 1245(a), 1250(a), 1251(c), 
1252(a), or 1254(a)), or

[[Page 10]]

    (iv) In the case of a distribution made after November 8, 1971, to a 
shareholder which is a foreign corporation, an amount equal to the fair 
market value of any other property distributed, but only if the 
distribution received by such shareholder is not effectively connected 
for the taxable year with the conduct of a trade or business in the 
United States by such shareholder.
    (2) In the case of a distribution the amount of which is determined 
by reference to the adjusted basis described in subparagraph (1)(iii)(b) 
of this paragraph:
    (i) That portion of the distribution which is a dividend under 
section 301(c)(1) may not exceed such adjusted basis, or
    (ii) If the distribution is not out of earnings and profits, the 
amount of the reduction in basis of the shareholder's stock, and the 
amount of any gain resulting from such distribution, are to be 
determined by reference to such adjusted basis of the property which is 
distributed.
    (3) Notwithstanding paragraph (d)(1)(iii), if a distribution of 
property described in such paragraph is made after December 31, 1962, by 
a foreign corporation to a shareholder which is a corporation, the 
amount of the distribution to be taken into account under section 301(c) 
shall be determined under section 301(b)(1)(C) and paragraph (n) of this 
section.
    (e) Adjusted basis. In determining the adjusted basis of property 
distributed in the hands of the distributing corporation immediately 
before the distribution for purposes of section 301(b)(1)(B)(ii), 
(b)(1)(C)(i), and (d)(2)(B), the basis to be used shall be the basis for 
determining gain upon a sale or exchange.
    (f) Examples. The application of this section (except paragraph (n)) 
may be illustrated by the following examples:

    Example (1). On January 1, 1955, A, an individual owned all of the 
stock of Corporation M with an adjusted basis of $2,000. During 1955, A 
received distributions from Corporation M totaling $30,000, consisting 
of $10,000 in cash and listed securities having a basis in the hands of 
Corporation M and a fair market value on the date distributed of 
$20,000. Corporation M's taxable year is the calendar year. As of 
December 31, 1954, Corporation M had earnings and profits accumulated 
after February 28, 1913, in the amount of $26,000, and it had no 
earnings and profits and no deficit for 1955. Of the $30,000 received by 
A, $26,000 will be treated as an ordinary dividend; the remaining $4,000 
will be applied against the adjusted basis of his stock; the $2,000 in 
excess of the adjusted basis of his stock will either be treated as gain 
from the sale or exchange of property (under section 301(c)(3)(A)) or, 
if out of increase in value accrued before March 1, 1913, will (under 
section 301(c)(3)(B)) be exempt from tax. If A subsequently sells his 
stock in Corporation M, the basis for determining gain or loss on the 
sale will be zero.
    Example (2). The facts are the same as in Example 1 with the 
exceptions that the shareholder of Corporation M is Corporation W and 
that the securities which were distributed had an adjusted basis to 
Corporation M of $15,000. The distribution received by Corporation W 
totals $25,000 consisting of $10,000 in cash and securities with an 
adjusted basis of $15,000. The total $25,000 will be treated as a 
dividend to Corporation W since the earnings and profits of Corporation 
M ($26,000) are in excess of the amount of the distribution.
    Example (3). Corporation X owns timber land which it acquired prior 
to March 1, 1913, at a cost of $50,000 with $5,000 allocated as the 
separate cost of the land. On March 1, 1913, this property had a fair 
market value of $150,000 of which $135,000 was attributable to the 
timber and $15,000 to the land. All of the timber was cut prior to 1955 
and the full appreciation in the value thereof, $90,000 ($135,000-
$45,000), realized through depletion allowances based on March 1, 1913, 
value. None of this surplus from realized appreciation had been 
distributed. In 1955, Corporation X sold the land for $20,000 thereby 
realizing a gain of $15,000. Of this gain, $10,000 is due to realized 
appreciation in value which accrued before March 1, 1913 ($15,000-
$5,000). Of the gain of $15,000, $5,000 is taxable. Therefore, at 
December 31, 1955, Corporation X had a surplus from realized 
appreciation in the amount of $100,000. It had no accumulated earnings 
and profits and no deficit at January 1, 1955. The net earnings for 1955 
(including the $5,000 gain on the sale of the land) were $20,000. During 
1955, Corporation X distributed $75,000 to its stockholders. Of this 
amount, $20,000 will be treated as a dividend. The remaining $55,000, 
which is a distribution of realized appreciation, will be applied 
against and reduce the adjusted basis of the shareholders' stock. If any 
part of the $55,000 is in excess of the adjusted basis of a 
shareholder's stock, such part will be exempt from tax.

    (h) Basis. The basis of property received in the distribution to 
which section 301 applies shall be--

[[Page 11]]

    (1) If the shareholder is not a corporation, the fair market value 
of such property;
    (2) If the shareholder is a corporation--
    (i) In the case of a distribution of the obligations of the 
distributing corporation or of the stock of such corporation or rights 
to acquire such stock (if such stock or rights are treated as property 
under section 305(b)), the fair market value of such obligations, stock, 
or rights;
    (ii) In the case of the distribution of any other property, except 
as provided in subdivision (iii) (relating to certain distributions by a 
foreign corporation) or subdivision (iv) (relating to certain 
distributions to foreign corporate distributees) of this subparagraph, 
whichever of the following is the lesser--
    (a) The fair market value of such property; or
    (b) The adjusted basis (in the hands of the distributing corporation 
immediately before the distribution) of such property increased in the 
amount of gain to the distributing corporation which is recognized under 
section 311(b) (relating to distributions of LIFO inventory), section 
311(c) (relating to distributions of property subject to liabilities in 
excess of basis), section 311(d) (relating to appreciated proterty used 
to redeem stock), section 341(f) (relating to certain sales of stock of 
consenting corporations), section 617(d) (relating to gain from 
dispositions of certain mining property), section 1245(a) or 1250(a) 
(relating to gain from dispositions of certain depreciable property), 
section 1251(c) (relating to gain from disposition of farm recapture 
property), section 1252(a) (relating to gain from disposition of farm 
land), or 1254(a) (relating to gain from disposition of interest in 
natural resource recapture property);
    (iii) In the case of the distribution by a foreign corporation of 
any other property after December 31, 1962, in a distribution not 
described in subdivision (iv) of this subparagraph, the amount 
determined under paragraph (n) of this section;
    (iv) In the case of the distribution of any other property made 
after November 8, 1971, to a shareholder which is a foreign corporation, 
the fair market value of such property, but only if the distribution 
received by such shareholder is not effectively connected for the 
taxable year with the conduct of a trade or business in the United 
States by such shareholder.
    (i) [Reserved]
    (j) Transfers for less than fair market value. If property is 
transferred by a corporation to a shareholder which is not a corporation 
for an amount less than its fair market value in a sale or exchange, 
such shareholder shall be treated as having received a distribution to 
which section 301 applies. In such case, the amount of the distribution 
shall be the difference between the amount paid for the property and its 
fair market value. If property is transferred in a sale or exchange by a 
corporation to a shareholder which is a corporation, for an amount less 
than its fair market value and also less than its adjusted basis, such 
shareholder shall be treated as having received a distribution to which 
section 301 applies, and--
    (1) Where the fair market value of the property equals or exceeds 
its adjusted basis in the hands of the distributing corporation the 
amount of the distribution shall be the excess of the adjusted basis 
(increased by the amount of gain recognized under section 311 (b), (c), 
or (d), or under section 341(f), 617(d), 1245(a), 1250(a), 1251(c), 
1252(a), or 1254(a) to the distributing corporation) over the amount 
paid for the property;
    (2) Where the fair market value of the property is less than its 
adjusted basis in the hands of the distributing corporation, the amount 
of the distribution shall be the excess of such fair market value over 
the amount paid for the property. If property is transferred in a sale 
or exchange after December 31, 1962, by a foreign corporation to a 
shareholder which is a corporation for an amount less than the amount 
which would have been computed under paragraph (n) of this section if 
such property had been received in a distribution to which section 301 
applied, such shareholder shall be treated as having received a 
distribution to which section 301 applies, and the amount of the 
distribution shall be

[[Page 12]]

the excess of the amount which would have been computed under paragraph 
(n) of this section with respect to such property over the amount paid 
for the property. In all cases, the earnings and profits of the 
distributing corporation shall be decreased by the excess of the basis 
of the property in the hands of the distributing corporation over the 
amount received therefor. In computing gain or loss from the subsequent 
sale of such property, its basis shall be the amount paid for the 
property increased by the amount of the distribution.

If property is transferred in a sale or exchange after December 31, 
1962, by a foreign corporation to a shareholder which is a corporation 
for an amount less than the amount which would have been computed under 
paragraph (n) of this section if such property had been received in a 
distribution to which section 301 applied, such shareholder shall be 
treated as having received a distribution to which section 301 applies, 
and the amount of the distribution shall be the excess of the amount 
which would have been computed under paragraph (n) of this section with 
respect to such property over the amount paid for the property. 
Notwithstanding the preceding provisions of this paragraph, if property 
is transferred in a sale or exchange after November 8, 1971, by a 
corporation to a shareholder which is a foreign corporation, for an 
amount less than its fair market value, and if paragraph (d)(1)(iv) of 
this section would apply if such property were received in a 
distribution to which section 301 applies, such shareholder shall be 
treated as having received a distribution to which section 301 applies 
and the amount of the distribution shall be the difference between the 
amount paid for the property and its fair market value. In all cases, 
the earnings and profits of the distributing corporation shall be 
decreased by the excess of the basis of the property in the hands of the 
distributing corporation over the amount received therefor. In computing 
gain or loss from the subsequent sale of such property, its basis shall 
be the amount paid for the property increased by the amount of the 
distribution.
    (k) Application of rule respecting transfers for less than fair 
market value. The application of paragraph (j) of this section may be 
illustrated by the following examples:

    Example (1). On January 1, 1955, A, an individual shareholder of 
corporation X, purchased property from that corporation for $20. The 
fair market value of such property was $100, and its basis in the hands 
of corporation X was $25. The amount of the distribution determined 
under section 301(b) is $80. If A were a corporation, the amount of the 
distribution would be $5 (assuming that sections 311 (b) and (c), 
1245(a), and 1250(a) do not apply), the excess of the basis of the 
property in the hands of corporation X over the amount received 
therefor. The basis of such property to corporation A would be $25. If 
the basis of the property in the hands of corporation X were $10, the 
corporate shareholder, A, would not receive a distribution. The basis of 
such property to corporation A would be $20. Whether or not A is a 
corporation, the excess of the amount paid over the basis of the 
property in the hands of corporation X ($20 over $10) would be a taxable 
gain to corporation X.
    Example (2). On January 1, 1963, corporation A, which is a 
shareholder of corporation B (a foreign corporation engaged in business 
within the United States), purchased one share of corporation X stock 
from B for $20. The fair market value of the share was $100, and its 
adjusted basis in the hands of B was $25. Assume that if the share of 
corporation X stock had been received by A in a distribution to which 
section 301 applied, the amount of the distribution under paragraph (n) 
of this section would have been $55. The amount of the distribution 
under section 301 is $35, i.e., $55 (amount computed under paragraph (n) 
of this section) minus $20 (amount paid for the property). The basis of 
such property to A is $55.

    (l) Transactions treated as distributions. A distribution to 
shareholders with respect to their stock is within the terms of section 
301 although it takes place at the same time as another transaction if 
the distribution is in substance a separate transaction whether or not 
connected in a formal sense. This is most likely to occur in the case of 
a recapitalization, a reincorporation, or a merger of a corporation with 
a newly organized corporation having substantially no property. For 
example, if a corporation having only common stock outstanding, 
exchanges one share of newly issued common stock and one bond in the 
principal amount of $10 for each

[[Page 13]]

share of outstanding common stock, the distribution of the bonds will be 
a distribution of property (to the extent of their fair market value) to 
which section 301 applies, even though the exchange of common stock for 
common stock may be pursuant to a plan of reorganization under the terms 
of section 368(a)(1)(E) (recapitalization) and even though the exchange 
of common stock for common stock may be tax free by virtue of section 
354.
    (m) Cancellation of indebtedness. The cancellation of indebtedness 
of a shareholder by a corporation shall be treated as a distribution of 
property.
    (n) [Reserved]
    (o) Distributions of certain property by DISC's to corporate 
shareholders. See Sec. 1.997-1 for the rule that if a corporation which 
is a DISC or former DISC (as defined in section 992(a)(1) or (3) as the 
case may be) makes a distribution of property (other than money and 
other than the obligations of the DISC or former DISC) out of 
accumulated DISC income (as defined in section 996(f)(1)) or previously 
taxed income (as defined in section 996(f)(2)), such distribution of 
property shall be treated as if it were made to an individual and that 
the basis of the property distributed, in the hands of the recipient 
corporation, shall be determined as if such property were distributed to 
an individual.
    (p) Cross references. For certain rules relating to adjustments to 
earnings and profits and for determining the extent to which a 
distribution is a dividend, see sections 312 and 316 and regulations 
thereunder.
    (q) Split-dollar and other life insurance arrangements--(1) Split-
dollar life insurance arrangements--(i) Distribution of economic 
benefits. The provision by a corporation to its shareholder pursuant to 
a split-dollar life insurance arrangement, as defined in Sec. 1.61-
22(b)(1) or (2), of economic benefits described in Sec. 1.61-22(d) or 
of amounts described in Sec. 1.61-22(e) is treated as a distribution of 
property, the amount of which is determined under Sec. 1.61-22(d) and 
(e), respectively.
    (ii) Distribution of entire contract or undivided interest therein. 
A transfer (within the meaning of Sec. 1.61-22(c)(3)) of the ownership 
of a life insurance contract (or an undivided interest therein) that is 
part of a split-dollar life insurance arrangement is a distribution of 
property, the amount of which is determined pursuant to Sec. 1.61-
22(g)(1) and (2).
    (2) Other life insurance arrangements. A payment by a corporation on 
behalf of a shareholder of premiums on a life insurance contract or an 
undivided interest therein that is owned by the shareholder constitutes 
a distribution of property, even if such payment is not part of a split-
dollar life insurance arrangement under Sec. 1.61-22(b).
    (3) When distribution is made--(i) In general. Except as provided in 
paragraph (q)(3)(ii) of this section, paragraph (b) of this section 
shall apply to determine when a distribution described in paragraph 
(q)(1) or (2) of this section is taken into account by a shareholder.
    (ii) Exception. Notwithstanding paragraph (b) of this section, a 
distribution described in paragraph (q)(1)(ii) of this section shall be 
treated as made by a corporation to its shareholder at the time that the 
life insurance contract, or an undivided interest therein, is 
transferred (within the meaning of Sec. 1.61-22(c)(3)) to the 
shareholder.
    (4) Effective date--(i) General rule. This paragraph (q) applies to 
split-dollar and other life insurance arrangements entered into after 
September 17, 2003. For purposes of this paragraph (q)(4), a split-
dollar life insurance arrangement is entered into as determined under 
Sec. 1.61-22(j)(1)(ii).
    (ii) Modified arrangements treated as new arrangements. If a split-
dollar life insurance arrangement entered into on or before September 
17, 2003 is materially modified (within the meaning of Sec. 1.61-
22(j)(2)) after September 17, 2003, the arrangement is treated as a new 
arrangement entered into on the date of the modification.

[T.D. 6500, 25 FR 11607, Nov. 26, 1960, as amended by T.D. 6752, 29 FR 
12701, Sept. 9, 1964; T.D. 7084, 36 FR 267, Jan. 8, 1971; T.D. 7209, 37 
FR 20800, Oct. 5, 1972; 38 FR 20824, Aug. 3, 1973; 38 FR 32794, Nov. 28, 
1973; T.D. 7556, 44 FR 1376, Jan. 5, 1979; T.D. 8474, 58 FR 25557, Apr. 
27, 1993; T.D. 8586, 60 FR 2500, Jan. 10, 1995; T.D. 8924, 66 FR 725, 
Jan. 4, 2001; T.D. 8964, Sept. 27, 2001, 66 FR 49276; T.D. 9092, 68 FR 
54352, Sept. 17, 2003]

[[Page 14]]



Sec. 1.302-1  General.

    (a) Under section 302(d), unless otherwise provided in subchapter C, 
chapter 1 of the Code, a distribution in redemption of stock shall be 
treated as a distribution of property to which section 301 applies if 
the distribution is not within any of the provisions of section 302(b). 
A distribution in redemption of stock shall be considered a distribution 
in part or full payment in exchange for the stock under section 302(a) 
provided paragraph (1), (2), (3), or (4) of section 302(b) applies. 
Section 318(a) (relating to constructive ownership of stock) applies to 
all redemptions under section 302 except that in the termination of a 
shareholder's interest certain limitations are placed on the application 
of section 318(a)(1) by section 302(c)(2). The term redemption of stock 
is defined in section 317(b). Section 302 does not apply to that portion 
of any distribution which qualifies as a distribution in partial 
liquidation under section 346. For special rules relating to redemption 
of stock to pay death taxes see section 303. For special rules relating 
to redemption of section 306 stock see section 306. For special rules 
relating to redemption of stock in partial or complete liquidation see 
section 331.
    (b) If, in connection with a partial liquidation under the terms of 
section 346, stock is redeemed in an amount in excess of the amount 
specified by section 331(a)(2), section 302(b) shall first apply as to 
each shareholder to which it is applicable without limitation because of 
section 331(a)(2). That portion of the total distribution which is used 
in all redemptions from specific shareholders which are within the terms 
of section 302(a) shall be excluded in determining the application of 
sections 346 and 331(a)(2). For example, Corporation X has $50,000 which 
is attributable to the sale of one of two active businesses and which, 
if distributed in redemption of stock, would qualify as a partial 
liquidation under the terms of section 346(b). Corporation X distributes 
$60,000 to its shareholders in redemption of stock, $20,000 of which is 
in redemption of all of the stock of shareholder A within the meaning of 
section 302(b)(3). The $20,000 distributed in redemption of the stock of 
shareholder A will be excluded in determining the application of 
sections 346 and 331(a)(2). The entire $60,000 will be treated as in 
part or full payment for stock ($20,000 qualifying under section 302(a) 
and $40,000 qualifying under sections 346 and 331(a)(2)).



Sec. 1.302-2  Redemptions not taxable as dividends.

    (a) The fact that a redemption fails to meet the requirements of 
paragraph (2), (3) or (4) of section 302(b) shall not be taken into 
account in determining whether the redemption is not essentially 
equivalent to a dividend under section 302(b)(1). See, however, 
paragraph (b) of this section. For example, if a shareholder owns only 
nonvoting stock of a corporation which is not section 306 stock and 
which is limited and preferred as to dividends and in liquidation, and 
one-half of such stock is redeemed, the distribution will ordinarily 
meet the requirements of paragraph (1) of section 302(b) but will not 
meet the requirements of paragraph (2), (3) or (4) of such section. The 
determination of whether or not a distribution is within the phrase 
``essentially equivalent to a dividend'' (that is, having the same 
effect as a distribution without any redemption of stock) shall be made 
without regard to the earnings and profits of the corporation at the 
time of the distribution. For example, if A owns all the stock of a 
corporation and the corporation redeems part of his stock at a time when 
it has no earnings and profits, the distribution shall be treated as a 
distribution under section 301 pursuant to section 302(d).
    (b) The question whether a distribution in redemption of stock of a 
shareholder is not essentially equivalent to a dividend under section 
302(b)(1) depends upon the facts and circumstances of each case. One of 
the facts to be considered in making this determination is the 
constructive stock ownership of such shareholder under section 318(a). 
All distributions in pro rata redemptions of a part of the stock of a 
corporation generally will be treated as distributions under section 301 
if the corporation has only one class of stock outstanding. However, for 
distributions in partial liquidation, see section 346. The redemption of 
all of one class of stock (except section 306 stock) either

[[Page 15]]

at one time or in a series of redemptions generally will be considered 
as a distribution under section 301 if all classes of stock outstanding 
at the time of the redemption are held in the same proportion. 
Distribution in redemption of stock may be treated as distributions 
under section 301 regardless of the provisions of the stock certificate 
and regardless of whether all stock being redeemed was acquired by the 
stockholders from whom the stock was redeemed by purchase or otherwise. 
In every case in which a shareholder transfers stock to the corporation 
which issued such stock in exchange for property, the facts and 
circumstances shall be reported on his return except as provided in 
paragraph (d) of Sec. 1.331-1. See sections 346(a) and 6043 for 
requirements relating to returns by corporations.
    (c) In any case in which an amount received in redemption of stock 
is treated as a distribution of a dividend, proper adjustment of the 
basis of the remaining stock will be made with respect to the stock 
redeemed. (For adjustments to basis required for certain redemptions of 
corporate shareholders that are treated as extraordinary dividends, see 
section 1059 and the regulations thereunder.) The following examples 
illustrate the application of this rule:

    Example (1). A, an individual, purchased all of the stock of 
Corporation X for $100,000. In 1955 the corporation redeems half of the 
stock for $150,000, and it is determined that this amount constitutes a 
dividend. The remaining stock of Corporation X held by A has a basis of 
$100,000.
    Example (2). H and W, husband and wife, each own half of the stock 
of Corporation X. All of the stock was purchased by H for $100,000 cash. 
In 1950 H gave one-half of the stock to W, the stock transferred having 
a value in excess of $50,000. In 1955 all of the stock of H is redeemed 
for $150,000, and it is determined that the distribution to H in 
redemption of his shares constitutes the distribution of a dividend. 
Immediately after the transaction, W holds the remaining stock of 
Corporation X with a basis of $100,000.
    Example (3). The facts are the same as in Example (2) with the 
additional facts that the outstanding stock of Corporation X consists of 
1,000 shares and all but 10 shares of the stock of H is redeemed. 
Immediately after the transaction, H holds 10 shares of the stock of 
Corporation X with a basis of $50,000, and W holds 500 shares with a 
basis of $50,000.

[T.D. 6500, 25 FR 11607, Nov. 26, 1960, as amended by T.D. 8724, 62 FR 
38028, July 26, 1997]



Sec. 1.302-3  Substantially disproportionate redemption.

    (a) Section 302(b)(2) provides for the treatment of an amount 
received in redemption of stock as an amount received in exchange for 
such stock if--
    (1) Immediately after the redemption the shareholder owns less than 
50 percent of the total combined voting power of all classes of stock as 
provided in section 302(b)(2)(B),
    (2) The redemption is a substantially disproportionate redemption 
within the meaning of section 302(b)(2)(C), and
    (3) The redemption is not pursuant to a plan described in section 
302(b)(2)(D).

Section 318(a) (relating to constructive ownership of stock) shall apply 
both in making the disproportionate redemption test and in determining 
the percentage of stock ownership after the redemption. The requirements 
under section 302(b)(2) shall be applied to each shareholder separately 
and shall be applied only with respect to stock which is issued and 
outstanding in the hands of the shareholders. Section 302(b)(2) only 
applies to a redemption of voting stock or to a redemption of both 
voting stock and other stock. Section 302(b)(2) does not apply to the 
redemption solely of nonvoting stock (common or preferred). However, if 
a redemption is treated as an exchange to a particular shareholder under 
the terms of section 302(b)(2), such section will apply to the 
simultaneous redemption of nonvoting preferred stock (which is not 
section 306 stock) owned by such shareholder and such redemption will 
also be treated as an exchange. Generally, for purposes of this section, 
stock which does not have voting rights until the happening of an event, 
such as a default in the payment of dividends on preferred stock, is not 
voting stock until the happening of the specified event. Subsection 
302(b)(2)(D) provides that a redemption will not be treated as 
substantially disproportionate if made pursuant to a plan the purpose or 
effect of which is a series of

[[Page 16]]

redemptions which result in the aggregate in a distribution which is not 
substantially disproportionate. Whether or not such a plan exists will 
be determined from all the facts and circumstances.
    (b) The application of paragraph (a) of this section is illustrated 
by the following example:

    Example. Corporation M has outstanding 400 shares of common stock of 
which A, B, C and D each own 100 shares or 25 percent. No stock is 
considered constructively owned by A, B, C or D under section 318. 
Corporation M redeems 55 shares from A, 25 shares from B, and 20 shares 
from C. For the redemption to be disproportionate as to any shareholder, 
such shareholder must own after the redemptions less than 20 percent (80 
percent of 25 percent) of the 300 shares of stock then outstanding. 
After the redemptions, A owns 45 shares (15 percent), B owns 75 shares 
(25 percent), and C owns 80 shares (26 2/3 percent). The distribution is 
disproportionate only with respect to A.



Sec. 1.302-4  Termination of shareholder's interest.

    Section 302(b)(3) provides that a distribution in redemption of all 
of the stock of the corporation owned by a shareholder shall be treated 
as a distribution in part or full payment in exchange for the stock of 
such shareholder. In determining whether all of the stock of the 
shareholder has been redeemed, the general rule of section 302(c)(1) 
requires that the rules of constructive ownership provided in section 
318(a) shall apply. Section 302(c)(2), however, provides that section 
318(a)(1) (relating to constructive ownership of stock owned by members 
of a family) shall not apply where the specific requirements of section 
302(c)(2) are met. The following rules shall be applicable in 
determining whether the specific requirements of section 302(c)(2) are 
met:
    (a)(1) The agreement specified in section 302(c)(2)(A)(iii) shall be 
in the form of a separate statement in duplicate signed by the 
distributee and attached to the first return filed by the distributee 
for the taxable year in which the distribution described in section 
302(b)(3) occurs. The agreement shall recite that the distributee has 
not acquired, other than by bequest or inheritance, any interest in the 
corporation (as described in section 302(c)(2)(A)(i)) since the 
distribution and that the distributee agrees to notify the district 
director for the internal revenue district in which the distributee 
resides of any acquisition, other than by bequest or inheritance, of 
such an interest in the corporation within 30 days after the 
acquisition, if the acquisition occurs within 10 years from the date of 
the distribution.
    (2) If the distributee fails to file the agreement specified in 
section 302(c)(2)(A)(iii) at the time provided in paragraph (a)(1) of 
this section, then the district director for the internal revenue 
district in which the distributee resided at the time of filing the 
first return for the taxable year in which the distribution occurred 
shall grant a reasonable extension of time for filing such agreement, 
provided (i) it is established to the satisfaction of the district 
director that there was reasonable cause for failure to file the 
agreement within the prescribed time and (ii) a request for such 
extension is filed within such time as the district director considers 
reasonable under the circumstances.
    (b) The distributee who files an agreement under section 
302(c)(2)(A)(iii) shall retain copies of income tax returns and any 
other records indicating fully the amount of tax which would have been 
payable had the redemption been treated as a distribution subject to 
section 301.
    (c) If stock of a parent corporation is redeemed, section 
302(c)(2)(A), relating to acquisition of an interest in the corporation 
within 10 years after termination shall be applied with reference to an 
interest both in the parent corporation and any subsidiary of such 
parent corporation. If stock of a parent corporation is sold to a 
subsidiary in a transaction described in section 304, section 
302(c)(2)(A) shall be applicable to the acquisition of an interest in 
such subsidiary corporation or in the parent corporation. If stock of a 
subsidiary corporation is redeemed, section 302(c)(2)(A) shall be 
applied with reference to an interest both in such subsidiary 
corporation and its parent. Section 302(c)(2)(A) shall also be applied 
with respect to an interest in a

[[Page 17]]

corporation which is a successor corporation to the corporation the 
interest in which has been terminated.
    (d) For the purpose of section 302(c)(2)(A)(i), a person will be 
considered to be a creditor only if the rights of such person with 
respect to the corporation are not greater or broader in scope than 
necessary for the enforcement of his claim. Such claim must not in any 
sense be proprietary and must not be subordinate to the claims of 
general creditors. An obligation in the form of a debt may thus 
constitute a proprietary interest. For example, if under the terms of 
the instrument the corporation may discharge the principal amount of its 
obligation to a person by payments, the amount or certainty of which are 
dependent upon the earnings of the corporation, such a person is not a 
creditor of the corporation. Furthermore, if under the terms of the 
instrument the rate of purported interest is dependent upon earnings, 
the holder of such instrument may not, in some cases, be a creditor.
    (e) In the case of a distributee to whom section 302(b)(3) is 
applicable, who is a creditor after such transaction, the acquisition of 
the assets of the corporation in the enforcement of the rights of such 
creditor shall not be considered an acquisition of an interest in the 
corporation for purposes of section 302(c)(2) unless stock of the 
corporation, its parent corporation, or, in the case of a redemption of 
stock of a parent corporation, of a subsidiary of such corporation is 
acquired.
    (f) In determining whether an entire interest in the corporation has 
been terminated under section 302(b)(3), under all circumstances 
paragraphs (2), (3), (4), and (5) of section 318(a) (relating to 
constructive ownership of stock) shall be applicable.
    (g) Section 302(c)(2)(B) provides that section 302(c)(2)(A) shall 
not apply--
    (1) If any portion of the stock redeemed was acquired directly or 
indirectly within the 10-year period ending on the date of the 
distribution by the distributee from a person, the ownership of whose 
stock would (at the time of distribution) be attributable to the 
distributee under section 318(a), or
    (2) If any person owns (at the time of the distribution) stock, the 
ownership of which is attributable to the distributee under section 
318(a), such person acquired any stock in the corporation directly or 
indirectly from the distributee within the 10-year period ending on the 
date of the distribution, and such stock so acquired from the 
distributee is not redeemed in the same transaction,unless the 
acquisition (described in subparagraph (1) of this paragraph) or the 
disposition by the distributee (described in subparagraph (2) of this 
paragraph) did not have as one of its principal purposes the avoidance 
of Federal income tax. A transfer of stock by the transferor, within the 
10-year period ending on the date of the distribution, to a person whose 
stock would be attributable to the transferor shall not be deemed to 
have as one of its principal purposes the avoidance of Federal income 
tax merely because the transferee is in a lower income tax bracket than 
the transferor.

(Sec. 302(c)(2)(A)(iii) (68A Stat. 87; 26 U.S.C. 302 (c)(2)(A)(iii)))

[T.D. 7535, 43 FR 10686, Mar. 15, 1978]



Sec. 1.303-1  General.

    Section 303 provides that in certain cases a distribution in 
redemption of stock, the value of which is included in determining the 
value of the gross estate of a decedent, shall be treated as a 
distribution in full payment in exchange for the stock so redeemed.



Sec. 1.303-2  Requirements.

    (a) Section 303 applies only where the distribution is with respect 
to stock of a corporation the value of whose stock in the gross estate 
of the decedent for Federal estate tax purposes is an amount in excess 
of (1) 35 percent of the value of the gross estate of such decedent, or 
(2) 50 percent of the taxable estate of such decedent. For the purposes 
of such 35 percent and 50 percent requirements, stock of two or more 
corporations shall be treated as the stock of a single corporation if 
more than 75 percent in value of the outstanding stock of each such 
corporation is included in determining the value of the decedent's gross 
estate. For the purpose of the 75 percent requirement, stock which, at 
the decedent's death, represents the surviving

[[Page 18]]

spouse's interest in community property shall be considered as having 
been included in determining the value of the decedent's gross estate.
    (b) For the purpose of section 303(b)(2)(A)(i), the term gross 
estate means the gross estate as computed in accordance with section 
2031 (or, in the case of the estate of a decedent nonresident not a 
citizen of the United States, in accordance with section 2103). For the 
purpose of section 303(b)(2)(A)(ii), the term taxable estate means the 
taxable estate as computed in accordance with section 2051 (or, in the 
case of the estate of a decedent nonresident not a citizen of the United 
States, in accordance with section 2106). In case the value of an estate 
is determined for Federal estate tax purposes under section 2032 
(relating to alternate valuation), then, for purposes of section 
303(b)(2), the value of the gross estate, the taxable estate, and the 
stock shall each be determined on the applicable date prescribed in 
section 2032.
    (c)(1) In determining whether the estate of the decedent is 
comprised of stock of a corporation of sufficient value to satisfy the 
percentage requirements of section 303(b)(2)(A) and section 
303(b)(2)(B), the total value, in the aggregate, of all classes of stock 
of the corporation includible in determining the value of the gross 
estate is taken into account. A distribution under section 303(a) may be 
in redemption of the stock of the corporation includible in determining 
the value of the gross estate, without regard to the class of such 
stock.
    (2) The above may be illustrated by the following example:

    Example. The gross estate of the decedent has a value of $1,000,000, 
the taxable estate is $700,000, and the sum of the death taxes and 
funeral and administration expenses is $275,000. Included in determining 
the gross estate of the decedent is stock of three corporations which, 
for Federal estate tax purposes, is valued as follows:

Corporation A:
  Common stock...............................................   $100,000
  Preferred stock............................................    100,000
Corporation B:
  Common stock...............................................     50,000
  Preferred stock............................................    350,000
Corporation C: Common stock..................................    200,000
 


The stock of Corporation A and Corporation C included in the estate of 
the decedent constitutes all of the outstanding stock of both 
corporations. The stock of Corporation A and the stock of Corporation C, 
treated as the stock of a single corporation under section 303(b)(2)(B), 
has a value in excess of $350,000 (35 percent of the gross estate or 50 
percent of the taxable estate). Likewise, the stock of Corporation B has 
a value in excess of $350,000. The distribution by one or more of the 
above corporations, within the period prescribed in section 303(b)(1), 
of amounts not exceeding, in the aggregate, $275,000, in redemption of 
preferred stock or common stock of such corporation or corporations, 
will be treated as in full payment in exchange for the stock so 
redeemed.

    (d) If stock includible in determining the value of the gross estate 
of a decedent is exchanged for new stock, the basis of which is 
determined by reference to the basis of the old stock, the redemption of 
the new stock will be treated the same under section 303 as the 
redemption of the old stock would have been. Thus section 303 shall 
apply with respect to a distribution in redemption of stock received by 
the estate of a decedent (1) in connection with a reorganization under 
section 368, (2) in a distribution or exchange under section 355 (or so 
much of section 356 as relates to section 355), (3) in an exchange under 
section 1036 or (4) in a distribution to which section 305(a) applies. 
Similarly, a distribution in redemption of stock will qualify under 
section 303, notwithstanding the fact that the stock redeemed is section 
306 stock to the extent that the conditions of section 303 are met.
    (e) Section 303 applies to distributions made after the death of the 
decedent and (1) before the expiration of the 3-year period of 
limitations for the assessment of estate tax provided in section 6501(a) 
(determined without the application of any provisions of law extending 
or suspending the running of such period of limitations), or within 90 
days after the expiration of such period, or (2) if a petition for 
redetermination of a deficiency in such estate tax has been filed with 
the Tax Court within the time prescribed in section 6213, at any time 
before the expiration of 60 days after the decision of the Tax Court 
becomes final. The extension of the period of distribution provided in 
section 303(b)(1)(B) has reference solely to bona fide contests in the 
Tax Court

[[Page 19]]

and will not apply in the case of a petition for redetermination of a 
deficiency which is initiated solely for the purpose of extending the 
period within which section 303 would otherwise be applicable.
    (f) While section 303 will most frequently have application in the 
case where stock is redeemed from the executor or administrator of an 
estate, the section is also applicable to distributions in redemption of 
stock included in the decedent's gross estate and held at the time of 
the redemption by any person who acquired the stock by any of the means 
comprehended by part III, subchapter A, chapter 11 of the Code, 
including the heir, legatee, or donee of the decedent, a surviving joint 
tenant, surviving spouse, appointee, or taker in default of appointment, 
or a trustee of a trust created by the decedent. Thus section 303 may 
apply with respect to a distribution in redemption of stock from a donee 
to whom the decedent has transferred stock in contemplation of death 
where the value of such stock is included in the decedent's gross estate 
under section 2035. Similarly, section 303 may apply to the redemption 
of stock from a beneficiary of the estate to whom an executor has 
distributed the stock pursuant to the terms of the will of the decedent. 
However, section 303 is not applicable to the case where stock is 
redeemed from a stockholder who has acquired the stock by gift or 
purchase from any person to whom such stock has passed from the 
decedent. Nor is section 303 applicable to the case where stock is 
redeemed from a stockholder who has acquired the stock from the executor 
in satisfaction of a specific monetary bequest.
    (g)(1) The total amount of the distributions to which section 303 
may apply with respect to redemptions of stock included in the gross 
estate of a decedent may not exceed the sum of the estate, inheritance, 
legacy, and succession taxes (including any interest collected as a part 
of such taxes) imposed because of the decedent's death and the amount of 
funeral and administration expenses allowable as deductions to the 
estate. Where there is more than one distribution in redemption of stock 
described in section 303(b)(2) during the period of time prescribed in 
section 303(b)(1), the distributions shall be applied against the total 
amount which qualifies for treatment under section 303 in the order in 
which the distributions are made. For this purpose, all distributions in 
redemption of such stock shall be taken into account, including 
distributions which under another provision of the Code are treated as 
in part or full payment in exchange for the stock redeemed.
    (2) Subparagraph (1) of this paragraph may be illustrated by the 
following example:

    Example. (i) The gross estate of the decedent has a value of 
$800,000, the taxable estate is $500,000, and the sum of the death taxes 
and funeral and administrative expenses is $225,000. Included in 
determining the gross estate of the decedent is the stock of a 
corporation which for Federal estate tax purposes is valued at $450,000. 
During the first year of administration, one-third of such stock is 
distributed to a legatee and shortly thereafter this stock is redeemed 
by the corporation for $150,000. During the second year of 
administration, another one-third of such stock includible in the estate 
is redeemed for $150,000.
    (ii) The first distribution of $150,000 is applied against the 
$225,000 amount that qualifies for treatment under section 303, 
regardless of whether the first distribution was treated as in payment 
in exchange for stock under section 302(a). Thus, only $75,000 of the 
second distribution may be treated as in full payment in exchange for 
stock under section 303. The tax treatment of the remaining $75,000 
would be determined under other provisions of the Code.

    (h) For the purpose of section 303, the estate tax or any other 
estate, inheritance, legacy, or succession tax shall be ascertained 
after the allowance of any credit, relief, discount, refund, remission 
or reduction of tax.

[T.D. 6500, 25 FR 11607, Nov. 26, 1960, as amended by T.D. 6724, 29 FR 
5343, Apr. 21, 1964; T.D. 7346, 40 FR 10669, Mar. 7, 1975]



Sec. 1.303-3  Application of other sections.

    (a) The sole effect of section 303 is to exempt from tax as a 
dividend a distribution to which such section is applicable when made in 
redemption of stock includible in a decedent's gross estate. Such 
section does not, however, in any other manner affect the principles set 
forth in sections 302 and 306.

[[Page 20]]

Thus, if stock of a corporation is owned equally by A, B, and the C 
Estate, and the corporation redeems one-half of the stock of each 
shareholder, the determination of whether the distributions to A and B 
are essentially equivalent to dividends shall be made without regard to 
the effect which section 303 may have upon the taxability of the 
distribution to the C Estate.
    (b) See section 304 relative to redemption of stock through the use 
of related corporations.



Sec. 1.304-1  General.

    (a) Except as provided in paragraph (b) of this section, section 304 
is applicable where a shareholder sells stock of one corporation to a 
related corporation as defined in section 304. Sales to which section 
304 is applicable shall be treated as redemptions subject to sections 
302 and 303.
    (b) In the case of--
    (1) Any acquisition of stock described in section 304 which occurred 
before June 22, 1954, and
    (2) Any acquisition of stock described in section 304 which occurred 
on or after June 22, 1954, and on or before December 31, 1958, pursuant 
to a contract entered into before June 22, 1954.

The extent to which the property received in return for such acquisition 
shall be treated as a dividend shall be determined as if the Internal 
Revenue Code of 1939 continued to apply in respect of such acquisition 
and as if the Internal Revenue Code of 1954 had not been enacted. See 
section 391. In cases to which this paragraph applies, the basis of the 
stock received by the acquiring corporation shall be determined as if 
the Internal Revenue Code of 1939 continued to apply in respect of such 
acquisition and as if the Internal Revenue Code of 1954 had not been 
enacted.

[T.D. 6533, 26 FR 401, Jan. 19, 1961]



Sec. 1.304-2  Acquisition by related corporation (other than subsidiary).

    (a) If a corporation, in return for property, acquires stock of 
another corporation from one or more persons, and the person or persons 
from whom the stock was acquired were in control of both such 
corporations before the acquisition, then such property shall be treated 
as received in redemption of stock of the acquiring corporation. The 
stock received by the acquiring corporation shall be treated as a 
contribution to the capital of such corporation. See section 362(a) for 
determination of the basis of such stock. The transferor's basis for his 
stock in the acquiring corporation shall be increased by the basis of 
the stock surrendered by him. (But see below in this paragraph for 
subsequent reductions of basis in certain cases.) As to each person 
transferring stock, the amount received shall be treated as a 
distribution of property under section 302(d), unless as to such person 
such amount is to be treated as received in exchange for the stock under 
the terms of section 302(a) or section 303. In applying section 302(b), 
reference shall be had to the shareholder's ownership of stock in the 
issuing corporation and not to his ownership of stock in the acquiring 
corporation (except for purposes of applying section 318(a)). In 
determining control and applying section 302(b), section 318(a) 
(relating to the constructive ownership of stock) shall be applied 
without regard to the 50-percent limitation contained in section 
318(a)(2)(C) and (3)(C). A series of redemptions referred to in section 
302(b)(2)(D) shall include acquisitions by either of the corporations of 
stock of the other and stock redemptions by both corporations. If 
section 302(d) applies to the surrender of stock by a shareholder, his 
basis for his stock in the acquiring corporation after the transaction 
(increased as stated above in this paragraph) shall not be decreased 
except as provided in section 301. If section 302(d) does not apply, the 
property received shall be treated as received in a distribution in 
payment in exchange for stock of the acquiring corporation under section 
302(a), which stock has a basis equal to the amount by which the 
shareholder's basis for his stock in the acquiring corporation was 
increased on account of the contribution to capital as provided for 
above in this paragraph. Accordingly, such amount shall be applied in 
reduction of the shareholder's basis for his stock in the acquiring 
corporation. Thus, the basis of each share of the shareholder's stock in 
the acquiring corporation will be the same as

[[Page 21]]

the basis of such share before the entire transaction. The holding 
period of the stock which is considered to have been redeemed shall be 
the same as the holding period of the stock actually surrendered.
    (b) In any case in which two or more persons, in the aggregate, 
control two corporations, section 304(a)(1) will apply to sales by such 
persons of stock in either corporation to the other (whether or not made 
simultaneously) provided the sales by each of such persons are related 
to each other. The determination of whether the sales are related to 
each other shall be dependent upon the facts and circumstances 
surrounding all of the sales. For this purpose, the fact that the sales 
may occur during a period of one or more years (such as in the case of a 
series of sales by persons who together control each of such 
corporations immediately prior to the first of such sales and 
immediately subsequent to the last of such sales) shall be disregarded, 
provided the other facts and circumstances indicate related 
transactions.
    (c) The application of section 304(a)(1) may be illustrated by the 
following examples:

    Example (1). Corporation X and corporation Y each have outstanding 
200 shares of common stock. One-half of the stock of each corporation is 
owned by an individual, A, and one-half by another individual, B, who is 
unrelated to A. On or after August 31, 1964, A sells 30 shares of 
corporation X stock to corporation Y for $50,000, such stock having an 
adjusted basis of $10,000 to A. After the sale, A is considered as 
owning corporation X stock as follows: (i) 70 shares directly, and (ii) 
15 shares constructively, since by virtue of his 50-percent ownership of 
Y he constructively owns 50 percent of the 30 shares owned directly by 
Y. Since A's percentage of ownership of X's voting stock after the sale 
(85 out of 200 shares, or 42.5%) is not less than 80 percent of his 
percentage of ownership of X's voting stock before the sale (100 out of 
200 shares, or 50%), the transfer is not ``substantially 
disproportionate'' as to him as provided in section 302(b)(2). Under 
these facts, and assuming that section 302(b)(1) is not applicable, the 
entire $50,000 is treated as a dividend to A to the extent of the 
earnings and profits of corporation Y. The basis of the corporation X 
stock to corporation Y is $10,000, its adjusted basis to A. The amount 
of $10,000 is added to the basis of the stock of corporation Y in the 
hands of A.
    Example (2). The facts are the same as in Example (1) except that A 
sells 80 shares of corporation X stock to corporation Y, and the sale 
occurs before August 31, 1964. After the sale, A is considered as owning 
corporation X stock as follows: (i) 20 shares directly, and (ii) 90 
shares indirectly, since by virtue of his 50-percent ownership of Y he 
constructively owns 50 percent of the 80 shares owned directly by Y and 
50 percent of the 100 shares attributed to Y because they are owned by 
Y's stockholder, B. Since after the sale A owns a total of more than 50 
percent of the voting power of all of the outstanding stock of X (110 
out of 200 shares, or 55%), the transfer is not ``substantially 
disproportionate'' as to him as provided in section 302(b)(2).
    Example (3). Corporation X and corporation Y each have outstanding 
100 shares of common stock. A, an individual, owns one-half the stock of 
corporation X, and C owns one-half the stock of corporation Y. A, B, and 
C are unrelated. A sells 30 shares of the stock of corporation X to 
corporation Y for $50,000, such stock having an adjusted basis of 
$10,000 to him. After the sale, A is considered as owning 35 shares of 
the stock of corporation X (20 shares directly and 15 constructively 
because one-half of the 30 shares owned by corporation Y are attributed 
to him). Since before the sale he owned 50 percent of the stock of 
corporation X and after the sale he owned directly and constructively 
only 35 percent of such stock, the redemption is substantially 
disproportionate as to him pursuant to the provisions of section 
302(b)(2). He, therefore, realizes a gain of $40,000 ($50,000 minus 
$10,000). If the stock surrendered is a capital asset, such gain is 
long-term or short-term capital gain depending on the period of time 
that such stock was held. The basis to A for the stock of corporation Y 
is not changed as a result of the entire transaction. The basis to 
corporation Y for the stock of corporation X is $50,000, i.e., the basis 
of the transferor ($10,000), increased in the amount of gain recognized 
to the transferor ($40,000) on the transfer.
    Example (4). Corporation X and corporation Y each have outstanding 
100 shares of common stock. H, an individual, W, his wife, S, his son, 
and G, his grandson, each own 25 shares of stock of each corporation. H 
sells all of his 25 shares of stock of corporation X to corporation Y. 
Since both before and after the transaction H owned directly and 
constructively 100 percent of the stock of corporation X, and assuming 
that section 302(b)(1) is not applicable, the amount received by him for 
his stock of corporation X is treated as a dividend to him to the extent 
of the earnings and profits of corporation Y.

[T.D. 6500, 25 FR 11607, Nov. 26, 1960, as amended by T.D. 6969, 33 FR 
11997, Aug. 23, 1968]

[[Page 22]]



Sec. 1.304-3  Acquisition by a subsidiary.

    (a) If a subsidiary acquires stock of its parent corporation from a 
shareholder of the parent corporation, the acquisition of such stock 
shall be treated as though the parent corporation had redeemed its own 
stock. For the purpose of this section, a corporation is a parent 
corporation if it meets the 50 percent ownership requirements of section 
304(c). The determination whether the amount received shall be treated 
as an amount received in payment in exchange for the stock shall be made 
by applying section 303, or by applying section 302(b) with reference to 
the stock of the issuing parent corporation. If such distribution would 
have been treated as a distribution of property (pursuant to section 
302(d)) under section 301, the entire amount of the selling price of the 
stock shall be treated as a dividend to the seller to the extent of the 
earnings and profits of the parent corporation determined as if the 
distribution had been made to it of the property that the subsidiary 
exchanged for the stock. In such cases, the transferor's basis for his 
remaining stock in the parent corporation will be determined by 
including the amount of the basis of the stock of the parent corporation 
sold to the subsidiary.
    (b) Section 304(a)(2) may be illustrated by the following example:

    Example. Corporation M has outstanding 100 shares of common stock 
which are owned as follows: B, 75 shares, C, son of B, 20 shares, and D, 
daughter of B, 5 shares. Corporation M owns the stock of Corporation X. 
B sells his 75 shares of Corporation M stock to Corporation X. Under 
section 302(b)(3) this is a termination of B's entire interest in 
Corporation M and the full amount received from the sale of his stock 
will be treated as payment in exchange for this stock, provided he 
fulfills the requirements of section 302(c)(2) (relating to an 
acquisition of an interest in the corporations).



Sec. 1.304-4T  Special rule for use of a related corporation to acquire 
for property the stock of another commonly owned corporation (temporary).

    (a) In general. At the discretion of the District Director, for 
purposes of determining the amount constituting a dividend, and source 
thereof, under section 304(b)(2), a corporation (deemed acquiring 
corporation) will be considered to have acquired for property the stock 
of a corporation (issuing corporation) acquired for property by another 
corporation (acquiring corporation) that is controlled by the deemed 
acquiring corporation, if one of the principal purposes for creating, 
organizing, or funding the acquiring corporation, through capital 
contributions or debt, is to avoid the application of section 304 to the 
deemed acquiring corporation. The following example illustrates the 
application of this paragraph (a).

    Example. P, a domestic corporation, owns all of the stock of CFC1, a 
controlled foreign corporation with substantial accumulated earnings and 
profits. CFC1 is organized in Country X, which imposes a high rate of 
tax on CFC1's income. P also owns all of the stock of CFC2, another 
controlled foreign corporation, which has accumulated earnings and 
profits of $200x. CFC2 is organized in Country Y which imposes a low 
rate of tax on CFC2's income. P wishes to own all of its foreign 
corporations in a direct chain and to effectuate a repatriation of 
CFC2's cash to P. In order to avoid having to obtain Country X approval 
for the acquisition of CFC1 (a Country X corporation) by CFC2 (a Country 
Y corporation) and to avoid a dividend to P out of CFC2's earnings and 
profits that would otherwise occur as a result of the application of 
section 304, P causes CFC2 to form RFC as a Country X wholly-owned 
subsidiary and to contribute $100x to RFC. RFC will purchase, for $100x, 
all of the stock of CFC1 from P. Because one of P's principal purposes 
for having CFC1 owned by RFC is to avoid section 304, under Sec. 1.304-
4T(a), CFC2 is considered to have acquired the stock of CFC1 for $100x 
for purposes of determining the amount constituting a dividend (and 
source thereof) for purposes of section 304(b)(2).

    (b) Availability to taxpayers. Nothing in this regulation shall be 
construed to provide a taxpayer the right to compel the Internal Revenue 
Service to disregard the form of its transaction for Federal income tax 
purposes.
    (c) Effective date. This section is effective June 14, 1988, with 
respect to acquisitions of stock occurring on or after June 14, 1988.

[T.D. 8209, 53 FR 22171, June 14, 1988]



Sec. 1.304-5  Control.

    (a) Control requirement in general. Section 304(c)(1) provides that, 
for purposes of section 304, control means the ownership of stock 
possessing at least

[[Page 23]]

50 percent of the total combined voting power of all classes of stock 
entitled to vote or at least 50 percent of the total value of shares of 
all classes of stock. Section 304(c)(3) makes section 318(a) (relating 
to constructive ownership of stock), as modified by section 
304(c)(3)(B), applicable to section 304 for purposes of determining 
control under section 304(c)(1).
    (b) Effect of section 304(c)(2)(B)--(1) In general. In determining 
whether the control test with respect to both the issuing and acquiring 
corporations is satisfied, section 304(a)(1) considers only the person 
or persons that--
    (i) Control the issuing corporation before the transaction;
    (ii) Transfer issuing corporation stock to the acquiring corporation 
for property; and
    (iii) Control the acquiring corporation thereafter.
    (2) Application. Section 317 defines property to include money, 
securities, and any other property except stock (or stock rights) in the 
distributing corporation. However, section 304(c)(2)(B) provides a 
special rule to extend the relevant group of persons to be tested for 
control of both the issuing and acquiring corporations to include the 
person or persons that do not acquire property, but rather solely stock 
from the acquiring corporation in the transaction. Section 304(c)(2)(B) 
provides that if two or more persons in control of the issuing 
corporation transfer stock of such corporation to the acquiring 
corporation, and if the transferors are in control of the acquiring 
corporation after the transfer, the person or persons in control of each 
corporation include each of those transferors. Because the purpose of 
section 304(c)(2)(B) is to include in the relevant control group the 
person or persons that retain or acquire acquiring corporation stock in 
the transaction, only the person or persons transferring stock of the 
issuing corporation that retain or acquire any proprietary interest in 
the acquiring corporation are taken into account for purposes of 
applying section 304(c)(2)(B).
    (3) Example. This section may be illustrated by the following 
example.

    Example (a) A, the owner of 20% of T's only class of stock, 
transfers that stock to P solely in exchange for all of the P stock. 
Pursuant to the same transaction, P, solely in exchange for cash, 
acquires the remaining 80% of the T stock from T's other shareholder, B, 
who is unrelated to A and P.
    (b) Although A and B together were in control of T (the issuing 
corporation) before the transaction and A and B each transferred T stock 
to P (the acquiring corporation), sections 304(a)(1) and (c)(2)(B) do 
not apply to B because B did not retain or acquire any proprietary 
interest in P in the transaction. Section 304(a)(1) also does not apply 
to A because A (or any control group of which A was a member) did not 
control T before the transaction and P after the transaction.

    (c) Effective date. This section is effective on January 20, 1994.

[T.D. 8515, 59 FR 2960, Jan. 20, 1994]



Sec. 1.305-1  Stock dividends.

    (a) In general. Under section 305, a distribution made by a 
corporation to its shareholders in its stock or in rights to acquire its 
stock is not included in gross income except as provided in section 
305(b) and the regulations promulgated under the authority of section 
305(c). A distribution made by a corporation to its shareholders in its 
stock or rights to acquire its stock which would not otherwise be 
included in gross income by reason of section 305 shall not be so 
included merely because such distribution was made out of Treasury stock 
or consisted of rights to acquire Treasury stock. See section 307 for 
rules as to basis of stock and stock rights acquired in a distribution.
    (b) Amount of distribution. (1) In general, where a distribution of 
stock or rights to acquire stock of a corporation is treated as a 
distribution of property to which section 301 applies by reason of 
section 305(b), the amount of the distribution, in accordance with 
section 301(b) and Sec. 1.301-1, is the fair market value of such stock 
or rights on the date of distribution. See Example (1) of Sec. 1.305-
2(b).
    (2) Where a corporation which regularly distributes its earnings and 
profits, such as a regulated investment company, declares a dividend 
pursuant to which the shareholders may elect to receive either money or 
stock of the distributing corporation of equivalent value, the amount of 
the distribution of the stock received by any shareholder electing to 
receive stock will be

[[Page 24]]

considered to equal the amount of the money which could have been 
received instead. See Example (2) of Sec. 1.305-2(b).
    (3) For rules for determining the amount of the distribution where 
certain transactions, such as changes in conversion ratios or periodic 
redemptions, are treated as distributions under section 305(c), see 
Examples (6), (8), (9), and (15) of Sec. 1.305-3(e).
    (c) Adjustment in purchase price. A transfer of stock (or rights to 
acquire stock) or an increase or decrease in the conversion ratio or 
redemption price of stock which represents an adjustment of the price to 
be paid by the distributing corporation in acquiring property (within 
the meaning of section 317(a)) is not within the purview of section 305 
because it is not a distribution with respect to its stock. For example, 
assume that on January 1, 1970, pursuant to a reorganization, 
corporation X acquires all the stock of corporation Y solely in exchange 
for its convertible preferred class B stock. Under the terms of the 
class B stock, its conversion ratio is to be adjusted in 1976 under a 
formula based upon the earnings of corporation Y over the 6-year period 
ending on December 31, 1975. Such an adjustment in 1976 is not covered 
by section 305.
    (d) Definitions. (1) For purposes of this section and Sec. Sec. 
1.305-2 through 1.305-7, the term stock includes rights or warrants to 
acquire such stock.
    (2) For purposes of Sec. Sec. 1.305-2 through 1.305-7, the term 
shareholder includes a holder of rights or warrants or a holder of 
convertible securities.

[T.D. 7281, 38 FR 18532, July 12, 1973; 38 FR 19910, July 25, 1973]



Sec. 1.305-2  Distributions in lieu of money.

    (a) In general. Under section 305(b)(1), if any shareholder has the 
right to an election or option with respect to whether a distribution 
shall be made either in money or any other property, or in stock or 
rights to acquire stock of the distributing corporation, then, with 
respect to all shareholders, the distribution of stock or rights to 
acquire stock is treated as a distribution of property to which section 
301 applies regardless of--
    (1) Whether the distribution is actually made in whole or in part in 
stock or in stock rights;
    (2) Whether the election or option is exercised or exercisable 
before or after the declaration of the distribution;
    (3) Whether the declaration of the distribution provides that the 
distribution will be made in one medium unless the shareholder 
specifically requests payment in the other;
    (4) Whether the election governing the nature of the distribution is 
provided in the declaration of the distribution or in the corporate 
charter or arises from the circumstances of the distribution; or
    (5) Whether all or part of the shareholders have the election.
    (b) Examples. The application of section 305(b)(1) may be 
illustrated by the following examples:

    Example (1). (i) Corporation X declared a dividend payable in 
additional shares of its common stock to the holders of its outstanding 
common stock on the basis of two additional shares for each share held 
on the record date but with the provision that, at the election of any 
shareholder made within a specified period prior to the distribution 
date, he may receive one additional share for each share held on the 
record date plus $12 principal amount of securities of corporation Y 
owned by corporation X. The fair market value of the stock of 
corporation X on the distribution date was $10 per share. The fair 
market value of $12 principal amount of securities of corporation Y on 
the distribution date was $11 but such securities had a cost basis to 
corporation X of $9.
    (ii) The distribution to all shareholders of one additional share of 
stock of corporation X (with respect to which no election applies) for 
each share outstanding is not a distribution to which section 301 
applies.
    (iii) The distribution of the second share of stock of corporation X 
to those shareholders who do not elect to receive securities of 
corporation Y is a distribution of property to which section 301 
applies, whether such shareholders are individuals or corporations. The 
amount of the distribution to which section 301 applies is $10 per share 
of stock of corporation X held on the record date (the fair market value 
of the stock of corporation X on the distribution date).
    (iv) The distribution of securities of corporation Y in lieu of the 
second share of stock of corporation X to the shareholders of 
corporation X whether individuals or corporations, who elect to receive 
such securities, is also a distribution of property to which section 301 
applies.

[[Page 25]]

    (v) In the case of the individual shareholders of corporation X who 
elects to receive such securities, the amount of the distribution to 
which section 301 applies is $11 per share of stock of corporation X 
held on the record date (the fair market value of the $12 principal 
amount of securities of corporation Y on the distribution date).
    (vi) In the case of the corporate shareholders of corporation X 
electing to receive such securities, the amount of the distribution to 
which section 301 applies is $9 per share of stock of corporation X held 
on the record date (the basis of the securities of corporation Y in the 
hands of corporation X).
    Example (2). On January 10, 1970, corporation X, a regulated 
investment company, declared a dividend of $1 per share on its common 
stock payable on February 11, 1970, in cash or in stock of corporation X 
of equivalent value determined as of January 22, 1970, at the election 
of the shareholder made on or before January 22, 1970. The amount of the 
distribution to which section 301 applies is $1 per share whether the 
shareholder elects to take cash or stock and whether the shareholder is 
an individual or a corporation. Such amount will also be used in 
determining the dividend paid deduction of corporation X and the 
reduction in earnings and profits of corporation X.

[T.D. 7281, 38 FR 18532, July 12, 1973]



Sec. 1.305-3  Disproportionate distributions.

    (a) In general. Under section 305(b)(2), a distribution (including a 
deemed distribution) by a corporation of its stock or rights to acquire 
its stock is treated as a distribution of property to which section 301 
applies if the distribution (or a series of distributions of which such 
distribution is one) has the result of (1) the receipt of money or other 
property by some shareholders, and (2) an increase in the proportionate 
interests of other shareholders in the assets or earnings and profits of 
the corporation. Thus, if a corporation has two classes of common stock 
outstanding and cash dividends are paid on one class and stock dividends 
are paid on the other class, the stock dividends are treated as 
distributions to which section 301 applies.
    (b) Special rules. (1) As used in section 305(b)(2), the term a 
series of distributions encompasses all distributions of stock made or 
deemed made by a corporation which have the result of the receipt of 
cash or property by some shareholders and an increase in the 
proportionate interests of other shareholders.
    (2) In order for a distribution of stock to be considered as one of 
a series of distributions it is not necessary that such distribution be 
pursuant to a plan to distribute cash or property to some shareholders 
and to increase the proportionate interests of other shareholders. It is 
sufficient if there is an actual or deemed distribution of stock (of 
which such distribution is one) and as a result of such distribution or 
distributions some shareholders receive cash or property and other 
shareholders increase their proportionate interests. For example, if a 
corporation pays quarterly stock dividends to one class of common 
shareholders and annual cash dividends to another class of common 
shareholders the quarterly stock dividends constitute a series of 
distributions of stock having the result of the receipt of cash or 
property by some shareholders and an increase in the proportionate 
interests of other shareholders. This is so whether or not the stock 
distributions and the cash distributions are steps in an overall plan or 
are independent and unrelated. Accordingly, all the quarterly stock 
dividends are distributions to which section 301 applies.
    (3) There is no requirement that both elements of section 305(b)(2) 
(i.e., receipt of cash or property by some shareholders and an increase 
in proportionate interests of other shareholders) occur in the form of a 
distribution or series of distributions as long as the result of a 
distribution or distributions of stock is that some shareholders' 
proportionate interests increase and other shareholders in fact receive 
cash or property. Thus, there is no requirement that the shareholders 
receiving cash or property acquire the cash or property by way of a 
corporate distribution with respect to their shares, so long as they 
receive such cash or property in their capacity as shareholders, if 
there is a stock distribution which results in a change in the 
proportionate interests of some shareholders and other shareholders 
receive cash or property. However, in order for a distribution of 
property to meet the requirement of section 305(b)(2), such

[[Page 26]]

distribution must be made to a shareholder in his capacity as a 
shareholder, and must be a distribution to which section 301, 356(a)(2), 
871(a)(1)(A), 881(a)(1), 852(b), or 857(b) applies. (Under section 
305(d)(2), the payment of interest to a holder of a convertible 
debenture is treated as a distribution of property to a shareholder for 
purposes of section 305(b)(2).) For example if a corporation makes a 
stock distribution to its shareholders and, pursuant to a prearranged 
plan with such corporation, a related corporation purchases such stock 
from those shareholders who want cash, in a transaction to which section 
301 applies by virtue of section 304, the requirements of section 
305(b)(2) are satisfied. In addition, a distribution of property 
incident to an isolated redemption of stock (for example, pursuant to a 
tender offer) will not cause section 305(b)(2) to apply even though the 
redemption distribution is treated as a distribution of property to 
which section 301, 871(a)(1)(A), 881(a)(1), or 356(a)(2) applies.
    (4) Where the receipt of cash or property occurs more than 36 months 
following a distribution or series of distributions of stock, or where a 
distribution or series of distributions of stock is made more than 36 
months following the receipt of cash or property, such distribution or 
distributions will be presumed not to result in the receipt of cash or 
property by some shareholders and an increase in the proportionate 
interest of other shareholders, unless the receipt of cash or property 
and the distribution or series of distributions of stock are made 
pursuant to a plan. For example, if, pursuant to a plan, a corporation 
pays cash dividends to some shareholders on January 1, 1971 and 
increases the proportionate interests of other shareholders on March 1, 
1974, such increases in proportionate interests are distributions to 
which section 301 applies.
    (5) In determining whether a distribution or a series of 
distributions has the result of a disproportionate distribution, there 
shall be treated as outstanding stock of the distributing corporation 
(i) any right to acquire such stock (whether or not exercisable during 
the taxable year), and (ii) any security convertible into stock of the 
distributing corporation (whether or not convertible during the taxable 
year).
    (6) In cases where there is more than one class of stock 
outstanding, each class of stock is to be considered separately in 
determining whether a shareholder has increased his proportionate 
interest in the assets or earnings and profits of a corporation. The 
individual shareholders of a class of stock will be deemed to have an 
increased interest if the class of stock as a whole has an increased 
interest in the corporation.
    (c) Distributions of cash in lieu of fractional shares. (1) Section 
305(b)(2) will not apply if--
    (i) A corporation declares a dividend payable in stock of the 
corporation and distributes cash in lieu of fractional shares to which 
shareholders would otherwise be entitled, or
    (ii) Upon a conversion of convertible stock or securities a 
corporation distributes cash in lieu of fractional shares to which 
shareholders would otherwise be entitled.

Provided the purpose of the distribution of cash is to save the 
corporation the trouble, expense, and inconvenience of issuing and 
transferring fractional shares (or scrip representing fractional 
shares), or issuing full shares representing the sum of fractional 
shares, and not to give any particular group of shareholders an 
increased interest in the assets or earnings and profits of the 
corporation. For purposes of paragraph (c)(1)(i) of this section, if the 
total amount of cash distributed in lieu of fractional shares is 5 
percent or less of the total fair market value of the stock distributed 
(determined as of the date of declaration), the distribution shall be 
considered to be for such valid purpose.
    (2) In a case to which subparagraph (1) of this paragraph applies, 
the transaction will be treated as though the fractional shares were 
distributed as part of the stock distribution and then were redeemed by 
the corporation. The treatment of the cash received by a shareholder 
will be determined under section 302.
    (d) Adjustment in conversion ratio. (1)(i) Except as provided in 
subparagraph (2) of this paragraph, if a corporation has convertible 
stock or convertible securities outstanding (upon

[[Page 27]]

which it pays or is deemed to pay dividends or interest in money or 
other property) and distributes a stock dividend (or rights to acquire 
such stock) with respect to the stock into which the convertible stock 
or securities are convertible, an increase in proportionate interest in 
the assets or earnings and profits of the corporation by reason of such 
stock dividend shall be considered to have occurred unless a full 
adjustment in the conversion ratio or conversion price to reflect such 
stock dividend is made. Under certain circumstances, however, the 
application of an adjustment formula which in effect provides for a 
``credit'' where stock is issued for consideration in excess of the 
conversion price may not satisfy the requirement for a ``full 
adjustment.'' Thus, if under a ``conversion price'' antidilution formula 
the formula provides for a ``credit'' where stock is issued for 
consideration in excess of the conversion price (in effect as an offset 
against any decrease in the conversion price which would otherwise be 
required when stock is subsequently issued for consideration below the 
conversion price) there may still be an increase in proportionate 
interest by reason of a stock dividend after application of the formula, 
since any downward adjustment of the conversion price that would 
otherwise be required to reflect the stock dividend may be offset, in 
whole or in part, by the effect of prior sales made at prices above the 
conversion price. On the other hand, if there were no prior sales of 
stock above the conversion price then a full adjustment would occur upon 
the application of such an adjustment formula and there would be no 
change in proportionate interest. Similarly, if consideration is to be 
received in connection with the issuance of stock, such as in the case 
of a rights offering or a distribution of warrants, the fact that such 
consideration is taken into account in making the antidilution 
adjustment will not preclude a full adjustment. See paragraph (b) of the 
example in this subparagraph for a case where the application of an 
adjustment formula with a cumulative feature does not result in a full 
adjustment and where a change in proportionate interest therefore 
occurs. See paragraph (c) for a case where the application of an 
adjustment formula with a cumulative feature does result in a full 
adjustment and where no change in proportionate interest therefore 
occurs. See paragraph (d) for an application of an antidilution formula 
in the case of a rights offering. See paragraph (e) for a case where the 
application of a noncumulative type adjustment formula will in all cases 
prevent a change in proportionate interest from occurring in the case of 
a stock dividend, because of the omission of the cumulative feature.
    (ii) The principles of this subparagraph may be illustrated by the 
following example.

    Example. (a) Corporation S has two classes of securities 
outstanding, convertible debentures and common stock. At the time of 
issuance of the debentures the corporation had 100 shares of common 
stock outstanding. Each debenture is interest-paying and is convertible 
into common stock at a conversion price of $2. The debenture's 
conversion price is subject to reduction pursuant to the following 
formula:

    (Number of common shares outstanding at date of issue of debentures 
times initial conversion price) plus (Consideration received upon 
issuance of additional common shares) divided by (Number of common 
shares outstanding at date of issue of debentures) plus (Number of 
additional common shares issued)


Under the formula, common stock dividends are treated as an issue of 
common stock for zero consideration. If the computation results in a 
figure which is less than the existing conversion price the conversion 
price is reduced. However, under the formula, the existing conversion 
price is never increased. The formula works upon a cumulative basis 
since the numerator includes the consideration received upon the 
issuance of all common shares subsequent to the issuance of the 
debentures, and the reduction effected by the formula because of a sale 
or issuance of common stock below the existing conversion price is thus 
limited by any prior sales made above the existing conversion price.
    (b) In 1972 corporation S sells 100 common shares at $3 per share. 
In 1973 the corporation declares a stock dividend of 20 shares to all 
holders of common stock. Under the antidilution formula no adjustment 
will be made to the conversion price of the debentures to reflect the 
stock dividend to common stockholders since the prior sale of common 
stock in excess of the conversion

[[Page 28]]

price in 1972 offsets the reduction in the conversion price which would 
otherwise result, as follows:

100x$2+$300/100+120=$500/220=$2.27

Since $2.27 is greater than the existing conversion price of $2 no 
adjustment is required. As a result, there is an increase in 
proportionate interest of the common stockholders by reason of the stock 
dividend and the additional shares of common stock will be treated, 
pursuant to section 305(b)(2), as a distribution of property to which 
section 301 applies.
    (c) Assume the same facts as above, but instead of selling 100 
common shares at $3 per share in 1972, assume corporation S sold no 
shares. Application of the antidilution formula would give rise to an 
adjustment in the conversion price as follows:

100x$2+$0/100+20=$200/120=$1.67

The conversion price, being reduced from $2 to $1.67, fully reflects the 
stock dividend distributed to the common stockholders. Hence, the 
distribution of common stock is not treated under section 305(b)(2) as 
one to which section 301 applies because the distribution does not 
increase the proportionate interests of the common shareholders as a 
class.
    (d) Corporation S distributes to its shareholders rights entitling 
the shareholders to purchase a total of 20 shares at $1 per share. 
Application of the antidilution formula would produce an adjustment in 
the conversion price as follows:

100x$2+20x$1/100+20=$220/120=$1.83

The conversion price, being reduced from $2 to $1.83, fully reflects the 
distribution of rights to purchase stock at a price lower than the 
conversion price. Hence, the distribution of the rights is not treated 
under section 305(b)(2) as one to which section 301 applies because the 
distribution does not increase the proportionate interests of the common 
shareholders as a class.
    (e) Assume the same facts as in (b) above, but instead of using a 
``conversion price'' antidilution formula which operates on a cumulative 
basis, assume corporation S has employed a formula which operates as 
follows with respect to all stock dividends: The conversion price in 
effect at the opening of business on the day following the dividend 
record date is reduced by multiplying such conversion price by a 
fraction the numerator of which is the number of shares of common stock 
outstanding at the close of business on the record date and the 
denominator of which is the sum of such shares so outstanding and the 
number of shares constituting the stock dividend. Under such a formula 
the following adjustment would be made to the conversion price upon the 
declaration of a stock dividend of 20 shares in 1973:

200/200+20=200/220x$2=$1.82

The conversion price, being reduced from $2 to $1.82, fully reflects the 
stock dividend distributed to the common stockholders. Hence, the 
distribution of common stock is not treated under section 305(b)(2) as 
one to which section 301 applies because the distribution does not 
increase the proportionate interests of the common shareholders as a 
class.

    (2)(i) A distributing corporation either must make the adjustment 
required by subparagraph (1) of this paragraph as of the date of the 
distribution of the stock dividend, or must elect (in the manner 
provided in subdivision (iii) of this subparagraph) to make such 
adjustment within the time provided in subdivision (ii) of this 
subparagraph.
    (ii) If the distributing corporation elects to make such adjustment, 
such adjustment must be made no later than the earlier of (a) 3 years 
after the date of the stock dividend, or (b) that date as of which the 
aggregate stock dividends for which adjustment of the conversion ratio 
has not previously been made total at least 3 percent of the issued and 
outstanding stock with respect to which such stock dividends were 
distributed.
    (iii) The election provided by subdivision (ii) of this subparagraph 
shall be made by filing with the income tax return for the taxable year 
during which the stock dividend is distributed--
    (a) A statement that an adjustment will be made as provided by that 
subdivision, and
    (b) A description of the antidilution provisions under which the 
adjustment will be made.
    (3) Notwithstanding the preceding subparagraph, if a distribution 
has been made before July 12, 1973, and the adjustment required by 
subparagraph (1) or the election to make such adjustment was not made 
before such date, the adjustment or the election to make such 
adjustment, as the case may be, shall be considered valid if made no 
later than 15 days following the date of the first annual meeting of the 
shareholders after July 12, 1973, or July 12, 1974, whichever is 
earlier. If the election is made within such period, and, if the income 
tax return has been filed before the time of such election, the 
statement of adjustment and the description of the antidilution 
provisions

[[Page 29]]

required by subparagraph (2)(iii) shall be filed with the Internal 
Revenue Service Center with which the income tax return was filed.
    (4) See Sec. 1.305-7(b) for a discussion of antidilution 
adjustments in connection with the application of section 305(c) in 
conjunction with section 305(b).
    (e) Examples. The application of section 305(b)(2) to distributions 
of stock and section 305(c) to deemed distributions of stock may be 
illustrated by the following examples:

    Example 1. Corporation X is organized with two classes of common 
stock, class A and class B. Each share of stock is entitled to share 
equally in the assets and earnings and profits of the corporation. 
Dividends may be paid in stock or in cash on either class of stock 
without regard to the medium of payment of dividends on the other class. 
A dividend is declared on the class A stock payable in additional shares 
of class A stock and a dividend is declared on class B stock payable in 
cash. Since the class A shareholders as a class will have increased 
their proportionate interests in the assets and earnings and profits of 
the corporation and the class B shareholders will have received cash, 
the additional shares of class A stock are distributions of property to 
which section 301 applies. This is true even with respect to those 
shareholders who may own class A stock and class B stock in the same 
proportion.
    Example 2. Corporation Y is organized with two classes of stock, 
class A common, and class B, which is nonconvertible and limited and 
preferred as to dividends. A dividend is declared upon the class A stock 
payable in additional shares of class A stock and a dividend is declared 
on the class B stock payable in cash. The distribution of class A stock 
is not one to which section 301 applies because the distribution does 
not increase the proportionate interests of the class A shareholders as 
a class.
    Example 3. Corporation K is organized with two classes of stock, 
class A common, and class B, which is nonconvertible preferred stock. A 
dividend is declared upon the class A stock payable in shares of class B 
stock and a dividend is declared on the class B stock payable in cash. 
Since the class A shareholders as a class have an increased interest in 
the assets and earnings and profits of the corporation, the stock 
distribution is treated as a distribution to which section 301 applies. 
If, however, a dividend were declared upon the class A stock payable in 
a new class of preferred stock that is subordinated in all respects to 
the class B stock, the distribution would not increase the proportionate 
interests of the class A shareholders in the assets or earnings and 
profits of the corporation and would not be treated as a distribution to 
which section 301 applies.
    Example 4. (i) Corporation W has one class of stock outstanding, 
class A common. The corporation also has outstanding interest paying 
securities convertible into class A common stock which have a fixed 
conversion ratio that is not subject to full adjustment in the event 
stock dividends or rights are distributed to the class A shareholders. 
Corporation W distributes to the class A shareholders rights to acquire 
additional shares of class A stock. During the year, interest is paid on 
the convertible securities.
    (ii) The stock rights and convertible securities are considered to 
be outstanding stock of the corporation and the distribution increases 
the proportionate interests of the class A shareholders in the assets 
and earnings and profits of the corporation. Therefore, the distribution 
is treated as a distribution to which section 301 applies. The same 
result would follow if, instead of convertible securities, the 
corporation had outstanding convertible stock. If, however, the 
conversion ratio of the securities or stock were fully adjusted to 
reflect the distribution of rights to the class A shareholders, the 
rights to acquire class A stock would not increase the proportionate 
interests of the class A shareholders in the assets and earnings and 
profits of the corporation and would not be treated as a distribution to 
which section 301 applies.
    Example 5. (i) Corporation S is organized with two classes of stock, 
class A common and class B convertible preferred. The class B is fully 
protected against dilution in the event of a stock dividend or stock 
split with respect to the class A stock; however, no adjustment in the 
conversion ratio is required to be made until the stock dividends equal 
3 percent of the common stock issued and outstanding on the date of the 
first such stock dividend except that such adjustment must be made no 
later than 3 years after the date of the stock dividend. Cash dividends 
are paid annually on the class B stock.
    (ii) Corporation S pays a 1 percent stock dividend on the class A 
stock in 1970. In 1971, another 1 percent stock dividend is paid and in 
1972 another 1 percent stock dividend is paid. The conversion ratio of 
the class B stock is increased in 1972 to reflect the three stock 
dividends paid on the class A stock. The distributions of class A stock 
are not distributions to which section 301 applies because they do not 
increase the proportionate interests of the class A shareholders in the 
assets and earnings and profits of the corporation.
    Example 6. (i) Corporation M is organized with two classes of stock 
outstanding, class A and class B. Each class B share may be converted, 
at the option of the holder, into class A shares. During the first year, 
the conversion ratio is one share of class A stock

[[Page 30]]

for each share of class B stock. At the beginning of each subsequent 
year, the conversion ratio is increased by 0.05 share of class A stock 
for each share of class B stock. Thus, during the second year, the 
conversion ratio would be 1.05 shares of class A stock for each share of 
class B stock, during the third year, the ratio would be 1.10 shares, 
etc.
    (ii) M pays an annual cash dividend on the class A stock. At the 
beginning of the second year, when the conversion ratio is increased to 
1.05 shares of class A stock for each share of class B stock, a 
distribution of 0.05 shares of class A stock is deemed made under 
section 305(c) with respect to each share of class B stock, since the 
proportionate interests of the class B shareholders in the assets or 
earnings and profits of M are increased and the transaction has the 
effect described in section 305(b)(2). Accordingly, sections 305(b)(2) 
and 301 apply to the transaction.
    Example 7. (i) Corporation N has two classes of stock outstanding, 
class A and class B. Each class B share is convertible into class A 
stock. However, in accordance with a specified formula, the conversion 
ratio is decreased each time a cash dividend is paid on the class B 
stock to reflect the amount of the cash dividend. The conversion ratio 
is also adjusted in the event that cash dividends are paid on the class 
A stock to increase the number of class A shares into which the class B 
shares are convertible to compensate the class B shareholders for the 
cash dividend paid on the class A stock.
    (ii) In 1972, a $1 cash dividend per share is declared and paid on 
the class B stock. On the date of payment, the conversion ratio of the 
class B stock is decreased. A distribution of stock is deemed made under 
section 305(c) to the class A shareholders, since the proportionate 
interest of the class A shareholders in the assets or earnings and 
profits of the corporation is increased and the transaction has the 
effect described in section 305(b)(2). Accordingly, sections 305(b)(2) 
and 301 apply to the transaction.
    (iii) In the following year a cash dividend is paid on the class A 
stock and none is paid on the class B stock. The increase in conversion 
rights of the class B shares is deemed to be a distribution under 
section 305(c) to the class B shareholders since their proportionate 
interest in the assets or earnings and profits of the corporation is 
increased and since the transaction has the effect described in section 
305(b)(2). Accordingly, sections 305(b)(2) and 301 apply to the 
transaction.
    Example 8. Corporation T has 1,000 shares of stock outstanding. C 
owns 100 shares. Nine other shareholders each owns 100 shares. Pursuant 
to a plan for periodic redemptions, T redeems up to 5 percent of each 
shareholder's stock each year. During the year, each of the nine other 
shareholders has 5 shares of his stock redeemed for cash. Thus, C's 
proportionate interest in the assets and earnings and profits of T is 
increased. Assuming that the cash received by the nine other 
shareholders is taxable under section 301, C is deemed under section 
305(c) to have received a distribution under section 305(b)(2) of 5.25 
shares of T stock to which section 301 applies. The amount of C's 
distribution is measured by the fair market value of the number of 
shares which would have been distributed to C had the corporation sought 
to increase his interest by 0.47 percentage points (C owned 10 percent 
of the T stock immediately before the redemption and 10.47 percent 
immediately thereafter) and the other shareholders continued to hold 900 
shares (i.e.,
    (a) 100/955=10.47% (percent of C's ownership after redemption)
    (b) 100+x/1000+x=10.47%; x=5.25 (additional shares considered to be 
distributed to C)).

Since in computing the amount of additional shares deemed to be 
distributed to C the redemption of shares is disregarded, the redemption 
of shares will be similarly disregarded in determining the value of the 
stock of the corporation which is deemed to be distributed. Thus, in the 
example, 1,005.25 shares of stock are considered as outstanding after 
the redemption. The value of each share deemed to be distributed to C is 
then determined by dividing the 1,005.25 shares into the aggregate fair 
market value of the actual shares outstanding (955) after the 
redemption.
    Example 9. (i) Corporation O has a stock redemption program under 
which, instead of paying out earnings and profits to its shareholders in 
the form of dividends, it redeems the stock of its shareholders up to a 
stated amount which is determined by the earnings and profits of the 
corporation. If the stock tendered for redemption exceeds the stated 
amount, the corporation redeems the stock on a pro rata basis up to the 
stated amount.
    (ii) During the year corporation O offers to distribute $10,000 in 
redemption of its stock. At the time of the offering, corporation O has 
1,000 shares outstanding of which E and F each owns 150 shares and G and 
H each owns 350 shares. The corporation redeems 15 shares from E and 35 
shares from G. F and H continue to hold all of their stock.
    (iii) F and H have increased their proportionate interests in the 
assets and earnings and profits of the corporation. Assuming that the 
cash E and G receive is taxable under section 301, F will be deemed 
under section 305(c) to have received a distribution under section 
305(b)(2) of 16.66 shares of stock to which section 301 applies and H 
will be deemed under section 305(c) to have received a distribution 
under section 305(b)(2) of 38.86 shares of stock to which section 301 
applies. The amount of the distribution to F and H is measured by the 
number of shares which would have been distributed to F and H had

[[Page 31]]

the corporation sought to increase the interest of F by 0.79 percentage 
points (F owned 15 percent of the stock immediately before the 
redemption and 15.79 percent immediately thereafter) and the interest of 
H by 1.84 percentage points (H owned 35 percent of the stock immediately 
before the redemption and 36.84 percent immediately thereafter) and E 
and G had continued to hold 150 shares and 350 shares, respectively 
(i.e.,
    (a) 150/950+350/950=52.63% (percent of F and H's ownership after 
redemption)
    (b) 500+y/1000+y=52.63%; y=55.52 (additional shares considered to be 
distributed to F and H)
    (c)(1) 150/500x55.52=16.66 (shares considered to be distributed to 
F)
    (2) 350/500x55.52=38.86 (shares considered to be distributed to H)).

Since in computing the amount of additional shares deemed to be 
distributed to F and H the redemption of shares is disregarded, the 
redemption of shares will be similarly disregarded in determining the 
value of the stock of the corporation which is deemed to be distributed. 
Thus, in the example, 1,055.52 shares of stock are considered as 
outstanding after the redemption. The value of each share deemed to be 
distributed to F and H is then determined by dividing the 1,055.52 
shares into the aggregate fair market value of the actual shares 
outstanding (950) after the redemption.
    Example 10. Corporation P has 1,000 shares of stock outstanding. T 
owns 700 shares of the P stock and G owns 300 shares of the P stock. In 
a single and isolated redemption to which section 301 applies, the 
corporation redeems 150 shares of T's stock. Since this is an isolated 
redemption and is not a part of a periodic redemption plan, G is not 
treated as having received a deemed distribution under section 305(c) to 
which sections 305(b)(2) and 301 apply even though he has an increased 
proportionate interest in the assets and earnings and profits of the 
corporation.
    Example 11. Corporation Q is a large corporation whose sole class of 
stock is widely held. However, the four largest shareholders are 
officers of the corporation and each owns 8 percent of the outstanding 
stock. In 1974, in a distribution to which section 301 applies, the 
corporation redeems 1.5 percent of the stock from each of the four 
largest shareholders in preparation for their retirement. From 1970 
through 1974, the corporation distributes annual stock dividends to its 
shareholders. No other distributions were made to these shareholders. 
Since the 1974 redemptions are isolated and are not part of a plan for 
periodically redeeming the stock of the corporation, the shareholders 
receiving stock dividends will not be treated as having received a 
distribution under section 305(b)(2) even though they have an increased 
proportionate interest in the assets and earnings and profits of the 
corporation and whether or not the redemptions are treated as 
distributions to which section 301 applies.
    Example 12. Corporation R has 2,000 shares of class A stock 
outstanding. Five shareholders own 300 shares each and five shareholders 
own 100 shares each. In preparation for the retirement of the five major 
shareholders, corporation R, in a single and isolated transaction, has a 
recapitalization in which each share of class A stock may be exchanged 
either for five shares of new class B nonconvertible preferred stock 
plus 0.4 share of new class C common stock, or for two shares of new 
class C common stock. As a result of the exchanges, each of the five 
major shareholders receives 1,500 shares of class B nonconvertible 
preferred stock and 120 shares of class C common stock. The remaining 
shareholders each receives 200 shares of class C common stock. None of 
the exchanges are within the purview of section 305.
    Example 13. Corporation P is a widely-held company whose shares are 
listed for trading on a stock exchange. P distributes annual cash 
dividends to its shareholders. P purchases shares of its common stock 
directly from small stockholders (holders of record of 100 shares or 
less) or through brokers where the holders may not be known at the time 
of purchase. Where such purchases are made through brokers, they are 
pursuant to the rules and regulations of the Securities and Exchange 
Commission. The shares are purchased for the purpose of issuance to 
employee stock investment plans, to holders of convertible stock or 
debt, to holders of stock options, or for future acquisitions. Provided 
the purchases are not pursuant to a plan to increase the proportionate 
interest of some shareholders and distribute property to other 
shareholders, the remaining shareholders of P are not treated as having 
received a deemed distribution under section 305(c) to which section 
305(b)(2) and 301 apply, even though they have an increased 
proportionate interest in the assets and earnings and profits of the 
corporation.
    Example 14. Corporation U is a large manufacturing company whose 
products are sold through independent dealers. In order to assist 
individuals who lack capital to become dealers, the corporation has an 
established investment plan under which it provides 75 percent of the 
capital necessary to form a dealership corporation and the individual 
dealer provides the remaining 25 percent. Corporation U receives class A 
stock and a note representing its 75 percent interest. The individual 
dealer receives class B stock representing his 25 percent interest. The 
class B stock is nonvoting until all the class A shares are redeemed. At 
least 70 percent of the earnings and profits of the dealership 
corporation must be used each year to retire the note and to redeem the 
class A stock. The class A stock is redeemed at a fixed

[[Page 32]]

price. The individual dealer has no control over the redemption of stock 
and has no right to have his stock redeemed during the period the plan 
is in existence. U's investment is thus systematically eliminated and 
the individual becomes the sole owner of the dealership corporation. 
Since this type of plan is akin to a security arrangement, the 
redemptions of the class A stock will not be deemed under section 305(c) 
as distributions taxable under sections 305(b)(2) and 301 during the 
years in which the class A stock is redeemed.
    Example 15. (i) Facts. Corporation V is organized with two classes 
of stock, class A common and class B convertible preferred. The class B 
stock is issued for $100 per share and is convertible at the holder's 
option into class A at a fixed ratio that is not subject to full 
adjustment in the event stock dividends or rights are distributed to the 
class A shareholders. The class B stock pays no dividends but it is 
mandatorily redeemable in 10 years for $200. Under sections 305(c) and 
305(b)(4), the entire redemption premium (i.e., the excess of the 
redemption price over the issue price) is deemed to be a distribution of 
preferred stock on preferred stock which is taxable as a distribution of 
property under section 301. This amount is considered to be distributed 
over the 10-year period under principles similar to the principles of 
section 1272(a). During the year, the corporation declares a dividend on 
the class A stock payable in additional shares of class A stock.
    (ii) Analysis. The distribution on the class A stock is a 
distribution to which sections 305(b)(2) and 301 apply since it 
increases the proportionate interests of the class A shareholders in the 
assets and earnings and profits of the corporation and the class B 
shareholders have received property (i.e., the constructive distribution 
described above). If, however, the conversion ratio of the class B stock 
were subject to full adjustment to reflect the distribution of stock to 
class A shareholders, the distribution of stock dividends on the class A 
stock would not increase the proportionate interest of the class A 
shareholders in the assets and earnings and profits of the corporation 
and such distribution would not be a distribution to which section 301 
applies.
    (iii) Effective date. This Example 15 applies to stock issued on or 
after December 20, 1995. For previously issued stock, see Sec. 1.305-
3(e) Example (15) (as contained in the 26 CFR part 1 edition revised 
April 1, 1995).

[T.D. 7281, 38 FR 18532, July 12, 1973; 38 FR 19910, 19911, July 25, 
1973; as amended by T.D. 7329, 39 FR 36860, Oct. 15, 1974; T.D. 8643, 60 
FR 66136, Dec. 21, 1995]



Sec. 1.305-4  Distributions of common and preferred stock.

    (a) In general. Under section 305(b)(3), a distribution (or a series 
of distributions) by a corporation which results in the receipt of 
preferred stock whether or not convertible into common stock) by some 
common shareholders and the receipt of common stock by other common 
shareholders is treated as a distribution of property to which section 
301 applies. For the meaning of the term a series of distribution, see 
subparagraphs (1) through (6) of Sec. 1.305-3(b).
    (b) Examples. The application of section 305(b)(3) may be 
illustrated by the following examples:

    Example (1). Corporation X is organized with two classes of common 
stock, class A and class B. Dividends may be paid in stock or in cash on 
either class of stock without regard to the medium of payment of 
dividends on the other class. A dividend is declared on the class A 
stock payable in additional shares of class A stock and a dividend is 
declared on class B stock payable in newly authorized class C stock 
which is nonconvertible and limited and preferred as to dividends. Both 
the distribution of class A shares and the distribution of new class C 
shares are distributions to which section 301 applies.
    Example (2). Corporation Y is organized with one class of stock, 
class A common. During the year the corporation declares a dividend on 
the class A stock payable in newly authorized class B preferred stock 
which is convertible into class A stock no later than 6 months from the 
date of distribution at a price that is only slightly higher than the 
market price of class A stock on the date of distribution. Taking into 
account the dividend rate, redemption provisions, the marketability of 
the convertible stock, and the conversion price, it is reasonable to 
anticipate that within a relatively short period of time some 
shareholders will exercise their conversion rights and some will not. 
Since the distribution can reasonably be expected to result in the 
receipt of preferred stock by some common shareholders and the receipt 
of common stock by other common shareholders, the distribution is a 
distribution of property to which section 301 applies.

[T.D. 7281, 38 FR 18536, July 12, 1973]



Sec. 1.305-5  Distributions on preferred stock.

    (a) In general. Under section 305(b)(4), a distribution by a 
corporation of its

[[Page 33]]

stock (or rights to acquire its stock) made (or deemed made under 
section 305(c)) with respect to its preferred stock is treated as a 
distribution of property to which section 301 applies unless the 
distribution is made with respect to convertible preferred stock to take 
into account a stock dividend, stock split, or any similar event (such 
as the sale of stock at less than the fair market value pursuant to a 
rights offering) which would otherwise result in the dilution of the 
conversion right. For purposes of the preceding sentence, an adjustment 
in the conversion ratio of convertible preferred stock made solely to 
take into account the distribution by a closed end regulated investment 
company of a capital gain dividend with respect to the stock into which 
such stock is convertible shall not be considered a ``similar event.'' 
The term preferred stock generally refers to stock which, in relation to 
other classes of stock outstanding, enjoys certain limited rights and 
privileges (generally associated with specified dividend and liquidation 
priorities) but does not participate in corporate growth to any 
significant extent. The distinguishing feature of preferred stock for 
the purposes of section 305(b)(4) is not its privileged position as 
such, but that such privileged position is limited, and that such stock 
does not participate in corporate growth to any significant extent. 
However, a right to participate which lacks substance will not prevent a 
class of stock from being treated as preferred stock. Thus, stock which 
enjoys a priority as to dividends and on liquidation but which is 
entitled to participate, over and above such priority, with another less 
privileged class of stock in earnings and profits and upon liquidation, 
may nevertheless be treated as preferred stock for purposes of section 
305 if, taking into account all the facts and circumstances, it is 
reasonable to anticipate at the time a distribution is made (or is 
deemed to have been made) with respect to such stock that there is 
little or no likelihood of such stock actually participating in current 
and anticipated earnings and upon liquidation beyond its preferred 
interest. Among the facts and circumstances to be considered are the 
prior and anticipated earnings per share, the cash dividends per share, 
the book value per share, the extent of preference and of participation 
of each class, both absolutely and relative to each other, and any other 
facts which indicate whether or not the stock has a real and meaningful 
probability of actually participating in the earnings and growth of the 
corporation. The determination of whether stock is preferred for 
purposes of section 305 shall be made without regard to any right to 
convert such stock into another class of stock of the corporation. The 
term preferred stock, however, does not include convertible debentures.
    (b) Redemption premium--(1) In general. If a corporation issues 
preferred stock that may be redeemed under the circumstances described 
in this paragraph (b) at a price higher than the issue price, the 
difference (the redemption premium) is treated under section 305(c) as a 
constructive distribution (or series of constructive distributions) of 
additional stock on preferred stock that is taken into account under 
principles similar to the principles of section 1272(a). However, 
constructive distribution treatment does not result under this paragraph 
(b) if the redemption premium does not exceed a de minimis amount, as 
determined under the principles of section 1273(a)(3). For purposes of 
this paragraph (b), preferred stock that may be acquired by a person 
other than the issuer (the third person) is deemed to be redeemable 
under the circumstances described in this paragraph (b), and references 
to the issuer include the third person, if--
    (i) This paragraph (b) would apply to the stock if the third person 
were the issuer; and
    (ii) Either--
    (A) The acquisition of the stock by the third person would be 
treated as a redemption for federal income tax purposes (under section 
304 or otherwise); or
    (B) The third person and the issuer are members of the same 
affiliated group (having the meaning for this purpose given the term by 
section 1504(a), except that section 1504(b) shall not apply) and a 
principal purpose of the

[[Page 34]]

arrangement for the third person to acquire the stock is to avoid the 
application of section 305 and paragraph (b)(1) of this section.
    (2) Mandatory redemption or holder put. Paragraph (b)(1) of this 
section applies to stock if the issuer is required to redeem the stock 
at a specified time or the holder has the option (whether or not 
currently exercisable) to require the issuer to redeem the stock. 
However, paragraph (b)(1) of this section will not apply if the issuer's 
obligation to redeem or the holder's ability to require the issuer to 
redeem is subject to a contingency that is beyond the legal or practical 
control of either the holder or the holders as a group (or through a 
related party within the meaning of section 267(b) or 707(b)), and that, 
based on all of the facts and circumstances as of the issue date, 
renders remote the likelihood of redemption. For purposes of this 
paragraph, a contingency does not include the possibility of default, 
insolvency, or similar circumstances, or that a redemption may be 
precluded by applicable law which requires that the issuer have a 
particular level of capital, surplus, or similar items. A contingency 
also does not include an issuer's option to require earlier redemption 
of the stock. For rules applicable if stock may be redeemed at more than 
one time, see paragraph (b)(4) of this section.
    (3) Issuer call--(i) In general. Paragraph (b)(1) of this section 
applies to stock by reason of the issuer's right to redeem the stock 
(even if the right is immediately exercisable), but only if, based on 
all of the facts and circumstances as of the issue date, redemption 
pursuant to that right is more likely than not to occur. However, even 
if redemption is more likely than not to occur, paragraph (b)(1) of this 
section does not apply if the redemption premium is solely in the nature 
of a penalty for premature redemption. A redemption premium is not a 
penalty for premature redemption unless it is a premium paid as a result 
of changes in economic or market conditions over which neither the 
issuer nor the holder has legal or practical control.
    (ii) Safe harbor. For purposes of this paragraph (b)(3), redemption 
pursuant to an issuer's right to redeem is not treated as more likely 
than not to occur if--
    (A) The issuer and the holder are not related within the meaning of 
section 267(b) or 707(b) (for purposes of applying sections 267(b) and 
707(b) (including section 267(f)(1)), the phrase ``20 percent'' shall be 
substituted for the phrase ``50 percent'');
    (B) There are no plans, arrangements, or agreements that effectively 
require or are intended to compel the issuer to redeem the stock 
(disregarding, for this purpose, a separate mandatory redemption 
obligation described in paragraph (b)(2) of this section); and
    (C) Exercise of the right to redeem would not reduce the yield of 
the stock, as determined under principles similar to the principles of 
section 1272(a) and the regulations under sections 1271 through 1275.
    (iii) Effect of not satisfying safe harbor. The fact that a 
redemption right is not described in paragraph (b)(3)(ii) of this 
section does not affect the determination of whether a redemption 
pursuant to the right to redeem is more likely than not to occur.
    (4) Coordination of multiple redemption provisions. If stock may be 
redeemed at more than one time, the time and price at which redemption 
is most likely to occur must be determined based on all of the facts and 
circumstances as of the issue date. Any constructive distribution under 
paragraph (b)(1) of this section will result only with respect to the 
time and price identified in the preceding sentence. However, if 
redemption does not occur at that identified time, the amount of any 
additional premium payable on any later redemption date, to the extent 
not previously treated as distributed, is treated as a constructive 
distribution over the period from the missed call or put date to that 
later date, to the extent required under the principles of this 
paragraph (b).
    (5) Consistency. The issuer's determination as to whether there is a 
constructive distribution under this paragraph (b) is binding on all 
holders of

[[Page 35]]

the stock, other than a holder that explicitly discloses that its 
determination as to whether there is a constructive distribution under 
this paragraph (b) differs from that of the issuer. Unless otherwise 
prescribed by the Commissioner, the disclosure must be made on a 
statement attached to the holder's timely filed federal income tax 
return for the taxable year that includes the date the holder acquired 
the stock. The issuer must provide the relevant information to the 
holder in a reasonable manner. For example, the issuer may provide the 
name or title and either the address or telephone number of a 
representative of the issuer who will make available to holders upon 
request the information required for holders to comply with this 
provision of this paragraph (b).
    (c) Cross reference. For rules for applying sections 305(b)(4) and 
305(c) to recapitalizations, see Sec. 1.305-7(c).
    (d) Examples. The application of sections 305(b)(4) and 305(c) may 
be illustrated by the following examples:

    Example 1. (i) Corporation T has outstanding 1,000 shares of $100 
par 5-percent cumulative preferred stock and 10,000 shares of no-par 
common stock. The corporation is 4 years in arrears on dividends to the 
preferred shareholders. The issue price of the preferred stock is $100 
per share. Pursuant to a recapitalization under section 368(a)(1)(E), 
the preferred shareholders exchange their preferred stock, including the 
right to dividend arrearages, on the basis of one old preferred share 
for 1.20 newly authorized class A preferred shares. Immediately 
following the recapitalization, the new class A shares are traded at 
$100 per share. The class A shares are entitled to a liquidation 
preference of $100. The preferred shareholders have increased their 
proportionate interest in the assets or earnings and profits of 
corporation T since the fair market value of 1.20 shares of class A 
preferred stock ($120) exceeds the issue price of the old preferred 
stock ($100). Accordingly, the preferred shareholders are deemed under 
section 305(c) to receive a distribution in the amount of $20 on each 
share of old preferred stock and the distribution is one to which 
sections 305(b)(4) and 301 apply.
    (ii) The same result would occur if the fair market value of the 
common stock immediately following the recapitalization were $20 per 
share and each share of preferred stock were exchanged for one share of 
the new class A preferred stock and one share of common stock.
    Example 2. Corporation A, a publicly held company whose stock is 
traded on a securities exchange (or in the over-the-counter market) has 
two classes of stock outstanding, common and cumulative preferred. Each 
share of preferred stock is convertible into .75 shares of common stock. 
There are no dividend arrearages. At the time of issue of the preferred 
stock, there was no plan or prearrangement by which it was to be 
exchanged for common stock. The issue price of the preferred stock is 
$100 per share. In order to retire the preferred stock, corporation A 
recapitalizes in a transaction to which section 368(a)(1)(E) applies and 
each share of preferred stock is exchanged for one share of common 
stock. Immediately after the recapitalization the common stock has a 
fair market value of $110 per share. Notwithstanding the fact that the 
fair market value of the common stock received in the exchange 
(determined immediately following the recapitalization) exceeds the 
issue price of the preferred stock surrendered, the recapitalization is 
not deemed under section 305(c) to result in a distribution to which 
sections 305(b)(4) and 301 apply since the recapitalization is not 
pursuant to a plan to periodically increase a shareholder's 
proportionate interest in the assets or earnings and profits and does 
not involve dividend arrearages.
    Example 3. Corporation V is organized with two classes of stock, 
1,000 shares of class A common and 1,000 shares of class B convertible 
preferred. Each share of class B stock may be converted into two shares 
of class A stock. Pursuant to a recapitalization under section 
368(a)(1)(E), the 1,000 shares of class A stock are surrendered in 
exchange for 500 shares of new class A common and 500 shares of newly 
authorized class C common. The conversion right of class B stock is 
changed to one share of class A stock and one share of class C stock for 
each share of class B stock. The change in the conversion right is not 
deemed under section 305(c) to be a distribution on preferred stock to 
which sections 305(b)(4) and 301 apply.
    Example 4 --(i) Facts. Corporation X is a domestic corporation with 
only common stock outstanding. In connection with its acquisition of 
Corporation T, X issues 100 shares of its 4% preferred stock to the 
shareholders of T, who are unrelated to X both before and after the 
transaction. The issue price of the preferred stock is $40 per share. 
Each share of preferred stock is convertible at the shareholder's 
election into three shares of X common stock. At the time the preferred 
stock is issued, the X common stock has a value of $10 per share. The 
preferred stock does not provide for its mandatory redemption or for 
redemption at the option of the holder. It is callable at the option of 
X at any time beginning three years from the date of issuance for $100 
per share. There are no other plans,

[[Page 36]]

arrangements, or agreements that effectively require or are intended to 
compel X to redeem the stock.
    (ii) Analysis. The preferred stock is described in the safe harbor 
rule of paragraph (b)(3)(ii) of this section because X and the former 
shareholders of T are unrelated, there are no plans, arrangements, or 
agreements that effectively require or are intended to compel X to 
redeem the stock, and calling the stock for $100 per share would not 
reduce the yield of the preferred stock. Therefore, the $60 per share 
call premium is not treated as a constructive distribution to the 
shareholders of the preferred stock under paragraph (b) of this section.
    Example 5 --(i) Facts--(A) Corporation Y is a domestic corporation 
with only common stock outstanding. On January 1, 1996, Y issues 100 
shares of its 10% preferred stock to a holder. The holder is unrelated 
to Y both before and after the stock issuance. The issue price of the 
preferred stock is $100 per share. The preferred stock is--
    (1) Callable at the option of Y on or before January 1, 2001, at a 
price of $105 per share plus any accrued but unpaid dividends; and
    (2) Mandatorily redeemable on January 1, 2006, at a price of $100 
per share plus any accrued but unpaid dividends.
    (B) The preferred stock provides that if Y fails to exercise its 
option to call the preferred stock on or before January 1, 2001, the 
holder will be entitled to appoint a majority of Y's directors. Based on 
all of the facts and circumstances as of the issue date, Y is likely to 
have the legal and financial capacity to exercise its right to redeem. 
There are no other facts and circumstances as of the issue date that 
would affect whether Y will call the preferred stock on or before 
January 1, 2001.
    (ii) Analysis. Under paragraph (b)(3)(i) of this section, paragraph 
(b)(1) of this section applies because, by virtue of the change of 
control provision and the absence of any contrary facts, it is more 
likely than not that Y will exercise its option to call the preferred 
stock on or before January 1, 2001. The safe harbor rule of paragraph 
(b)(3)(ii) of this section does not apply because the provision that 
failure to call will cause the holder to gain control of the corporation 
is a plan, arrangement, or agreement that effectively requires or is 
intended to compel Y to redeem the preferred stock. Under paragraph 
(b)(4) of this section, the constructive distribution occurs over the 
period ending on January 1, 2001. Redemption is most likely to occur on 
that date, because that is the date on which the corporation minimizes 
the rate of return to the holder while preventing the holder from 
gaining control. The de minimis exception of paragraph (b)(1) of this 
section does not apply because the $5 per share difference between the 
redemption price and the issue price exceeds the amount determined under 
the principles of section 1273(a)(3) (5x.0025x$105 = $1.31). 
Accordingly, $5 per share, the difference between the redemption price 
and the issue price, is treated as a constructive distribution received 
by the holder on an economic accrual basis over the five-year period 
ending on January 1, 2001, under principles similar to the principles of 
section 1272(a).
    Example 6. Corporation A, a publicly held company whose stock is 
traded on a securities exchange (or in the over-the-counter market) has 
two classes of stock outstanding, common and preferred. The preferred 
stock is nonvoting and nonconvertible, limited and preferred as to 
dividends, and has a fixed liquidation preference. There are no dividend 
arrearages. At the time of issue of the preferred stock, there was no 
plan or prearrangement by which it was to be exchanged for common stock. 
In order to retire the preferred stock, corporation A recapitalizes in a 
transaction to which section 368(a)(1)(E) applies and the preferred 
stock is exchanged for common stock. The transaction is not deemed to be 
a distribution under section 305(c) and sections 305(b) and 301 do not 
apply to the transaction. The same result would follow if the preferred 
stock was exchanged in any reorganization described in section 368(a)(1) 
for a new preferred stock having substantially the same market value and 
having no greater call price or liquidation preference than the old 
preferred stock, whether the new preferred stock has voting rights or is 
convertible into common stock of corporation A at a fixed ratio subject 
to change solely to take account of stock dividends, stock splits, or 
similar transactions with respect to the stock into which the preferred 
stock is convertible.
    Example 7 --(i) Facts--(A) Corporation Z is a domestic corporation 
with only common stock outstanding. On January 1, 1996, Z issues 100 
shares of its 10% preferred stock to C, an individual unrelated to Z 
both before and after the stock issuance. The issue price of the 
preferred stock is $100 per share. The preferred stock is--
    (1) Not callable for a period of 5 years from the issue date;
    (2) Callable at the option of Z on January 1, 2001, at a price of 
$110 per share plus any accrued but unpaid dividends;
    (3) Callable at the option of Z on July 1, 2002, at a price of $120 
per share plus any accrued but unpaid dividends; and
    (4) Mandatorily redeemable on January 1, 2004, at a price of $150 
per share plus any accrued but unpaid dividends.
    (B) There are no other plans, arrangements, or agreements between Z 
and C concerning redemption of the stock. Moreover, there are no other 
facts and circumstances

[[Page 37]]

as of the issue date that would affect whether Z will call the preferred 
stock on either January 1, 2001, or July 1, 2002.
    (ii) Analysis. This stock is described in paragraph (b)(2) of this 
section because it is mandatorily redeemable. It is also potentially 
described in paragraph (b)(3)(i) of this section because it is callable 
at the option of the issuer. The safe harbor rule of paragraph 
(b)(3)(ii) of this section does not apply to the option to call on 
January 1, 2001, because the call would reduce the yield of the stock 
when compared to the yield produced by the January 1, 2004, mandatory 
redemption feature. Moreover, absent any other facts indicating a 
contrary result, the fact that redemption on January 1, 2001, would 
produce the lowest yield indicates that redemption is most likely to 
occur on that date. Under paragraph (b)(4) of this section, paragraph 
(b)(1) of this section applies with respect to the issuer's right to 
call on January 1, 2001, because redemption is most likely to occur on 
January 1, 2001, for $110 per share. The de minimis exception of 
paragraph (b)(1) of this section does not apply because the $10 per 
share difference between the redemption price payable in 2001 and the 
issue price exceeds the amount determined under the principles of 
section 1273(a)(3) (5x.0025x$110=$1.38). Accordingly, $10 per share, the 
difference between the redemption price and the issue price, is treated 
as a constructive distribution received by the holder on an economic 
accrual basis over the five-year period ending January 1, 2001, under 
principles similar to the principles of section 1272(a).
    (iii) Coordination rules--(A) If Z does not exercise its option to 
call the preferred stock on January 1, 2001, paragraph (b)(4) of this 
section provides that the principles of paragraph (b) of this section 
must be applied to determine if any remaining constructive distribution 
occurs. Under paragraphs (b)(3)(i) and (b)(4) of this section, paragraph 
(b)(1) of this section applies because, absent any other facts 
indicating a contrary result, the fact that redemption on July 1, 2002, 
would produce a lower yield than the yield produced by the mandatory 
redemption feature indicates that redemption on that date is most likely 
to occur. The safe harbor rule of paragraph (b)(3)(ii) of this section 
does not apply to the option to call on July 1, 2002, because, as of 
January 1, 2001, a call by Z on July 1, 2002, for $120 would reduce the 
yield of the stock. The de minimis exception of paragraph (b)(1) of this 
section does not apply because the $10 per share difference between the 
redemption price and the issue price (revised as of the missed call date 
as provided by paragraph (b)(4) of this section) exceeds the amount 
determined under the principles of section 1273(a)(3) 
(1x.0025x$120=$.30). Accordingly, the $10 per share of additional 
redemption premium that is payable on July 1, 2002, is treated as a 
constructive distribution received by the holder on an economic accrual 
basis over the period between January 1, 2001, and July 1, 2002, under 
principles similar to the principles of section 1272(a).
    (B) If Z does not exercise its second option to call the preferred 
stock on July 1, 2002, then the $30 additional redemption premium that 
is payable on January 1, 2004, is treated as a constructive distribution 
under paragraphs (b)(2) and (b)(1) of this section. The de minimis 
exception of paragraph (b)(1) of this section does not apply because the 
$30 per share difference between the redemption price and the issue 
price (revised as of the second missed call date) exceeds the amount 
determined under the principles of section 1273(a)(3) 
(1x.0025x$150=$.38). The holder is treated as receiving the constructive 
distribution on an economic accrual basis over the period between July 
1, 2002, and January 1, 2004, under principles similar to the principles 
of section 1272(a).
    Example 8 --(i) Facts. The facts are the same as in paragraph (i) of 
Example 7, except that, based on all of the facts and circumstances as 
of the issue date (including an expected lack of funds on the part of 
Z), it is unlikely that Z will exercise the right to redeem on either 
January 1, 2001, or July 1, 2002.
    (ii) Analysis. The safe harbor rule of paragraph (b)(3)(ii) of this 
section does not apply to the option to call on either January 1, 2001, 
or July 1, 2002, because each call would reduce the yield of the stock. 
Under paragraph (b)(3)(i) of this section, neither option to call is 
more likely than not to occur, because, based on all of the facts and 
circumstances as of the issue date (including an expected lack of funds 
on the part of Z), it is not more likely than not that Z will exercise 
either option. However, the $50 per share redemption premium that is 
payable on January 1, 2004, is treated as a constructive distribution 
under paragraphs (b)(1) and (2) of this section, regardless of whether Z 
is anticipated to have sufficient funds to redeem on that date, because 
Z is required to redeem the stock on that date. The de minimis exception 
of paragraph (b)(1) of this section does not apply because the $50 per 
share difference between the redemption price and the issue price 
exceeds the amount determined under the principles of section 
1273(a)(3)(8x.0025x$150=$3).
    Example 9. Corporation Q is organized with 10,000 shares of class A 
stock and 1,000 shares of class B stock. The terms of the class B stock 
require that the class B have a preference of $5 per share with respect 
to dividends and $100 per share with respect to liquidation. In 
addition, upon a distribution of $10 per share to the class A stock, 
class B participates equally in any additional dividends. The terms also 
provide that upon liquidation the class B stock participates equally 
after the class A stock receives $100

[[Page 38]]

per share. Corporation Q has no accumulated earnings and profits. In 
1971 it earned $10,000, the highest earnings in its history. The 
corporation is in an industry in which it is reasonable to anticipate a 
growth in earnings of 5 percent per year. In 1971 the book value of 
corporation Q's assets totalled $100,000. In that year the corporation 
paid a dividend of $5 per share to the class B stock and $.50 per share 
to the class A. In 1972 the corporation had no earnings and in lieu of a 
$5 dividend distributed one share of class B stock for each outstanding 
share of class B. No distribution was made to the class A stock. Since, 
in 1972, it was not reasonable to anticipate that the class B stock 
would participate in the current and anticipated earnings and growth of 
the corporation beyond its preferred interest, the class B stock is 
preferred stock and the distribution of class B shares to the class B 
shareholders is a distribution to which sections 305(b)(4) and 301 
apply.
    Example 10. Corporation P is organized with 10,000 shares of class A 
stock and 1,000 shares of class B stock. The terms of the class B stock 
require that the class B have a preference of $5 per share with respect 
to dividends and $100 per share with respect to liquidation. In 
addition, upon a distribution of $5 per share to the class A stock, 
class B participates equally in any additional dividends. The terms also 
provide that upon liquidation the class B stock participates equally 
after the class A receives $100 per share. Corporation P has accumulated 
earnings and profits of $100,000. In 1971 it earned $75,000. The 
corporation is in an industry in which it is reasonable to anticipate a 
growth in earnings of 10 percent per year. In 1971 the book value of 
corporation P's assets totalled $5 million. In that year the corporation 
paid a dividend of $5 per share to the class B stock, $5 per share to 
the class A stock, and it distributed an additional $1 per share to both 
class A and class B stock. In 1972 the corporation had earnings of 
$82,500. In that year it paid a dividend of $5 per share to the class B 
stock and $5 per share to the class A stock. In addition, the 
corporation declared stock dividends of one share of class B stock for 
every 10 outstanding shares of class B and one share of class A stock 
for every 10 outstanding shares of class A. Since, in 1972, it was 
reasonable to anticipate that both the class B stock and the class A 
stock would participate in the current and anticipated earnings and 
growth of the corporation beyond their preferred interests, neither 
class is preferred stock and the stock dividends are not distributions 
to which section 305(b)(4) applies.

    (e) Effective date. The rules of paragraph (b) of this section and 
Examples 4, 5, 7, and 8 of paragraph (d) of this section apply to stock 
issued on or after December 20, 1995. For rules applicable to previously 
issued stock, see Sec. 1.305-5 (b) and (d) Examples (4), (5), and (7 ) 
(as contained in the 26 CFR part 1 edition revised April 1, 1995). 
Although the rules of paragraph (b) of this section and the revised 
examples do not apply to stock issued before December 20, 1995, the 
rules of sections 305(c)(1), (2), and (3) apply to stock described 
therein issued on or after October 10, 1990, except as provided in 
section 11322(b)(2) of the Revenue Reconciliation Act of 1990 (Public 
Law 101-508 Stat.). Moreover, except as provided in section 11322(b)(2) 
of the Revenue Reconciliation Act of 1990 (Public Law 101-508 Stat.), 
with respect to stock issued on or after October 10, 1990, and issued 
before December 20, 1995, the economic accrual rule of section 305(c)(3) 
will apply to the entire call premium on stock that is not described in 
paragraph (b)(2) of this section if the premium is considered to be 
unreasonable under the principles of Sec. 1.305-5(b) (as contained in 
the 26 CFR part 1 edition revised April 1, 1995). A call premium 
described in the preceding sentence will be accrued over the period of 
time during which the preferred stock cannot be called for redemption.

[T.D. 7281, 38 FR 18536, July 12, 1973, as amended by T.D. 7329, 39 FR 
36860, Oct. 15, 1974; T.D. 8643, 60 FR 66136, Dec. 21, 1995]



Sec. 1.305-6  Distributions of convertible preferred.

    (a) In general. (1) Under section 305(b)(5), a distribution by a 
corporation of its convertible preferred stock or rights to acquire such 
stock made or considered as made with respect to its stock is treated as 
a distribution of property to which section 301 applies unless the 
corporation establishes that such distribution will not result in a 
disproportionate distribution as described in Sec. 1.305-3.
    (2) The distribution of convertible preferred stock is likely to 
result in a disproportionate distribution when both of the following 
conditions exist: (i) The conversion right must be exercised within a 
relatively short period of time after the date of distribution of the 
stock; and (ii) taking into account such factors as the dividend rate, 
the

[[Page 39]]

redemption provisions, the marketability of the convertible stock, and 
the conversion price, it may be anticipated that some shareholders will 
exercise their conversion rights and some will not. On the other hand, 
where the conversion right may be exercised over a period of many years 
and the dividend rate is consistent with market conditions at the time 
of distribution of the stock, there is no basis for predicting at what 
time and the extent to which the stock will be converted and it is 
unlikely that a disproportionate distribution will result.
    (b) Examples. The application of section 305(b)(5) may be 
illustrated by the following examples:

    Example (1). Corporation Z is organized with one class of stock, 
class A common. During the year the corporation declares a dividend on 
the class A stock payable in newly authorized class B preferred stock 
which is convertible into class A stock for a period of 20 years from 
the date of issuance. Assuming dividend rates are normal in light of 
existing conditions so that there is no basis for predicting the extent 
to which the stock will be converted, the circumstances will ordinarily 
be sufficient to establish that a disproportionate distribution will not 
result since it is impossible to predict the extent to which the class B 
stock will be converted into class A stock. Accordingly, the 
distribution of class B stock is not one to which section 301 applies.
    Example (2). Corporation X is organized with one class of stock, 
class A common. During the year the corporation declares a dividend on 
the class A stock payable in newly authorized redeemable class C 
preferred stock which is convertible into class A common stock no later 
than 4 months from the date of distribution at a price slightly higher 
than the market price of class A stock on the date of distribution. By 
prearrangement with corporation X, corporation Y, an insurance company, 
agrees to purchase class C stock from any shareholder who does not wish 
to convert. By reason of this prearrangement, it is anticipated that the 
shareholders will either sell the class C stock to the insurance company 
(which expects to retain the shares for investment purposes) or will 
convert. As a result, some of the shareholders exercise their conversion 
privilege and receive additional shares of class A stock, while other 
shareholders sell their class C stock to corporation Y and receive cash. 
The distribution is a distribution to which section 301 applies since it 
results in the receipt of property by some shareholders and an increase 
in the proportionate interests of other shareholders.

[T.D. 7281, 38 FR 18538, July 12, 1973]



Sec. 1.305-7  Certain transactions treated as distributions.

    (a) In general. Under section 305(c), a change in conversion ratio, 
a change in redemption price, a difference between redemption price and 
issue price, a redemption which is treated as a distribution to which 
section 301 applies, or any transaction (including a recapitalization) 
having a similar effect on the interest of any shareholder may be 
treated as a distribution with respect to any shareholder whose 
proportionate interest in the earnings and profits or assets of the 
corporation is increased by such change, difference, redemption, or 
similar transaction. In general, such change, difference, redemption, or 
similar transaction will be treated as a distribution to which sections 
305(b) and 301 apply where--
    (1) The proportionate interest of any shareholder in the earnings 
and profits or assets of the corporation deemed to have made such 
distribution is increased by such change, difference, redemption, or 
similar transaction; and
    (2) Such distribution has the result described in paragraph (2), 
(3), (4), or (5) of section 305(b).

Where such change, difference, redemption, or similar transaction is 
treated as a distribution under the provisions of this section, such 
distribution will be deemed made with respect to any shareholder whose 
interest in the earnings and profits or assets of the distributing 
corporation is increased thereby. Such distribution will be deemed to be 
a distribution of the stock of such corporation made by the corporation 
to such shareholder with respect to his stock. Depending upon the facts 
presented, the distribution may be deemed to be made in common or 
preferred stock. For example, where a redemption premium exists with 
respect to a class of preferred stock under the circumstances described 
in Sec. 1.305-5(b) and the other requirements of this section are also 
met, the distribution will be deemed made with respect to such preferred 
stock, in stock of the same class. Accordingly, the preferred 
shareholders are considered under sections 305(b)(4)

[[Page 40]]

and 305(c) to have received a distribution of preferred stock to which 
section 301 applies. See the examples in Sec. Sec. 1.305-3(e) and 
1.305-5(d) for further illustrations of the application of section 
305(c).
    (b) Antidilution provisions. (1) For purposes of applying section 
305(c) in conjunction with section 305(b), a change in the conversion 
ratio or conversion price of convertible preferred stock (or 
securities), or in the exercise price of rights or warrants, made 
pursuant to a bona fide, reasonable, adjustment formula (including, but 
not limited to, either the so-called ``market price'' or ``conversion 
price'' type of formulas) which has the effect of preventing dilution of 
the interest of the holders of such stock (or securities) will not be 
considered to result in a deemed distribution of stock. An adjustment in 
the conversion ratio or price to compensate for cash or property 
distributions to other shareholders that are taxable under section 301, 
356(a)(2), 871(a)(1)(A), 881(a)(1), 852(b), or 857(b) will not be 
considered as made pursuant to a bona fide adjustment formula.
    (2) The principles of this paragraph may be illustrated by the 
following example:

    Example. (i) Corporation U has two classes of stock outstanding, 
class A and class B. Each class B share is convertible into class A 
stock. In accordance with a bonafide, reasonable, antidilution 
provision, the conversion price is adjusted if the corporation transfers 
class A stock to anyone for a consideration that is below the conversion 
price.
    (ii) The corporation sells class A stock to the public at the 
current market price but below the conversion price. Pursuant to the 
antidilution provision, the conversion price is adjusted downward. Such 
a change in conversion price will not be deemed to be a distribution 
under section 305(c) for the purposes of section 305(b).

    (c) Recapitalizations. (1) A recapitalization (whether or not an 
isolated transaction) will be deemed to result in a distribution to 
which section 305(c) and this section apply if--
    (i) It is pursuant to a plan to periodically increase a 
shareholder's proportionate interest in the assets or earnings and 
profits of the corporation, or
    (ii) A shareholder owning preferred stock with dividends in arrears 
exchanges his stock for other stock and, as a result, increases his 
proportionate interest in the assets or earnings and profits of the 
corporation. An increase in a preferred shareholder's proportionate 
interest occurs in any case where the fair market value or the 
liquidation preference, whichever is greater, of the stock received in 
the exchange (determined immediately following the recapitalization), 
exceeds the issue price of the preferred stock surrendered.
    (2) In a case to which subparagraph (1)(ii) of this paragraph 
applies, the amount of the distribution deemed under section 305(c) to 
result from the recapitalization is the lesser of (i) the amount by 
which the fair market value or the liquidation preference, whichever is 
greater, of the stock received in the exchange (determined immediately 
following the recapitalization) exceeds the issue price of the preferred 
stock surrendered, or (ii) the amount of the dividends in arrears.
    (3) For purposes of applying subparagraphs (1) and (2) of this 
paragraph with respect to stock issued before July 12, 1973, the term 
issue price of the preferred stock surrendered shall mean the greater of 
the issue price or the liquidation preference (not including dividends 
in arrears) of the stock surrendered.
    (4) For an illustration of the application of this paragraph, see 
Example (12) of Sec. 1.305-3(e) and Examples (1), (2), (3), and (6) of 
Sec. 1.305-5(d).
    (5) For rules relating to redemption premiums on preferred stock, 
see Sec. 1.305-5(b).

[T.D. 7281, 38 FR 18538, July 12, 1973, as amended by T.D. 8643, 60 FR 
66138, Dec. 21, 1995]



Sec. 1.305-8  Effective dates.

    (a) In general. Section 421(b) of the Tax Reform Act of 1969 (83 
Stat. 615) provides as follows:

    (b) Effective dates. (1) Except as otherwise provided in this 
subsection, the amendment made by subsection (a) shall apply with 
respect to distributions (or deemed distributions) made after January 
10, 1969, in taxable years ending after such date.
    (2)(A) Section 305(b)(2) of the Internal Revenue Code of 1954 (as 
added by subsection (a) shall not apply to a distribution (or deemed 
distribution) of stock made before January 1, 1991, with respect to 
stock (i) outstanding on

[[Page 41]]

January 10, 1969, (ii) issued pursuant to a contract binding on January 
10, 1969, on the distributing corporation, (iii) which is additional 
stock of that class of stock which (as of January 10, 1969) had the 
largest fair market value of all classes of stock of the corporation 
(taking into account only stock outstanding on January 10, 1969, or 
issued pursuant to a contract binding on January 10, 1969), (iv) 
described in subparagraph (c)(iii), or (v) issued in a prior 
distribution described in clause (i), (ii), (iii), or (iv).
    (B) Subparagraph (A) shall apply only if--
    (i) The stock as to which there is a receipt of property was 
outstanding on January 10, 1969 (or was issued pursuant to a contract 
binding on January 10, 1969, on the distributing corporation), and
    (ii) If such stock and any stock described in subparagraph (A)(i) 
were also outstanding on January 10, 1968, a distribution of property 
was made on or before January 10, 1969, with respect to such stock, and 
a distribution of stock was made on or before January 10, 1969, with 
respect to such stock described in subparagraph (A)(i).
    (C) Subparagraph (A) shall cease to apply when at any time after 
October 9, 1969, the distributing corporation issues any of its stock 
(other than in a distribution of stock with respect to stock of the same 
class) which is not--
    (i) Nonconvertible preferred stock,
    (ii) Additional stock of that class of stock which meets the 
requirements of subparagraph (A)(iii), or
    (iii) Preferred stock which is convertible into stock which meets 
the requirements of subparagraph (A)(iii) at a fixed conversion ratio 
which takes account of all stock dividends and stock splits with respect 
to the stock into which such convertible stock is convertible.
    (D) For purposes of this paragraph, the term stock includes rights 
to acquire such stock.
    (3) In cases to which Treasury Decision 6990 (promulgated January 
10, 1969) would not have applied, in applying paragraphs (1) and (2) 
April 22, 1969, shall be substituted for January 10, 1969.
    (4) Section 305(b)(4) of the Internal Revenue Code of 1954 (as added 
by subsection (a)) shall not apply to any distribution (or deemed 
distribution) with respect to preferred stock (including any increase in 
the conversation ratio of convertible stock) made before January 1, 
1991, pursuant to the terms relating to the issuance of such stock which 
were in effect on January 10, 1969.
    (5) With respect to distributions made or considered as made after 
January 10, 1969, in taxable years ending after such date, to the extent 
that the amendment made by subsection (a) does not apply by reason of 
paragraph (2), (3), or (4) of this subsection, section 305 of the 
Internal Revenue Code of 1954 (as in effect before the amendment made by 
subsection (a)) shall continue to apply.

    (b) Rules of application. (1) The rules contained in section 
421(b)(2) of the Tax Reform Act of 1969 (83 Stat. 615), hereinafter 
called ``the Act'', shall apply with respect to the application of 
section 305(b)(2), section 305(b)(3), and section 305(b)(5). Thus, for 
example, section 305(b)(5) of the Code will not apply to a distribution 
of convertible preferred stock made before January 1, 1991, with respect 
to stock outstanding on January 10, 1969 (or which was issued pursuant 
to a contract binding on the distributing corporation on January 10, 
1969), provided the distribution is pursuant to the terms relating to 
the issuance of such stock which were in effect on January 10, 1969.
    (2)(i) For purposes of section 421(b)(2)(A), (B)(i), and (C) of the 
Act, stock is considered as outstanding on January 10, 1969, if it could 
be acquired on such date or some future date by the exercise of a right 
or conversion privilege in existence on such date (including a right or 
conversion privilege with respect to stock issued pursuant to a contract 
binding, on January 10, 1969, on the distributing corporation). Thus, if 
on January 10, 1969, corporation X has outstanding 1,000 shares of class 
A common stock and 3,000 shares of class B common stock which are 
convertible on a one-to-one basis into class A stock, corporation X is 
considered for purposes of section 421(b)(2)(A), (B)(i), and (C) of the 
Act to have outstanding on January 10, 1969, 4,000 shares of class A 
stock (1,000 shares actually outstanding and 3,000 shares that could be 
acquired by the exercise of the conversion privilege contained in the 
class B stock) and 3,000 shares of class B stock.
    (ii) For the purposes of section 421(b)(2)(A) (other than for the 
purpose of determining under section 421(b)(2)(A)(iii) that class of 
stock which as of January 10, 1969, had the largest fair market value of 
all classes of stock of the corporation), (B)(i), and (C) of the Act, 
stock will be considered as outstanding on January 10, 1969, if it is 
issued pursuant to a conversion privilege contained in stock issued, 
mediately or immediately, as a stock

[[Page 42]]

dividend with respect to stock outstanding on January 10, 1969.
    (3) If, after applying subparagraph (2) of this paragraph, the class 
of stock which as of January 10, 1969, had the largest fair market value 
of all classes of stock of the corporation is a class of stock which is 
convertible into another class of nonconvertible stock, then for 
purposes of section 421(b)(2)(C)(ii) of the Act stock issued upon 
conversion of any such convertible stock (whether or not outstanding on 
January 10, 1969) into stock of such other class shall be deemed to be 
stock which meets the requirements of section 421(b)(2)(A)(iii) of the 
Act.
    (4) For purposes of section 421(b) of the Act, stock of a 
corporation held in its treasury will not be considered as outstanding 
and a distribution of such stock will be considered to be an issuance of 
such stock on the date of distribution. Stock of a parent corporation 
held by its subsidiary is not considered treasury stock.
    (5) The following stock shall not be taken into account for purposes 
of applying section 421(b)(2)(B)(i) of the Act: (i) Stock issued after 
January 10, 1969, and before October 10, 1969 (other than stock which 
was issued pursuant to a contract binding on January 10, 1969, on the 
distributing corporation); (ii) stock described in section 
421(b)(2)(C)(i), (ii), or (iii) of the Act; and (iii) stock issued, 
mediately or immediately, as a stock dividend with respect to stock of 
the same class outstanding on January 10, 1969. For example, if on June 
1, 1970, corporation Y issues additional stock of that class of stock 
which as of January 10, 1969, had the largest fair market value of all 
classes of stock of the corporation, such additional stock will not be 
taken into account for the purpose of meeting the requirement under 
section 421(b)(2)(B)(i) of the Act that the stock as to which there is a 
receipt of property must have been outstanding on January 10, 1969, and 
thus subparagraph (A) of section 421(b)(2) of the Act will not, where 
otherwise applicable, cease to apply.
    (6) Section 421(b)(2)(A) of the Act, if otherwise applicable, will 
not cease to apply if the distributing corporation issues after October 
9, 1969, securities which are convertible into stock that meets the 
requirements of section 421(b)(2)(A)(iii) of the Act at a fixed 
conversion ratio which takes account of all stock dividends and stock 
splits with respect to the stock into which the securities are 
convertible.
    (7) Under section 421(b)(4) of the Act, section 305(b)(4) does not 
apply to any distribution (or deemed distribution) by a corporation with 
respect to preferred stock made before January 1, 1991, if such 
distribution is pursuant to the terms relating to the issuance of such 
stock which were in effect on January 10, 1969. For example, if as of 
January 10, 1969, a corporation had followed the practice of paying 
stock dividends on preferred stock (or of periodically increasing the 
conversion ratio of convertible preferred stock) or if the preferred 
stock provided for a redemption price in excess of the issue price, then 
section 305(b)(4) would not apply to any distribution of stock made (or 
which would be considered made if section 305(b)(4) applied) before 
January 1, 1991, pursuant to such practice.
    (8) If section 421(b)(2) is not applicable and, for that reason, a 
distribution (or deemed distribution) is treated as a distribution to 
which section 301 applies by virtue of the application of section 
305(b)(2), (b)(3), or (b)(5), it is irrelevant that, by reason of the 
application of section 421(b)(4) of such Act, section 305(b)(4) is not 
applicable to the distribution.

[T.D. 7281, 38 FR 18539, July 12, 1973]



Sec. 1.306-1  General.

    (a) Section 306 provides, in general, that the proceeds from the 
sale or redemption of certain stock (referred to as ``section 306 
stock'') shall be treated either as ordinary income or as a distribution 
of property to which section 301 applies. Section 306 stock is defined 
in section 306(c) and is usually preferred stock received either as a 
nontaxable dividend or in a transaction in which no gain or loss is 
recognized. Section 306(b) lists certain circumstances in which the 
special rules of section 306(a) shall not apply.
    (b)(1) If a shareholder sells or otherwise disposes of section 306 
stock (other than by redemption or within the exceptions listed in 
section 306(b)),

[[Page 43]]

the entire proceeds received from such disposition shall be treated as 
ordinary income to the extent that the fair market value of the stock 
sold, on the date distributed to the shareholder, would have been a 
dividend to such shareholder had the distributing corporation 
distributed cash in lieu of stock. Any excess of the amount received 
over the sum of the amount treated as ordinary income plus the adjusted 
basis of the stock disposed of, shall be treated as gain from the sale 
of a capital asset or noncapital asset as the case may be. No loss shall 
be recognized. No reduction of earnings and profits results from any 
disposition of stock other than a redemption. The term disposition under 
section 306(a)(1) includes, among other things, pledges of stock under 
certain circumstances, particularly where the pledgee can look only to 
the stock itself as its security.
    (2) Section 306(a)(1) may be illustrated by the following examples:

    Example (1). On December 15, 1954, A and B owned equally all of the 
stock of Corporation X which files its income tax return on a calendar 
year basis. On that date Corporation X distributed pro rata 100 shares 
of preferred stock as a dividend on its outstanding common stock. On 
December 15, 1954, the preferred stock had a fair market value of 
$10,000. On December 31, 1954, the earnings and profits of Corporation X 
were $20,000. The 50 shares of preferred stock so distributed to A had 
an allocated basis to him of $10 per share or a total of $500 for the 50 
shares. Such shares had a fair market value of $5,000 when issued. A 
sold the 50 shares of preferred stock on July 1, 1955, for $6,000. Of 
this amount $5,000 will be treated as ordinary income; $500 ($6,000 
minus $5,500) will be treated as gain from the sale of a capital or 
noncapital asset as the case may be.
    Example (2). The facts are the same as in Example 1 except that A 
sold his 50 shares of preferred stock for $5,100. Of this amount $5,000 
will be treated as ordinary income. No loss will be allowed. There will 
be added back to the basis of the common stock of Corporation X with 
respect to which the preferred stock was distributed, $400, the 
allocated basis of $500 reduced by the $100 received.
    Example (3). The facts are the same as in Example 1 except that A 
sold 25 of his shares of preferred stock for $2,600. Of this amount 
$2,500 will be treated as ordinary income. No loss will be allowed. 
There will be added back to the basis of the common stock of Corporation 
X with respect to which the preferred stock was distributed, $150, the 
allocated basis of $250 reduced by the $100 received.

    (c) The entire amount received by a shareholder from the redemption 
of section 306 stock shall be treated as a distribution of property 
under section 301. See also section 303 (relating to distribution in 
redemption of stock to pay death taxes).

[T.D. 6500, 25 FR 11607, Nov. 26, 1960, as amended by T.D. 7556, 43 FR 
34128, Aug. 3, 1978]



Sec. 1.306-2  Exception.

    (a) If a shareholder terminates his entire stock interest in a 
corporation--
    (1) By a sale or other disposition within the requirements of 
section 306(b)(1)(A), or
    (2) By redemption under section 302(b)(3) (through the application 
of section 306(b)(1)(B)),

the amount received from such disposition shall be treated as an amount 
received in part or full payment for the stock sold or redeemed. In the 
case of a sale, only the stock interest need be terminated. In 
determining whether an entire stock interest has been terminated under 
section 306(b)(1)(A), all of the provisions of section 318(a) (relating 
to constructive ownership of stock) shall be applicable. In determining 
whether a shareholder has terminated his entire interest in a 
corporation by a redemption of his stock under section 302(b)(3), all of 
the provisions of section 318(a) shall be applicable unless the 
shareholder meets the requirements of section 302(c)(2) (relating to 
termination of all interest in the corporation). If the requirements of 
section 302(c)(2) are met, section 318(a)(1) (relating to members of a 
family) shall be inapplicable. Under all circumstances paragraphs (2), 
(3), (4), and (5) of section 318(a) shall be applicable.
    (b) Section 306(a) does not apply to--
    (1) Redemptions of section 306 stock pursuant to a partial or 
complete liquidation of a corporation to which part II (section 331 and 
following), subchapter C, chapter 1 of the Code applies,
    (2) Exchanges of section 306 stock solely for stock in connection 
with a reorganization or in an exchange under

[[Page 44]]

section 351, 355, or section 1036 (relating to exchanges of stock for 
stock in the same corporation) to the extent that gain or loss is not 
recognized to the shareholder as the result of the exchange of the stock 
(see paragraph (d) of Sec. 1.306-3 relative to the receipt of other 
property), and
    (3) A disposition or redemption, if it is established to the 
satisfaction of the Commissioner that the distribution, and the 
disposition or redemption, was not in pursuance of a plan having as one 
of its principal purposes the avoidance of Federal income tax. However, 
in the case of a prior or simultaneous disposition (or redemption) of 
the stock with respect to which the section 306 stock disposed of (or 
redeemed) was issued, it is not necessary to establish that the 
distribution was not in pursuance of such a plan. For example, in the 
absence of such a plan and of any other facts the first sentence of this 
subparagraph would be applicable to the case of dividends and isolated 
dispositions of section 306 stock by minority shareholders. Similarly, 
in the absence of such a plan and of any other facts, if a shareholder 
received a distribution of 100 shares of section 306 stock on his 
holdings of 100 shares of voting common stock in a corporation and sells 
his voting common stock before he disposes of his section 306 stock, the 
subsequent disposition of his section 306 stock would not ordinarily be 
considered a disposition one of the principal purposes of which is the 
avoidance of Federal income tax.

[T.D. 6500, 25 FR 11607, Nov. 26, 1960, as amended by T.D. 6969, 33 FR 
11998, Aug. 23, 1968]



Sec. 1.306-3  Section 306 stock defined.

    (a) For the purpose of subchapter C, chapter 1 of the code, the term 
section 306 stock means stock which meets the requirements of section 
306(c)(1). Any class of stock distributed to a shareholder in a 
transaction in which no amount is includible in the income of the 
shareholder or no gain or loss is recognized may be section 306 stock, 
if a distribution of money by the distributing corporation in lieu of 
such stock would have been a dividend in whole or in part. However, 
except as provided in section 306(g), if no part of a distribution of 
money by the distributing corporation in lieu of such stock would have 
been a dividend, the stock distributed will not constitute section 306 
stock.
    (b) For the purpose of section 306, rights to acquire stock shall be 
treated as stock. Such rights shall not be section 306 stock if no part 
of the distribution would have been a dividend if money had been 
distributed in lieu of the rights. When stock is acquired by the 
exercise of rights which are treated at section 306 stock, the stock 
acquired is section 306 stock. Upon the disposition of such stock (other 
than by redemption or within the exceptions listed in section 306(b)), 
the proceeds received from the disposition shall be treated as ordinary 
income to the extent that the fair market value of the stock rights, on 
the date distributed to the shareholder, would have been a dividend to 
the shareholder had the distributing corporation distributed cash in 
lieu of stock rights. Any excess of the amount realized over the sum of 
the amount treated as ordinary income plus the adjusted basis of the 
stock, shall be treated as gain from the sale of the stock.
    (c) Section 306(c)(1)(A) provides that section 306 stock is any 
stock (other than common issued with respect to common) distributed to 
the shareholder selling or otherwise disposing thereof if, under section 
305(a) (relating to distributions of stock and stock rights) any part of 
the distribution was not included in the gross income of the 
distributee.
    (d) Section 306(c)(1)(B) includes in the definition of section 306 
stock any stock except common stock, which is received by a shareholder 
in connection with a reorganization under section 368 or in a 
distribution or exchange under section 355 (or so much of section 356 as 
relates to section 355) provided the effect of the transaction is 
substantially the same as the receipt of a stock dividend, or the stock 
is received in exchange for section 306 stock. If, in a transaction to 
which section 356 is applicable, a shareholder exchanges section 306 
stock for stock and money or other property, the entire amount of such 
money and of the fair market

[[Page 45]]

value of the other property (not limited to the gain recognized) shall 
be treated as a distribution of property to which section 301 applies. 
Common stock received in exchange for section 306 stock in a 
recapitalization shall not be considered section 306 stock. Ordinarily, 
section 306 stock includes stock which is not common stock received in 
pursuance of a plan of reorganization (within the meaning of section 
368(a)) or received in a distribution or exchange to which section 355 
(or so much of section 356 as relates to section 355) applies if cash 
received in lieu of such stock would have been treated as a dividend 
under section 356(a)(2) or would have been treated as a distribution to 
which section 301 applies by virtue of section 356(b) or section 302(d). 
The application of the preceding sentence is illustrated by the 
following examples:

    Example (1). Corporation A, having only common stock outstanding, is 
merged in a statutory merger (qualifying as a reorganization under 
section 368(a)) with Corporation B. Pursuant to such merger, the 
shareholders of Corporation A received both common and preferred stock 
in Corporation B. The preferred stock received by such shareholders is 
section 306 stock.
    Example (2). X and Y each own one-half of the 2,000 outstanding 
shares of preferred stock and one-half of the 2,000 outstanding shares 
of common stock of Corporation C. Pursuant to a reorganization within 
the meaning of section 368(a)(1)(E) (recapitalization) each shareholder 
exchanges his preferred stock for preferred stock of a new issue which 
is not substantially different from the preferred stock previously held. 
Unless the preferred stock exchanged was itself section 306 stock the 
preferred stock received is not section 306 stock.

    (e) Section 306(c)(1)(C) includes in the definition of section 306 
stock any stock (except as provided in section 306(c)(1)(B)) the basis 
of which in the hands of the person disposing of such stock, is 
determined by reference to section 306 stock held by such shareholder or 
any other person. Under this paragraph common stock can be section 306 
stock. Thus, if a person owning section 306 stock in Corporation A 
transfers it to Corporation B which is controlled by him in exchange for 
common stock of Corporation B in a transaction to which section 351 is 
applicable, the common stock so received by him would be section 306 
stock and subject to the provisions of section 306(a) on its 
disposition. In addition, the section 306 stock transferred is section 
306 stock in the hands of Corporation B, the transferee. Section 306 
stock transferred by gift remains section 306 stock in the hands of the 
donee. Stock received in exchange for section 306 stock under section 
1036(a) (relating to exchange of stock for stock in the same 
corporation) or under so much of section 1031(b) as relates to section 
1036(a) becomes section 306 stock and acquires, for purposes of section 
306, the characteristics of the section 306 stock exchanged. The entire 
amount of the fair market value of the other property received in such 
transaction shall be considered as received upon a disposition (other 
than a redemption) to which section 306(a) applies. Section 306 stock 
ceases to be so classified if the basis of such stock is determined by 
reference to its fair market value on the date of the decedent-
stockholder's death or the optional valuation date under section 1014.
    (f) If section 306 stock which was distributed with respect to 
common stock is exchanged for common stock in the same corporation 
(whether or not such exchange is pursuant to a conversion privilege 
contained in section 306 stock), such common stock shall not be section 
306 stock. This paragraph applies to exchanges not coming within the 
purview of section 306(c)(1)(B). Common stock which is convertible into 
stock other than common stock or into property, shall not be considered 
common stock. It is immaterial whether the conversion privilege is 
contained in the stock or in some type of collateral agreement.
    (g) If there is a substantial change in the terms and conditions of 
any stock, then, for the purpose of this section--
    (1) The fair market value of such stock shall be the fair market 
value at the time of distribution or the fair market value at the time 
of such change, whichever is higher;
    (2) Such stock's ratable share of the amount which would have been a 
dividend if money had been distributed in lieu of stock shall be 
determined by reference to the time of distribution or by reference to 
the time of such

[[Page 46]]

change, whichever ratable share is higher; and
    (3) Section 306(c)(2) shall be inapplicable if there would have been 
a dividend to any extent if money had been distributed in lieu of the 
stock either at the time of the distribution or at the time of such 
change.
    (h) When section 306 stock is disposed of, the amount treated under 
section 306(a)(1)(A) as ordinary income, for the purposes of part I, 
subchapter N, chapter 1 of the Code, be treated as derived from the same 
source as would have been the source if money had been received from the 
corporation as a dividend at the time of the distribution of such stock. 
If the amount is determined to be derived from sources within the United 
States, the amount shall be considered to be fixed or determinable 
annual or periodic gains, profits, and income within the meaning of 
section 871(a) or section 881(a), relating, respectively, to the tax on 
nonresident alien individuals and on foreign corporations not engaged in 
business in the United States.
    (i) Section 306 shall be inapplicable to stock received before June 
22, 1954, and to stock received on or after June 22, 1954, in 
transactions subject to the provisions of the Internal Revenue Code of 
1939.

[T.D. 6500, 25 FR 11607, Nov. 26, 1960, as amended by T.D. 7281, 38 FR 
18540, July 12, 1973; T.D. 7556, 43 FR 34128, Aug. 3, 1978]



Sec. 1.307-1  General.

    (a) If a shareholder receives stock or stock rights as a 
distribution on stock previously held and under section 305 such 
distribution is not includible in gross income then, except as provided 
in section 307(b) and Sec. 1.307-2, the basis of the stock with respect 
to which the distribution was made shall be allocated between the old 
and new stocks or rights in proportion to the fair market values of each 
on the date of distribution. If a shareholder receives stock or stock 
rights as a distribution on stock previously held and pursuant to 
section 305 part of the distribution is not includible in gross income, 
then (except as provided in section 307(b) and Sec. 1.307-2) the basis 
of the stock with respect to which the distribution is made shall be 
allocated between (1) the old stock and (2) that part of the new stock 
or rights which is not includible in gross income, in proportion to the 
fair market values of each on the date of distribution. The date of 
distribution in each case shall be the date the stock or the rights are 
distributed to the stockholder and not the record date. The general rule 
will apply with respect to stock rights only if such rights are 
exercised or sold.
    (b) The application of paragraph (a) of this section is illustrated 
by the following example:

    Example A taxpayer in 1947 purchased 100 shares of common stock at 
$100 per share and in 1954 by reason of the ownership of such stock 
acquired 100 rights entitling him to subscribe to 100 additional shares 
of such stock at $90 a share. Immediately after the issuance of the 
rights, each of the shares of stock in respect of which the rights were 
acquired had a fair market value, ex-rights, of $110 and the rights had 
a fair market value of $19 each. The basis of the rights and the common 
stock for the purpose of determining the basis for gain or loss on a 
subsequent sale or exercise of the rights or a sale of the old stock is 
computed as follows:

100 (shares)x$100=$10,000, cost of old stock (stock in respect of which 
the rights were acquired).
100 (shares)x$110=$11,000, market value of old stock.
100 (rights)x$19=$1,900, market value of rights.
11,000/12,900 of $10,000=$8,527.13, cost of old stock apportioned to 
such stock.
1,900/12,900 of $10,000=$1,472.87, cost of old stock apportioned to 
rights.


If the rights are sold, the basis for determining gain or loss will be 
$14.7287 per right. If the rights are exercised, the basis of the new 
stock acquired will be the subscription price paid therefor ($90) plus 
the basis of the rights exercised ($14.7287 each) or $104.7287 per 
share. The remaining basis of the old stock for the purpose of 
determining gain or loss on a subsequent sale will be $85.2713 per 
share.



Sec. 1.307-2  Exception.

    The basis of rights to buy stock which are excluded from gross 
income under section 305(a), shall be zero if the fair market value of 
such rights on the date of distribution is less than 15 percent of the 
fair market value of the old stock on that date, unless the shareholder 
elects to allocate part of the basis of the old stock to the rights as 
provided in paragraph (a) of Sec. 1.307-1.

[[Page 47]]

The election shall be made by a shareholder with respect to all the 
rights received by him in a particular distribution in respect of all 
the stock of the same class owned by him in the issuing corporation at 
the time of such distribution. Such election to allocate basis to rights 
shall be in the form of a statement attached to the shareholder's return 
for the year in which the rights are received. This election, once made, 
shall be irrevocable with respect to the rights for which the election 
was made. Any shareholder making such an election shall retain a copy of 
the election and of the tax return with which it was filed, in order to 
substantiate the use of an allocated basis upon a subsequent disposition 
of the stock acquired by exercise.

                         effects on corporation



Sec. 1.312-1  Adjustment to earnings and profits reflecting 
distributions by corporations.

    (a) In general, on the distribution of property by a corporation 
with respect to its stock, its earnings, and profits (to the extent 
thereof) shall be decreased by--
    (1) The amount of money,
    (2) The principal amount of the obligations of such corporation 
issued in such distribution, and
    (3) The adjusted basis of other property.

For special rule with respect to distributions to which section 312(e) 
applies, see Sec. 1.312-5.
    (b) The adjustment provided in section 312(a)(3) and paragraph 
(a)(3) of this section with respect to a distribution of property (other 
than money or its own obligations) shall be made notwithstanding the 
fact that such property has appreciated or depreciated in value since 
acquisition.
    (c) The application of paragraphs (a) and (b) of this section may be 
illustrated by the following examples:

    Example (1). Corporation A distributes to its sole shareholder 
property with a value of $10,000 and a basis of $5,000. It has $12,500 
in earnings and profits. The reduction in earnings and profits by reason 
of such distribution is $5,000. Such is the reduction even though the 
amount of $10,000 is includible in the income of the shareholder (other 
than a corporation) as a dividend.
    Example (2). The facts are the same as in Example (1) above except 
that the property has a basis of $15,000 and the earnings and profits of 
the corporation are $20,000. The reduction in earnings and profits is 
$15,000. Such is the reduction even though only the amount of $10,000 is 
includible in the income of the shareholder as a dividend.

    (d) In the case of a distribution of stock or rights to acquire 
stock a portion of which is includible in income by reason of section 
305(b), the earnings and profits shall be reduced by the fair market 
value of such portion. No reduction shall be made if a distribution of 
stock or rights to acquire stock is not includible in income under the 
provisions of section 305.
    (e) No adjustment shall be made in the amount of the earnings and 
profits of the issuing corporation upon a disposition of section 306 
stock unless such disposition is a redemption.



Sec. 1.312-2  Distribution of inventory assets.

    Section 312(b) provides for the increase and the decrease of the 
earnings and profits of a corporation which distributes, with respect to 
its stock, inventory assets as defined in section 312(b)(2), where the 
fair market value of such assets exceeds their adjusted basis. The rules 
provided in section 312(b) (relating to distributions of certain 
inventory assets) shall be applicable without regard to the method used 
in computing inventories for the purpose of the computation of taxable 
income. Section 312(b) does not apply to distributions described in 
section 312(e).



Sec. 1.312-3  Liabilities.

    The amount of any reductions in earnings and profits described in 
section 312 (a) or (b) shall be (a) reduced by the amount of any 
liability to which the property distributed was subject and by the 
amount of any other liability of the corporation assumed by the 
shareholder in connection with such distribution, and (b) increased by 
the amount of gain recognized to the corporation under section 311 (b), 
(c), or (d), or under section 341(f), 617(d),

[[Page 48]]

1245(a), 1250(a), 1251(c), 1252(a), or 1254(a).

[T.D. 7209, 37 FR 20804, Oct. 5, 1972, as amended by T.D. 8586, 60 FR 
2500, Jan. 10, 1995]



Sec. 1.312-4  Examples of adjustments provided in section 312(c).

    The adjustments provided in section 312(c) may be illustrated by the 
following examples:

    Example (1). On December 2, 1954, Corporation X distributed to its 
sole shareholder, A, an individual, as a dividend in kind a vacant lot 
which was not an inventory asset. On that date, the lot had a fair 
market value of $5,000 and was subject to a mortgage of $2,000. The 
adjusted basis of the lot was $3,100. The amount of the earnings and 
profits was $10,000. The amount of the dividend received by A is $3,000 
($5,000, the fair market value, less $2,000, the amount of the mortgage) 
and the reduction in the earnings and profits of Corporation X is $1,100 
($3,100, the basis, less $2,000, the amount of mortgage).
    Example (2). The facts are the same as in Example (1) above with the 
exception that the amount of the mortgage to which the property was 
subject was $4,000. The amount of the dividend received by A is $1,000, 
and there is no reduction in the earnings and profits of the corporation 
as a result of the distribution (disregarding such reduction as may 
result from an increase in tax to Corporation X because, of gain 
resulting from the distribution). There is a gain of $900 recognized to 
Corporation X, the difference between the basis of the property ($3,100) 
and the amount of the mortgage ($4,000), under section 311(c) and an 
increase in earnings and profits of $900.
    Example (3). Corporation A, having accumulated earnings and profits 
of $100,000, distributed in kind to its shareholders, not in 
liquidation, inventory assets which had a basis to it on the ``Lifo'' 
method (section 472) of $46,000 and on the basis of cost or market 
(section 471) of $50,000. The inventory had a fair market value of 
$55,000 and was subject to a liability of $35,000. This distribution 
results in a net decrease in earnings and profits of Corporation A of 
$11,000, (without regard to any tax on Corporation A) computed as 
follows:

``Fifo'' basis of inventory..........................   $50,000
Less: ``Lifo'' basis of inventory....................    46,000
                                                      ----------
Gain recognized--addition to earnings and profits (section        $4,000
 311(b)).......................................................
Adjustment to earnings and profits required by
 section 312(b)(1)(A):
  Fair market value of inventory.....................   $55,000
  Less: ``Lifo'' basis plus adjustment under section     50,000    5,000
   311(b)............................................
                                                      ------------------
 Total increase in earnings and profits........................    9,000
Decrease in earnings and profits--under section         $55,000
 312(b)(1)(B)(i).....................................
Less: Liability assumed..............................    35,000
                                                      ----------
Net amount of distribution (decrease in earnings)..............   20,000
                                                      -----------
 Net decrease in earnings and profits..........................   11,000
 



Sec. 1.312-5  Special rule for partial liquidations and certain 
redemptions.

    The part of the distribution properly chargeable to capital account 
within the provisions of section 312(e) shall not be considered a 
distribution of earnings and profits within the meaning of section 301 
for the purpose of determining taxability of subsequent distributions by 
the corporation.



Sec. 1.312-6  Earnings and profits.

    (a) In determining the amount of earnings and profits (whether of 
the taxable year, or accumulated since February 28, 1913, or accumulated 
before March 1, 1913) due consideration must be given to the facts, and, 
while mere bookkeeping entries increasing or decreasing surplus will not 
be conclusive, the amount of the earnings and profits in any case will 
be dependent upon the method of accounting properly employed in 
computing taxable income (or net income, as the case may be). For 
instance, a corporation keeping its books and filing its income tax 
returns under subchapter E, chapter 1 of the Code, on the cash receipts 
and disbursements basis may not use the accrual basis in determining 
earnings and profits; a corporation computing income on the installment 
basis as provided in section 453 shall, with respect to the installment 
transactions, compute earnings and profits on such basis; and an 
insurance company subject to taxation under section 831 shall exclude 
from earnings and profits that portion of any premium which is unearned 
under the provisions of section 832(b)(4) and which is segregated 
accordingly in the unearned premium reserve.
    (b) Among the items entering into the computation of corporate 
earnings and profits for a particular period are all income exempted by 
statute, income not taxable by the Federal Government under the 
Constitution, as well as all items includible in gross income under 
section 61 or corresponding provisions of prior revenue acts. Gains

[[Page 49]]

and losses within the purview of section 1002 or corresponding 
provisions of prior revenue acts are brought into the earnings and 
profits at the time and to the extent such gains and losses are 
recognized under that section. Interest on State bonds and certain other 
obligations, although not taxable when received by a corporation, is 
taxable to the same extent as other dividends when distributed to 
shareholders in the form of dividends.
    (c)(1) In the case of a corporation in which depletion or 
depreciation is a factor in the determination of income, the only 
depletion or depreciation deductions to be considered in the computation 
of the total earnings and profits are those based on cost or other basis 
without regard to March 1, 1913, value. In computing the earnings and 
profits for any period beginning after February 28, 1913, the only 
depletion or depreciation deductions to be considered are those based on 
(i) cost or other basis, if the depletable or depreciable asset was 
acquired subsequent to February 28, 1913, or (ii) adjusted cost or March 
1, 1913, value, whichever is higher, if acquired before March 1, 1913. 
Thus, discovery or percentage depletion under all revenue acts for mines 
and oil and gas wells is not to be taken into consideration in computing 
the earnings and profits of a corporation. Similarly, where the basis of 
property in the hands of a corporation is a substituted basis, such 
basis, and not the fair market value of the property at the time of the 
acquisition by the corporation, is the basis for computing depletion and 
depreciation for the purpose of determining earnings and profits of the 
corporation.
    (2) The application of subparagraph (1) of this paragraph may be 
illustrated by the following example:

    Example Oil producing property which A had acquired in 1949 at a 
cost of $28,000 was transferred to Corporation Y in December 1951, in 
exchange for all of its capital stock. The fair market value of the 
stock and of the property as of the date of the transfer was $247,000. 
Corporation Y, after four years' operation, effected in 1955 a cash 
distribution to A in the amount of $165,000. In determining the extent 
to which the earnings and profits of Corporation Y available for 
dividend distributions have been increased as the result of production 
and sale of oil, the depletion to be taken into account is to be 
computed upon the basis of $28,000 established in the nontaxable 
exchange in 1951 regardless of the fair market value of the property or 
of the stock issued in exchange therefor.

    (d) A loss sustained for a year before the taxable year does not 
affect the earnings and profits of the taxable year. However, in 
determining the earnings and profits accumulated since February 28, 
1913, the excess of a loss sustained for a year subsequent to February 
28, 1913, over the undistributed earnings and profits accumulated since 
February 28, 1913, and before the year for which the loss was sustained, 
reduces surplus as of March 1, 1913, to the extent of such excess. If 
the surplus as of March 1, 1913, was sufficient to absorb such excess, 
distributions to shareholders after the year of the loss are out of 
earnings and profits accumulated since the year of the loss to the 
extent of such earnings.
    (e) With respect to the effect on the earnings and profits 
accumulated since February 28, 1913, of distributions made on or after 
January 1, 1916, and before August 6, 1917, out of earnings or profits 
accumulated before March 1, 1913, which distributions were specifically 
declared to be out of earnings and profits accumulated before March 1, 
1913, see section 31(b) of the Revenue Act of 1916, as added by section 
1211 of the Revenue Act of 1917 (40 Stat. 336).



Sec. 1.312-7  Effect on earnings and profits of gain or loss realized 
after February 28, 1913.

    (a) In order to determine the effect on earnings and profits of gain 
or loss realized from the sale or other disposition (after February 28, 
1913) of property by a corporation, section 312(f)(1) prescribed certain 
rules for--
    (1) The computation of the total earnings and profits of the 
corporation of most frequent application in determining invested 
capital; and
    (2) The computation of earnings and profits of the corporation for 
any period beginning after February 28, 1913, of most frequent 
application in determining the source of dividend distributions.

Such rules are applicable whenever under any provision of subtitle A of 
the

[[Page 50]]

Code it is necessary to compute either the total earnings and profits of 
the corporation or the earnings and profits for any period beginning 
after February 28, 1913. For example, since the earnings and profits 
accumulated after February 28, 1913, or the earnings and profits of the 
taxable year, are earnings and profits for a period beginning after 
February 28, 1913, the determination of either must be in accordance 
with the regulations prescribed by this section for the ascertainment of 
earnings and profits for any period beginning after February 28, 1913. 
Under subparagraph (1) of this paragraph, such gain or loss is 
determined by using the adjusted basis (under the law applicable to the 
year in which the sale or other disposition was made) for determining 
gain, but disregarding value as of March 1, 1913. Under subparagraph (2) 
of this paragraph, there is used such adjusted basis for determining 
gain, giving effect to the value as of March 1, 1913, whenever 
applicable. In both cases the rules are the same as those governing 
depreciation and depletion in computing earnings and profits (see Sec. 
1.312-6). Under both subparagraphs (1) and (2) of this paragraph, the 
adjusted basis is subject to the limitations of the third sentence of 
section 312(f)(1) requiring the use of adjustments proper in determining 
earnings and profits. The proper adjustments may differ under section 
312(f)(1)(A) and (B) depending upon the basis to which the adjustments 
are to be made. If the application of section 312(f)(1)(B) results in a 
loss and if the application of section 312(f)(1)(A) to the same 
transaction reaches a different result, then the loss under section 
312(f)(1)(B) will be subject to the adjustment thereto required by 
section 312(g)(2). (See Sec. 1.312-9.)
    (b)(1) The gain or loss so realized increases or decreases the 
earnings and profits to, but not beyond, the extent to which such gain 
or loss was recognized in computing taxable income (or net income, as 
the case may be) under the law applicable to the year in which such sale 
or disposition was made. As used in this paragraph, the term 
``recognized'' has reference to that kind of realized gain or loss which 
is recognized for income tax purposes by the statute applicable to the 
year in which the gain or loss was realized. For example, see section 
356. A loss (other than a wash sale loss with respect to which a 
deduction is disallowed under the provisions of section 1091 or 
corresponding provisions of prior revenue laws) may be recognized though 
not allowed as a deduction (by reason, for example, of the operation of 
sections 267 and 1211 and corresponding provisions of prior revenue 
laws) but the mere fact that it is not allowed does not prevent decrease 
in earnings and profits by the amount of such disallowed loss. Wash sale 
losses, however, disallowed under section 1091 and corresponding 
provisions of prior revenue laws, are deemed nonrecognized losses and do 
not reduce earnings or profits. The recognized gain or loss for the 
purpose of computing earnings and profits is determined by applying the 
recognition provisions to the realized gain or loss computed under the 
provisions of section 312(f)(1) as distinguished from the realized gain 
or loss used in computing taxable income (or net income, as the case may 
be).
    (2) The application of subparagraph (1) of this paragraph may be 
illustrated by the following examples:

    Example (1). Corporation X on January 1, 1952, owned stock in 
Corporation Y which it had acquired from Corporation Y in December 1951, 
in an exchange transaction in which no gain or loss was recognized. The 
adjusted basis to Corporation X of the property exchanged by it for the 
stock in Corporation Y was $30,000. The fair market value of the stock 
in Corporation Y when received by Corporation X was $930,000. On April 
9, 1955, Corporation X made a cash distribution of $900,000 and, except 
for the possible effect of the transaction in 1951, had no earnings or 
profits accumulated after February 28, 1913, and had no earnings or 
profits for the taxable year. The amount of $900,000 representing the 
excess of the fair market value of the stock of Corporation Y over the 
adjusted basis of the property exchanged therefor was not recognized 
gain to Corporation X under the provisions of section 112 of the 
Internal Revenue Code of 1939. Accordingly, the earnings and profits of 
Corporation X are not increased by $900,000, the amount of the gain 
realized but not recognized in the exchange, and the distribution was 
not a taxable dividend. The basis in the hands of Corporation Y of the 
property acquired by it from Corporation X is $30,000. If such property 
is thereafter sold by Corporation Y, gain or loss will be computed on 
such basis

[[Page 51]]

of $30,000, and earnings and profits will be increased or decreased 
accordingly.
    Example (2). On January 2, 1910, Corporation M acquired 
nondepreciable property at a cost of $1,000. On March 1, 1913, the fair 
market value of such property in the hands of Corporation M was $2,200. 
On December 31, 1952, Corporation M transfers such property to 
Corporation N in exchange for $1,900 in cash and all Corporation N's 
stock, which has a fair market value of $1,100. For the purpose of 
computing the total earnings and profits of Corporation M, the gain on 
such transaction is $2,000 (the sum of $1,900 in cash and stock worth 
$1,100 minus $1,000, the adjusted basis for computing gain, determined 
without regard to March 1, 1913, value), $1,900 of which is recognized 
under section 356, since this was the amount of money received, although 
for the purpose of computing net income the gain is only $800 (the sum 
of $1,900 in cash and stock worth $1,100, minus $2,200, the adjusted 
basis for computing gain determined by giving effect to March 1, 1913, 
value). Such earnings and profits will therefore be increased by only 
$800 as a reputing the earnings and profits of Corporation M for any 
period beginning after February 28, 1913, however, the gain arising from 
the transaction, like the taxable gain, is only $800, all of which is 
recognized under section 112(c) of the Internal Revenue Code of 1939, 
the money received being in excess of such amount. Such earnings and 
profits will therefore be increased by only $800 as a result of the 
transaction. For increase in that part of the earnings and profits 
consisting of increase in value of property accrued before, but realized 
on or after March 1, 1913, see Sec. 1.312-9.
    Example (3). On July 31, 1955, Corporation R owned oil-producing 
property acquired after February 28, 1913, at a cost of $200,000, but 
having an adjusted basis (by reason of taking percentage depletion) of 
$100,000 for determining gain. However, the adjusted basis of such 
property to be used in computing gain or loss for the purpose of 
earnings and profits is, because of the provisions of the third sentence 
of section 312(f)(1), $150,000. On such day Corporation R transferred 
such property to Corporation S in exchange for $25,000 in cash and all 
of the stock of Corporation S, which had a fair market value of 
$100,000. For the purpose of computing taxable income, Corporation R has 
realized a gain of $25,000 as a result of this transaction, all of which 
is recognized under section 356. For the purpose of computing earnings 
and profits, however, Corporation R has realized a loss of $25,000, none 
of which is recognized owing to the provisions of section 356(c). The 
earnings and profits of Corporation R are therefore neither increased 
nor decreased as a result of the transaction. The adjusted basis of the 
Corporation S stock in the hands of Corporation R for purposes of 
computing earnings and profits, however, will be $125,000 (though only 
$100,000 for the purpose of computing taxable income), computed as 
follows:

Basis of property transferred................................   $200,000
Less money received on exchange..............................     25,000
Plus gain or minus loss recognized on exchange...............       None
                                                              ----------
 Basis of stock..............................................    175,000
Less adjustments (same as those used in determining adjusted      50,000
 basis of property transferred)..............................
                                                              ----------
 Adjusted basis of stock.....................................    125,000
 


If, therefore, Corporation R should subsequently sell the Corporation S 
stock for $100,000, a loss of $25,000 will again be realized for the 
purpose of computing earnings and profits, all of which will be 
recognized and will be applied to decrease the earnings and profits of 
Corporation R.

    (c)(1) The third sentence of section 312(f)(1) provides for cases in 
which the adjustments, prescribed in section 1016, to the basis 
indicated in section 312(f)(1)(A) or (B), as the case may be, differ 
from the adjustments to such basis proper for the purpose of determining 
earnings or profits. The adjustments provided by such third sentence 
reflect the treatment provided by Sec. Sec. 1.312-6 and 1.312-15 
relative to cases where the deductions for depletion and depreciation in 
computing taxable income (or net income, as the case may be) differ from 
the deductions proper for the purpose of computing earnings and profits.
    (2) The effect of the third sentence of section 312(f)(1) may be 
illustrated by the following examples:

    Example (1). Corporation X purchased on January 2, 1931, an oil 
lease at a cost of $10,000. The lease was operated only for the years 
1931 and 1932. The deduction for depletion in each of the years 1931 and 
1932 amounted to $2,750, of which amount $1,750 represented percentage 
depletion in excess of depletion based on cost. The lease was sold in 
1955 for $15,000. Under section 1016(a)(2), in determining the gain or 
loss from the sale of the property, the basis must be adjusted for cost 
depletion of $1,000 in 1931 and percentage depletion of $2,750 in 1932. 
However, the adjustment of such basis, proper for the determination of 
earnings and profits, is $1,000 for each year, or $2,000. Hence, the 
cost is to be adjusted only to the extent of $2,000, leaving an adjusted 
basis of $8,000 and the earnings and profits will be increased by 
$7,000, and not by $8,750. The difference of $1,750 is equal to the 
amount by which the percentage depletion for the year 1932 ($2,750) 
exceeds the depletion on cost for that year ($1,000) and has already 
been applied in the computation

[[Page 52]]

of earnings and profits for the year 1932 by taking into account only 
$1,000 instead of $2,750 for depletion in the computation of such 
earnings and profits. (See Sec. 1.316-1.)
    Example (2). If, in Example (1), above, the property, instead of 
being sold, is exchanged in a transaction described in section 1031 for 
like property having a fair market value of $7,750 and cash of $7,250, 
then the increase in earnings and profits amounts to $7,000, that is, 
$15,000 ($7,750 plus $7,250) minus the basis of $8,000. However, in 
computing taxable income of Corporation X, the gain is $8,750, that is, 
$15,000 minus $6,250 ($10,000 less depletion of $3,750), of which only 
$7,250 is recognized because the recognized gain cannot exceed the sum 
of money received in the transaction. See section 1031(b) and the 
corresponding provisions of prior revenue laws. If, however, the cash 
received was only $2,250 and the value of the property received was 
$12,750, then the increase in earnings and profits would be $2,250, that 
amount being the gain recognized under section 1031.
    Example (3). On January 1, 1973, corporation X purchased for $10,000 
a depreciable asset with an estimated useful life of 20 years and no 
salvage value. In computing depreciation on the asset, corporation X 
used the declining balance method with a rate twice the straight line 
rate. On December 31, 1976, the asset was sold for $9,000. Under section 
1016(a)(2), the basis of the asset is adjusted for depreciation allowed 
for the years 1973 through 1976, or a total of $3,439. Thus, X realizes 
a gain of $2,439 (the excess of the amount realized, $9,000, over the 
adjusted basis, $6,561). However, the proper adjustment to basis for the 
purpose of determining earnings and profits is only $2,000, i.e., the 
total amount which, under Sec. 1.312-15, was applied in the computation 
of earnings and profits for the years 1973-76. Hence, upon sale of the 
asset, earnings and profits are increased by only $1,000, i.e., the 
excess of the amount realized, $9,000, over the adjusted basis for 
earnings and profits purposes, $8,000.

    (d) For adjustment and allocation of the earnings and profits of the 
transferor as between the transferor and the transferee in cases where 
the transfer of property by one corporation to another corporation 
results in the nonrecognition in whole or in part of gain or loss, see 
Sec. 1.312-10; and see section 381 for earnings and profits of 
successor corporations in certain transactions.

[T.D. 6500, 25 FR 11607, Nov. 26, 1960, as amended by T.D. 7221, 37 FR 
24746, Nov. 21, 1972]



Sec. 1.312-8  Effect on earnings and profits of receipt of tax-free 
distributions requiring adjustment or allocation of basis of stock.

    (a) In order to determine the effect on earnings and profits, where 
a corporation receives (after February 28, 1913) from a second 
corporation a distribution which (under the law applicable to the year 
in which the distribution was made) was not a taxable dividend to the 
shareholders of the second corporation, section 312(f) prescribes 
certain rules. It provides that the amount of such distribution shall 
not increase the earnings and profits of the first or receiving 
corporation in the following cases: (1) No such increase shall be made 
in respect of the part of such distribution which (under the law 
applicable to the year in which the distribution was made) is directly 
applied in reduction of the basis of the stock in respect of which the 
distribution was made and (2) no such increase shall be made if (under 
the law applicable to the year in which the distribution was made) the 
distribution causes the basis of the stock in respect of which the 
distribution was made to be allocated between such stock and the 
property received (or such basis would but for section 307(b) be so 
allocated). Where, therefore, the law (applicable to the year in which 
the distribution was made, as, for example, a distribution in 1934 from 
earnings and profits accumulated before March 1, 1913) requires that the 
amount of such distribution shall be applied against and reduce the 
basis of the stock with respect to which the distribution was made, 
there is no increase in the earnings and profits by reason of the 
receipt of such distribution. Similarly, where there is received by a 
corporation a distribution from another corporation in the form of a 
stock dividend and the law applicable to the year in which such 
distribution was made requires the allocation, as between the old stock 
and the stock received as a dividend, of the basis of the old stock (or 
such basis would but for section 307(b) be so allocated), then there is 
no increase in the earnings and profits by reason of the receipt of such 
stock dividend even though such stock dividend constitutes income within 
the

[[Page 53]]

meaning of the sixteenth amendment to the Constitution.
    (b) The principles set forth in paragraph (a) of this section may be 
illustrated by the following examples:

    Example (1). Corporation X in 1955 distributed to Corporation Y, one 
of its shareholders, $10,000 which was out of earnings or profits 
accumulated before March 1, 1913, and did not exceed the adjusted basis 
of the stock in respect of which the distribution was made. This amount 
of $10,000 was, therefore, a tax-free distribution and under the 
provisions of section 301(c)(2) must be applied against and reduce the 
adjusted basis of the stock in respect of which the distribution was 
made. The earnings and profits of Corporation Y are not increased by 
reason of the receipt of this distribution.
    Example (2). Corporation Z in 1955 had outstanding common and 
preferred stock of which Corporation Y held 100 shares of the common and 
no preferred. The stock had a cost basis to Corporation Y of $100 per 
share, or a total cost of $10,000. In December of that year it received 
a dividend of 100 shares of the preferred stock of Corporation Z. Such 
distribution is a stock dividend which, under section 305, was not 
taxable and was accordingly not included in the gross income of 
Corporation Y. The original cost of $10,000 is allocated to the 200 
shares of Corporation Z none of which has been sold or otherwise 
disposed of by Corporation Y. See section 307 and Sec. 1.307-1. The 
earnings and profits of Corporation Y are not increased by reason of the 
receipt of such stock dividend.



Sec. 1.312-9  Adjustments to earnings and profits reflecting increase 
in value accrued before March 1, 1913.

    (a) In order to determine, for the purpose of ascertaining the 
source of dividend distributions, that part of the earnings and profits 
which is represented by increase in value of property accrued before, 
but realized on or after, March 1, 1913, section 312(g) prescribes 
certain rules.
    (b)(1) Section 312(g)(1) sets forth the general rule with respect to 
computing the increase to be made in that part of the earnings and 
profits consisting of increase in value of property accrued before, but 
realized on or after, March 1, 1913.
    (2) The effect of section 312(g)(1) may be illustrated by the 
following examples:

    Example (1). Corporation X acquired nondepreciable property before 
March 1, 1913, at a cost of $10,000. Its fair market value as of March 
1, 1913, was $12,000 and it was sold in 1955 for $15,000. The increase 
in earnings and profits based on the value as of March 1, 1913, 
representing earnings and profits accumulated since February 28, 1913, 
is $3,000. If the basis is determined without regard to the value as of 
March 1, 1913, there would be an increase in earnings and profits of 
$5,000. The difference of $2,000 ($5,000 minus $3,000) represents the 
increase to be made in that part of the earnings and profits of 
Corporation X consisting of the increase in value of property accrued 
before, but realized on or after, March 1, 1913.
    Example (2). Corporation Y acquired depreciable property in 1908 at 
a cost of $100,000. Assuming no additions or betterments, and that the 
depreciation sustained before March 1, 1913, was $10,000, the adjusted 
cost as of that date was $90,000. Its fair market value as of March 1, 
1913, was $94,000 and on February 28, 1955, it was sold for $25,000. For 
the purpose of determining gain from the sale, the basis of the property 
is the fair market value of $94,000 as of March 1, 1913, adjusted for 
depreciation for the period subsequent to February 28, 1913, computed on 
such fair market value. If the amount of the depreciation deduction 
allowed after February 28, 1913, and properly allowable for each of such 
years to the date of the sale in 1955 is the aggregate sum of $81,467, 
the adjusted basis for determining gain in 1955 ($94,000 less $81,467) 
is $12,533 and the gain would be $12,467 ($25,000 less $12,533). The 
increase in earnings and profits accumulated since February 28, 1913, by 
reason of the sale, based on the value as of March 1, 1913, adjusted for 
depreciation is $12,467. If the depreciation since February 28, 1913, 
had been based on the adjusted cost of $90,000 ($100,000 less $10,000) 
instead of the March 1, 1913, value of $94,000, the depreciation 
sustained from that date to the date of sale would have been $78,000 
instead of $81,467 and the actual gain on the sale based on the cost of 
$100,000 adjusted by depreciation on such cost to $12,000 ($100,000 
reduced by the sum of $10,000 and $78,000) would be $13,000 ($25,000 
less $12,000). If the adjusted basis of the property was determined 
without regard to the value as of March 1, 1913, there would be an 
increase in earnings and profits of $13,000. The difference of $533 
($13,000 minus $12,467) represents the increase to be made in that part 
of the earnings and profits of Corporation Y consisting of the increase 
in value of property accrued before, but realized on or after, March 1, 
1913 (assuming that the proper increase in such surplus had been made 
each year for the difference between depreciation based on cost and the 
depreciation based on March 1, 1913, value). Thus, the total increase in 
that part of earnings and profits consisting of the increase in value of 
property accrued before, but realized on or after, March 1, 1913, is 
$4,000 ($94,000 less $90,000).


[[Page 54]]


    (c)(1) Section 312(g)(2) is an exception to the general rule in 
section 312(g)(1) and also operates as a limitation on the application 
of section 312(f). It provides that, if the application of section 
312(f)(1)(B) to a sale or other disposition after February 28, 1913, 
results in a loss which is to be applied in decrease of earnings and 
profits for any period beginning after February 28, 1913, then, 
notwithstanding section 312(f) and in lieu of the rule provided in 
section 312(g)(1), the amount of such loss so to be applied shall be 
reduced by the amount, if any, by which the adjusted basis of the 
property used in determining the loss, exceeds the adjusted basis 
computed without regard to the fair market value of the property on 
March 1, 1913. If the amount so applied in reduction of the loss exceeds 
such loss, the excess over such loss shall increase that part of the 
earnings and profits consisting of increase in value of property accrued 
before, but realized on or after March 1, 1913.
    (2) The application of section 312(g)(2) may be illustrated by the 
following examples:

    Example (1). Corporation Y acquired nondepreciable property before 
March 1, 1913, at a cost of $8,000. Its fair market value as of March 1, 
1913, was $13,000, and it was sold in 1955 for $10,000. Under section 
312(f)(1)(B) the adjusted basis would be $13,000 and there would be a 
loss of $3,000. The application of section 312(f)(1)(B) would result in 
a loss from the sale in 1955 to be applied in decrease of earnings and 
profits for that year. Section 312(g)(2), however, applies and the loss 
of $3,000 is reduced by the amount by which the adjusted basis of 
$13,000 exceeds the cost of $8,000 (the adjusted basis computed without 
regard to the value on March 1, 1913), namely $5,000. The amount of the 
loss is, accordingly, reduced from $3,000 to zero and there is no 
decrease in earnings and profits of Corporation Y for the year 1955 as a 
result of the sale. The amount applied in reduction of the decrease, 
namely, $5,000, exceeds $3,000. Accordingly, as a result of the sale the 
excess of $2,000 increases that part of the earnings and profits of 
Corporation Y consisting of increase in value of property accrued 
before, but realized on or after March 1, 1913.
    Example (2). Corporation Z acquired nondepreciable property before 
March 1, 1913, at a cost of $10,000. Its fair market value as of March 
1, 1913, was $12,000, and it was sold in 1955 for $8,000. Under section 
312(f)(1)(B) the adjusted basis would be $12,000 and there would be a 
loss of $4,000. The application of section 312(f)(1)(B) would result in 
a loss from the sale in 1955 to be applied in decrease of earnings and 
profits for that year. Section 312(g)(2), however, applies and the loss 
of $4,000 is reduced by the amount by which the adjusted basis of 
$12,000 exceeds the cost of $10,000 (the adjusted basis computed without 
regard to the value on March 1, 1913), namely, $2,000. The amount of the 
loss is, accordingly, reduced from $4,000 to $2,000 and the decrease in 
earnings and profits of Corporation Z for the year 1955 as a result of 
the sale is $2,000 instead of $4,000. The amount applied in reduction of 
the decrease, namely, $2,000, does not exceed $4,000. Accordingly, as a 
result of the sale there is no increase in that part of the earnings and 
profits of Corporation Z consisting of increase in value of property 
accrued before, but realized on or after, March 1, 1913.



Sec. 1.312-10  Allocation of earnings in certain corporate separations.

    (a) If one corporation transfers part of its assets constituting an 
active trade or business to another corporation in a transaction to 
which section 368(a)(1)(4) applies and immediately thereafter the stock 
and securities of the controlled corporation are distributed in a 
distribution or exchange to which section 355 (or so much of section 356 
as relates to section 355) applies, the earnings and profits of the 
distributing corporation immediately before the transaction shall be 
allocated between the distributing corporation and the controlled 
corporation. In the case of a newly created controlled corporation, such 
allocation generally shall be made in proportion to the fair market 
value of the business or businesses (and interests in any other 
properties) retained by the distributing corporation and the business or 
businesses (and interests in any other properties) of the controlled 
corporation immediately after the transaction. In a proper case, 
allocation shall be made between the distributing corporation and the 
controlled corporation in proportion to the net basis of the assets 
transferred and of the assets retained or by such other method as may be 
appropriate under the facts and circumstances of the case. The term net 
basis means the basis of the assets less liabilities assumed or 
liabilities to which such assets are subject. The part

[[Page 55]]

of the earnings and profits of the taxable year of the distributing 
corporation in which the transaction occurs allocable to the controlled 
corporation shall be included in the computation of the earnings and 
profits of the first taxable year of the controlled corporation ending 
after the date of the transaction.
    (b) If a distribution or exchange to which section 355 applies (or 
so much of section 356 as relates to section 355) is not in pursuance of 
a plan meeting the requirements of a reorganization as defined in 
section 368(a)(1)(D), the earnings and profits of the distributing 
corporation shall be decreased by the lesser of the following amounts:
    (1) The amount by which the earnings and profits of the distributing 
corporation would have been decreased if it had transferred the stock of 
the controlled corporation to a new corporation in a reorganization to 
which section 368(a)(1)(D) applied and immediately thereafter 
distributed the stock of such new corporation or,
    (2) The net worth of the controlled corporation. (For this purpose 
the term net worth means the sum of the basis of all of the properties 
plus cash minus all liabilities.)

If the earnings and profits of the controlled corporation immediately 
before the transaction are less than the amount of the decrease in 
earnings and profits of the distributing corporation (including a case 
in which the controlled corporation has a deficit) the earnings and 
profits of the controlled corporation, after the transaction, shall be 
equal to the amount of such decrease. If the earnings and profits of the 
controlled corporation immediately before the transaction are more than 
the amount of the decrease in the earnings and profits of the 
distributing corporation, they shall remain unchanged.
    (c) In no case shall any part of a deficit of a distributing 
corporation within the meaning of section 355 be allocated to a 
controlled corporation.



Sec. 1.312-11  Effect on earnings and profits of certain other tax-free 
exchanges, tax-free distributions, and tax-free transfers from one 
corporation to another.

    (a) If property is transferred by one corporation to another, and, 
under the law applicable to the year in which the transfer was made, no 
gain or loss was recognized (or was recognized only to the extent of the 
property received other than that permitted by such law to be received 
without the recognition of gain), then proper adjustment and allocation 
of the earnings and profits of the transferor shall be made as between 
the transferor and the transferee. Transfers to which the preceding 
sentence applies include contributions to capital, transfers under 
section 351, transfers in connection with reorganizations under section 
368, transfers in liquidations under section 332 and intercompany 
transfers during a period of affiliation. However, if, for example, 
property is transferred from one corporation to another in a transaction 
under section 351 or as a contribution to capital and the transfer is 
not followed or preceded by a reorganization, a transaction under 
section 302(a) involving a substantial part of the transferor's stock, 
or a total or partial liquidation, then ordinarily no allocation of the 
earnings and profits of the transferor shall be made. For specific rules 
as to allocation of earnings and profits in certain reorganizations 
under section 368 and in certain liquidations under section 332 see 
section 381 and the regulations thereunder. For allocation of earnings 
and profits in certain corporate separations see section 312(i) and 
Sec. 1.312-10.
    (b) The general rule provided in section 316 that every distribution 
is made out of earnings or profits to the extent thereof and from the 
most recently accumulated earnings or profits does not apply to:
    (1) The distribution, in pursuance of a plan of reorganization, by 
or on behalf of a corporation a party to the reorganization, or in a 
transaction subject to section 355, to its shareholders--
    (i) Of stock or securities in such corporation or in another 
corporation a party to the reorganization in any taxable year beginning 
before January 1,

[[Page 56]]

1934, without the surrender by the distributees of stock or securities 
in such corporation (see section 112(g) of the Revenue Act of 1932 (47 
Stat. 197)); or
    (ii) Of stock (other than preferred stock) in another corporation 
which is a party to the reorganization without the surrender by the 
distributees of stock in the distributing corporation if the 
distribution occurs after October 20, 1951, and is subject to section 
112(b)(11) of the Internal Revenue Code of 1939; or
    (iii) Of stock or securities in such corporation or in another 
corporation a party to the reorganization in any taxable year beginning 
before January 1, 1939, or on or after such date, in exchange for its 
stock or securities in a transaction to which section 112(b)(3) of the 
Internal Revenue Code of 1939 was applicable; or
    (iv) Of stock or securities in such corporation or in another 
corporation in exchange for its stock or securities in a transaction 
subject to section 354 or 355,

if no gain to the distributees from the receipt of such stock or 
securities was recognized by law.
    (2) The distribution in any taxable year (beginning before January 
1, 1939, or on or after such date) of stock or securities, or other 
property or money, to a corporation in complete liquidation of another 
corporation, under the circumstances described in section 112(b)(6) of 
the Revenue Act of 1936 (49 Stat. 1679), the Revenue Act of 1938 (52 
Stat. 485), of the Internal Revenue Code of 1939, or section 332 of the 
Internal Revenue Code of 1954.
    (3) The distribution in any taxable year (beginning after December 
31, 1938), of stock or securities, or other property or money, in the 
case of an exchange or distribution described in section 371 of the 
Internal Revenue Code of 1939 or in section 1081 of the Internal Revenue 
Code of 1954 (relating to exchanges and distributions in obedience to 
orders of the Securities and Exchange Commission), if no gain to the 
distributee from the receipt of such stock, securities, or other 
property or money was recognized by law.
    (4) A stock dividend which was not subject to tax in the hands of 
the distributee because either it did not constitute income to him 
within the meaning of the sixteenth amendment to the Constitution or 
because exempt to him under section 115(f) of the Revenue Act of 1934 
(48 Stat. 712) or a corresponding provision of a prior Revenue Act, or 
section 305 of the Code.
    (5) The distribution, in a taxable year of the distributee beginning 
after December 31, 1931, by or on behalf of an insolvent corporation, in 
connection with a section 112(b)(10) reorganization under the Internal 
Revenue Code of 1939, or in a transaction subject to section 371 of the 
Internal Revenue Code of 1954, of stock or securities in a corporation 
organized or made use of to effectuate the plan of reorganization, if 
under section 112(e) of the Internal Revenue Code of 1939 or section 371 
of the Internal Revenue Code of 1954 no gain to the distributee from the 
receipt of such stock or securities was recognized by law.
    (c) A distribution described in paragraph (b) of this section does 
not diminish the earnings or profits of any corporation. In such cases, 
the earnings or profits remain intact and available for distribution as 
dividends by the corporation making such distribution, or by another 
corporation to which the earnings or profits are transferred upon such 
reorganization or other exchange. In the case, however, of amounts 
distributed in liquidation (other than a taxfree liquidation or 
reorganization described in paragraph (b)(1), (2), (3), or (5) of this 
section) the earnings or profits of the corporation making the 
distribution are diminished by the portion of such distribution properly 
chargeable to earnings or profits accumulated after February 28, 1913, 
after first deducting from the amount of such distribution the portion 
thereof allocable to capital account.
    (d) For the purposes of this section, the terms reorganization and 
party to the reorganization shall, for any taxable year beginning before 
January 1, 1934, have the meanings assigned to such terms in section 112 
of the Revenue Act of 1932 (47 Stat. 196); for any taxable year 
beginning after December 31, 1933, and before January 1, 1936, have the 
meanings assigned to such terms in

[[Page 57]]

section 112 of the Revenue Act of 1934 (48 Stat. 704); for any taxable 
year beginning after December 31, 1935, and before January 1, 1938, have 
the meanings assigned to such terms in section 112 of the Revenue Act of 
1936 (49 Stat. 1678); for any taxable year beginning after December 31, 
1937, and before January 1, 1939, have the meanings assigned to such 
terms in section 112 of the Revenue Act of 1938 (52 Stat. 485); and for 
any taxable year beginning after December 31, 1938, and ending before 
June 22, 1954, providing no election is made under section 393(b)(2) of 
the Internal Revenue Code of 1954, have the meanings assigned to such 
terms in section 112(g)(1) of the Internal Revenue Code of 1939.



Sec. 1.312-12  Distributions of proceeds of loans guaranteed by the 
United States.

    (a) The provisions of section 312(j) are applicable with respect to 
a loan, any portion of which is guaranteed by an agency of the United 
States Government without regard to the percentage of such loan subject 
to such guarantee.
    (b) The application of section 312(j) is illustrated by the 
following example:

    Example. Corporation A borrowed $1,000,000 for the purpose of 
construction of an apartment house, the cost and adjusted basis of which 
was $900,000. This loan was guaranteed by an agency of the United States 
Government. One year after such loan was made and after the completion 
of construction of the building (but before such corporation had 
received any income) it distributed $100,000 cash to its shareholders. 
The earnings and profits of the taxable year of such corporation are 
increased (pursuant to section 312(j)) by $100,000 immediately prior to 
such distribution and are decreased by $100,000 immediately after such 
distribution. Such decrease, however, does not reduce the earnings and 
profits below zero. Two years later, it has no accumulated earnings and 
has earnings of the taxable year of $100,000. Before it has made any 
payments on the loan, it distributes $200,000 to its shareholders. The 
earnings and profits of the taxable year of the corporation ($100,000) 
are increased by $100,000, the excess of the amount of the guaranteed 
loan over the adjusted basis of the apartment house (calculated without 
adjustment for depreciation). The entire amount of each distribution is 
treated as a distribution out of earnings and profits and, accordingly, 
as a taxable dividend.



Sec. 1.312-15  Effect of depreciation on earnings and profits.

    (a) Depreciation for taxable years beginning after June 30, 1972--
(1) In general. Except as provided in subparagraph (2) of this paragraph 
and paragraph (c) of this section, for purposes of computing the 
earnings and profits of a corporation (including a real estate 
investment trust as defined in section 856) for any taxable year 
beginning after June 30, 1972, the allowance for depreciation (and 
amortization, if any) shall be deemed to be the amount which would be 
allowable for such year if the straight line method of depreciation had 
been used for all property for which depreciation is allowable for each 
taxable year beginning after June 30, 1972. Thus, for taxable years 
beginning after June 30, 1972, in determining the earnings and profits 
of a corporation, depreciation must be computed under the straight line 
method, notwithstanding that in determining taxable income the 
corporation uses an accelerated method of depreciation described in 
subparagraph (A), (B), or (C) of section 312(m)(2) or elects to amortize 
the basis of property under section 169, 184, 187, or 188, or any 
similar provision.
    (2) Exception. (i) If, for any taxable year beginning after June 30, 
1972, a method of depreciation is used by a corporation in computing 
taxable income which the Secretary or his delegate has determined 
results in a reasonable allowance under section 167(a) and which is not 
a declining balance method of depreciation (described in Sec. 1.167(b)-
2), the sum of the years-digits method (described in Sec. 1.167(b)-3), 
or any other method allowed solely by reason of the application of 
subsection (b)(4) or (j)(1)(C) of section 167, then the adjustment to 
earnings and profits for depreciation for such year shall be determined 
under the method so used (in lieu of the straight line method).
    (ii) The Commissioner has determined that the ``unit of production'' 
(see Sec. 1.167(b)-0(b)), and the ``machine hour'' methods of 
depreciation, when properly used under appropriate circumstances, meet 
the requirements of subdivision (i) of this subparagraph. Thus, the 
adjustment to earnings and profits for depreciation (for the taxable

[[Page 58]]

year for which either of such methods is properly used under appropriate 
circumstances) shall be determined under whichever of such methods is 
used to compute taxable income.
    (3) Determinations under straight line method. (i) In the case of 
property with respect to which an allowance for depreciation is claimed 
in computing taxable income, the determination of the amount which would 
be allowable under the straight line method shall be based on the manner 
in which the corporation computes depreciation in determining taxable 
income. Thus, if an election under Sec. 1.167(a)-11 is in effect with 
respect to the property, the amount of depreciation which would be 
allowable under the straight line method shall be determined under Sec. 
1.167(a)-11(g)(3). On the other hand, if property is not depreciated 
under the provisions of Sec. 1.167(a)-11, the amount of depreciation 
which would be allowable under the straight line method shall be 
determined under Sec. 1.167(b)-1. Any election made under section 
167(f), with respect to reducing the amount of salvage value taken into 
account in computing the depreciation allowance for certain property, or 
any convention adopted under Sec. 1.167(a)-10(b) or Sec. 1.167(a)-
11(c)(2), with respect to additions and retirements from multiple asset 
accounts, which is used in computing depreciation for taxable income 
shall be used in computing depreciation for earnings and profits 
purposes.
    (ii) In the case of property with respect to which an election to 
amortize is in effect under section 169, 184, 187, or 188, or any 
similar provision, the amount which would be allowable under the 
straight line method of depreciation shall be determined under the 
provisions of Sec. 1.167(b)-1. Thus, the cost or other basis of the 
property, less its estimated salvage value, is to be deducted in equal 
annual amounts over the period of the estimated useful life of the 
property. In computing the amount of depreciation for earnings and 
profits purposes, a taxpayer may utilize the provisions of section 
167(f) (relating to the reduction in the amount of salvage value taken 
into account in computing the depreciation allowance for certain 
property) and any convention which could have been adopted for such 
property under Sec. 1.167(a)-10(b) (relating to additions and 
retirements from multiple asset accounts).
    (b) Transitional rules--(1) Depreciation. If, for the taxable year 
which includes June 30, 1972, (i) the allowance for depreciation of any 
property is computed under a method other than the straight line method 
or a method described in paragraph (a)(2) of this section, and (ii) 
paragraph (a)(1) of this section applies to such property for the first 
taxable year beginning after June 30, 1972, then adjustments to earnings 
and profits for depreciation of such property for taxable years 
beginning after June 30, 1972, shall be determined as if the corporation 
changed to the straight line method with respect to such property as of 
the first day of the first taxable year beginning after June 30, 1972. 
Thus, if an election under Sec. 1.167 (a)-11 is in effect with respect 
to the property, the change shall be made under the provisions of Sec. 
1.167(a)-11(c)(1)(iii), except that no statement setting forth the 
vintage accounts for which the change is made shall be furnished with 
the income tax return of the year of change if the change is only for 
purposes of computing earnings and profits. In all other cases, the 
unrecovered cost or other basis of the property (less a reasonable 
estimate for salvage) as of such first day shall be recovered through 
equal annual allowances over the estimated remaining useful life 
determined in accordance with the circumstances existing at that time. 
See paragraph (a)(3)(i) of this section for rules relating to the 
applicability of section 167(f) in determining salvage value.
    (2) Amortization. If, for the taxable year which includes June 30, 
1972, the basis of any property is amortized under section 169, 184, 
187, or 188, or any similar provision, then adjustments to earnings and 
profits for depreciation or amortization of such property for taxable 
years beginning after June 30, 1972, shall be determined as if the 
unrecovered cost or other basis of the property (less a reasonable 
estimate for salvage) as of the first day of the first taxable year 
beginning after June 30, 1972, were recovered through equal annual

[[Page 59]]

allowances over the estimated remaining useful life of the property 
determined in accordance with the circumstances existing at that time. 
See paragraph (a)(3)(ii) of this section for rules relating to the 
applicability of section 167(f).
    (c) Certain foreign corporations. Paragraphs (a) and (b) of this 
section shall not apply in computing the earnings and profits of a 
foreign corporation for any taxable year for which less than 20 percent 
of the gross income from all sources of such corporation is derived from 
sources within the United States.
    (d) Books and records. Wherever different methods of depreciation 
are used for taxable income and earnings and profits purposes, records 
shall be maintained which show the depreciation taken for earnings and 
profits purposes each year and which will allow computation of the 
adjusted basis of the property in each account using the depreciation 
taken for earnings and profits purposes.

[T.D. 7221, 37 FR 24746, Nov. 21, 1972]

              definitions; constructive ownership of stock



Sec. 1.316-1  Dividends.

    (a)(1) The term dividend for the purpose of subtitle A of the Code 
(except when used in subchapter L, chapter 1 of the Code, in any case 
where the reference is to dividends and similar distributions of 
insurance companies paid to policyholders as such) comprises any 
distribution of property as defined in section 317 in the ordinary 
course of business, even though extraordinary in amount, made by a 
domestic or foreign corporation to its shareholders out of either--
    (i) Earnings and profits accumulated since February 28, 1913, or
    (ii) Earnings and profits of the taxable year computed without 
regard to the amount of the earnings and profits (whether of such year 
or accumulated since February 28, 1913) at the time the distribution was 
made.

The earnings and profits of the taxable year shall be computed as of the 
close of such year, without diminution by reason of any distributions 
made during the taxable year. For the purpose of determining whether a 
distribution constitutes a dividend, it is unnecessary to ascertain the 
amount of the earnings and profits accumulated since February 28, 1913, 
if the earnings and profits of the taxable year are equal to or in 
excess of the total amount of the distributions made within such year.
    (2) Where a corporation distributes property to its shareholders on 
or after June 22, 1954, the amount of the distribution which is a 
dividend to them may not exceed the earnings and profits of the 
distributing corporation.
    (3) The rule of (2) above may be illustrated by the following 
example:

    Example X and Y, individuals, each own one-half of the stock of 
Corporation A which has earnings and profits of $10,000. Corporation A 
distributes property having a basis of $6,000 and a fair market value of 
$16,000 to its shareholders, each shareholder receiving property with a 
basis of $3,000 and with a fair market value of $8,000 in a distribution 
to which section 301 applies. The amount taxable to each shareholder as 
a dividend under section 301(c) is $5,000.

    (b)(1) In the case of a corporation which, under the law applicable 
to the taxable year in which a distribution is made, is a personal 
holding company or which, for the taxable year in respect of which a 
distribution is made under section 563 (relating to dividends paid 
within 2 1/2 months after the close of the taxable year), or section 547 
(relating to deficiency dividends), or corresponding provisions of a 
prior income tax law, was under the applicable law a personal holding 
company, the term dividend, in addition to the meaning set forth in the 
first sentence of section 316, also means a distribution to its 
shareholders as follows: A distribution within a taxable year of the 
corporation, or of a shareholder, is a dividend to the extent of the 
corporation's undistributed personal holding company income (determined 
under section 545 without regard to distributions under section 
316(b)(2)) for the taxable year in which, or, in the case of a 
distribution under section 563 or section 547, the taxable year in 
respect of which, the distribution was made. This subparagraph does not 
apply to distributions in partial or complete liquidation of a personal 
holding company. In the case of certain complete liquidations of a

[[Page 60]]

personal holding company see subparagraph (2) of this paragraph.
    (2) In the case of a corporation which, under the law applicable to 
the taxable year in which a distribution is made, is a personal holding 
company or which, for the taxable year in respect of which a 
distribution is made under section 563, or section 547, or corresponding 
provisions of a prior income tax law, was under the applicable law a 
personal holding company, the term dividend, in addition to the meaning 
set forth in the first sentence of section 316, also means, in the case 
of a complete liquidation occurring within 24 months after the adoption 
of a plan of liquidation, a distribution of property to its shareholders 
within such period, but--
    (i) Only to the extent of the amounts distributed to distributees 
other than corporate shareholders, and
    (ii) Only to the extent that the corporation designates such amounts 
as a dividend distribution and duly notifies such distributees in 
accordance with subparagraph (5) of this paragraph, but
    (iii) Not in excess of the sum of such distributees' allocable share 
of the undistributed personal holding company income for such year 
(determined under section 545 without regard to sections 562(b) and 
316(b)(2)(B)).

Section 316(b)(2)(B) and this subparagraph apply only to distributions 
made in any taxable year of the distributing corporation beginning after 
December 31, 1963. The amount designated with respect to a noncorporate 
distributee may not exceed the amount actually distributed to such 
distributee. For purposes of determining a noncorporate distributee's 
gain or loss on liquidation, amounts distributed in complete liquidation 
to such distributee during a taxable year are reduced by the amounts 
designated as a dividend with respect to such distributee for such year. 
For purposes of section 333(e)(1), a shareholder's ratable share of the 
earnings and profits of the corporation accumulated after February 28, 
1913, shall be reduced by the amounts designated as a dividend with 
respect to such shareholder (even though such designated amounts are 
distributed during the 1-month period referred to in section 333).
    (3) For purposes of subparagraph (2)(iii) of this paragraph--
    (i) Except as provided in subdivision (ii) of this subparagraph, the 
sum of the noncorporate distributees' allocable share of undistributed 
personal holding company income for the taxable year in which, or in 
respect of which, the distribution was made (computed without regard to 
sections 562(b) and 316(b)(2)(B)) shall be determined by multiplying 
such undistributed personal holding company income by the ratio which 
the aggregate value of the stock held by all noncorporate shareholders 
immediately before the record date of the last liquidating distribution 
in such year bears to the total value of all stock outstanding on such 
date. For rules applicable in a case where the distributing corporation 
has more than one class of stock, see subdivision (iii) of this 
subparagraph.
    (ii) If more than one liquidating distribution was made during the 
year, and if, after the record date of the first distribution but before 
the record date of the last distribution, there was a change in the 
relative shareholdings as between noncorporate shareholders and 
corporate shareholders, then the sum of the noncorporate distributees' 
allocable share of undistributed personal holding company income for the 
taxable year in which, or in respect of which, the distributions were 
made (computed without regard to sections 562(b) and 316(b)(2)(B)) shall 
be determined as follows:
    (a) First, allocate the corporation's undistributed personal holding 
company income among the distributions made during the taxable year by 
reference to the ratio which the aggregate amount of each distribution 
bears to the total amount of all distributions during such year;
    (b) Second, determine the noncorporate distributees' allocable share 
of the corporation's undistributed personal holding company income for 
each distribution by multiplying the amount determined under (a) of this 
subdivision (ii) for each distribution by the ratio which the aggregate 
value of the stock held by all noncorporate shareholders immediately 
before the record date of such distribution bears

[[Page 61]]

to the total value of all stock outstanding on such date; and
    (c) Last, determine the sum of the noncorporate distributees' 
allocable share of the corporation's undistributed personal holding 
company income for all such distributions.

For rules applicable in a case where the distributing corporation has 
more than one class of stock, see subdivision (iii) of this 
subparagraph.
    (iii) Where the distributing corporation has more than one class of 
stock--
    (a) The undistributed personal holding company income for the 
taxable year in which, or in respect of which the distribution was made 
shall be treated as a fund from which dividends may properly be paid and 
shall be allocated between or among the classes of stock in a manner 
consistent with the dividend rights of such classes under local law and 
the pertinent governing instruments, such as, for example, the 
distributing corporation's articles or certificate of incorporation and 
bylaws;
    (b) The noncorporate distributees' allocable share of the 
undistributed personal holding company income for each class of stock 
shall be determined separately in accordance with the rules set forth in 
subdivisions (i) or (ii) of this subparagraph, as if each class of stock 
were the only class of stock outstanding; and
    (c) The sum of the noncorporate distributees' allocable share of the 
undistributed personal holding company income for the taxable year in 
which, or in respect of which, the distribution was made shall be the 
sum of the noncorporate distributees' allocable share of the 
undistributed personal holding company income for all classes of stock.
    (iv) For purposes of this subparagraph, in any case where the record 
date of a liquidating distribution cannot be ascertained, the record 
date of the distribution shall be the date on which the liquidating 
distribution was actually made.
    (4) The amount designated as a dividend to a noncorporate 
distributee for any taxable year of the distributing corporation may not 
exceed an amount equal to the sum of the noncorporate distributees' 
allocable share of undistributed personal holding company income (as 
determined under subparagraph (3) of this paragraph) for such year 
multiplied by the ratio which the aggregate value of the stock held by 
such distributee immediately before the record date of the liquidating 
distribution or, if the record date cannot be ascertained, immediately 
before the date on which the liquidating distribution was actually made, 
bears to the aggregate value of stock outstanding held by all 
noncorporate distributees on such date. In any case where more than one 
liquidating distribution is made during the taxable year, the aggregate 
amount which may be designated as a dividend to a noncorporate 
distributee for such year may not exceed the aggregate of the amounts 
determined by applying the principle of the preceding sentence to the 
amounts determined under subparagraphs (3)(ii)(a) and (b) of this 
paragraph for each distribution. Where the distributing corporation has 
more than one class of stock, the limitation on the amount which may be 
designated as a dividend to a noncorporate distributee for any taxable 
year shall be determined by applying the rules of this subparagraph 
separately with respect to the noncorporate distributees' allocable 
share of the undistributed personal holding company income for each 
class of stock (as determined under subparagraphs (3)(iii)(a) and (b) of 
this paragraph).
    (5) A corporation may designate as a dividend to a shareholder all 
or part of a distribution in complete liquidation described in section 
316(b)(2)(B) of this paragraph by:
    (i) Claiming a dividends paid deduction for such amount in its 
return for the year in which, or in respect of which, the distribution 
is made,
    (ii) Including such amount as a dividend in Form 1099 filed in 
respect of such shareholder pursuant to section 6042(a) and the 
regulations thereunder and in a written statement of dividend payments 
furnished to such shareholder pursuant to section 6042(c) and Sec. 
1.6042-4, and
    (iii) Indicating on the written statement of dividend payments 
furnished

[[Page 62]]

to such shareholder the amount included in such statement which is 
designated as a dividend under section 316(b)(2)(B) and this paragraph.

If a corporation complies with the procedure prescribed in the preceding 
sentence, it satisfies both the designation and notification 
requirements of section 316(b)(2)(B)(ii) and paragraph (b)(2)(ii) of 
this section. An amount designated as a dividend shall not be included 
as a distribution in liquidation on Form 1099L filed pursuant to Sec. 
1.6043-2 (relating to returns of information respecting distributions in 
liquidation). If a corporation designates a dividend in accordance with 
this subparagraph, it shall attach to the return in which it claims a 
deduction for such designated dividend a schedule indicating all facts 
necessary to determine the sum of the noncorporate distributees' 
allocable share of undistributed personal holding company income 
(determined in accordance with subparagraph (3) of this paragraph) for 
the year in which, or in respect of which, the distribution is made.
    (c) Except as provided in section 316(b)(1), the term dividend 
includes any distribution of property to shareholders to the extent made 
out of accumulated or current earnings and profits. See, however, 
section 331 (relating to distributions in complete or partial 
liquidation), section 301(e) (relating to distributions by personal 
service corporations), section 302(b) (relating to redemptions treated 
as amounts received from the sale or exchange of stock), and section 303 
(relating to distributions in redemption of stock to pay death taxes). 
See also section 305(b) for certain distributions of stock or stock 
rights treated as distributions of property.
    (d) In the case of a corporation which, under the law applicable to 
the taxable year in respect of which a distribution is made under 
section 860 (relating to deficiency dividends), was a regulated 
investment company (within the meaning of section 851), or a real estate 
investment trust (within the meaning of section 856), the term dividend, 
in addition to the meaning set forth in paragraphs (a) and (b) of 
section 316, means a distribution of property to its shareholders which 
constitutes a ``deficiency dividend'' as defined in section 860(f).
    (e) The application of section 316 may be illustrated by the 
following examples:

    Example (1). At the beginning of the calendar year 1955, Corporation 
M had an operating deficit of $200,000 and the earnings and profits for 
the year amounted to $100,000. Beginning on March 16, 1955, the 
corporation made quarterly distributions of $25,000 during the taxable 
year to its shareholders. Each distribution is a taxable dividend in 
full, irrespective of the actual or the pro rata amount of the earnings 
and profits on hand at any of the dates of distribution, since the total 
distributions made during the year ($100,000) did not exceed the total 
earnings and profits of the year ($100,000).
    Example (2). At the beginning of the calendar year 1955, Corporation 
N, a personal holding company, had no accumulated earnings and profits. 
During that year it made no earnings and profits but, due to the 
disallowance of certain deductions, its undistributed personal holding 
company income (determined under section 545 without regard to 
distributions under section 316(b)(2)) was $16,000. It distributed to 
shareholders on December 15, 1955, $15,000, and on February 1, 1956, 
$1,000, the latter amount being claimed as a deduction under section 563 
in its personal holding company schedule for 1955 filed with its return 
for 1955 on March 15, 1956. Both distributions are taxable dividends in 
full, since they do not exceed the undistributed personal holding 
company income (determined without regard to such distributions) for 
1955, the taxable year in which the distribution of $15,000 was made and 
with respect to which the distribution of $1,000 was made. It is 
immaterial whether Corporation N is a personal holding company for the 
taxable year 1956 or whether it had any income for that year.
    Example (3). In 1959, a deficiency in personal holding company tax 
was established against Corporation O for the taxable year 1955 in the 
amount of $35,500 based on an undistributed personal holding company 
income of $42,000. Corporation O complied with the provisions of section 
547 and in December 1959 distributed $42,000 to its stockholders as 
``deficiency dividends.'' The distribution of $42,000 is a taxable 
dividend since it does not exceed $42,000 (the undistributed personal 
holding company income for 1955, the taxable year with respect to which 
the distribution was made). It is immaterial whether Corporation O is a 
personal holding company for the taxable year 1959 or whether it had any 
income for that year.
    Example (4). At the beginning of the taxable year 1955, Corporation 
P, a personal holding company, had a deficit in earnings and profits of 
$200,000. During that year it

[[Page 63]]

made earnings and profits of $90,000. For that year, however, it had an 
undistributed personal holding income (determined under section 545 
without regard to distributions under section 316(b)(2)) of $80,000. 
During such taxable year it distributed to its shareholders $100,000. 
The distribution of $100,000 is a taxable dividend to the extent of 
$90,000 since its earnings and profits for that year, $90,000, exceed 
$80,000, the undistributed personal holding company income determined 
without regard to such distribution.
    Example (5). Corporation O, a calendar year taxpayer, is completely 
liquidated on December 31, 1964, pursuant to a plan of liquidation 
adopted July 1, 1964. No distributions in liquidation were made pursuant 
to the plan of liquidation adopted July 1, 1964, until the distribution 
in complete liquidation on December 31, 1964. Corporation O has 
undistributed personal holding company income of $300,000 for the year 
1964 (computed without regard to section 562(b) or section 
316(b)(2)(B)). On December 31, 1964, immediately before the record date 
of the distribution in complete liquidation, individual A owns 200 
shares of Corporation O's outstanding stock and Corporation P owns the 
remaining 100 shares of outstanding stock. All shares are equal in 
value. The noncorporate distributees' allocable share of undistributed 
personal holding company income for 1964 is $200,000

200 shares/300 sharesx$300,000.


If at least $200,000 is distributed to A in the liquidation, then 
Corporation O may designate $200,000 to A as a dividend in accordance 
with paragraph (b)(5) of this section, and, if such amount is 
designated, then A must treat $200,000 as a dividend to which section 
301 applies. For an example of the treatment of the distribution to 
Corporation P see paragraph (b)(2)(iii) of Sec. 1.562-1.
    Example (6). Corporation Q, a calendar year taxpayer, is completely 
liquidated on December 31, 1964, pursuant to a plan of liquidation 
adopted July 1, 1964. No distributions in liquidation were made pursuant 
to the plan of liquidation adopted July 1, 1964, until the distribution 
in complete liquidation on December 31, 1964. Corporation Q has 
undistributed personal holding company income of $40,000 for the year 
1964 (computed without regard to section 562(b) or section 
316(b)(2)(B)). On December 31, 1964, immediately before the record date 
of the distribution in complete liquidation, Corporation Q has 
outstanding 300 shares of common stock and 100 shares of noncumulative 
preferred stock. Corporation Q's articles of incorporation provide that 
the preferred stock is entitled to dividends of $10 per share per year. 
Of Corporation Q's stock, individual B owns 200 shares of the common 
stock and 50 shares of the preferred stock, and Corporation R owns all 
remaining shares. All of the common shares are equal in value, and all 
of the preferred shares are equal in value. No dividends had been paid 
on the preferred stock during the year 1964. Of the $40,000 of 
undistributed personal holding company income, $1,000 must be allocated 
to the preferred stock because of the rights of the holders of such 
stock, under Q's articles of incorporation, to receive that amount in 
dividends for the year 1964. The noncorporate distributees' allocable 
share of undistributed personal holding company income for 1964 is 
$26,500.

50 preferred shares/100 preferred sharesx$1,000+200 common shares / 300 
common sharesx$39,000


If at least $26,500 is distributed to B in the liquidation, then 
corporation Q may designate $26,500 to B as a dividend in accordance 
with paragraph (b)(5) of this section, and, if such amount is 
designated, then B must treat $26,500 as a dividend to which section 301 
applies.
    Example (7). In 1979, a deficiency of $46,000 in the tax on real 
estate investment trust taxable income is established against 
corporation R for the taxable year 1977, based on an increase in real 
estate investment trust taxable income of $100,000. Corporation R 
complied with the provisions of section 860 and in December 1979 
distributed to its stockholders $100,000, which qualified as 
``deficiency dividends'' under section 860. The distribution of $100,000 
is a taxable dividend. It is immaterial whether corporation R is a real 
estate investment trust for the taxable year 1979 or whether it had 
accumulated or current earnings and profits in 1979. See section 
316(b)(3).

(Sec. 860(l) (92 Stat. 2849, 26 U.S.C. 860(l)); sec. 860(g) (92 Stat. 
2850, 26 U.S.C. 860(g)); and sec. 7805 (68A Stat. 917, 26 U.S.C. 7805))

[T.D. 6500, 25 FR 11607, Nov. 26, 1960, as amended by T.D. 6625, 27 FR 
12541, Dec. 19, 1962; T.D. 6949, 33 FR 5519, Apr. 9, 1968; T.D. 7767, 46 
FR 11264, Feb. 6, 1981; T.D. 7936, 49 FR 2105, Jan. 18, 1984]



Sec. 1.316-2  Sources of distribution in general.

    (a) For the purpose of income taxation every distribution made by a 
corporation is made out of earnings and profits to the extent thereof 
and from the most recently accumulated earnings and profits. In 
determining the source of a distribution, consideration should be given 
first, to the earnings and profits of the taxable year; second, to the 
earnings and profits accumulated since February 28, 1913, only in the 
case where, and to the extent that, the distributions made during the 
taxable year are not regarded as out of the

[[Page 64]]

earnings and profits of that year; third, to the earnings and profits 
accumulated before March 1, 1913, only after all the earnings and 
profits of the taxable year and all the earnings and profits accumulated 
since February 28, 1913, have been distributed; and, fourth, to sources 
other than earnings and profits only after the earnings and profits have 
been distributed.
    (b) If the earnings and profits of the taxable year (computed as of 
the close of the year without diminution by reason of any distributions 
made during the year and without regard to the amount of earnings and 
profits at the time of the distribution) are sufficient in amount to 
cover all the distributions made during that year, then each 
distribution is a taxable dividend. See Sec. 1.316-1. If the 
distributions made during the taxable year consist only of money and 
exceed the earnings and profits of such year, then that proportion of 
each distribution which the total of the earnings and profits of the 
year bears to the total distributions made during the year shall be 
regarded as out of the earnings and profits of that year. The portion of 
each such distribution which is not regarded as out of earnings and 
profits of the taxable year shall be considered a taxable dividend to 
the extent of the earnings and profits accumulated since February 28, 
1913, and available on the date of the distribution. In any case in 
which it is necessary to determine the amount of earnings and profits 
accumulated since February 28, 1913, and the actual earnings and profits 
to the date of a distribution within any taxable year (whether beginning 
before January 1, 1936, or, in the case of an operating deficit, on or 
after that date) cannot be shown, the earnings and profits for the year 
(or accounting period, if less than a year) in which the distribution 
was made shall be prorated to the date of the distribution not counting 
the date on which the distribution was made.
    (c) The provisions of the section may be illustrated by the 
following example:

    Example At the beginning of the calendar year 1955, Corporation M 
had $12,000 in earnings and profits accumulated since February 28, 1913. 
Its earnings and profits for 1955 amounted to $30,000. During the year 
it made quarterly cash distributions of $15,000 each. Of each of the 
four distributions made, $7,500 (that portion of $15,000 which the 
amount of $30,000, the total earnings and profits of the taxable year, 
bears to $60,000, the total distributions made during the year) was paid 
out of the earnings and profits of the taxable year; and of the first 
and second distributions, $7,500 and $4,500, respectively, were paid out 
of the earnings and profits accumulated after February 28, 1913, and 
before the taxable year, as follows:

----------------------------------------------------------------------------------------------------------------
                         Distributions during 1955                            Portion  Portion out
----------------------------------------------------------------------------  out of   of earnings
                                                                             earnings  accumulated
                                                                                and     since Feb.  Taxable amt.
                                                                              profits   28, 1913,      of each
                               Date                                 Amount    of the    and before  distribution
                                                                              taxable  the taxable
                                                                               year        year
----------------------------------------------------------------------------------------------------------------
March 10.........................................................   $15,000    $7,500      $7,500      $15,000
June 10..........................................................    15,000     7,500       4,500       12,000
September 10.....................................................    15,000     7,500  ...........       7,500
December 10......................................................    15,000     7,500  ...........       7,500
                                                                  ----------------------------------------------
  Total amount taxable as dividends..............................  ........  ........  ...........      42,000
----------------------------------------------------------------------------------------------------------------


    (d) Any distribution by a corporation out of earnings and profits 
accumulated before March 1, 1913, or out of increase in value of 
property accrued before March 1, 1913 (whether or not realized by sale 
or other disposition, and, if realized, whether before, on, or after 
March 1, 1913), is not a dividend within the meaning of subtitle A of 
the Code.
    (e) A reserve set up out of gross income by a corporation and 
maintained for the purpose of making good any loss of capital assets on 
account of depletion or depreciation is not a part of surplus out of 
which ordinary dividends may be paid. A distribution made from a 
depletion or a depreciation reserve based upon the cost or other basis 
of the property will not be considered as having been paid out of 
earnings and profits, but the amount thereof shall be applied against 
and reduce the cost or other basis of the stock upon which declared. If 
such a distribution is in excess of the basis, the excess shall be taxed 
as a gain from the sale or other disposition of property as provided in 
section 301(c)(3)(A). A distribution from a depletion reserve based upon 
discovery value to the extent that such

[[Page 65]]

reserve represents the excess of the discovery value over the cost or 
other basis for determining gain or loss, is, when received by the 
shareholders, taxable as an ordinary dividend. The amount by which a 
corporation's percentage depletion allowance for any year exceeds 
depletion sustained on cost or other basis, that is, determined without 
regard to discovery or percentage depletion allowances for the year of 
distribution or prior years, constitutes a part of the corporation's 
``earnings and profits accumulated after February 28, 1913,'' within the 
meaning of section 316, and, upon distribution to shareholders, is 
taxable to them as a dividend. A distribution made from that portion of 
a depletion reserve based upon a valuation as of March 1, 1913, which is 
in excess of the depletion reserve based upon cost, will not be 
considered as having been paid out of earnings and profits, but the 
amount of the distribution shall be applied against and reduce the cost 
or other basis of the stock upon which declared. See section 301. No 
distribution, however, can be made from such a reserve until all the 
earnings and profits of the corporation have first been distributed.



Sec. 1.317-1  Property defined.

    The term property, for purposes of part 1, subchapter C, chapter 1 
of the Code, means any property (including money, securities, and 
indebtedness to the corporation) other than stock, or rights to acquire 
stock, in the corporation making the distribution.



Sec. 1.318-1  Constructive ownership of stock; introduction.

    (a) For the purposes of certain provisions of chapter 1 of the Code, 
section 318(a) provides that stock owned by a taxpayer includes stock 
constructively owned by such taxpayer under the rules set forth in such 
section. An individual is considered to own the stock owned, directly or 
indirectly, by or for his spouse (other than a spouse who is legally 
separated from the individual under a decree of divorce or separate 
maintenance), and by or for his children, grandchildren, and parents. 
Under section 318(a)(2) and (3), constructive ownership rules are 
established for partnerships and partners, estates and beneficiaries, 
trusts and beneficiaries, and corporations and stockholders. If any 
person has an option to acquire stock, such stock is considered as owned 
by such person. The term option includes an option to acquire such an 
option and each of a series of such options.
    (b) In applying section 318(a) to determine the stock ownership of 
any person for any one purpose--
    (1) A corporation shall not be considered to own its own stock by 
reason of section 318(a)(3)(C);
    (2) In any case in which an amount of stock owned by any person may 
be included in the computation more than one time, such stock shall be 
included only once, in the manner in which it will impute to the person 
concerned the largest total stock ownership; and
    (3) In determining the 50-percent requirement of section 
318(a)(2)(C) and (3)(C), all of the stock owned actually and 
constructively by the person concerned shall be aggregated.

[T.D. 6969, 33 FR 11999, Aug. 23, 1968]



Sec. 1.318-2  Application of general rules.

    (a) The application of paragraph (b) of Sec. 1.318-1 may be 
illustrated by the following examples:

    Example (1). H, an individual, owns all of the stock of corporation 
A. Corporation A is not considered to own the stock owned by H in 
corporation A.
    Example (2). H, an individual, his wife, W, and his son, S, each own 
one-third of the stock of the Green Corporation. For purposes of 
determining the amount of stock owned by H, W, or S for purposes of 
section 318(a)(2)(C) and (3)(C), the amount of stock held by the other 
members of the family shall be added pursuant to paragraph (b)(3) of 
Sec. 1.318-1 in applying the 50-percent requirement of such section. H, 
W, or S, as the case may be, is for this purpose deemed to own 100 
percent of the stock of the Green Corporation.

    (b) The application of section 318(a)(1), relating to members of a 
family, may be illustrated by the following example:

    Example An individual, H, his wife, W, his son, S, and his grandson 
(S's son), G, own the 100 outstanding shares of stock of a corporation, 
each owning 25 shares. H, W, and S are each considered as owning 100 
shares. G is

[[Page 66]]

considered as owning only 50 shares, that is, his own and his father's.

    (c) The application of section 318(a)(2) and (3), relating to 
partnerships, trusts and corporations, may be illustrated by the 
following examples:

    Example (1). A, an individual, has a 50 percent interest in a 
partnership. The partnership owns 50 of the 100 outstanding shares of 
stock of a corporation, the remaining 50 shares being owned by A. The 
partnership is considered as owning 100 shares. A is considered as 
owning 75 shares.
    Example (2). A testamentary trust owns 25 of the outstanding 100 
shares of stock of a corporation. A, an individual, who holds a vested 
remainder in the trust having a value, computed actuarially equal to 4 
percent of the value of the trust property, owns the remaining 75 
shares. Since the interest of A in the trust is a vested interest rather 
than a contingent interest (whether or not remote), the trust is 
considered as owning 100 shares. A is considered as owning 76 shares.
    Example (3). The facts are the same as in (2), above, except that 
A's interest in the trust is a contingent remainder. A is considered as 
owning 76 shares. However, since A's interest in the trust is a remote 
contingent interest, the trust is not considered as owning any of the 
shares owned by A.
    Example (4). A and B, unrelated individuals, own 70 percent and 30 
percent, respectively, in value of the stock of Corporation M. 
Corporation M owns 50 of the 100 outstanding shares of stock of 
Corporation O, the remaining 50 shares being owned by A. Corporation M 
is considered as owning 100 shares of Corporation O, and A is considered 
as owning 85 shares.
    Example (5). A and B, unrelated individuals, own 70 percent and 30 
percent, respectively, of the stock of corporation M. A, B, and 
corporation M all own stock of corporation O. Since B owns less than 50 
percent in value of the stock of corporation M, neither B nor 
corporation M constructively owns the stock of corporation O owned by 
the other. However, for purposes of certain sections of the Code, such 
as sections 304 and 856(d), the 50-percent limitation of section 
318(a)(2)(C) and (3)(C) is disregarded or is reduced to less than 30 
percent. For such purposes, B constructively owns his proportionate 
share of the stock of corporation O owned directly by corporation M, and 
corporation M constructively owns the stock of corporation O owned by B.

[T.D. 6500, 25 FR 11607, Nov. 26, 1960, as amended by T.D. 6969, 33 FR 
11999, Aug. 23, 1968]



Sec. 1.318-3  Estates, trusts, and options.

    (a) For the purpose of applying section 318(a), relating to estates, 
property of a decedent shall be considered as owned by his estate if 
such property is subject to administration by the executor or 
administrator for the purpose of paying claims against the estate and 
expenses of administration notwithstanding that, under local law, legal 
title to such property vests in the decedent's heirs, legatees or 
devisees immediately upon death. The term beneficiary includes any 
person entitled to receive property of a decedent pursuant to a will or 
pursuant to laws of descent and distribution. A person shall no longer 
be considered a beneficiary of an estate when all the property to which 
he is entitled has been received by him, when he no longer has a claim 
against the estate arising out of having been a beneficiary, and when 
there is only a remote possibility that it will be necessary for the 
estate to seek the return of property or to seek payment from him by 
contribution or otherwise to satisfy claims against the estate or 
expenses of administration. When, pursuant to the preceding sentence, a 
person ceases to be a beneficiary, stock owned by him shall not 
thereafter be considered owned by the estate, and stock owned by the 
estate shall not thereafter be considered owned by him. The application 
of section 318(a) relating to estates may be illustrated by the 
following examples:

    Example (1). (a) A decedent's estate owns 50 of the 100 outstanding 
shares of stock of corporation X. The remaining shares are owned by 
three unrelated individuals, A, B, and C, who together own the entire 
interest in the estate. A owns 12 shares of stock of corporation X 
directly and is entitled to 50 percent of the estate. B owns 18 shares 
directly and has a life estate in the remaining 50 percent of the 
estate. C owns 20 shares directly and also owns the remainder interest 
after B's life estate.
    (b) If section 318(a)(5)(C) applies (see paragraph (c)(3) of Sec. 
1.318-4), the stock of corporation X is considered to be owned as 
follows: the estate is considered as owning 80 shares, 50 shares 
directly, 12 shares constructively through A, and 18 shares 
constructively through B; A is considered as owning 37 shares, 12 shares 
directly, and 25 shares constructively (50 percent of the 50 shares 
owned directly by the estate); B is considered as owning 43 shares, 18 
shares directly and 25

[[Page 67]]

shares constructively (50 percent of the 50 shares owned directly by the 
estate); C is considered as owning 20 shares directly and no shares 
constructively. C is not considered a beneficiary of the estate under 
section 318(a) since he has no direct present interest in the property 
held by the estate nor in the income produced by such property.
    (c) If section 318(a)(5)(C) does not apply, A is considered as 
owning nine additional shares (50 percent of the 18 shares owned 
constructively by the estate through B), and B is considered as owning 
six additional shares (50 percent of the 12 shares owned constructively 
by the estate through A).
    Example (2). Under the will of A, Blackacre is left to B for life, 
remainder to C, an unrelated individual. The residue of the estate 
consisting of stock of a corporation is left to D. B and D are 
beneficiaries of the estate under section 318(a). C is not considered a 
beneficiary since he has no direct present interest in Blackacre nor in 
the income produced by such property. The stock owned by the estate is 
considered as owned proportionately by B and D.

    (b) For the purpose of section 318(a)(2)(B) stock owned by a trust 
will be considered as being owned by its beneficiaries only to the 
extent of the interest of such beneficiaries in the trust. Accordingly, 
the interest of income beneficiaries, remainder beneficiaries, and other 
beneficiaries will be computed on an actuarial basis. Thus, if a trust 
owns 100 percent of the stock of Corporation A, and if, on an actuarial 
basis, W's life interest in the trust is 15 percent, Y's life interest 
is 25 percent, and Z's remainder interest is 60 percent, under this 
provision W will be considered to be the owner of 15 percent of the 
stock of Corporation A, Y will be considered to be the owner of 25 
percent of such stock, and Z will be considered to be the owner of 60 
percent of such stock. The factors and methods prescribed in Sec. 
20.2031-7 of this chapter (Estate Tax Regulations) for use in 
ascertaining the value of an interest in property for estate tax 
purposes shall be used in determining a beneficiary's actuarial interest 
in a trust for purposes of this section. See Sec. 20.2031-7 of this 
chapter (Estate Tax Regulations) for examples illustrating the use of 
these factors and methods.
    (c) The application of section 318(a) relating to options may be 
illustrated by the following example:

    Example. A and B, unrelated individuals, own all of the 100 
outstanding shares of stock of a corporation, each owning 50 shares. A 
has an option to acquire 25 of B's shares and has an option to acquire a 
further option to acquire the remaining 25 of B's shares. A is 
considered as owning the entire 100 shares of stock of the corporation.

[T.D. 6500, 25 FR 11607, Nov. 26, 1960, as amended by T.D. 6969, 33 FR 
11999, Aug. 23, 1968]



Sec. 1.318-4  Constructive ownership as actual ownership; exceptions.

    (a) In general. Section 318(a)(5)(A) provides that, except as 
provided in section 318(a)(5) (B) and (C), stock constructively owned by 
a person by reason of the application of section 318(a) (1), (2), (3), 
or (4) shall be considered as actually owned by such person for purposes 
of applying section 318(a) (1), (2), (3), and (4). For example, if a 
trust owns 50 percent of the stock of corporation X, stock of 
corporation Y owned by corporation X which is attributed to the trust 
may be further attributed to the beneficiaries of the trust.
    (b) Constructive family ownership. Section 318(a)(5)(B) provides 
that stock constructively owned by an individual by reason of ownership 
by a member of his family shall not be considered as owned by him for 
purposes of making another family member the constructive owner of such 
stock under section 318(a)(1). For example, if F and his two sons, A and 
B, each own one-third of the stock of a corporation, under section 
318(a)(1), A is treated as owning constructively the stock owned by his 
father but is not treated as owning the stock owned by B. Section 
318(a)(5)(B) prevents the attribution of the stock of one brother 
through the father to the other brother, an attribution beyond the scope 
of section 318(a)(1) directly.
    (c) Reattribution. (1) Section 318(a)(5)(C) provides that stock 
constructively owned by a partnership, estate, trust, or corporation by 
reason of the application of section 318(a)(3) shall not be considered 
as owned by it for purposes of applying section 318(a)(2) in order to 
make another the constructive owner of such stock. For example, if two 
unrelated individuals are beneficiaries of the same trust, stock held by 
one which is attributed to the trust

[[Page 68]]

under section 318(a)(3) is not reattributed from the trust to the other 
beneficiary. However, stock constructively owned by reason of section 
318(a)(2) may be reattributed under section 318(a)(3). Thus, for 
example, if all the stock of corporations X and Y is owned by A, stock 
of corporation Z held by X is attributed to Y through A.
    (2) Section 318(a)(5)(C) does not prevent reattribution under 
section 318(a)(2) of stock constructively owned by an entity under 
section 318(a)(3) if the stock is also constructively owned by the 
entity under section 318(a)(4). For example, if individuals A and B are 
beneficiaries of a trust and the trust has an option to buy stock from 
A, B is considered under section 318(a)(2)(B) as owning a proportionate 
part of such stock.
    (3) Section 318(a)(5)(C) is effective on and after August 31, 1964, 
except that for purposes of sections 302 and 304 it does not apply with 
respect to distributions in payment for stock acquisitions or 
redemptions if such acquisitions or redemptions occurred before August 
31, 1964.

[T.D. 6969, 33 FR 11999, Aug. 23, 1968]

                         Corporate Liquidations

                          effects on recipients



Sec. 1.331-1  Corporate liquidations.

    (a) Section 331 contains rules governing the extent to which gain or 
loss is recognized to a shareholder receiving a distribution in complete 
or partial liquidation of a corporation. Under section 331(a)(1), it is 
provided that amounts distributed in complete liquidation of a 
corporation shall be treated as in full payment in exchange for the 
stock. Under section 331(a)(2), it is provided that amounts distributed 
in partial liquidation of a corporation shall be treated as in full or 
part payment in exchange for the stock. For this purpose, the term 
partial liquidation shall have the meaning ascribed in section 346. If 
section 331 is applicable to the distribution of property by a 
corporation, section 301 (relating to the effects on a shareholder of 
distributions of property) has no application other than to a 
distribution in complete liquidation to which section 316(b)(2)(B) 
applies. See paragraph (b)(2) of Sec. 1.316-1.
    (b) The gain or loss to a shareholder from a distribution in partial 
or complete liquidation is to be determined under section 1001 by 
comparing the amount of the distribution with the cost or other basis of 
the stock. The gain or loss will be recognized to the extent provided in 
section 1002 and will be subject to the provisions of parts I, II, and 
III (section 1201 and following), subchapter P, chapter 1 of the Code.
    (c) A liquidation which is followed by a transfer to another 
corporation of all or part of the assets of the liquidating corporation 
or which is preceded by such a transfer may, however, have the effect of 
the distribution of a dividend or of a transaction in which no loss is 
recognized and gain is recognized only to the extent of ``other 
property.'' See sections 301 and 356.
    (d) In every case in which a shareholder transfers stock in exchange 
for property to the corporation which issued such stock, the facts and 
circumstances shall be reported on his return unless the property is 
part of a distribution made pursuant to a corporate resolution reciting 
that the distribution is made in liquidation of the corporation and the 
corporation is completely liquidated and dissolved within one year after 
the distribution. See section 6043 for requirements relating to returns 
by corporations.
    (e) The provisions of this section may be illustrated by the 
following example:

    Example A, an individual who makes his income tax returns on the 
calendar year basis, owns 20 shares of stock of the P Corporation, a 
domestic corporation, 10 shares of which were acquired in 1951 at a cost 
of $1,500 and the remainder of 10 shares in December 1954 at a cost of 
$2,900. He receives in April 1955 a distribution of $250 per share in 
complete liquidation, or $2,500 on the 10 shares acquired in 1951, and 
$2,500 on the 10 shares acquired in December 1954. The gain of $1,000 on 
the shares acquired in 1951 is a long-term capital gain to be treated as 
provided in parts I, II, and III (section 1201 and following), 
subchapter P, chapter 1 of the Code. The loss of $400 on the shares 
acquired in 1954 is a short-term capital loss to be treated as provided 
in parts I, II, and III (section 1201 and following), subchapter P, 
chapter 1 of the Code.

[T.D. 6500, 25 FR 11607, Nov. 26, 1960, as amended by T.D. 6949, 33 FR 
5521, Apr. 9, 1968]

[[Page 69]]



Sec. 1.332-1  Distributions in liquidation of subsidiary corporation; 
general.

    Under the general rule prescribed by section 331 for the treatment 
of distributions in liquidation of a corporation, amounts received by 
one corporation in complete liquidation of another corporation are 
treated as in full payment in exchange for stock in such other 
corporation, and gain or loss from the receipt of such amounts is to be 
determined as provided in section 1001. Section 332 excepts from the 
general rule property received, under certain specifically described 
circumstances, by one corporation as a distribution in complete 
liquidation of the stock of another corporation and provides for the 
nonrecognition of gain or loss in those cases which meet the statutory 
requirements. Section 367 places a limitation on the application of 
section 332 in the case of foreign corporations. See section 334(b) for 
the basis for determining gain or loss from the subsequent sale of 
property received upon complete liquidations such as described in this 
section. See section 453(d)(4)(A) relative to distribution of 
installment obligations by subsidiary.



Sec. 1.332-2  Requirements for nonrecognition of gain or loss.

    (a) The nonrecognition of gain or loss is limited to the receipt of 
such property by a corporation which is the actual owner of stock (in 
the liquidating corporation) possessing at least 80 percent of the total 
combined voting power of all classes of stock entitled to vote and the 
owner of at least 80 percent of the total number of shares of all other 
classes of stock (except nonvoting stock which is limited and preferred 
as to dividends). The recipient corporation must have been the owner of 
the specified amount of such stock on the date of the adoption of the 
plan of liquidation and have continued so to be at all times until the 
receipt of the property. If the recipient corporation does not continue 
qualified with respect to the ownership of stock of the liquidating 
corporation and if the failure to continue qualified occurs at any time 
prior to the completion of the transfer of all the property, the 
provisions for the nonrecognition of gain or loss do not apply to any 
distribution received under the plan.
    (b) Section 332 applies only to those cases in which the recipient 
corporation receives at least partial payment for the stock which it 
owns in the liquidating corporation. If section 332 is not applicable, 
see section 165(g) relative to allowance of losses on worthless 
securities.
    (c) To constitute a distribution in complete liquidation within the 
meaning of section 332, the distribution must be (1) made by the 
liquidating corporation in complete cancellation or redemption of all of 
its stock in accordance with a plan of liquidation, or (2) one of a 
series of distributions in complete cancellation or redemption of all 
its stock in accordance with a plan of liquidation. Where there is more 
than one distribution, it is essential that a status of liquidation 
exist at the time the first distribution is made under the plan and that 
such status continue until the liquidation is completed. Liquidation is 
completed when the liquidating corporation and the receiver or trustees 
in liquidation are finally divested of all the property (both tangible 
and intangible). A status of liquidation exists when the corporation 
ceases to be a going concern and its activities are merely for the 
purpose of winding up its affairs, paying its debts, and distributing 
any remaining balance to its shareholders. A liquidation may be 
completed prior to the actual dissolution of the liquidating 
corporation. However, legal dissolution of the corporation is not 
required. Nor will the mere retention of a nominal amount of assets for 
the sole purpose of preserving the corporation's legal existence 
disqualify the transaction. (See 26 CFR (1939) 39.22(a)-20 (Regulations 
118).)
    (d) If a transaction constitutes a distribution in complete 
liquidation within the meaning of the Internal Revenue Code of 1954 and 
satisfies the requirements of section 332, it is not material that it is 
otherwise described under the local law. If a liquidating corporation 
distributes all of its property in complete liquidation and if pursuant 
to the plan for such complete liquidation a corporation owning the 
specified

[[Page 70]]

amount of stock in the liquidating corporation receives property 
constituting amounts distributed in complete liquidation within the 
meaning of the Code and also receives other property attributable to 
shares not owned by it, the transfer of the property to the recipient 
corporation shall not be treated, by reason of the receipt of such other 
property, as not being a distribution (or one of a series of 
distributions) in complete cancellation or redemption of all of the 
stock of the liquidating corporation within the meaning of section 332, 
even though for purposes of those provisions relating to corporate 
reorganizations the amount received by the recipient corporation in 
excess of its ratable share is regarded as acquired upon the issuance of 
its stock or securities in a tax-free exchange as described in section 
361 and the cancellation or redemption of the stock not owned by the 
recipient corporation is treated as occurring as a result of a taxfree 
exchange described in section 354.
    (e) The application of these rules may be illustrated by the 
following example:

    Example On September 1, 1954, the M Corporation had outstanding 
capital stock consisting of 3,000 shares of common stock, par value $100 
a share, and 1,000 shares of preferred stock, par value $100 a share, 
which preferred stock was limited and preferred as to dividends and had 
no voting rights. On that date, and thereafter until the date of 
dissolution of the M Corporation, the O Corporation owned 2,500 shares 
of common stock of the M Corporation. By statutory merger consummated on 
October 1, 1954, pursuant to a plan of liquidation adopted on September 
1, 1954, the M Corporation was merged into the O Corporation, the O 
Corporation under the plan issuing stock which was received by the other 
holders of the stock of the M Corporation. The receipt by the O 
Corporation of the properties of the M Corporation is a distribution 
received by the O Corporation in complete liquidation of the M 
Corporation within the meaning of section 332, and no gain or loss is 
recognized as the result of the receipt of such properties.



Sec. 1.332-3  Liquidations completed within one taxable year.

    If in a liquidation completed within one taxable year pursuant to a 
plan of complete liquidation, distributions in complete liquidation are 
received by a corporation which owns the specified amount of stock in 
the liquidating corporation and which continues qualified with respect 
to the ownership of such stock until the transfer of all the property 
within such year is completed (see paragraph (a) of Sec. 1.332-2), then 
no gain or loss shall be recognized with respect to the distributions 
received by the recipient corporation. In such case no waiver or bond is 
required of the recipient corporation under section 332.



Sec. 1.332-4  Liquidations covering more than one taxable year.

    (a) If the plan of liquidation is consummated by a series of 
distributions extending over a period of more than one taxable year, the 
nonrecognition of gain or loss with respect to the distributions in 
liquidation shall, in addition to the requirements of Sec. 1.332-2, be 
subject to the following requirements:
    (1) In order for the distribution in liquidation to be brought 
within the exception provided in section 332 to the general rule for 
computing gain or loss with respect to amounts received in liquidation 
of a corporation, the entire property of the corporation shall be 
transferred in accordance with a plan of liquidation, which plan shall 
include a statement showing the period within which the transfer of the 
property of the liquidating corporation to the recipient corporation is 
to be completed. The transfer of all the property under the liquidation 
must be completed within three years from the close of the taxable year 
during which is made the first of the series of distributions under the 
plan.
    (2) For each of the taxable years which falls wholly or partly 
within the period of liquidation, the recipient corporation shall, at 
the time of filing its return, file with the district director of 
internal revenue a waiver of the statute of limitations on assessment. 
The waiver shall be executed on such form as may be prescribed by the 
Commissioner and shall extend the period of assessment of all income and 
profits taxes for each such year to a date not earlier than one year 
after the last date of the period for assessment of such taxes for the 
last taxable year in which the transfer of the property of such 
liquidating corporation to the

[[Page 71]]

controlling corporation may be completed in accordance with section 332. 
Such waiver shall also contain such other terms with respect to 
assessment as may be considered by the Commissioner to be necessary to 
insure the assessment and collection of the correct tax liability for 
each year within the period of liquidation.
    (3) For each of the taxable years which falls wholly or partly 
within the period of liquidation, the recipient corporation may be 
required to file a bond, the amount of which shall be fixed by the 
district director. The bond shall contain all terms specified by the 
Commissioner, including provisions unequivocally assuring prompt payment 
of the excess of income and profits taxes (plus penalty, if any, and 
interest) as computed by the district director without regard to the 
provisions of sections 332 and 334(b) over such taxes computed with 
regard to such provisions, regardless of whether such excess may or may 
not be made the subject of a notice of deficiency under section 6212 and 
regardless of whether it may or may not be assessed. Any bond required 
under section 332 shall have such surety or sureties as the Commissioner 
may require. However, see 6 U.S.C. 15, providing that where a bond is 
required by law or regulations, in lieu of surety or sureties there may 
be deposited bonds or notes of the United States. Only surety companies 
holding certificates of authority from the Secretary as acceptable 
sureties on Federal bonds will be approved as sureties. The bonds shall 
be executed in triplicate so that the Commissioner, the taxpayer, and 
the surety or the depositary may each have a copy. On and after 
September 1, 1953, the functions of the Commissioner with respect to 
such bonds shall be performed by the district director for the internal 
revenue district in which the return was filed and any bond filed on or 
after such date shall be filed with such district director.
    (b) Pending the completion of the liquidation, if there is a 
compliance with paragraph (a) (1), (2), and (3) of this section and 
Sec. 1.332-2 with respect to the nonrecognition of gain or loss, the 
income and profits tax liability of the recipient corporation for each 
of the years covered in whole or in part by the liquidation shall be 
determined without the recognition of any gain or loss on account of the 
receipt of the distributions in liquidation. In such determination, the 
basis of the property or properties received by the recipient 
corporation shall be determined in accordance with section 334(b). 
However, if the transfer of the property is not completed within the 
three-year period allowed by section 332 or if the recipient corporation 
does not continue qualified with respect to the ownership of stock of 
the liquidating corporation as required by that section, gain or loss 
shall be recognized with respect to each distribution and the tax 
liability for each of the years covered in whole or in part by the 
liquidation shall be recomputed without regard to the provisions of 
section 332 or section 334(b) and the amount of any additional tax due 
upon such recomputation shall be promptly paid.



Sec. 1.332-5  Distributions in liquidation as affecting minority 
interests.

    Upon the liquidation of a corporation in pursuance of a plan of 
complete liquidation, the gain or loss of minority shareholders shall be 
determined without regard to section 332, since it does not apply to 
that part of distributions in liquidation received by minority 
shareholders.



Sec. 1.332-6  Records to be kept and information to be filed with return.

    (a) Permanent records in substantial form shall be kept by every 
corporation receiving distributions in complete liquidation within the 
exception provided in section 332 showing the information required by 
this section to be submitted with its return. The plan of liquidation 
must be adopted by each of the corporations parties thereto; and the 
adoption must be shown by the acts of its duly constituted responsible 
officers, and appear upon the official records of each such corporation.
    (b) For the taxable year in which the liquidation occurs, or, if the 
plan of liquidation provides for a series of distributions over a period 
of more than one year, for each taxable year in which a distribution is 
received under the plan the recipient must file with

[[Page 72]]

its return a complete statement of all facts pertinent to the 
nonrecognition of gain or loss, including:
    (1) A certified copy of the plan for complete liquidation, and of 
the resolutions under which the plan was adopted and the liquidation was 
authorized, together with a statement under oath showing in detail all 
transactions incident to, or pursuant to, the plan.
    (2) A list of all the properties received upon the distribution, 
showing the cost or other basis of such properties to the liquidating 
corporation at the date of distribution and the fair market value of 
such properties on the date distributed.
    (3) A statement of any indebtedness of the liquidating corporation 
to the recipient corporation on the date the plan of liquidation was 
adopted and on the date of the first liquidating distribution. If any 
such indebtedness was acquired at less than face value, the cost thereof 
to the recipient corporation must also be shown.
    (4) A statement as to its ownership of all classes of stock of the 
liquidating corporation (showing as to each class the number of shares 
and percentage owned and the voting power of each share) as of the date 
of the adoption of the plan of liquidation, and at all times since, to 
and including the date of the distribution in liquidation. The cost or 
other basis of such stock and the date or dates on which purchased must 
also be shown.



Sec. 1.332-7  Indebtedness of subsidiary to parent.

    If section 332(a) is applicable to the receipt of the subsidiary's 
property in complete liquidation, then no gain or loss shall be 
recognized to the subsidiary upon the transfer of such properties even 
though some of the properties are transferred in satisfaction of the 
subsidiary's indebtedness to its parent. However, any gain or loss 
realized by the parent corporation on such satisfaction of indebtedness, 
shall be recognized to the parent corporation at the time of the 
liquidation. For example, if the parent corporation purchased its 
subsidiary's bonds at a discount and upon liquidation of the subsidiary 
the parent corporation receives payment for the face amount of such 
bonds, gain shall be recognized to the parent corporation. Such gain 
shall be measured by the difference between the cost or other basis of 
the bonds to the parent and the amount received in payment of the bonds.



Sec. 1.334-1  Basis of property received in liquidations.

    (a) In general. Section 334 sets forth rules prescribing the basis 
of property received in a distribution in partial or complete 
liquidation of a corporation. The general rule of section 334 is set 
forth in section 334(a) to the effect that if property is received in a 
distribution in partial or complete liquidation and if gain or loss is 
recognized on the receipt of such property, then the basis of the 
property in the hands of the distributee shall be the fair market value 
of such property at the time of the distribution. Such general rule has 
no application to a liquidation to which section 332 or section 333 
applies. See section 334 (b) and (c).
    (b) Transferor's basis. Unless section 334(b)(2) and subsection (c) 
of this section apply, property received by a parent corporation in a 
complete liquidation to which section 332 is applicable shall, under 
section 334(b)(1), have the same basis in the hands of the parent as its 
adjusted basis in the hands of the subsidiary. The rule stated above is 
applicable even though the subsidiary was indebted to the parent on the 
date the plan of liquidation was adopted and part of such property was 
received in satisfaction of such indebtedness in a transfer to which 
section 332(c) is applicable. See Sec. 1.460-4(k)(3)(iv)(B)(2) for 
rules relating to adjustments to the basis of certain contracts 
accounted for using a long-term contract method of accounting that are 
acquired in certain liquidations described in section 332.

[T.D. 7231, 37 FR 28287, Dec. 22, 1972, as amended at T.D. 8474, 58 FR 
25557, Apr. 27, 1993; T.D. 8995, 67 FR 34605, May 15, 2002]

                         effects on corporation



Sec. 1.337(d)-1  Transitional loss limitation rule.

    (a) Loss limitation rule for transitional subsidiary--(1) General 
rule. No deduction is allowed for any loss recognized by a member of a 
consolidated group

[[Page 73]]

with respect to the disposition of stock of a transitional subsidiary.
    (2) Allowable loss--(i) In general. Paragraph (a)(1) of this section 
does not apply to the extent the taxpayer establishes that the loss is 
not attributable to the recognition of built-in gain by any transitional 
subsidiary on the disposition of an asset (including stock and 
securities) after January 6, 1987.
    (ii) Statement of allowable loss. Paragraph (a)(2)(i) of this 
section applies only if a separate statement entitled ``Allowable Loss 
Under Sec. 1.337(d)-1(a)'' is filed with the taxpayer's return for the 
year of the stock disposition. If the separate statement is required to 
be filed with a return the due date (including extensions) of which is 
before January 16, 1991, or with a return due (including extensions) 
after January 15, 1991 but filed before that date, the statement may be 
filed with an amended return for the year of the disposition or with the 
taxpayer's first subsequent return the due date (including extensions) 
of which is after January 15, 1991.
    (iii) Contents of statement. The statement required under paragraph 
(a)(2)(ii) of this section must contain--
    (A) The name and employer identification number (E.I.N.) of the 
transitional subsidiary.
    (B) The basis of the stock of the transitional subsidiary 
immediately before the disposition.
    (C) The amount realized on the disposition.
    (D) The amount of the deduction not disallowed under paragraph 
(a)(1) of this section by reason of this paragraph (a)(2).
    (E) The amount of loss disallowed under paragraph (a)(1) of this 
section.
    (3) Coordination with loss deferral and other disallowance rules. 
(i) For purposes of this section, the rules of Sec. 1.1502-20(a)(3) 
apply, with appropriate adjustments to reflect differences between the 
approach of this section and that of Sec. 1.1502-20.
    (ii) Other loss deferral rules. If paragraph (a)(1) of this section 
applies to a loss subject to deferral or disallowance under any other 
provision of the Code or the regulations, the other provision applies to 
the loss only to the extent it is not disallowed under paragraph (a)(1).
    (4) Definitions. For purposes of this section--
    (i) The definitions in Sec. 1.1502-1 apply.
    (ii) Transitional subsidiary means any corporation that became a 
subsidiary of the group (whether or not the group was a consolidated 
group) after January 6, 1987. Notwithstanding the preceding sentence, a 
subsidiary is not a transitional subsidiary if the subsidiary (and each 
predecessor) was a member of the group at all times after the 
subsidiary's (and each predecessor's) organization.
    (iii) Built-in gain of a transitional subsidiary means gain 
attributable, directly or indirectly, in whole or in part, to any excess 
of value over basis, determined immediately before the transitional 
subsidiary became a subsidiary, with respect to any asset owned directly 
or indirectly by the transitional subsidiary at that time.
    (iv) Disposition means any event in which gain or loss is 
recognized, in whole or in part.
    (v) Value means fair market value.
    (5) Examples. For purposes of the examples in this section, unless 
otherwise stated, the group files consolidated returns on a calendar 
year basis, the facts set forth the only corporate activity, and all 
sales and purchases are with unrelated buyers or sellers. The basis of 
each asset is the same determining earnings and profits adjustments and 
taxable income. Tax liability and its effect on basis, value, and 
earnings and profits are disregarded. Investment adjustment system means 
the rules of Sec. 1.1502-32. The principles of this paragraph (a) are 
illustrated by the following examples:

    Example 1. Loss attributable to recognized built-in gain. (i) P buys 
all the stock of T for $100 on February 1, 1987, and T becomes a member 
of the P group. T has an asset with a value of $100 and basis of $0. T 
sells the asset in 1989 and recognizes $100 of built-in gain on the sale 
(i.e., the asset's value exceeded its basis by $100 at the time T became 
a member of the P group). Under the investment adjustment system, P's 
basis in the T stock increases to $200. P sells all the stock of T on 
December 31, 1989, and recognizes a loss of $100. Under paragraph (a)(1) 
of this section, no deduction is allowed to P for the $100 loss.

[[Page 74]]

    (ii) Assume that, after T sells its asset but before P sells the T 
stock, T issues additional stock to unrelated persons and ceases to be a 
member of the P group. P then sells all its stock of T in 1997. Although 
T ceases to be a subsidiary within the meaning of Sec. 1.1502-1, T 
continues to be a transitional subsidiary within the meaning of this 
section. Consequently, under paragraph (a)(1) of this section, no 
deduction is allowed to P for its $100 loss.
    Example 2. Loss attributable to post-acquisition loss.
    P buys all the stock of T for $100 on February 1, 1987, and T 
becomes a member of the P group. T has $50 cash and an asset with $50 of 
built-in gain. During 1988, T retains the asset but loses $40 of the 
cash. The P group is unable to use the loss, and the loss becomes a net 
operating loss carryover attributable to T. Under the investment 
adjustment system, P's basis in the stock of T remains $100. P sells all 
the stock of T on December 31, 1988, for $60 and recognizes a $40 loss. 
Under paragraph (a)(2)(i) of this section, P establishes that it did not 
dispose of the built-in gain asset. None of P's loss is disallowed under 
paragraph (a)(1) if P satisfies the requirements of paragraph (a)(2)(ii) 
of this section.
    Example 3. Stacking rules--postacquisition loss offsets 
postacquisition gain. (i) P buys all the stock of T for $100 on February 
1, 1987, and T becomes a member of the P group. T has 2 assets. Asset 1 
has a basis and value of $50, and asset 2 has a basis of $0 and a value 
of $50. During 1989, asset 1 declines in value to $0, and T sells asset 
2 for $50, and reinvests the proceeds in asset 3. The value of asset 3 
appreciates to $90. Under the investment adjustment system, P's basis in 
the stock of T increases from $100 to $150 as a result of the gain 
recognized on the sale of asset 2 but is unaffected by the unrealized 
post-acquisition decline in the value of asset 1. On December 31, 1989, 
P sells all the stock of T for $90 and recognizes a $60 loss.
    (ii) Although T incurred a $50 post-acquisition loss of built-in 
gain because of the decline in the value of asset 1, T also recognized 
$50 of built-in gain. Under paragraph (a)(2) of this section, any loss 
on the sale of stock is treated first as attributable to recognized 
built-in gain. Thus, for purposes of determining under paragraph (a)(2) 
of this section whether P's $60 loss on the disposition of the T stock 
is attributable to the recognition of built-in gain on the disposition 
of an asset, T's unrealized post-acquisition gain of $40 offsets $40 of 
the $50 of unrealized post-acquisition loss. Therefore, $50 of the $60 
loss is attributable to the recognition of built-in gain on the 
disposition of an asset and is disallowed under paragraph (a)(1) of this 
section.
    Example 4. Stacking rules--built-in loss offsets built-in gain. (i) 
P buys all the stock of T for $50 on February 1, 1987, and T becomes a 
member of the P group. T has 2 assets. Asset 1 has a basis of $50 and a 
value of $0, and asset 2 has a basis of $0 and a value of $50. During 
1989, T sells asset 1 for $0 and asset 2 for $50, and reinvests the $50 
proceeds in asset 3. The value of asset 3 declines to $40. Under the 
investment adjustment system, P's basis in the stock of T remains $50 as 
a result of the offsetting gain and loss recognized on the sale of 
assets 1 and 2 and is unaffected by the unrealized post-acquisition 
decline in the value of asset 3. On December 31, 1989, P sells all the 
stock of T for $40 and recognizes a $10 loss.
    (ii) Although T recognized a $50 built-in gain on the sale of asset 
2, T also recognized a $50 built-in loss on the sale of asset 1. For 
purposes of determining under paragraph (a)(2) of this section whether 
P's $10 loss on the disposition of the T stock is attributable to the 
recognition of built-in gain on the disposition of an asset, T's 
recognized built-in gain is offset by its recognized built-in loss. Thus 
none of P's $10 loss is attributable to the recognition of built-in gain 
on the disposition of an asset.
    (iii) The result would be the same if, instead of a $50 built-in 
loss in asset 2, T has a $50 net operating loss carryover when P buys 
the T stock, and the net operating loss carryover is used to offset the 
built-in gain.
    Example 5. Outside basis partially corresponds to inside basis. (i) 
Individual A owns all the stock of T, for which A has a basis of $60. On 
February 1, 1987, T owns 1 asset with a basis of $0 and a value of $100, 
P acquires all the stock of T from A in an exchange to which section 
351(a) applies, and T becomes a member of the P group. P has a carryover 
basis of $60 in the T stock. During 1988, T sells the asset and 
recognizes $100 of gain. Under the investment adjustment system, P's 
basis in the T stock increases from $60 to $160. T reinvests the $100 
proceeds in another asset, which declines in value to $90. On January 1, 
1989, P sells all the stock of T for $90 and recognizes a loss of $70.
    (ii) Although P's basis in the T stock was increased by $100 as a 
result of the recognition of built-in gain on the disposition of T's 
asset, only $60 of the $70 loss on the sale of the stock is attributable 
under paragraph (a)(2) of this section to the recognition of built-in 
gain from the disposition of the asset. (Had T's asset not declined in 
value to $90, the T stock would have been sold for $100, and a $60 loss 
would have been attributable to the recognition of the built-in gain.) 
Therefore, $60 of the $70 loss is disallowed under paragraph (a)(2), and 
$10 is not disallowed if P satisfies the requirements of paragraph 
(a)(2). If P had sold the stock of T for $95 because T's other assets 
had unrealized appreciation of $5, $60 of the $65 loss would still be 
attributable to T's recognition of built-in gain on the disposition of 
assets.

[[Page 75]]

    Example 6. Creeping acquisition. P owns 60 percent of the stock of S 
on January 6, 1987. On February 1, 1987, P buys an additional 20 percent 
of the stock of S, and S becomes a member of the P group. P sells all 
the S stock on March 1, 1989 and recognizes a loss of $100. All 80 
percent of the stock of S owned by P is subject to the rules of this 
section and, under paragraph (a) (1) and (2) of this section, P is not 
allowed to deduct the $100 loss, except to the extent P establishes the 
loss is not attributable to the recognition by S of built-in gain on the 
disposition of assets.
    Example 7. Effect of post-acquisition appreciation. P buys all the 
stock of T for $100, and T becomes a member of the P group. T has an 
asset with a basis of $0 and a value of $100. T sells the asset for 
$100. Under the investment adjustment system, P's basis in the T stock 
increases to $200. T reinvests the proceeds of the sale in an asset that 
appreciates in value to $180. Five years after the sale, P sells all the 
stock of T for $180 and recognizes a $20 loss. Under paragraph (a)(1) of 
this section, no deduction is allowed to P for the $20 loss.
    Example 8. Deferred loss and recognized gain. (i) P is the common 
parent of a consolidated group, S is a wholly owned subsidiary of P, and 
T is a wholly owned subsidiary of S. S purchased all of the T stock on 
February 1, 1987 for $100, and T has an asset with a basis of $40 and a 
value of $100. T sells the asset for $100, recognizing $60 of gain. 
Under the investment adjustment system, S's basis in the T stock 
increases from $100 to $160. S sells its T stock to P for $100 in a 
deferred intercompany transaction, recognizing a $60 loss that is 
deferred under section 267(f) and Sec. 1.1502-13. P subsequently sells 
all the stock of T for $100 to X, a member of the same controlled group 
(as defined in section 267(f)) as P but not a member of the P 
consolidated group.
    (ii) Under paragraph (a)(3) of this section, the application of 
paragraph (a)(1) of this section to S's $60 loss is deferred, because 
S's loss is deferred under section 267(f) and Sec. 1.1502-13. Although 
P's sale of the T stock to X would cause S's deferred loss to be taken 
into account under Sec. 1.1502-13, Sec. 1.267(f)-1 provides that the 
loss is not taken into account because X is a member of the same 
controlled group as P and S. Nevertheless, under paragraph (a)(3) of 
this section, because the T stock ceases to be owned by a member of the 
P consolidated group, S's deferred loss is disallowed immediately before 
the sale and is never taken into account under section 267(f).

    (b) Indirect disposition of transitional subsidiary--(1) Loss 
limitation rule for transitional parent. No deduction is allowed for any 
loss recognized by a member of a consolidated group with respect to the 
disposition of stock of a transitional parent.
    (2) Allowable loss--(i) In general. Paragraph (b)(1) of this section 
does not apply to the extent the taxpayer establishes that the loss 
exceeds the amount that would be disallowed under paragraph (a) of this 
section if each highest tier transitional subsidiary's stock in which 
the transitional parent has a direct or indirect interest had been sold 
immediately before the disposition of the transitional parent's stock. 
In applying the preceding sentence, appropriate adjustments shall be 
made to take into account circumstances where less than all the stock of 
a transitional parent owned by members of a consolidated group is 
disposed of in the same transaction, or the stock of a transitional 
subsidiary or a transitional parent is directly owned by more than 1 
member.
    (ii) Statement of allowable loss. Paragraph (b)(2)(i) of this 
section applies only if a separate statement entitled ``Allowable Loss 
Under Section 1.337(d)-1(b)'' is filed with the taxpayer's return for 
the year of the stock disposition. If the separate statement is required 
to be filed with a return the due date (including extensions) of which 
is before January 16, 1991, or with a return due (including extensions) 
after January 15, 1991 but filed before that date, the statement may be 
filed with an amended return for the year of the disposition or with the 
taxpayer's first subsequent return the due date (including extensions) 
of which is after January 15, 1991.
    (iii) Contents of statement. The statement required under paragraph 
(b)(2)(ii) of this section must contain--
    (A) The name and employer identification number (E.I.N.) of the 
transitional parent.
    (B) The basis of the stock of the transitional parent immediately 
before the disposition.
    (C) The amount realized on the disposition.
    (D) The amount of the deduction not disallowed under paragraph 
(b)(1) of this section by reason of this paragraph (b)(2).
    (E) The amount of loss disallowed under paragraph (b)(1) of this 
section.

[[Page 76]]

    (3) Coordination with loss deferral and other disallowance rules. 
(i) For purposes of this section, the rules of Sec. 1.1502-20(a)(3) 
apply, with appropriate adjustments to reflect differences between the 
approach of this section and that of Sec. 1.1502-20.
    (ii) Other loss deferral rules. If paragraph (b)(1) of this section 
applies to a loss subject to deferral or disallowance under any other 
provision of the Code or the regulations, the other provision applies to 
the loss only to the extent it is not disallowed under paragraph (b)(1).
    (4) Definitions. For purposes of this section--
    (i) Transitional parent means any subsidiary, other than a 
transitional subsidiary, that owned at any time after January 6, 1987, a 
direct or indirect interest in the stock of a corporation that is a 
transitional subsidiary.
    (ii) Highest tier transitional subsidiary means the transitional 
subsidiary (or subsidiaries) in which the transitional parent has a 
direct or indirect interest and that is the highest transitional 
subsidiary (or subsidiaries) in a chain of members.
    (5) Examples. The principles of this paragraph (b) are illustrated 
by the following examples:

    Example 1. Ownership of chain of transitional subsidiaries. (i) P 
forms S with $200 on January 1, 1985, and S becomes a member of the P 
group. On February 1, 1987, S buys all the stock of T, and T buys all 
the stock of T1, and both T and T1 become members of the P group. On 
January 1, 1988, P sells all the stock of S and recognizes a $90 loss on 
the sale.
    (ii) Under paragraph (a)(4)(ii) of this section, both T and T1 are 
transitional subsidiaries, because they became members of the P group 
after January 6, 1987. Under paragraph (b)(4)(i) of this section, S is a 
transitional parent, because it owns a direct interest in stock of 
transitional subsidiaries and is not itself a transitional subsidiary.
    (iii) Under paragraph (b) (1) and (2) of this section, because S is 
a transitional parent, no deduction is allowed to P for its $90 loss 
except to the extent the loss exceeds the amount of S's loss that would 
have been disallowed if S had sold all the stock of T, S's highest tier 
transitional subsidiary, immediately before P's sale of all the S stock. 
Assume all the T stock would have been sold for a $90 loss and that all 
the loss would be attributable to the recognition of built-in gain from 
the disposition of assets. Because in that case $90 of loss would be 
disallowed, all of P's loss on the sale of the S stock is disallowed 
under paragraph (b).
    Example 2. Ownership of brother-sister transitional subsidiaries. 
(i) P forms S with $200 on January 1, 1985, and S becomes a member of 
the P group. On February 1, 1987, S buys all the stock of both T and T1, 
and T and T1 become members of the P group. On January 1, 1988, P sells 
all the stock of S and recognizes a $90 loss on the sale.
    (ii) Under paragraph (b) (1) and (2) of this section, no deduction 
is allowed to P for its $90 loss except to the extent P establishes that 
the loss exceeds the amount of S's stock losses that would be disallowed 
if S sold all the stock of T and T1, S's highest tier transitional 
subsidiaries, immediately before P's sale of all the S stock. Assume 
that all the T stock would have been sold for a $50 loss, all the T1 
stock of a $40 loss, and that the entire amount of each loss would be 
attributable to the recognition of built-in gain on the disposition of 
assets. Because $90 of loss would be disallowed with respect to the sale 
of S's T and T1 stock, P's $90 loss on the sale of all the S stock is 
disallowed under paragraph (b).

    (c) Successors--(1) General rule. This section applies, to the 
extent necessary to effectuate the purposes of this section, to--
    (i) Any property owned by a member or former member, the basis of 
which is determined, directly or indirectly, in whole or in part, by 
reference to the basis in a subsidiary's stock, and
    (ii) Any property owned by any other person whose basis in the 
property is determined, directly or indirectly, in whole or in part, by 
reference to a member's (or former member's) basis in a subsidiary's 
stock.
    (2) Examples. The principles of this paragraph (c) are illustrated 
by the following examples:

    Example 1. Merger into grandfathered subsidiary. P, the common 
parent of a group, owns all the stock of T, a transitional subsidiary. 
On January 1, 1989, T merges into S, a wholly owned subsidiary of P that 
is not a transitional subsidiary. Under paragraph (c)(1) of this 
section, all the stock of S is treated as stock of a transitional 
subsidiary. As a result, no deduction is allowed for any loss recognized 
by P on the disposition of any S stock, except to the extent the P group 
establishes under paragraph (a)(2) that the loss is not attributable to 
the recognition of built-in gain on the disposition of assets of T.
    Example 2. Nonrecognition exchange of transitional stock. (i) P, the 
common parent of a

[[Page 77]]

group, owns all the stock of T, a transitional subsidiary. On January 1, 
1989, P transfers the stock of T to X, a corporation that is not a 
member of the P group, in exchange for 20 percent of its stock in a 
transaction to which section 351(a) applies. T and X file separate 
returns.
    (ii) Under paragraph (c)(1) of this section, all the stock of X 
owned by P is treated as stock of a transitional subsidiary because P's 
basis for the X stock is determined by reference to its basis for the T 
stock. As a result, no deduction is allowed to P for any loss recognized 
on the disposition of the X stock, except to the extent permitted under 
paragraph (a) of this section.
    (iii) Under paragraph (c)(1), X is treated as a member subject to 
paragraph (a) of this section with respect to the T stock because X's 
basis for the stock is determined by reference to P's basis for the 
stock. Moreover, all of the T stock owned by X continues to be stock of 
a transitional subsidiary. As a result, no deduction is allowed to X for 
any loss recognized on the disposition of any T stock, except to the 
extent permitted under paragraph (a) of this section.

    (d) Investment adjustments and earnings and profits--(1) In general. 
For purposes of determining investment adjustments under Sec. 1.1502-32 
and earnings and profits under Sec. 1.1502-33(c) with respect to a 
member of a consolidated group that owns stock in a subsidiary, any 
deduction that is disallowed under this section is treated as a loss 
arising and absorbed by the member in the tax year in which the 
disallowance occurs.
    (2) Example. (i) In 1986, P forms S with a contribution of $100, and 
S becomes a member of the P group. On February 1, 1987, S buys all the 
stock of T for $100. T has an asset with a basis of $0 and a value of 
$100. In 1988, T sells the asset for $100. Under the investment 
adjustment system, S's basis in the T stock increases to adjustment 
system, S's basis in the T stock increases to $200, P's basis in the S 
stock increases to $200, and P's earnings and profits and S's earnings 
and profits increase by $100. In 1989, S sells all of the T stock for 
$100, and S's recognized loss of $100 is disallowed under paragraph 
(a)(1) of this section.
    (ii) Under paragraph (d)(1) of this section, S's earnings and 
profits for 1989 are reduced by $100, the amount of the loss disallowed 
under paragraph (a)(1). As a result, P's basis in the S stock is reduced 
from $200 to $100 under the investment adjustment system. P's earnings 
and profits for 1989 are correspondingly reduced by $100.
    (e) Effective dates--(1) General rule. This section applies with 
respect to dispositions after January 6, 1987. For dispositions on or 
after November 19, 1990, however, this section applies only if the stock 
was deconsolidated (as that term is defined in Sec. 1.337(d)-2(b)(2)) 
before November 19, 1990, and only to the extent the disposition is not 
subject to Sec. 1.337(d)-2 or Sec. 1.1502-20.
    (2) Binding contract rule. For purposes of this paragraph (e), if a 
corporation became a subsidiary pursuant to a binding written contract 
entered into before January 6, 1987, and in continuous effect until the 
corporation became a subsidiary, or a disposition was pursuant to a 
binding written contract entered into before March 9, 1990, and in 
continuous effect until the disposition, the date the contract became 
binding shall be treated as the date the corporation became a subsidiary 
or as the date of disposition.
    (3) Application of Sec. 1.1502-20T to certain transactions--(i) In 
general. If a group files the certification described in paragraph 
(e)(3)(ii) of this section, it may apply Sec. 1.1502-20T (as contained 
in the CFR edition revised as of April 1, 1990), to all of its members 
with respect to all dispositions and deconsolidations by the certifying 
group to which Sec. 1.1502-20T otherwise applied by its terms 
occurring--
    (A) On or after March 9, 1990 (but only if not pursuant to a binding 
contract described in Sec. 1.337(d)-1T(e)(2) (as contained in the CFR 
edition revised as of April 1, 1990) that was entered into before March 
9, 1990); and
    (B) Before November 19, 1990 (or thereafter, if pursuant to a 
binding contract described in Sec. 1.1502-20T(g)(3) that was entered 
into on or after March 9, 1990 and before November 19, 1990).

The certification under this paragraph (e)(3)(i) with respect to the 
application of Sec. 1.1502-20T to any transaction described in this 
paragraph (e)(3)(i) may not be withdrawn and, if the certification is 
filed, Sec. 1.1502-20T must be applied to all such transactions on all 
returns (including amended returns) on which such transactions are 
included.

[[Page 78]]

    (ii) Time and manner of filing certification. The certification 
described in paragraph (e)(3)(i) of this section must be made in a 
separate statement entitled ``[insert name and employer identification 
number of common parent] hereby certifies under Sec. 1.337(d)-1 (e)(3) 
that the group of which it is the common parent is applying Sec. 
1.1502-20T to all transactions to which that section otherwise applied 
by it terms.'' The statement must be signed by the common parent and 
filed with the group's income tax return for the taxable year of the 
first disposition or deconsolidation to which the certification applies. 
If the separate statement required under this paragraph (e)(3) is to be 
filed with a return the due date (including extensions) of which is 
before November 16, 1991, the statement may be filed with an amended 
return for the year of the disposition or deconsolidation that is filed 
within 180 days after September 13, 1991. Any other filings required 
under Sec. 1.1502-20T, such as the statement required under Sec. 
1.1502-20T(f)(5), may be made with the amended return, regardless of 
whether Sec. 1.1502-20T permits such filing by amended return.

[T.D. 8319, 55 FR 49031, Nov. 26, 1990, as amended by T.D. 8364, 56 FR 
47389, Sept. 19, 1991; 57 FR 53550, Nov. 12, 1992; T.D. 8560, 59 FR 
41674, 41675, Aug. 15, 1994; T.D. 8597, 60 FR 36679, July 18, 1995]



Sec. 1.337(d)-1T  [Reserved]



Sec. 1.337(d)-2  Loss limitation rules.

    (a) Loss disallowance--(1) General rule. No deduction is allowed for 
any loss recognized by a member of a consolidated group with respect to 
the disposition of stock of a subsidiary.
    (2) Definitions. For purposes of this section:
    (i) The definitions in Sec. 1.1502-1 apply.
    (ii) Disposition means any event in which gain or loss is 
recognized, in whole or in part.
    (3) Coordination with loss deferral and other disallowance rules. 
For purposes of this section, the rules of Sec. 1.1502-20(a)(3) apply, 
with appropriate adjustments to reflect differences between the approach 
of this section and that of Sec. 1.1502-20.
    (4) Netting. Paragraph (a)(1) of this section does not apply to loss 
with respect to the disposition of stock of a subsidiary, to the extent 
that, as a consequence of the same plan or arrangement, gain is taken 
into account by members with respect to stock of the same subsidiary 
having the same material terms. If the gain to which this paragraph 
applies is less than the amount of the loss with respect to the 
disposition of the subsidiary's stock, the gain is applied to offset 
loss with respect to each share disposed of as a consequence of the same 
plan or arrangement in proportion to the amount of the loss deduction 
that would have been disallowed under paragraph (a)(1) of this section 
with respect to such share before the application of this paragraph 
(a)(4). If the same item of gain could be taken into account more than 
once in limiting the application of paragraphs (a)(1) and (b)(1) of this 
section, the item is taken into account only once.
    (b) Basis reduction on deconsolidation--(1) General rule. If the 
basis of a member of a consolidated group in a share of stock of a 
subsidiary exceeds its value immediately before a deconsolidation of the 
share, the basis of the share is reduced at that time to an amount equal 
to its value. If both a disposition and a deconsolidation occur with 
respect to a share in the same transaction, paragraph (a) of this 
section applies and, to the extent necessary to effectuate the purposes 
of this section, this paragraph (b) applies following the application of 
paragraph (a) of this section.
    (2) Deconsolidation. Deconsolidation means any event that causes a 
share of stock of a subsidiary that remains outstanding to be no longer 
owned by a member of any consolidated group of which the subsidiary is 
also a member.
    (3) Value. Value means fair market value.
    (4) Netting. Paragraph (b)(1) of this section does not apply to 
reduce the basis of stock of a subsidiary, to the extent that, as a 
consequence of the same plan or arrangement, gain is taken into account 
by members with respect to stock of the same subsidiary having the same 
material terms. If the gain to which this paragraph applies is

[[Page 79]]

less than the amount of basis reduction with respect to shares of the 
subsidiary's stock, the gain is applied to offset basis reduction with 
respect to each share deconsolidated as a consequence of the same plan 
or arrangement in proportion to the amount of the reduction that would 
have been required under paragraph (b)(1) of this section with respect 
to such share before the application of this paragraph (b)(4).
    (c) Allowable loss--(1) Application. This paragraph (c) applies with 
respect to stock of a subsidiary only if a separate statement entitled 
Sec. 1.337(d)-2(c) statement is included with the return in accordance 
with paragraph (c)(3) of this section.
    (2) General rule. Loss is not disallowed under paragraph (a)(1) of 
this section and basis is not reduced under paragraph (b)(1) of this 
section to the extent the taxpayer establishes that the loss or basis is 
not attributable to the recognition of built-in gain, net of directly 
related expenses, on the disposition of an asset (including stock and 
securities). Loss or basis may be attributable to the recognition of 
built-in gain on the disposition of an asset by a prior group. For 
purposes of this section, gain recognized on the disposition of an asset 
is built-in gain to the extent attributable, directly or indirectly, in 
whole or in part, to any excess of value over basis that is reflected, 
before the disposition of the asset, in the basis of the share, directly 
or indirectly, in whole or in part, after applying section 1503(e) and 
other applicable provisions of the Internal Revenue Code and 
regulations. Federal income taxes may be directly related to built-in 
gain recognized on the disposition of an asset only to the extent of the 
excess (if any) of the group's income tax liability actually imposed 
under Subtitle A of the Internal Revenue Code for the taxable year of 
the disposition of the asset over the group's income tax liability for 
the taxable year redetermined by not taking into account the built-in 
gain recognized on the disposition of the asset. For this purpose, the 
group's income tax liability actually imposed and its redetermined 
income tax liability are determined without taking into account the 
foreign tax credit under section 27(a) of the Internal Revenue Code.
    (3) Contents of statement and time of filing. The statement required 
under paragraph (c)(1) of this section must be included with or as part 
of the taxpayer's return for the year of the disposition or 
deconsolidation and must contain--
    (i) The name and employer identification number (E.I.N.) of the 
subsidiary; and
    (ii) The amount of the loss not disallowed under paragraph (a)(1) of 
this section by reason of this paragraph (c) and the amount of basis not 
reduced under paragraph (b)(1) of this section by reason of this 
paragraph (c).
    (4) Example. The principles of paragraphs (a), (b), and (c) of this 
section are illustrated by the examples in Sec. Sec. 1.337(d)-1(a)(5) 
and 1.1502-20(a)(5) (other than Examples 3, 4, and 5) and (b), with 
appropriate adjustments to reflect differences between the approach of 
this section and that of Sec. 1.1502-20, and by the following example. 
For purposes of the examples in this section, unless otherwise stated, 
the group files consolidated returns on a calendar year basis, the facts 
set forth the only corporate activity, and all sales and purchases are 
with unrelated buyers or sellers. The basis of each asset is the same 
for determining earnings and profits adjustments and taxable income. Tax 
liability and its effect on basis, value, and earnings and profits are 
disregarded. Investment adjustment system means the rules of Sec. 
1.1502-32. The example reads as follows:

    Example. Loss offsetting built-in gain in a prior group. (i) P buys 
all the stock of T for $50 in Year 1, and T becomes a member of the P 
group. T has 2 assets. Asset 1 has a basis of $50 and a value of $0, and 
asset 2 has a basis of $0 and a value of $50. T sells asset 2 during 
Year 3 for $50 and recognizes a $50 gain. Under the investment 
adjustment system, P's basis in the T stock increased to $100 as a 
result of the recognition of gain. In Year 5, all of the stock of P is 
acquired by the P1 group, and the former members of the P group become 
members of the P1 group. T then sells asset 1 for $0, and recognizes a 
$50 loss. Under the investment adjustment system, P's basis in the T 
stock decreases to $50 as a result of the loss. T's assets decline in 
value from $50 to $40. P then sells all the stock of T for $40 and 
recognizes a $10 loss.

[[Page 80]]

    (ii) P's basis in the T stock reflects both T's unrecognized gain 
and unrecognized loss with respect to its assets. The gain T recognizes 
on the disposition of asset 2 is built-in gain with respect to both the 
P and P1 groups for purposes of paragraph (c)(2) of this section. In 
addition, the loss T recognizes on the disposition of asset 1 is built-
in loss with respect to the P and P1 groups for purposes of paragraph 
(c)(2) of this section. T's recognition of the built-in loss while a 
member of the P1 group offsets the effect on T's stock basis of T's 
recognition of the built-in gain while a member of the P group. Thus, 
P's $10 loss on the sale of the T stock is not attributable to the 
recognition of built-in gain, and the loss is therefore not disallowed 
under paragraph (c)(2) of this section.
    (iii) The result would be the same if, instead of having a $50 
built-in loss in asset 1 when it becomes a member of the P group, T has 
a $50 net operating loss carryover and the carryover is used by the P 
group.

    (d) Successors. For purposes of this section, the rules and examples 
of Sec. 1.1502-20(d) apply, with appropriate adjustments to reflect 
differences between the approach of this section and that of Sec. 
1.1502-20.
    (e) Anti-avoidance rules. For purposes of this section, the rules 
and examples of Sec. 1.1502-20(e) apply, with appropriate adjustments 
to reflect differences between the approach of this section and that of 
Sec. 1.1502-20.
    (f) Investment adjustments. For purposes of this section, the rules 
and examples of Sec. 1.1502-20(f) apply, with appropriate adjustments 
to reflect differences between the approach of this section and that of 
Sec. 1.1502-20.
    (g) Effective dates. This section applies with respect to 
dispositions and deconsolidations on or after March 3, 2005. In 
addition, this section applies to dispositions and deconsolidations for 
which an election is made under Sec. 1.1502-20(i)(2) to determine 
allowable loss under this section. If loss is recognized because stock 
of a subsidiary became worthless, the disposition with respect to the 
stock is treated as occurring on the date the stock became worthless. 
For dispositions and deconsolidations after March 6, 2002 and before 
March 3, 2005, see Sec. 1.337(d)-2T as contained in the 26 CFR part 1 
in effect on March 2, 2005.

[70 FR 10322, Mar. 3, 2005]



Sec. 1.337(d)-4  Taxable to tax-exempt.

    (a) Gain or loss recognition--(1) General rule. Except as provided 
in paragraph (b) of this section, if a taxable corporation transfers all 
or substantially all of its assets to one or more tax-exempt entities, 
the taxable corporation must recognize gain or loss immediately before 
the transfer as if the assets transferred were sold at their fair market 
values. But see section 267 and paragraph (d) of this section concerning 
limitations on the recognition of loss.
    (2) Change in corporation's tax status treated as asset transfer. 
Except as provided in paragraphs (a)(3) and (b) of this section, a 
taxable corporation's change in status to a tax-exempt entity will be 
treated as if it transferred all of its assets to a tax-exempt entity 
immediately before the change in status becomes effective in a 
transaction to which paragraph (a)(1) of this section applies. For 
example, if a State, a political subdivision thereof, or an entity any 
portion of whose income is excluded from gross income under section 115, 
acquires the stock of a taxable corporation and thereafter any of the 
taxable corporation's income is excluded from gross income under section 
115, the taxable corporation will be treated as if it transferred all of 
its assets to a tax-exempt entity immediately before the stock 
acquisition.
    (3) Exceptions for certain changes in status--(i) To whom available. 
Paragraph (a)(2) of this section does not apply to the following 
corporations--
    (A) A corporation previously tax-exempt under section 501(a) which 
regains its tax-exempt status under section 501(a) within three years 
from the later of a final adverse adjudication on the corporation's tax 
exempt status, or the filing by the corporation, or by the Secretary or 
his delegate under section 6020(b), of a federal income tax return of 
the type filed by a taxable corporation;
    (B) A corporation previously tax-exempt under section 501(a) or that 
applied for but did not receive recognition of exemption under section 
501(a) before January 15, 1997, if such corporation is tax-exempt under 
section 501(a) within three years from January 28, 1999;

[[Page 81]]

    (C) A newly formed corporation that is tax-exempt under section 
501(a) (other than an organization described in section 501(c)(7)) 
within three taxable years from the end of the taxable year in which it 
was formed;
    (D) A newly formed corporation that is tax-exempt under section 
501(a) as an organization described in section 501(c)(7) within seven 
taxable years from the end of the taxable year in which it was formed;
    (E) A corporation previously tax-exempt under section 501(a) as an 
organization described in section 501(c)(12), which, in a given taxable 
year or years prior to again becoming tax-exempt, is a taxable 
corporation solely because less than 85 percent of its income consists 
of amounts collected from members for the sole purpose of meeting losses 
and expenses; if, in a taxable year, such a corporation would be a 
taxable corporation even if 85 percent or more of its income consists of 
amounts collected from members for the sole purpose of meeting losses 
and expenses (a non-85 percent violation), paragraph (a)(3)(i)(A) of 
this section shall apply as if the corporation became a taxable 
corporation in its first taxable year that a non-85 percent violation 
occurred; or
    (F) A corporation previously taxable that becomes tax-exempt under 
section 501(a) as an organization described in section 501(c)(15) if 
during each taxable year in which it is described in section 501(c)(15) 
the organization is the subject of a court supervised rehabilitation, 
conservatorship, liquidation, or similar state proceeding; if such a 
corporation continues to be described in section 501(c)(15) in a taxable 
year when it is no longer the subject of a court supervised 
rehabilitation, conservatorship, liquidation, or similar state 
proceeding, paragraph (a)(2) of this section shall apply as if the 
corporation first became tax-exempt for such taxable year.
    (ii) Application for recognition. An organization is deemed to have 
or regain tax-exempt status within one of the periods described in 
paragraph (a)(3)(i)(A), (B), (C), or (D) of this section if it files an 
application for recognition of exemption with the Commissioner within 
the applicable period and the application either results in a 
determination by the Commissioner or a final adjudication that the 
organization is tax-exempt under section 501(a) during any part of the 
applicable period. The preceding sentence does not require the filing of 
an application for recognition of exemption by any organization not 
otherwise required, such as by Sec. 1.501(a)-1, Sec. 1.505(c)-1T, and 
Sec. 1.508-1(a), to apply for recognition of exemption.
    (iii) Anti-abuse rule. This paragraph (a)(3) does not apply to a 
corporation that, with a principal purpose of avoiding the application 
of paragraph (a)(1) or (a)(2) of this section, acquires all or 
substantially all of the assets of another taxable corporation and then 
changes its status to that of a tax-exempt entity.
    (4) Related transactions. This section applies to any series of 
related transactions having an effect similar to any of the transactions 
to which this section applies.
    (b) Exceptions. Paragraph (a) of this section does not apply to--
    (1) Any assets transferred to a tax-exempt entity to the extent that 
the assets are used in an activity the income from which is subject to 
tax under section 511(a) (referred to hereinafter as a ``section 511(a) 
activity''). However, if assets used to any extent in a section 511(a) 
activity are disposed of by the tax-exempt entity, then, notwithstanding 
any other provision of law (except section 1031 or section 1033), any 
gain (not in excess of the amount not recognized by reason of the 
preceding sentence) shall be included in the tax-exempt entity's 
unrelated business taxable income. To the extent that the tax-exempt 
entity ceases to use the assets in a section 511(a) activity, the entity 
will be treated for purposes of this paragraph (b)(1) as having disposed 
of the assets on the date of the cessation for their fair market value. 
For purposes of paragraph (a)(1) of this section and this paragraph 
(b)(1)--
    (i) If during the first taxable year following the transfer of an 
asset or the corporation's change to tax-exempt status the asset will be 
used by the tax-exempt entity partly or wholly in a

[[Page 82]]

section 511(a) activity, the taxable corporation will recognize an 
amount of gain or loss that bears the same ratio to the asset's built-in 
gain or loss as 100 percent reduced by the percentage of use for such 
taxable year in the section 511(a) activity bears to 100 percent. For 
purposes of determining the gain or loss, if any, to be recognized, the 
taxable corporation may rely on a written representation from the tax-
exempt entity estimating the percentage of the asset's anticipated use 
in a section 511(a) activity for such taxable year, using a reasonable 
method of allocation, unless the taxable corporation has reason to 
believe that the tax-exempt entity's representation is not made in good 
faith;
    (ii) If for any taxable year the percentage of an asset's use in a 
section 511(a) activity decreases from the estimate used in computing 
gain or loss recognized under paragraph (b)(1)(i) of this section, 
adjusted for any decreases taken into account under this paragraph 
(b)(1)(ii) in prior taxable years, the tax-exempt entity shall recognize 
an amount of gain or loss that bears the same ratio to the asset's 
built-in gain or loss as the percentage point decrease in use in the 
section 511(a) activity for the taxable year bears to 100 percent;
    (iii) If property on which all or a portion of the gain or loss is 
not recognized by reason of the first sentence of paragraph (b)(1) of 
this section is disposed of in a transaction that qualifies for 
nonrecognition treatment under section 1031 or section 1033, the tax-
exempt entity must treat the replacement property as remaining subject 
to paragraph (b)(1) of this section to the extent that the exchanged or 
involuntarily converted property was so subject;
    (iv) The tax-exempt entity must use the same reasonable method of 
allocation for determining the percentage that it uses the assets in a 
section 511(a) activity as it uses for other tax purposes, such as 
determining the amount of depreciation deductions. The tax-exempt entity 
also must use this same reasonable method of allocation for each taxable 
year that it holds the assets; and
    (v) An asset's built-in gain or loss is the amount that would be 
recognized under paragraph (a)(1) of this section except for this 
paragraph (b)(1);
    (2) Any transfer of assets to the extent gain or loss otherwise is 
recognized by the taxable corporation on the transfer. See, for example, 
sections 336, 337(b)(2), 367, and 1001;
    (3) Any transfer of assets to the extent the transaction qualifies 
for nonrecognition treatment under section 1031 or section 1033; or
    (4) Any forfeiture of a taxable corporation's assets in a criminal 
or civil action to the United States, the government of a possession of 
the United States, a state, the District of Columbia, the government of 
a foreign country, or a political subdivision of any of the foregoing; 
or any expropriation of a taxable corporation's assets by the government 
of a foreign country.
    (c) Definitions. For purposes of this section:
    (1) Taxable corporation. A taxable corporation is any corporation 
that is not a tax-exempt entity as defined in paragraph (c)(2) of this 
section.
    (2) Tax-exempt entity. A tax-exempt entity is--
    (i) Any entity that is exempt from tax under section 501(a) or 
section 529;
    (ii) A charitable remainder annuity trust or charitable remainder 
unitrust as defined in section 664(d);
    (iii) The United States, the government of a possession of the 
United States, a state, the District of Columbia, the government of a 
foreign country, or a political subdivision of any of the foregoing;
    (iv) An Indian Tribal Government as defined in section 7701(a)(40), 
a subdivision of an Indian Tribal Government determined in accordance 
with section 7871(d), or an agency or instrumentality of an Indian 
Tribal Government or subdivision thereof;
    (v) An Indian Tribal Corporation organized under section 17 of the 
Indian Reorganization Act of 1934, 25 U.S.C. 477, or section 3 of the 
Oklahoma Welfare Act, 25 U.S.C. 503;
    (vi) An international organization as defined in section 
7701(a)(18);
    (vii) An entity any portion of whose income is excluded under 
section 115; or

[[Page 83]]

    (viii) An entity that would not be taxable under the Internal 
Revenue Code for reasons substantially similar to those applicable to 
any entity listed in this paragraph (c)(2) unless otherwise explicitly 
made exempt from the application of this section by statute or by action 
of the Commissioner.
    (3) Substantially all. The term substantially all has the same 
meaning as under section 368(a)(1)(C).
    (d) Loss limitation rule. For purposes of determining the amount of 
gain or loss recognized by a taxable corporation on the transfer of its 
assets to a tax-exempt entity under paragraph (a) of this section, if 
assets are acquired by the taxable corporation in a transaction to which 
section 351 applied or as a contribution to capital, or assets are 
distributed from the taxable corporation to a shareholder or another 
member of the taxable corporation's affiliated group, and in either case 
such acquisition or distribution is made as part of a plan a principal 
purpose of which is to recognize loss by the taxable corporation on the 
transfer of such assets to the tax-exempt entity, the losses recognized 
by the taxable corporation on such assets transferred to the tax-exempt 
entity will be disallowed. For purposes of the preceding sentence, the 
principles of section 336(d)(2) apply.
    (e) Effective date. This section is applicable to transfers of 
assets as described in paragraph (a) of this section occurring after 
January 28, 1999, unless the transfer is pursuant to a written agreement 
which is (subject to customary conditions) binding on or before January 
28, 1999.

[T.D. 8802, 63 FR 71594, Dec. 29, 1998]



Sec. 1.337(d)-5  Old transitional rules imposing tax on property owned 
by a C corporation that becomes property of a RIC or REIT

    (a) Treatment of C corporations--(1) Scope. This section applies to 
the net built-in gain of C corporation assets that become assets of a 
RIC or REIT by--
    (i) The qualification of a C corporation as a RIC or REIT; or
    (ii) The transfer of assets of a C corporation to a RIC or REIT in a 
transaction in which the basis of such assets are determined by 
reference to the C corporation's basis (a carryover basis).
    (2) Net built-in gain. Net built-in gain is the excess of aggregate 
gains (including items of income) over aggregate losses.
    (3) General rule. Unless an election is made pursuant to paragraph 
(b) of this section, the C corporation will be treated, for all purposes 
including recognition of net built-in gain, as if it had sold all of its 
assets at their respective fair market values on the deemed liquidation 
date described in paragraph (a)(7) of this section and immediately 
liquidated.
    (4) Loss. Paragraph(a)(3) of this section shall not apply if its 
application would result in the recognition of net built-in loss.
    (5) Basis adjustment. If a corporation is subject to corporate-level 
tax under paragraph (a)(3) of this section, the bases of the assets in 
the hands of the RIC or REIT will be adjusted to reflect the recognized 
net built-in gain. This adjustment is made by taking the C corporation's 
basis in each asset, and, as appropriate, increasing it by the amount of 
any built-in gain attributable to that asset, or decreasing it by the 
amount of any built-in loss attributable to that asset.
    (6) Exception--(i) In general. Paragraph (a)(3) of this section does 
not apply to any C corporation that--
    (A) Immediately prior to qualifying to be taxed as a RIC was subject 
to tax as a C corporation for a period not exceeding one taxable year; 
and
    (B) Immediately prior to being subject to tax as a C corporation was 
subject to the RIC tax provisions for a period of at least one taxable 
year.
    (ii) Additional requirement. The exception described in paragraph 
(a)(6)(i) of this section applies only to assets acquired by the 
corporation during the year when it was subject to tax as a C 
corporation in a transaction that does not result in its basis in the 
asset being determined by reference to a corporate transferor's basis.
    (7) Deemed liquidation date--(i) Conversions. In the case of a C 
corporation that qualifies to be taxed as a RIC or REIT, the deemed 
liquidation date is

[[Page 84]]

the last day of its last taxable year before the taxable year in which 
it qualifies to be taxed as a RIC or REIT.
    (ii) Carryover basis transfers. In the case of a C corporation that 
transfers property to a RIC or REIT in a carryover basis transaction, 
the deemed liquidation date is the day before the date of the transfer.
    (b) Section 1374 treatment--(1) In general. Paragraph (a) of this 
section will not apply if the transferee RIC or REIT elects (as 
described in paragraph (b)(3) of this section) to be subject to the 
rules of section 1374, and the regulations thereunder. The electing RIC 
or REIT will be subject to corporate-level taxation on the built-in gain 
recognized during the 10-year period on assets formerly held by the 
transferor C corporation. The built-in gains of electing RICs and REITs, 
and the corporate-level tax imposed on such gains, are subject to rules 
similar to the rules relating to net income from foreclosure property of 
REITs. See sections 857(a)(1)(A)(ii), and 857(b)(2)(B), (D), and (E). An 
election made under this paragraph (b) shall be irrevocable.
    (2) Ten-year recognition period. In the case of a C corporation that 
qualifies to be taxed as a RIC or REIT, the 10-year recognition period 
described in section 1374(d)(7) begins on the first day of the RIC's or 
REIT's taxable year for which the corporation qualifies to be taxed as a 
RIC or REIT. In the case of a C corporation that transfers property to a 
RIC or REIT in a carryover basis transaction, the 10-year recognition 
period begins on the day the assets are acquired by the RIC or REIT.
    (3) Making the election. A RIC or REIT validly makes a section 1374 
election with the following statement: ``[Insert name and employer 
identification number of electing RIC or REIT] elects under paragraph 
(b) of this section to be subject to the rules of section 1374 and the 
regulations thereunder with respect to its assets which formerly were 
held by a C corporation, [insert name and employer identification number 
of the C corporation, if different from name and employer identification 
number of RIC or REIT].'' This statement must be signed by an official 
authorized to sign the income tax return of the RIC or REIT and attached 
to the RIC's or REIT's Federal income tax return for the first taxable 
year in which the assets of the C corporation become assets of the RIC 
or REIT.
    (c) Special rule. In cases where the first taxable year in which the 
assets of the C corporation become assets of the RIC or REIT ends after 
June 10, 1987 but before March 8, 2000, the section 1374 election may be 
filed with the first Federal income tax return filed by the RIC or REIT 
after March 8, 2000.
    (d) Effective date. In the case of carryover basis transactions 
involving the transfer of property of a C corporation to a RIC or REIT, 
the regulations apply to transactions occurring on or after June 10, 
1987, and before January 2, 2002. In the case of a C corporation that 
qualifies to be taxed as a RIC or REIT, the regulations apply to such 
qualifications that are effective for taxable years beginning on or 
after June 10, 1987, and before January 2, 2002. However, RICs and REITs 
that are subject to section 1374 treatment under this section may not 
rely on paragraph (b)(1) of this section, but must apply paragraphs 
(c)(1)(i), (c)(2)(i), (c)(2)(ii), and (c)(3) of Sec. 1.337(d)-6, with 
respect to built-in gains and losses recognized in taxable years 
beginning on or after January 2, 2002. In lieu of applying this section, 
taxpayers may rely on Sec. 1.337(d)-6 to determine the tax consequences 
(for all taxable years) of any conversion transaction. For transactions 
and qualifications that occur on or after January 2, 2002, see Sec. 
1.337(d)-7.

[T.D. 8872, 65 FR 5776, Feb. 7, 2000, as amended by T.D. 8975, 67 FR 12, 
Jan. 2, 2002. Redesignated and amended by T.D. 9047, 68 FR 12819, Mar. 
19, 2003]



Sec. 1.337(d)-6  New transitional rules imposing tax on property owned 
by a C corporation that becomes property of a RIC or REIT.

    (a) General rule--(1) Property owned by a C corporation that becomes 
property of a RIC or REIT. If property owned by a C corporation (as 
defined in paragraph (a)(2)(i) of this section) becomes the property of 
a RIC or REIT (the converted property) in a conversion transaction (as 
defined in paragraph (a)(2)(ii) of this section), then deemed sale 
treatment will apply as described

[[Page 85]]

in paragraph (b) of this section, unless the RIC or REIT elects section 
1374 treatment with respect to the conversion transaction as provided in 
paragraph (c) of this section. See paragraph (d) of this section for 
exceptions to this paragraph (a).
    (2) Definitions--(i) C corporation. For purposes of this section, 
the term C corporation has the meaning provided in section 1361(a)(2) 
except that the term does not include a RIC or REIT.
    (ii) Conversion transaction. For purposes of this section, the term 
conversion transaction means the qualification of a C corporation as a 
RIC or REIT or the transfer of property owned by a C corporation to a 
RIC or REIT.
    (b) Deemed sale treatment--(1) In general. If property owned by a C 
corporation becomes the property of a RIC or REIT in a conversion 
transaction, then the C corporation recognizes gain and loss as if it 
sold the converted property to an unrelated party at fair market value 
on the deemed sale date (as defined in paragraph (b)(3) of this 
section). This paragraph (b) does not apply if its application would 
result in the recognition of a net loss. For this purpose, net loss is 
the excess of aggregate losses over aggregate gains (including items of 
income), without regard to character.
    (2) Basis adjustment. If a corporation recognizes a net gain under 
paragraph (b)(1) of this section, then the converted property has a 
basis in the hands of the RIC or REIT equal to the fair market value of 
such property on the deemed sale date.
    (3) Deemed sale date--(i) RIC or REIT qualifications. If the 
conversion transaction is a qualification of a C corporation as a RIC or 
REIT, then the deemed sale date is the end of the last day of the C 
corporation's last taxable year before the first taxable year in which 
it qualifies to be taxed as a RIC or REIT.
    (ii) Other conversion transactions. If the conversion transaction is 
a transfer of property owned by a C corporation to a RIC or REIT, then 
the deemed sale date is the end of the day before the day of the 
transfer.
    (4) Example. The rules of this paragraph (b) are illustrated by the 
following example:

    Example. Deemed sale treatment on merger into RIC. (i) X, a 
calendar-year taxpayer, has qualified as a RIC since January 1, 1991. On 
May 31, 1994, Y, a C corporation and calendar-year taxpayer, transfers 
all of its property to X in a transaction that qualifies as a 
reorganization under section 368(a)(1)(C). X does not elect section 1374 
treatment under paragraph (c) of this section and chooses not to rely on 
Sec. 1.337(d)-5. As a result of the transfer, Y is subject to deemed 
sale treatment under this paragraph (b) on its tax return for the short 
taxable year ending May 31, 1994. On May 31, 1994, Y's only assets are 
Capital Asset, which has a fair market value of $100,000 and a basis of 
$40,000 as of the end of May 30, 1994, and $50,000 cash. Y also has an 
unrestricted net operating loss carryforward of $12,000 and accumulated 
earnings and profits of $50,000. Y has no taxable income for the short 
taxable year ending May 31, 1994, other than gain recognized under this 
paragraph (b). In 1997, X sells Capital Asset for $110,000. Assume the 
applicable corporate tax rate is 35%.
    (ii) Under this paragraph (b), Y is treated as if it sold the 
converted property (Capital Asset and $50,000 cash) at fair market value 
on May 30, 1994, recognizing $60,000 of gain ($150,000 amount realized--
$90,000 basis). Y must report the gain on its tax return for the short 
taxable year ending May 31, 1994. Y may offset this gain with its 
$12,000 net operating loss carryforward and will pay tax of $16,800 (35% 
of $48,000).
    (iii) Under section 381, X succeeds to Y's accumulated earnings and 
profits. Y's accumulated earnings and profits of $50,000 increase by 
$60,000 and decrease by $16,800 as a result of the deemed sale. Thus, 
the aggregate amount of subchapter C earnings and profits that must be 
distributed to satisfy section 852(a)(2)(B) is $93,200 ($50,000 + 
$60,000 - $16,800). X's basis in Capital Asset is $100,000. On X's sale 
of Capital Asset in 1997, X recognizes $10,000 of gain, which is taken 
into account in computing X's net capital gain for purposes of section 
852(b)(3).

    (c) Election of section 1374 treatment--(1) In general--(i) Property 
owned by a C corporation that becomes property of a RIC or REIT. 
Paragraph (b) of this section does not apply if the RIC or REIT that was 
formerly a C corporation or that acquired property from a C corporation 
makes the election described in paragraph (c)(4) of this section. A RIC 
or REIT that makes such an election will be subject to tax on the net 
built-in gain in the converted property under the rules of section 1374 
and the regulations thereunder, as modified by this paragraph (c), as if 
the RIC or REIT were an S corporation.

[[Page 86]]

    (ii) Property subject to the rules of section 1374 owned by a RIC, 
REIT, or S corporation that becomes property of a RIC or REIT. If 
property subject to the rules of section 1374 owned by a RIC, a REIT, or 
an S corporation (the predecessor) becomes the property of a RIC or REIT 
(the successor) in a continuation transaction, the rules of section 1374 
apply to the successor to the same extent that the predecessor was 
subject to the rules of section 1374 with respect to such property, and 
the 10-year recognition period of the successor with respect to such 
property is reduced by the portion of the 10-year recognition period of 
the predecessor that expired before the date of the continuation 
transaction. For this purpose, a continuation transaction means the 
qualification of the predecessor as a RIC or REIT or the transfer of 
property from the predecessor to the successor in a transaction in which 
the successor's basis in the transferred property is determined, in 
whole or in part, by reference to the predecessor's basis in that 
property.
    (2) Modification of section 1374 treatment--(i) Net recognized 
built-in gain for REITs--(A) Prelimitation amount. The prelimitation 
amount determined as provided in Sec. 1.1374-2(a)(1) is reduced by the 
portion of such amount, if any, that is subject to tax under section 
857(b)(4), (5), (6), or (7). For this purpose, the amount of a REIT's 
recognized built-in gain that is subject to tax under section 857(b)(5) 
is computed as follows:
    (1) Where the tax under section 857(b)(5) is computed by reference 
to section 857(b)(5)(A), the amount of a REIT's recognized built-in gain 
that is subject to tax under section 857(b)(5) is the tax imposed by 
section 857(b)(5) multiplied by a fraction the numerator of which is the 
amount of recognized built-in gain (without regard to recognized built-
in loss and recognized built-in gain from prohibited transactions) that 
is not derived from sources referred to in section 856(c)(2) and the 
denominator of which is the gross income (without regard to gross income 
from prohibited transactions) of the REIT that is not derived from 
sources referred to in section 856(c)(2).
    (2) Where the tax under section 857(b)(5) is computed by reference 
to section 857(b)(5)(B), the amount of a REIT's recognized built-in gain 
that is subject to tax under section 857(b)(5) is the tax imposed by 
section 857(b)(5) multiplied by a fraction the numerator of which is the 
amount of recognized built-in gain (without regard to recognized built-
in loss and recognized built-in gain from prohibited transactions) that 
is not derived from sources referred to in section 856(c)(3) and the 
denominator of which is the gross income (without regard to gross income 
from prohibited transactions) of the REIT that is not derived from 
sources referred to in section 856(c)(3).
    (B) Taxable income limitation. The taxable income limitation 
determined as provided in Sec. 1.1374-2(a)(2) is reduced by an amount 
equal to the tax imposed under sections 857(b)(5), (6), and (7).
    (ii) Loss carryforwards, credits and credit carryforwards--(A) Loss 
carryforwards. Consistent with paragraph (c)(1)(i) of this section, net 
operating loss carryforwards and capital loss carryforwards arising in 
taxable years for which the corporation that generated the loss was not 
subject to subchapter M of chapter 1 of the Internal Revenue Code are 
allowed as a deduction against net recognized built-in gain to the 
extent allowed under section 1374 and the regulations thereunder. Such 
loss carryforwards must be used as a deduction against net recognized 
built-in gain for a taxable year to the greatest extent possible before 
such losses can be used to reduce other investment company taxable 
income for purposes of section 852(b) or other real estate investment 
trust taxable income for purposes of section 857(b) for that taxable 
year.
    (B) Credits and credit carryforwards. Consistent with paragraph 
(c)(1)(i) of this section, minimum tax credits and business credit 
carryforwards arising in taxable years for which the corporation that 
generated the credit was not subject to subchapter M of chapter 1 of the 
Internal Revenue Code are allowed to reduce the tax imposed on net 
recognized built-in gain under this paragraph (c) to the extent allowed 
under section 1374 and the regulations thereunder. Such credits and 
credit

[[Page 87]]

carryforwards must be used to reduce the tax imposed under this 
paragraph (c) on net recognized built-in gain for a taxable year to the 
greatest extent possible before such credits and credit carryforwards 
can be used to reduce the tax, if any, on other investment company 
taxable income for purposes of section 852(b) or on other real estate 
investment trust taxable income for purposes of section 857(b) for that 
taxable year.
    (iii) 10-year recognition period. In the case of a conversion 
transaction that is a qualification of a C corporation as a RIC or REIT, 
the 10-year recognition period described in section 1374(d)(7) begins on 
the first day of the RIC's or REIT's first taxable year. In the case of 
other conversion transactions, the 10-year recognition period begins on 
the day the property is acquired by the RIC or REIT.
    (3) Coordination with subchapter M rules--(i) Recognized built-in 
gains and losses subject to subchapter M. Recognized built-in gains and 
losses of a RIC or REIT are included in computing investment company 
taxable income for purposes of section 852(b)(2), real estate investment 
trust taxable income for purposes of section 857(b)(2), capital gains 
for purposes of sections 852(b)(3) and 857(b)(3), gross income derived 
from sources within any foreign country or possession of the United 
States for purposes of section 853, and the dividends paid deduction for 
purposes of sections 852(b)(2)(D), 852(b)(3)(A), 857(b)(2)(B), and 
857(b)(3)(A). In computing such income and deduction items, capital loss 
carryforwards and net operating loss carryforwards that are used by the 
RIC or REIT to reduce recognized built-in gains are allowed as a 
deduction, but only to the extent that they are otherwise allowable as a 
deduction against such income under the Internal Revenue Code (including 
section 852(b)(2)(B)).
    (ii) Treatment of tax imposed. The amount of tax imposed under this 
paragraph (c) on net recognized built-in gain for a taxable year is 
treated as a loss sustained by the RIC or the REIT during such taxable 
year. The character of the loss is determined by allocating the tax 
proportionately (based on recognized built-in gain) among the items of 
recognized built-in gain included in net recognized built-in gain. With 
respect to RICs, the tax imposed under this paragraph (c) on net 
recognized built-in gain is treated as attributable to the portion of 
the RIC's taxable year occurring after October 31.
    (4) Making the section 1374 election--(i) In general. A RIC or REIT 
makes a section 1374 election with the following statement: ``[Insert 
name and employer identification number of electing RIC or REIT] elects 
under Sec. 1.337-6(c) to be subject to the rules of section 1374 and 
the regulations thereunder with respect to its property that formerly 
was held by a C corporation, [insert name and employer identification 
number of the C corporation, if different from name and employer 
identification number of the RIC or REIT].'' However, a RIC or REIT need 
not file an election under this paragraph (c), but will be deemed to 
have made such an election if it can demonstrate that it informed the 
Internal Revenue Service prior to January 2, 2002 of its intent to make 
a section 1374 election. An election under this paragraph (c) is 
irrevocable.
    (ii) Time for making the election. An election under this paragraph 
(c) may be filed by the RIC or REIT with any Federal income tax return 
filed by the RIC or REIT on or before September 15, 2003, provided that 
the RIC or REIT has reported consistently with such election for all 
periods.
    (5) Example. The rules of this paragraph (c) are illustrated by the 
following example:

    Example. Section 1374 treatment on REIT election. (i) X, a C 
corporation that is a calendar-year taxpayer, elects to be taxed as a 
REIT on its 1994 tax return, which it files on March 15, 1995. As a 
result, X is a REIT for its 1994 taxable year and would be subject to 
deemed sale treatment under paragraph (b) of this section but for X's 
timely election of section 1374 treatment under this paragraph (c). X 
chooses not to rely on Sec. 1.337(d)-5. As of the beginning of the 1994 
taxable year, X's property consisted of Real Property, which is not 
section 1221(a)(1) property and which had a fair market value of 
$100,000 and an adjusted basis of $80,000, and $25,000 cash. X also had 
accumulated earnings and profits of $25,000, unrestricted capital loss 
carryforwards of $3,000, and unrestricted business credit carryforwards 
of $2,000. On July 1, 1997, X sells Real Property for $110,000. For its 
1997

[[Page 88]]

taxable year, X has no other income or deduction items. Assume the 
highest corporate tax rate is 35%.
    (ii) Upon its election to be taxed as a REIT, X retains its $80,000 
basis in Real Property and its $25,000 accumulated earnings and profits. 
X retains its $3,000 of capital loss carryforwards and its $2,000 of 
business credit carryforwards. To satisfy section 857(a)(2)(B), X must 
distribute $25,000, an amount equal to its earnings and profits 
accumulated in non-REIT years, to its shareholders by the end of its 
1994 taxable year.
    (iii) Upon X's sale of Real Property in 1997, X recognizes gain of 
$30,000 ($110,000--$80,000). X's recognized built-in gain for purposes 
of applying section 1374 is $20,000 ($100,000 fair market value as of 
the beginning of X's first taxable year as a REIT--$80,000 basis). 
Because X's $30,000 of net income for the 1997 taxable year exceeds the 
net recognized built-in gain of $20,000, the taxable income limitation 
does not apply. X, therefore, has $20,000 net recognized built-in gain 
for the year. Assuming that X has not used its $3,000 of capital loss 
carryforwards in a prior taxable year and that their use is allowed 
under section 1374(b)(2) and Sec. 1.1374-5, X is allowed a $3,000 
deduction against the $20,000 net recognized built-in gain. X would owe 
tax of $5,950 (35% of $17,000) on its net recognized built-in gain, 
except that X may use its $2,000 of business credit carryforwards to 
reduce this tax, assuming that X has not used the credit carryforwards 
in a prior taxable year and that their use is allowed under section 
1374(b)(3) and Sec. 1.1374-6. Thus, X owes tax of $3,950 under this 
paragraph (c).
    (iv) For purposes of subchapter M of chapter 1 of the Internal 
Revenue Code, X's earnings and profits for the year increase by $26,050 
($30,000 capital gain on the sale of Real Property--$3,950 tax under 
this paragraph (c)). For purposes of section 857(b)(2) and (b)(3), X's 
net capital gain for the year is $23,050 ($30,000 capital gain reduced 
by $3,000 capital loss carryforward and further reduced by $3,950 tax).

    (d) Exceptions--(1) Gain otherwise recognized. Paragraph (a) of this 
section does not apply to any conversion transaction to the extent that 
gain or loss otherwise is recognized on such conversion transaction. 
See, for example, sections 336, 351(b), 351(e), 356, 357(c), 367, 
368(a)(2)(F), and 1001.
    (2) Re-election of RIC or REIT status--(i) Generally. Except as 
provided in paragraphs (d)(2)(ii) and (iii) of this section, paragraph 
(a)(1) of this section does not apply to any corporation that--
    (A) Immediately prior to qualifying to be taxed as a RIC or REIT was 
subject to tax as a C corporation for a period not exceeding two taxable 
years; and
    (B) Immediately prior to being subject to tax as a C corporation was 
subject to tax as a RIC or REIT for a period of at least one taxable 
year.
    (ii) Property acquired from another corporation while a C 
corporation. The exception described in paragraph (d)(2)(i) of this 
section does not apply to property acquired by the corporation while it 
was subject to tax as a C corporation from any person in a transaction 
that results in the acquirer's basis in the property being determined by 
reference to a C corporation's basis in the property.
    (iii) RICs and REITs previously subject to section 1374 treatment. 
If the RIC or REIT had property subject to paragraph (c) of this section 
before the RIC or REIT became subject to tax as a C corporation as 
described in paragraph (d)(2)(i) of this section, then paragraph (c) of 
this section applies to the RIC or REIT upon its requalification as a 
RIC or REIT, except that the 10-year recognition period with respect to 
such property is reduced by the portion of the 10-year recognition 
period that expired before the RIC or REIT became subject to tax as a C 
corporation and by the period of time that the corporation was subject 
to tax as a C corporation.
    (e) Effective date. This section applies to conversion transactions 
that occur on or after June 10, 1987, and before January 2, 2002. In 
lieu of applying this section, taxpayers generally may apply Sec. 
1.337(d)-5 to determine the tax consequences (for all taxable years) of 
any conversion transaction that occurs on or after June 10, 1987 and 
before January 2, 2002, except that RICs and REITs that are subject to 
section 1374 treatment with respect to a conversion transaction may not 
rely on Sec. 1.337(d)-5(b)(1), but must apply paragraphs (c)(1)(i), 
(c)(2)(i), (c)(2)(ii), and (c)(3) of this section, with respect to 
built-in gains and losses recognized in taxable years beginning on or 
after January 2, 2002. Taxpayers are not prevented from relying on Sec. 
1.337(d)-5 merely because they elect section 1374 treatment in the 
manner described in paragraph (c)(4) of this section instead of in the 
manner

[[Page 89]]

described in Sec. 1.337(d)-5(b)(3) and (c). For conversion transactions 
that occur on or after January 2, 2002, see Sec. 1.337(d)-7.

[T.D. 9047, 68 FR 12820, Mar. 18, 2003]



Sec. 1.337(d)-7  Tax on property owned by a C corporation that becomes 
property of a RIC or REIT.

    (a) General rule--(1) Property owned by a C corporation that becomes 
property of a RIC or REIT. If property owned by a C corporation (as 
defined in paragraph (a)(2)(i) of this section) becomes the property of 
a RIC or REIT (the converted property) in a conversion transaction (as 
defined in paragraph (a)(2)(ii) of this section), then section 1374 
treatment will apply as described in paragraph (b) of this section, 
unless the C corporation elects deemed sale treatment with respect to 
the conversion transaction as provided in paragraph (c) of this section. 
See paragraph (d) of this section for exceptions to this paragraph (a).
    (2) Definitions--(i) C corporation. For purposes of this section, 
the term C corporation has the meaning provided in section 1361(a)(2) 
except that the term does not include a RIC or REIT.
    (ii) Conversion transaction. For purposes of this section, the term 
conversion transaction means the qualification of a C corporation as a 
RIC or REIT or the transfer of property owned by a C corporation to a 
RIC or REIT.
    (b) Section 1374 treatment--(1) In general--(i) Property owned by a 
C corporation that becomes property of a RIC or REIT. If property owned 
by a C corporation becomes the property of a RIC or REIT in a conversion 
transaction, then the RIC or REIT will be subject to tax on the net 
built-in gain in the converted property under the rules of section 1374 
and the regulations thereunder, as modified by this paragraph (b), as if 
the RIC or REIT were an S corporation.
    (ii) Property subject to the rules of section 1374 owned by a RIC, 
REIT, or S corporation that becomes property of a RIC or REIT. If 
property subject to the rules of section 1374 owned by a RIC, a REIT, or 
an S corporation (the predecessor) becomes the property of a RIC or REIT 
(the successor) in a continuation transaction, the rules of section 1374 
apply to the successor to the same extent that the predecessor was 
subject to the rules of section 1374 with respect to such property, and 
the 10-year recognition period of the successor with respect to such 
property is reduced by the portion of the 10-year recognition period of 
the predecessor that expired before the date of the continuation 
transaction. For this purpose, a continuation transaction means the 
qualification of the predecessor as a RIC or REIT or the transfer of 
property from the predecessor to the successor in a transaction in which 
the successor's basis in the transferred property is determined, in 
whole or in part, by reference to the predecessor's basis in that 
property.
    (2) Modification of section 1374 treatment--(i) Net recognized 
built-in gain for REITs--(A) Prelimitation amount. The prelimitation 
amount determined as provided in Sec. 1.1374-2(a)(1) is reduced by the 
portion of such amount, if any, that is subject to tax under section 
857(b)(4), (5), (6), or (7). For this purpose, the amount of a REIT's 
recognized built-in gain that is subject to tax under section 857(b)(5) 
is computed as follows:
    (1) Where the tax under section 857(b)(5) is computed by reference 
to section 857(b)(5)(A), the amount of a REIT's recognized built-in gain 
that is subject to tax under section 857(b)(5) is the tax imposed by 
section 857(b)(5) multiplied by a fraction the numerator of which is the 
amount of recognized built-in gain (without regard to recognized built-
in loss and recognized built-in gain from prohibited transactions) that 
is not derived from sources referred to in section 856(c)(2) and the 
denominator of which is the gross income (without regard to gross income 
from prohibited transactions) of the REIT that is not derived from 
sources referred to in section 856(c)(2).
    (2) Where the tax under section 857(b)(5) is computed by reference 
to section 857(b)(5)(B), the amount of a REIT's recognized built-in gain 
that is subject to tax under section 857(b)(5) is the tax imposed by 
section 857(b)(5) multiplied by a fraction the numerator of which is the 
amount of recognized built-in gain (without regard to recognized built-
in loss and recognized built-

[[Page 90]]

in gain from prohibited transactions) that is not derived from sources 
referred to in section 856(c)(3) and the denominator of which is the 
gross income (without regard to gross income from prohibited 
transactions) of the REIT that is not derived from sources referred to 
in section 856(c)(3).
    (B) Taxable income limitation. The taxable income limitation 
determined as provided in Sec. 1.1374-2(a)(2) is reduced by an amount 
equal to the tax imposed under section 857(b)(5), (6), and (7).
    (ii) Loss carryforwards, credits and credit carryforwards--(A) Loss 
carryforwards. Consistent with paragraph (b)(1)(i) of this section, net 
operating loss carryforwards and capital loss carryforwards arising in 
taxable years for which the corporation that generated the loss was not 
subject to subchapter M of chapter 1 of the Internal Revenue Code are 
allowed as a deduction against net recognized built-in gain to the 
extent allowed under section 1374 and the regulations thereunder. Such 
loss carryforwards must be used as a deduction against net recognized 
built-in gain for a taxable year to the greatest extent possible before 
such losses can be used to reduce other investment company taxable 
income for purposes of section 852(b) or other real estate investment 
trust taxable income for purposes of section 857(b) for that taxable 
year.
    (B) Credits and credit carryforwards. Consistent with paragraph 
(b)(1)(i) of this section, minimum tax credits and business credit 
carryforwards arising in taxable years for which the corporation that 
generated the credit was not subject to subchapter M of chapter 1 of the 
Internal Revenue Code are allowed to reduce the tax imposed on net 
recognized built-in gain under this paragraph (b) to the extent allowed 
under section 1374 and the regulations thereunder. Such credits and 
credit carryforwards must be used to reduce the tax imposed under this 
paragraph (b) on net recognized built-in gain for a taxable year to the 
greatest extent possible before such credits and credit carryforwards 
can be used to reduce the tax, if any, on other investment company 
taxable income for purposes of section 852(b) or on other real estate 
investment trust taxable income for purposes of section 857(b) for that 
taxable year.
    (iii) 10-year recognition period. In the case of a conversion 
transaction that is a qualification of a C corporation as a RIC or REIT, 
the 10-year recognition period described in section 1374(d)(7) begins on 
the first day of the RIC's or REIT's first taxable year. In the case of 
other conversion transactions, the 10-year recognition period begins on 
the day the property is acquired by the RIC or REIT.
    (3) Coordination with subchapter M rules--(i) Recognized built-in 
gains and losses subject to subchapter M. Recognized built-in gains and 
losses of a RIC or REIT are included in computing investment company 
taxable income for purposes of section 852(b)(2), real estate investment 
trust taxable income for purposes of section 857(b)(2), capital gains 
for purposes of sections 852(b)(3) and 857(b)(3), gross income derived 
from sources within any foreign country or possession of the United 
States for purposes of section 853, and the dividends paid deduction for 
purposes of sections 852(b)(2)(D), 852(b)(3)(A), 857(b)(2)(B), and 
857(b)(3)(A). In computing such income and deduction items, capital loss 
carryforwards and net operating loss carryforwards that are used by the 
RIC or REIT to reduce recognized built-in gains are allowed as a 
deduction, but only to the extent that they are otherwise allowable as a 
deduction against such income under the Internal Revenue Code (including 
section 852(b)(2)(B)).
    (ii) Treatment of tax imposed. The amount of tax imposed under this 
paragraph (b) on net recognized built-in gain for a taxable year is 
treated as a loss sustained by the RIC or the REIT during such taxable 
year. The character of the loss is determined by allocating the tax 
proportionately (based on recognized built-in gain) among the items of 
recognized built-in gain included in net recognized built-in gain. With 
respect to RICs, the tax imposed under this paragraph (b) on net 
recognized built-in gain is treated as attributable to the portion of 
the RIC's taxable year occurring after October 31.
    (4) Example. The rules of this paragraph (b) are illustrated by the 
following example:


[[Page 91]]


    Example. Section 1374 treatment on REIT election. (i) X, a C 
corporation that is a calendar-year taxpayer, elects to be taxed as a 
REIT on its 2004 tax return, which it files on March 15, 2005. As a 
result, X is a REIT for its 2004 taxable year and is subject to section 
1374 treatment under this paragraph (b). X does not elect deemed sale 
treatment under paragraph (c) of this section. As of the beginning of 
the 2004 taxable year, X's property consisted of Real Property, which is 
not section 1221(a)(1) property and which had a fair market value of 
$100,000 and an adjusted basis of $80,000, and $25,000 cash. X also had 
accumulated earnings and profits of $25,000, unrestricted capital loss 
carryforwards of $3,000, and unrestricted business credit carryforwards 
of $2,000. On July 1, 2007, X sells Real Property for $110,000. For its 
2007 taxable year, X has no other income or deduction items. Assume the 
highest corporate tax rate is 35%.
    (ii) Upon its election to be taxed as a REIT, X retains its $80,000 
basis in Real Property and its $25,000 accumulated earnings and profits. 
X retains its $3,000 of capital loss carryforwards and its $2,000 of 
business credit carryforwards. To satisfy section 857(a)(2)(B), X must 
distribute $25,000, an amount equal to its earnings and profits 
accumulated in non-REIT years, to its shareholders by the end of its 
2004 taxable year.
    (iii) Upon X's sale of Real Property in 2007, X recognizes gain of 
$30,000 ($110,000--$80,000). X's recognized built-in gain for purposes 
of applying section 1374 is $20,000 ($100,000 fair market value as of 
the beginning of X's first taxable year as a REIT--$80,000 basis). 
Because X's $30,000 of net income for the 2007 taxable year exceeds the 
net recognized built-in gain of $20,000, the taxable income limitation 
does not apply. X, therefore, has $20,000 net recognized built-in gain 
for the year. Assuming that X has not used its $3,000 of capital loss 
carryforwards in a prior taxable year and that their use is allowed 
under section 1374(b)(2) and Sec. 1.1374-5, X is allowed a $3,000 
deduction against the $20,000 net recognized built-in gain. X would owe 
tax of $5,950 (35% of $17,000) on its net recognized built-in gain, 
except that X may use its $2,000 of business credit carryforwards to 
reduce the tax, assuming that X has not used the credit carryforwards in 
a prior taxable year and that their use is allowed under section 
1374(b)(3) and Sec. 1.1374-6. Thus, X owes tax of $3,950 under this 
paragraph (b).
    (iv) For purposes of subchapter M of chapter 1 of the Internal 
Revenue Code, X's earnings and profits for the year increase by $26,050 
($30,000 capital gain on the sale of Real Property--$3,950 tax under 
this paragraph (b)). For purposes of section 857(b)(2) and (b)(3), X's 
net capital gain for the year is $23,050 ($30,000 capital gain reduced 
by $3,000 capital loss carryforward and further reduced by $3,950 tax).

    (c) Election of deemed sale treatment--(1) In general. Paragraph (b) 
of this section does not apply if the C corporation that qualifies as a 
RIC or REIT or transfers property to a RIC or REIT makes the election 
described in paragraph (c)(5) of this section. A C corporation that 
makes such an election recognizes gain and loss as if it sold the 
converted property to an unrelated party at fair market value on the 
deemed sale date (as defined in paragraph (c)(3) of this section). See 
paragraph (c)(4) of this section concerning limitations on the use of 
loss in computing gain. This paragraph (c) does not apply if its 
application would result in the recognition of a net loss. For this 
purpose, net loss is the excess of aggregate losses over aggregate gains 
(including items of income), without regard to character.
    (2) Basis adjustment. If a corporation recognizes a net gain under 
paragraph (c)(1) of this section, then the converted property has a 
basis in the hands of the RIC or REIT equal to the fair market value of 
such property on the deemed sale date.
    (3) Deemed sale date--(i) RIC or REIT qualifications. If the 
conversion transaction is a qualification of a C corporation as a RIC or 
REIT, then the deemed sale date is the end of the last day of the C 
corporation's last taxable year before the first taxable year in which 
it qualifies to be taxed as a RIC or REIT.
    (ii) Other conversion transactions. If the conversion transaction is 
a transfer of property owned by a C corporation to a RIC or REIT, then 
the deemed sale date is the end of the day before the day of the 
transfer.
    (4) Anti-stuffing rule. A C corporation must disregard converted 
property in computing gain or loss recognized on the conversion 
transaction under this paragraph (c), if--
    (i) The converted property was acquired by the C corporation in a 
transaction to which section 351 applied or as a contribution to 
capital;
    (ii) Such converted property had an adjusted basis immediately after 
its acquisition by the C corporation in excess of its fair market value 
on the date of acquisition; and
    (iii) The acquisition of such converted property by the C 
corporation

[[Page 92]]

was part of a plan a principal purpose of which was to reduce gain 
recognized by the C corporation in connection with the conversion 
transaction. For purposes of this paragraph (c)(4), the principles of 
section 336(d)(2) apply.
    (5) Making the deemed sale election. A C corporation (or a 
partnership to which the principles of this section apply under 
paragraph (e) of this section) makes the deemed sale election with the 
following statement: ``[Insert name and employer identification number 
of electing corporation or partnership] elects deemed sale treatment 
under Sec. 1.337(d)-7(c) with respect to its property that was 
converted to property of, or transferred to, a RIC or REIT, [insert name 
and employer identification number of the RIC or REIT, if different from 
the name and employer identification number of the C corporation or 
partnership].'' This statement must be attached to the Federal income 
tax return of the C corporation or partnership for the taxable year in 
which the deemed sale occurs. An election under this paragraph (c) is 
irrevocable.
    (6) Examples. The rules of this paragraph (c) are illustrated by the 
following examples:

    Example 1. Deemed sale treatment on merger into RIC. (i) X, a 
calendar-year taxpayer, has qualified as a RIC since January 1, 2001. On 
May 31, 2004, Y, a C corporation and calendar-year taxpayer, transfers 
all of its property to X in a transaction that qualifies as a 
reorganization under section 368(a)(1)(C). As a result of the transfer, 
Y would be subject to section 1374 treatment under paragraph (b) of this 
section but for its timely election of deemed sale treatment under this 
paragraph (c). As a result of such election, Y is subject to deemed sale 
treatment on its tax return for the short taxable year ending May 31, 
2004. On May 31, 2004, Y's only assets are Capital Asset, which has a 
fair market value of $100,000 and a basis of $40,000 as of the end of 
May 30, 2004, and $50,000 cash. Y also has an unrestricted net operating 
loss carryforward of $12,000 and accumulated earnings and profits of 
$50,000. Y has no taxable income for the short taxable year ending May 
31, 2004, other than gain recognized under this paragraph (c). In 2007, 
X sells Capital Asset for $110,000. Assume the applicable corporate tax 
rate is 35%.
    (ii) Under this paragraph (c), Y is treated as if it sold the 
converted property (Capital Asset and $50,000 cash) at fair market value 
on May 30, 2004, recognizing $60,000 of gain ($150,000 amount realized--
$90,000 basis). Y must report the gain on its tax return for the short 
taxable year ending May 31, 2004. Y may offset this gain with its 
$12,000 net operating loss carryforward and will pay tax of $16,800 (35% 
of $48,000).
    (iii) Under section 381, X succeeds to Y's accumulated earnings and 
profits. Y's accumulated earnings and profits of $50,000 increase by 
$60,000 and decrease by $16,800 as a result of the deemed sale. Thus, 
the aggregate amount of subchapter C earnings and profits that must be 
distributed to satisfy section 852(a)(2)(B) is $93,200 ($50,000 + 
$60,000-$16,800). X's basis in Capital Asset is $100,000. On X's sale of 
Capital Asset in 2007, X recognizes $10,000 of gain which is taken into 
account in computing X's net capital gain for purposes of section 
852(b)(3).
    Example 2. Loss limitation. (i) Assume the facts are the same as 
those described in Example 1, but that, prior to the reorganization, a 
shareholder of Y contributed to Y a capital asset, Capital Asset 2, 
which has a fair market value of $10,000 and a basis of $20,000, in a 
section 351 transaction.
    (ii) Assuming that Y's acquisition of Capital Asset 2 was made 
pursuant to a plan a principal purpose of which was to reduce the amount 
of gain that Y would recognize in connection with the conversion 
transaction, Capital Asset 2 would be disregarded in computing the 
amount of Y's net gain on the conversion transaction.

    (d) Exceptions--(1) Gain otherwise recognized. Paragraph (a) of this 
section does not apply to any conversion transaction to the extent that 
gain or loss otherwise is recognized on such conversion transaction. 
See, for example, sections 336, 351(b), 351(e), 356, 357(c), 367, 
368(a)(2)(F), and 1001.
    (2) Re-election of RIC or REIT status--(i) Generally. Except as 
provided in paragraphs (d)(2)(ii) and (iii) of this section, paragraph 
(a)(1) of this section does not apply to any corporation that--
    (A) Immediately prior to qualifying to be taxed as a RIC or REIT was 
subject to tax as a C corporation for a period not exceeding two taxable 
years; and
    (B) Immediately prior to being subject to tax as a C corporation was 
subject to tax as a RIC or REIT for a period of at least one taxable 
year.
    (ii) Property acquired from another corporation while a C 
corporation. The exception described in paragraph (d)(2)(i) of this 
section does not apply to property acquired by the corporation while it 
was subject to tax as a C corporation

[[Page 93]]

from any person in a transaction that results in the acquirer's basis in 
the property being determined by reference to a C corporation's basis in 
the property.
    (iii) RICs and REITs previously subject to section 1374 treatment. 
If the RIC or REIT had property subject to paragraph (b) of this section 
before the RIC or REIT became subject to tax as a C corporation as 
described in paragraph (d)(2)(i) of this section, then paragraph (b) of 
this section applies to the RIC or REIT upon its requalification as a 
RIC or REIT, except that the 10-year recognition period with respect to 
such property is reduced by the portion of the 10-year recognition 
period that expired before the RIC or REIT became subject to tax as a C 
corporation and by the period of time that the corporation was subject 
to tax as a C corporation.
    (e) Special rule for partnerships. The principles of this section 
apply to property transferred by a partnership to a RIC or REIT to the 
extent of any C corporation partner's distributive share of the gain or 
loss in the transferred property. If the partnership were to elect 
deemed sale treatment under paragraph (c) of this section in lieu of 
section 1374 treatment under paragraph (b) of this section with respect 
to such transfer, then any net gain recognized by the partnership on the 
deemed sale must be allocated to the C corporation partner, but does not 
increase the capital account of any partner. Any adjustment to the 
partnership's basis in the RIC or REIT stock as a result of deemed sale 
treatment under paragraph (c) of this section shall constitute an 
adjustment to the basis of that stock with respect to the C corporation 
partner only. The principles of section 743 apply to such basis 
adjustment.
    (f) Effective date. This section applies to conversion transactions 
that occur on or after January 2, 2002. For conversion transactions that 
occurred on or after June 10, 1987, and before January 2, 2002, see 
Sec. Sec. 1.337(d)-5 and 1.337(d)-6.

[T.D. 9047, 68 FR 12822, Mar. 18, 2003]



Sec. 1.338-0  Outline of topics.

    This section lists the captions contained in the regulations under 
section 338 as follows:

 Sec. 1.338-1 General principles; status of old target and new target.

    (a) In general.
    (1) Deemed transaction.
    (2) Application of other rules of law.
    (3) Overview.
    (b) Treatment of target under other provisions of the Internal 
Revenue Code.
    (1) General rule for subtitle A.
    (2) Exceptions for subtitle A.
    (3) General rule for other provisions of the Internal Revenue Code.
    (c) Anti-abuse rule.
    (1) In general.
    (2) Examples.
    (d) Next day rule for post-closing transactions.

Sec. 1.338-2 Nomenclature and definitions; mechanics of the section 338 
                                election.

    (a) Scope.
    (b) Nomenclature.
    (c) Definitions.
    (1) Acquisition date.
    (2) Acquisition date assets.
    (3) Affiliated group.
    (4) Common parent.
    (5) Consistency period.
    (6) Deemed asset sale.
    (7) Deemed sale tax consequences.
    (8) Deemed sale return.
    (9) Domestic corporation.
    (10) Old target's final return.
    (11) Purchasing corporation.
    (12) Qualified stock purchase.
    (13) Related persons.
    (14) Section 338 election.
    (15) Section 338(h)(10) election.
    (16) Selling group.
    (17) Target; old target; new target.
    (18) Target affiliate.
    (19) 12-month acquisition period.
    (d) Time and manner of making election.
    (e) Special rules for foreign corporations or DISCs.
    (1) Elections by certain foreign purchasing corporations.
    (i) General rule.
    (ii) Qualifying foreign purchasing corporation.
    (iii) Qualifying foreign target.
    (iv) Triggering event.
    (v) Subject to United States tax.
    (2) Acquisition period.
    (3) Statement of section 338 may be filed by United States 
shareholders in certain cases.
    (4) Notice requirement for U.S. persons holding stock in foreign 
target.
    (i) General rule.
    (ii) Limitation.

[[Page 94]]

    (iii) Form of notice.
    (iv) Timing of notice.
    (v) Consequence of failure to comply.
    (vi) Good faith effort to comply.

        Sec. 1.338-3 Qualification for the section 338 election.

    (a) Scope.
    (b) Rules relating to qualified stock purchases.
    (1) Purchasing corporation requirement.
    (2) Purchase.
    (3) Acquisitions of stock from related corporations.
    (i) In general.
    (ii) Time for testing relationship.
    (iii) Cases where section 338(h)(3)(C) applies--acquisitions treated 
as purchases.
    (iv) Examples.
    (4) Acquisition date for tiered targets.
    (i) Stock sold in deemed asset sale.
    (ii) Examples.
    (5) Effect of redemptions.
    (i) General rule.
    (ii) Redemptions from persons unrelated to the purchasing 
corporation.
    (iii) Redemptions from the purchasing corporation or related persons 
during 12-month acquisition period.
    (A) General rule.
    (B) Exception for certain redemptions from related corporations.
    (iv) Examples.
    (c) Effect of post-acquisition events on eligibility for section 338 
election.
    (1) Post-acquisition elimination of target.
    (2) Post-acquisition elimination of the purchasing corporation.
    (d) Consequences of post-acquisition elimination of target where 
section 338 election not made.
    (1) Scope.
    (2) Continuity of interest.
    (3) Control requirement.
    (4) Solely for voting stock requirement.
    (5) Example.

 Sec. 1.338-4 Aggregate deemed sale price; various aspects of taxation 
                        of the deemed asset sale.

    (a) Scope.
    (b) Determination of ADSP.
    (1) General rule.
    (2) Time and amount of ADSP.
    (i) Original determination.
    (ii) Redetermination of ADSP.
    (iii) Example.
    (c) Grossed-up amount realized on the sale to the purchasing 
corporation of the purchasing corporation's recently purchased target 
stock.
    (1) Determination of amount.
    (2) Example.
    (d) Liabilities of old target.
    (1) In general.
    (2) Time and amount of liabilities.
    (e) Deemed sale tax consequences.
    (f) Other rules apply in determining ADSP.
    (g) Examples.
    (h) Deemed sale of target affiliate stock.
    (1) Scope.
    (2) In general.
    (3) Deemed sale of foreign target affiliate by a domestic target.
    (4) Deemed sale producing effectively connected income.
    (5) Deemed sale of insurance company target affiliate electing under 
section 953(d).
    (6) Deemed sale of DISC target affiliate.
    (7) Anti-stuffing rule.
    (8) Examples.

                Sec. 1.338-5 Adjusted grossed-up basis.

    (a) Scope.
    (b) Determination of AGUB.
    (1) General rule.
    (2) Time and amount of AGUB.
    (i) Original determination.
    (ii) Redetermination of AGUB.
    (iii) Examples.
    (c) Grossed-up basis of recently purchased stock.
    (d) Basis of nonrecently purchased stock; gain recognition election.
    (1) No gain recognition election.
    (2) Procedure for making gain recognition election.
    (3) Effect of gain recognition election.
    (i) In general.
    (ii) Basis amount.
    (iii) Losses not recognized.
    (iv) Stock subject to election.
    (e) Liabilities of new target.
    (1) In general.
    (2) Time and amount of liabilities.
    (3) Interaction with deemed sale tax consequences.
    (f) Adjustments by the Internal Revenue Service.
    (g) Examples.

     Sec. 1.338-6 Allocation of ADSP and AGUB among target assets.

    (a) Scope.
    (1) In general.
    (2) Fair market value.
    (i) In general.
    (ii) Transaction costs.
    (iii) Internal Revenue Service authority.
    (b) General rule for allocating ADSP and AGUB.
    (1) Reduction in the amount of consideration for Class I assets.
    (2) Other assets.
    (i) In general.
    (ii) Class II assets.
    (iii) Class III assets.
    (iv) Class IV assets.
    (v) Class V assets.
    (vi) Class VI assets.
    (vii) Class VII assets.
    (3) Other items designated by the Internal Revenue Service.

[[Page 95]]

    (c) Certain limitations and other rules for allocation to an asset.
    (1) Allocation not to exceed fair market value.
    (2) Allocation subject to other rules.
    (3) Special rule for allocating AGUB when purchasing corporation has 
nonrecently purchased stock.
    (i) Scope.
    (ii) Determination of hypothetical purchase price.
    (iii) Allocation of AGUB.
    (4) Liabilities taken into account in determining amount realized on 
subsequent disposition.
    (5) Allocation to certain nuclear decommissioning funds. [Reserved]
    (d) Examples.

     Sec. 1.338-6T Allocation of ADSP and AGUB among target assets 
                              (temporary).

    (a) through (c)(4) [Reserved]
    (c)(5) Allocation to certain nuclear decommissioning funds.
    (d) [Reserved]

  Sec. 1.338-7 Allocation of redetermined ADSP and AGUB among target 
                                 assets.

    (a) Scope.
    (b) Allocation of redetermined ADSP and AGUB.
    (c) Special rules for ADSP.
    (1) Increases or decreases in deemed sale tax consequences taxable 
notwithstanding old target ceases to exist.
    (2) Procedure for transactions in which section 338(h)(10) is not 
elected.
    (i) Deemed sale tax consequences included in new target's return.
    (ii) Carryovers and carrybacks.
    (A) Loss carryovers to new target taxable years.
    (B) Loss carrybacks to taxable years of old target.
    (C) Credit carryovers and carrybacks.
    (3) Procedure for transactions in which section 338(h)(10) is 
elected.
    (d) Special rules for AGUB.
    (1) Effect of disposition or depreciation of acquisition date 
assets.
    (2) Section 38 property.
    (e) Examples.

               Sec. 1.338-8 Asset and stock consistency.

    (a) Introduction.
    (1) Overview.
    (2) General application.
    (3) Extension of the general rules.
    (4) Application where certain dividends are paid.
    (5) Application to foreign target affiliates.
    (6) Stock consistency.
    (b) Consistency for direct acquisitions.
    (1) General rule.
    (2) Section 338(h)(10) elections.
    (c) Gain from disposition reflected in basis of target stock.
    (1) General rule.
    (2) Gain not reflected if section 338 election made for target.
    (3) Gain reflected by reason of distributions.
    (4) Controlled foreign corporations.
    (5) Gain recognized outside the consolidated group.
    (d) Basis of acquired assets.
    (1) Carryover basis rule.
    (2) Exceptions to carryover basis rule for certain assets.
    (3) Exception to carryover basis rule for de minimis assets.
    (4) Mitigation rule.
    (i) General rule.
    (ii) Time for transfer.
    (e) Examples.
    (1) In general.
    (2) Direct acquisitions.
    (f) Extension of consistency to indirect acquisitions.
    (1) Introduction.
    (2) General rule.
    (3) Basis of acquired assets.
    (4) Examples.
    (g) Extension of consistency if dividends qualifying for 100 percent 
dividends received deduction are paid.
    (1) General rule for direct acquisitions from target.
    (2) Other direct acquisitions having same effect.
    (3) Indirect acquisitions.
    (4) Examples.
    (h) Consistency for target affiliates that are controlled foreign 
corporations.
    (1) In general.
    (2) Income or gain resulting from asset dispositions.
    (i) General rule.
    (ii) Basis of controlled foreign corporation stock.
    (iii) Operating rule.
    (iv) Increase in asset or stock basis.
    (3) Stock issued by target affiliate that is a controlled foreign 
corporation.
    (4) Certain distributions.
    (i) General rule.
    (ii) Basis of controlled foreign corporation stock.
    (iii) Increase in asset or stock basis.
    (5) Examples.
    (i) [Reserved]
    (j) Anti-avoidance rules.
    (1) Extension of consistency period.
    (2) Qualified stock purchase and 12-month acquisition period.
    (3) Acquisitions by conduits.
    (i) Asset ownership.
    (A) General rule.
    (B) Application of carryover basis rule.
    (ii) Stock acquisitions.
    (A) Purchase by conduit.
    (B) Purchase of conduit by corporation.

[[Page 96]]

    (C) Purchase of conduit by conduit.
    (4) Conduit.
    (5) Existence of arrangement.
    (6) Predecessor and successor.
    (i) Persons.
    (ii) Assets.
    (7) Examples.

           Sec. 1.338-9 International aspects of section 338.

    (a) Scope.
    (b) Application of section 338 to foreign targets.
    (1) In general.
    (2) Ownership of FT stock on the acquisition date.
    (3) Carryover FT stock.
    (i) Definition.
    (ii) Carryover of earnings and profits.
    (iii) Cap on carryover of earnings and profits.
    (iv) Post-acquisition date distribution of old FT earnings and 
profits.
    (v) Old FT earnings and profits unaffected by post-acquisition date 
deficits.
    (vi) Character of FT stock as carryover FT stock eliminated upon 
disposition.
    (4) Passive foreign investment company stock.
    (c) Dividend treatment under section 1248(e).
    (d) Allocation of foreign taxes.
    (e) Operation of section 338(h)(16). [Reserved]
    (f) Examples.

                    Sec. 1.338-10 Filing of returns.

    (a) Returns including tax liability from deemed asset sale.
    (1) In general.
    (2) Old target's final taxable year otherwise included in 
consolidated return of selling group.
    (i) General rule.
    (ii) Separate taxable year.
    (iii) Carryover and carryback of tax attributes.
    (iv) Old target is a component member of purchasing corporation's 
controlled group.
    (3) Old target is an S corporation.
    (4) Combined deemed sale return.
    (i) General rule.
    (ii) Gain and loss offsets.
    (iii) Procedure for filing a combined return.
    (iv) Consequences of filing a combined return.
    (5) Deemed sale excluded from purchasing corporation's consolidated 
return.
    (6) Due date for old target's final return.
    (i) General rule.
    (ii) Application of Sec. 1.1502-76(c).
    (A) In general.
    (B) Deemed extension.
    (C) Erroneous filing of deemed sale return.
    (D) Erroneous filing of return for regular tax year.
    (E) Last date for payment of tax.
    (7) Examples.
    (b) Waiver.
    (1) Certain additions to tax.
    (2) Notification.
    (3) Elections or other actions required to be specified on a timely 
filed return.
    (i) In general.
    (ii) New target in purchasing corporation's consolidated return.
    (4) Examples.

         Sec. 1.338(h)(10)-1 Deemed asset sale and liquidation.

    (a) Scope.
    (b) Definitions.
    (1) Consolidated target.
    (2) Selling consolidated group.
    (3) Selling affiliate; affiliated target.
    (4) S corporation target.
    (5) S corporation shareholders.
    (6) Liquidation.
    (c) Section 338(h)(10) election.
    (1) In general.
    (2) Simultaneous joint election requirement.
    (3) Irrevocability.
    (4) Effect of invalid election.
    (d) Certain consequences of section 338(h)(10) election.
    (1) P.
    (2) New T.
    (3) Old T--deemed sale.
    (i) In general.
    (ii) Tiered targets.
    (4) Old T and selling consolidated group, selling affiliate, or S 
corporation shareholders--deemed liquidation; tax characterization.
    (i) In general.
    (ii) Tiered targets.
    (5) Selling consolidated group, selling affiliate, or S corporation 
shareholders.
    (i) In general.
    (ii) Basis and holding period of T stock not acquired.
    (iii) T stock sale.
    (6) Nonselling minority shareholders other than nonselling S 
corporation shareholders.
    (i) In general.
    (ii) T stock sale.
    (iii) T stock not acquired.
    (7) Consolidated return of selling consolidated group.
    (8) Availability of the section 453 installment method.
    (i) In deemed asset sale.
    (ii) In deemed liquidation.
    (9) Treatment consistent with an actual asset sale.
    (e) Examples.
    (f) Inapplicability of provisions.
    (g) Required information.

[[Page 97]]

                    Sec. 1.338(i)-1 Effective dates.

[T.D. 8940, 66 FR 9929, Feb. 13, 2001, as amended by T.D. 9158, 70 FR 
55741, Sept. 16, 2004]



Sec. 1.338-1  General principles; status of old target and new target.

    (a) In general--(1) Deemed transaction. Elections are available 
under section 338 when a purchasing corporation acquires the stock of 
another corporation (the target) in a qualified stock purchase. One type 
of election, under section 338(g), is available to the purchasing 
corporation. Another type of election, under section 338(h)(10), is, in 
more limited circumstances, available jointly to the purchasing 
corporation and the sellers of the stock. (Rules concerning eligibility 
for these elections are contained in Sec. Sec. 1.338-2, 1.338-3, and 
1.338(h)(10)-1.) Although target is a single corporation under corporate 
law, if a section 338 election is made, then two separate corporations, 
old target and new target, generally are considered to exist for 
purposes of subtitle A of the Internal Revenue Code. Old target is 
treated as transferring all of its assets to an unrelated person in 
exchange for consideration that includes the discharge of its 
liabilities (see Sec. 1.1001-2(a)), and new target is treated as 
acquiring all of its assets from an unrelated person in exchange for 
consideration that includes the assumption of those liabilities. (Such 
transaction is, without regard to its characterization for Federal 
income tax purposes, referred to as the deemed asset sale and the income 
tax consequences thereof as the deemed sale tax consequences.) If a 
section 338(h)(10) election is made, old target is deemed to liquidate 
following the deemed asset sale.
    (2) Application of other rules of law. Other rules of law apply to 
determine the tax consequences to the parties as if they had actually 
engaged in the transactions deemed to occur under section 338 and the 
regulations thereunder except to the extent otherwise provided in those 
regulations. See also Sec. 1.338-6(c)(2). Other rules of law may 
characterize the transaction as something other than or in addition to a 
sale and purchase of assets; however, the transaction between old and 
new target must be a taxable transaction. For example, if target is an 
insurance company for which a section 338 election is made, the deemed 
asset sale would be characterized and taxed as an assumption-reinsurance 
transaction under applicable Federal income tax law. See Sec. 1.817-
4(d).
    (3) Overview. Definitions and special nomenclature and rules for 
making the section 338 election are provided in Sec. 1.338-2. 
Qualification for the section 338 election is addressed in Sec. 1.338-
3. The amount for which old target is treated as selling all of its 
assets (the aggregate deemed sale price, or ADSP) is addressed in Sec. 
1.338-4. The amount for which new target is deemed to have purchased all 
its assets (the adjusted grossed-up basis, or AGUB) is addressed in 
Sec. 1.338-5. Section 1.338-6 addresses allocation both of ADSP among 
the assets old target is deemed to have sold and of AGUB among the 
assets new target is deemed to have purchased. Section 1.338-7 addresses 
allocation of ADSP or AGUB when those amounts subsequently change. Asset 
and stock consistency are addressed in Sec. 1.338-8. International 
aspects of section 338 are covered in Sec. 1.338-9. Rules for the 
filing of returns are provided in Sec. 1.338-10. Eligibility for and 
treatment of section 338(h)(10) elections is addressed in Sec. 
1.338(h)(10)-1.
    (b) Treatment of target under other provisions of the Internal 
Revenue Code--(1) General rule for subtitle A. Except as provided in 
this section, new target is treated as a new corporation that is 
unrelated to old target for purposes of subtitle A of the Internal 
Revenue Code. Thus--
    (i) New target is not considered related to old target for purposes 
of section 168 and may make new elections under section 168 without 
taking into account the elections made by old target; and
    (ii) New target may adopt, without obtaining prior approval from the 
Commissioner, any taxable year that meets the requirements of section 
441 and any method of accounting that meets the requirements of section 
446. Notwithstanding Sec. 1.441-1T(b)(2), a new target may adopt a 
taxable year on or before the last day for making the election under 
section 338 by filing its first return for the desired taxable year on 
or before that date.

[[Page 98]]

    (2) Exceptions for subtitle A. New target and old target are treated 
as the same corporation for purposes of--
    (i) The rules applicable to employee benefit plans (including those 
plans described in sections 79, 104, 105, 106, 125, 127, 129, 132, 137, 
and 220), qualified pension, profit-sharing, stock bonus and annuity 
plans (sections 401(a) and 403(a)), simplified employee pensions 
(section 408(k)), tax qualified stock option plans (sections 422 and 
423), welfare benefit funds (sections 419, 419A, 512(a)(3), and 4976), 
and voluntary employee benefit associations (section 501(c)(9) and the 
regulations thereunder);
    (ii) Sections 1311 through 1314 (relating to the mitigation of the 
effect of limitations), if a section 338(h)(10) election is not made for 
target;
    (iii) Section 108(e)(5) (relating to the reduction of purchase money 
debt);
    (iv) Section 45A (relating to the Indian Employment Credit), section 
51 (relating to the Work Opportunity Credit), section 51A (relating to 
the Welfare to Work Credit), and section 1396 (relating to the 
Empowerment Zone Act);
    (v) Sections 401(h) and 420 (relating to medical benefits for 
retirees);
    (vi) Section 414 (relating to definitions and special rules); and
    (vii) Any other provision designated in the Internal Revenue 
Bulletin by the Internal Revenue Service. See Sec. 601.601(d)(2)(ii) of 
this chapter. See, for example, Sec. 1.1001-3(e)(4)(i)(F) providing 
that an election under section 338 does not result in the substitution 
of a new obligor on target's debt. See also, for example, Sec. 1.1502-
77(e)(4), providing that an election under section 338 does not result 
in a deemed termination of target's existence for purposes of the rules 
applicable to the agent for a consolidated group.
    (3) General rule for other provisions of the Internal Revenue Code. 
Except as provided in the regulations under section 338 or in the 
Internal Revenue Bulletin by the Internal Revenue Service (see Sec. 
601.601(d)(2)(ii) of this chapter), new target is treated as a 
continuation of old target for purposes other than subtitle A of the 
Internal Revenue Code. For example--
    (i) New target is liable for old target's Federal income tax 
liabilities, including the tax liability for the deemed sale tax 
consequences and those tax liabilities of the other members of any 
consolidated group that included old target that are attributable to 
taxable years in which those corporations and old target joined in the 
same consolidated return (see Sec. 1.1502-6(a));
    (ii) Wages earned by the employees of old target are considered 
wages earned by such employees from new target for purposes of sections 
3101 and 3111 (Federal Insurance Contributions Act) and section 3301 
(Federal Unemployment Tax Act); and
    (iii) Old target and new target must use the same employer 
identification number.
    (c) Anti-abuse rule--(1) In general. The rules of this paragraph (c) 
apply for purposes of applying the residual method as provided for under 
the regulations under sections 338 and 1060. The Commissioner is 
authorized to treat any property (including cash) transferred by old 
target in connection with the transactions resulting in the application 
of the residual method (and not held by target at the close of the 
acquisition date) as, nonetheless, property of target at the close of 
the acquisition date if the property so transferred is, within 24 months 
after the deemed asset sale, owned by new target, or is owned, directly 
or indirectly, by a member of the affiliated group of which new target 
is a member and continues after the acquisition date to be held or used 
primarily in connection with one or more of the activities of new 
target. In addition, the Commissioner is authorized to treat any 
property (including cash) transferred to old target in connection with 
the transactions resulting in the application of the residual method 
(and held by target at the close of the acquisition date) as, 
nonetheless, not being property of target at the close of the 
acquisition date if the property so transferred is, within 24 months 
after the deemed asset sale, not owned by new target but owned, directly 
or indirectly, by a member of the affiliated group of which new target 
is a member, or owned by new target but held or used

[[Page 99]]

primarily in connection with an activity conducted, directly or 
indirectly, by another member of the affiliated group of which new 
target is a member in combination with other property retained by or 
acquired, directly or indirectly, from the transferor of the property 
(or a member of the same affiliated group) to old target. For purposes 
of this paragraph (c)(1), an interest in an entity is considered held or 
used in connection with an activity if property of the entity is so held 
or used. The authority of the Commissioner under this paragraph (c)(1) 
includes the making of any appropriate correlative adjustments 
(avoiding, to the extent possible, the duplication or omission of any 
item of income, gain, loss, deduction, or basis).
    (2) Examples. The following examples illustrate this paragraph (c):

    Example 1. Prior to a qualified stock purchase under section 338, 
target transfers one of its assets to a related party. The purchasing 
corporation then purchases the target stock and also purchases the 
transferred asset from the related party. After its purchase of target, 
the purchasing corporation and target are members of the same affiliated 
group. A section 338 election is made. Under an arrangement with the 
purchaser, the separately transferred asset is used primarily in 
connection with target's activities. Applying the anti-abuse rule of 
this paragraph (c), the Commissioner may consider target to own the 
transferred asset for purposes of applying the residual method under 
section 338.
    Example 2. T owns all the stock of T1. T1 leases intellectual 
property to T, which T uses in connection with its own activities. P, a 
purchasing corporation, wishes to buy the T-T1 chain of corporations. P, 
in connection with its planned purchase of the T stock, contracts to 
consummate a purchase of all the stock of T1 on March 1 and of all the 
stock of T on March 2. Section 338 elections are thereafter made for 
both T and T1. Immediately after the purchases, P, T and T1 are members 
of the same affiliated group. T continues to lease the intellectual 
property from T1 and that is the primary use of the intellectual 
property. Thus, an asset of T, the T1 stock, was removed from T's own 
assets prior to the qualified stock purchase of the T stock, T1's own 
assets are used after the deemed asset sale in connection with T's own 
activities, and the T1 stock is after the deemed asset sale owned by P, 
a member of the same affiliated group of which T is a member. Applying 
the anti-abuse rule of this paragraph (c), the Commissioner may, for 
purposes of application of the residual method under section 338 both to 
T and to T1, consider P to have bought only the stock of T, with T at 
the time of the qualified stock purchases of both T and T1 (the 
qualified stock purchase of T1 being triggered by the deemed sale under 
section 338 of T's assets) owning T1. The Commissioner accordingly would 
allocate consideration to T's assets as though the T1 stock were one of 
those assets, and then allocate consideration within T1 based on the 
amount allocated to the T1 stock at the T level.

    (d) Next day rule for post-closing transactions. If a target 
corporation for which an election under section 338 is made engages in a 
transaction outside the ordinary course of business on the acquisition 
date after the event resulting in the qualified stock purchase of the 
target or a higher tier corporation, the target and all persons related 
thereto (either before or after the qualified stock purchase) under 
section 267(b) or section 707 must treat the transaction for all Federal 
income tax purposes as occurring at the beginning of the day following 
the transaction and after the deemed purchase by new target.

[T.D. 8940, 66 FR 9929, Feb. 13, 2001, as amended by T.D. 9002, 67 FR 
43540, June 28, 2002]



Sec. 1.338-2  Nomenclature and definitions; mechanics of the section 
338 election.

    (a) Scope. This section prescribes rules relating to elections under 
section 338.
    (b) Nomenclature. For purposes of the regulations under section 338 
(except as otherwise provided):
    (1) T is a domestic target corporation that has only one class of 
stock outstanding. Old T refers to T for periods ending on or before the 
close of T's acquisition date; new T refers to T for subsequent periods.
    (2) P is the purchasing corporation.
    (3) The P group is an affiliated group of which P is a member.
    (4) P1, P2, etc., are domestic corporations that are members of the 
P group.
    (5) T1, T2, etc., are domestic corporations that are target 
affiliates of T. These corporations (T1, T2, etc.) have only one class 
of stock outstanding and may also be targets.
    (6) S is a domestic corporation (unrelated to P and B) that owns T 
prior to

[[Page 100]]

the purchase of T by P. (S is referred to in cases in which it is 
appropriate to consider the effects of having all of the outstanding 
stock of T owned by a domestic corporation.)
    (7) A, a U.S. citizen or resident, is an individual (unrelated to P 
and B) who owns T prior to the purchase of T by P. (A is referred to in 
cases in which it is appropriate to consider the effects of having all 
of the outstanding stock of T owned by an individual who is a U.S. 
citizen or resident. Ownership of T by A and ownership of T by S are 
mutually exclusive circumstances.)
    (8) B, a U.S. citizen or resident, is an individual (unrelated to T, 
S, and A) who owns the stock of P.
    (9) F, used as a prefix with the other terms in this paragraph (b), 
connotes foreign, rather than domestic, status. For example, FT is a 
foreign corporation (as defined in section 7701(a)(5)) and FA is an 
individual other than a U.S. citizen or resident.
    (10) CFC, used as a prefix with the other terms in this paragraph 
(b) referring to a corporation, connotes a controlled foreign 
corporation (as defined in section 957, taking into account section 
953(c)). A corporation identified with the prefix F may be a controlled 
foreign corporation. (The prefix CFC is used when the corporation's 
status as a controlled foreign corporation is significant.)
    (c) Definitions. For purposes of the regulations under section 338 
(except as otherwise provided):
    (1) Acquisition date. The term acquisition date has the same meaning 
as in section 338(h)(2).
    (2) Acquisition date assets. Acquisition date assets are the assets 
of the target held at the beginning of the day after the acquisition 
date (but see Sec. 1.338-1(d) (regarding certain transactions on the 
acquisition date)).
    (3) Affiliated group. The term affiliated group has the same meaning 
as in section 338(h)(5). Corporations are affiliated on any day they are 
members of the same affiliated group.
    (4) Common parent. The term common parent has the same meaning as in 
section 1504.
    (5) Consistency period. The consistency period is the period 
described in section 338(h)(4)(A) unless extended pursuant to Sec. 
1.338-8(j)(1).
    (6) Deemed asset sale. The deemed asset sale is the transaction 
described in Sec. 1.338-1(a)(1) that is deemed to occur for purposes of 
subtitle A of the Internal Revenue Code if a section 338 election is 
made.
    (7) Deemed sale tax consequences. Deemed sale tax consequences 
refers to, in the aggregate, the Federal income tax consequences 
(generally, the income, gain, deduction, and loss) of the deemed asset 
sale. Deemed sale tax consequences also refers to the Federal income tax 
consequences of the transfer of a particular asset in the deemed asset 
sale.
    (8) Deemed sale return. The deemed sale return is the return on 
which target's deemed sale tax consequences are reported that does not 
include any other items of target. Target files a deemed sale return 
when a section 338 election (but not a section 338(h)(10) election) is 
filed for target and target is a member of a selling group (defined in 
paragraph (c)(16) of this section) that files a consolidated return for 
the period that includes the acquisition date. See Sec. 1.338-10. If 
target is an S corporation for the period that ends on the day before 
the acquisition date and a section 338 election (but not a section 
338(h)(10) election) is filed for target, see Sec. 1.338-10(a)(3).
    (9) Domestic corporation. A domestic corporation is a corporation--
    (i) That is domestic within the meaning of section 7701(a)(4) or 
that is treated as domestic for purposes of subtitle A of the Internal 
Revenue Code (e.g., to which an election under section 953(d) or 1504(d) 
applies); and
    (ii) That is not a DISC, a corporation described in section 1248(e), 
or a corporation to which an election under section 936 applies.
    (10) Old target's final return. Old target's final return is the 
income tax return of old target for the taxable year ending at the close 
of the acquisition date that includes the deemed sale tax consequences. 
However, if a deemed sale return is filed for old target, the deemed 
sale return is considered old target's final return.
    (11) Purchasing corporation. The term purchasing corporation has the 
same

[[Page 101]]

meaning as in section 338(d)(1). The purchasing corporation may also be 
referred to as purchaser. Unless otherwise provided, any reference to 
the purchasing corporation is a reference to all members of the 
affiliated group of which the purchasing corporation is a member. See 
sections 338(h)(5) and (8). Also, unless otherwise provided, any 
reference to the purchasing corporation is, with respect to a deemed 
purchase of stock under section 338(a)(2), a reference to new target 
with respect to its own deemed purchase of stock in another target.
    (12) Qualified stock purchase. The term qualified stock purchase has 
the same meaning as in section 338(d)(3).
    (13) Related persons. Two persons are related if stock in a 
corporation owned by one of the persons would be attributed under 
section 318(a) (other than section 318(a)(4)) to the other.
    (14) Section 338 election. A section 338 election is an election to 
apply section 338(a) to target. A section 338 election is made by filing 
a statement of section 338 election pursuant to paragraph (d) of this 
section. The form on which this statement is filed is referred to in the 
regulations under section 338 as the Form 8023, ``Elections Under 
Section 338 For Corporations Making Qualified Stock Purchases.''
    (15) Section 338(h)(10) election. A section 338(h)(10) election is 
an election to apply section 338(h)(10) to target. A section 338(h)(10) 
election is made by making a joint election for target under Sec. 
1.338(h)(10)-1 on Form 8023.
    (16) Selling group. The selling group is the affiliated group (as 
defined in section 1504) eligible to file a consolidated return that 
includes target for the taxable period in which the acquisition date 
occurs. However, a selling group is not an affiliated group of which 
target is the common parent on the acquisition date.
    (17) Target; old target; new target. Target is the target 
corporation as defined in section 338(d)(2). Old target refers to target 
for periods ending on or before the close of target's acquisition date. 
New target refers to target for subsequent periods.
    (18) Target affiliate. The term target affiliate has the same 
meaning as in section 338(h)(6) (applied without section 
338(h)(6)(B)(i)). Thus, a corporation described in section 
338(h)(6)(B)(i) is considered a target affiliate for all purposes of 
section 338. If a target affiliate is acquired in a qualified stock 
purchase, it is also a target.
    (19) 12-month acquisition period. The 12-month acquisition period is 
the period described in section 338(h)(1), unless extended pursuant to 
Sec. 1.338-8(j)(2).
    (d) Time and manner of making election. The purchasing corporation 
makes a section 338 election for target by filing a statement of section 
338 election on Form 8023 in accordance with the instructions to the 
form. The section 338 election must be made not later than the 15th day 
of the 9th month beginning after the month in which the acquisition date 
occurs. A section 338 election is irrevocable. See Sec. 1.338(h)(10)-
1(c)(2) for section 338(h)(10) elections.
    (e) Special rules for foreign corporations or DISCs--(1) Elections 
by certain foreign purchasing corporations--(i) General rule. A 
qualifying foreign purchasing corporation is not required to file a 
statement of section 338 election for a qualifying foreign target before 
the earlier of 3 years after the acquisition date and the 180th day 
after the close of the purchasing corporation's taxable year within 
which a triggering event occurs.
    (ii) Qualifying foreign purchasing corporation. A purchasing 
corporation is a qualifying foreign purchasing corporation only if, 
during the acquisition period of a qualifying foreign target, all the 
corporations in the purchasing corporation's affiliated group are 
foreign corporations that are not subject to United States tax.
    (iii) Qualifying foreign target. A target is a qualifying foreign 
target only if target and its target affiliates are foreign corporations 
that, during target's acquisition period, are not subject to United 
States tax (and will not become subject to United States tax during such 
period because of a section 338 election). A target affiliate is taken 
into account for purposes of the preceding sentence only if, during 
target's 12-month acquisition period, it is or becomes a member of the 
affiliated group that includes the purchasing corporation.

[[Page 102]]

    (iv) Triggering event. A triggering event occurs in the taxable year 
of the qualifying foreign purchasing corporation in which either that 
corporation or any corporation in its affiliated group becomes subject 
to United States tax.
    (v) Subject to United States tax. For purposes of this paragraph 
(e)(1), a foreign corporation is considered subject to United States 
tax--
    (A) For the taxable year for which that corporation is required 
under Sec. 1.6012-2(g) (other than Sec. 1.6012-2(g)(2)(i)(B)(2)) to 
file a United States income tax return; or
    (B) For the period during which that corporation is a controlled 
foreign corporation, a passive foreign investment company for which an 
election under section 1295 is in effect, a foreign investment company, 
or a foreign corporation the stock ownership of which is described in 
section 552(a)(2).
    (2) Acquisition period. For purposes of this paragraph (e), the term 
acquisition period means the period beginning on the first day of the 
12-month acquisition period and ending on the acquisition date.
    (3) Statement of section 338 election may be filed by United States 
shareholders in certain cases. The United States shareholders (as 
defined in section 951(b)) of a foreign purchasing corporation that is a 
controlled foreign corporation (as defined in section 957 (taking into 
account section 953(c))) may file a statement of section 338 election on 
behalf of the purchasing corporation if the purchasing corporation is 
not required under Sec. 1.6012-2(g) (other than Sec. 1.6012-
2(g)(2)(i)(B)(2)) to file a United States income tax return for its 
taxable year that includes the acquisition date. Form 8023 must be filed 
as described in the form and its instructions and also must be attached 
to the Form 5471, ``Information Returns of U.S. Persons With Respect to 
Certain Foreign Corporations,'' filed with respect to the purchasing 
corporation by each United States shareholder for the purchasing 
corporation's taxable year that includes the acquisition date (or, if 
paragraph (e)(1)(i) of this section applies to the election, for the 
purchasing corporation's taxable year within which it becomes a 
controlled foreign corporation). The provisions of Sec. 1.964-1(c) 
(including Sec. 1.964-1(c)(7)) do not apply to an election made by the 
United States shareholders.
    (4) Notice requirement for U.S. persons holding stock in foreign 
target--(i) General rule. If a target subject to a section 338 election 
was a controlled foreign corporation, a passive foreign investment 
company, or a foreign personal holding company at any time during the 
portion of its taxable year that ends on its acquisition date, the 
purchasing corporation must deliver written notice of the election (and 
a copy of Form 8023, its attachments and instructions) to--
    (A) Each U.S. person (other than a member of the affiliated group of 
which the purchasing corporation is a member (the purchasing group 
member)) that, on the acquisition date of the foreign target, holds 
stock in the foreign target; and
    (B) Each U.S. person (other than a purchasing group member) that 
sells stock in the foreign target to a purchasing group member during 
the foreign target's 12-month acquisition period.
    (ii) Limitation. The notice requirement of this paragraph (e)(4) 
applies only where the section 338 election for the foreign target 
affects income, gain, loss, deduction, or credit of the U.S. person 
described in paragraph (e)(4)(i) of this section under section 551, 951, 
1248, or 1293.
    (iii) Form of notice. The notice to U.S. persons must be identified 
prominently as a notice of section 338 election and must--
    (A) Contain the name, address, and employer identification number 
(if any) of, and the country (and, if relevant, the lesser political 
subdivision) under the laws of which are organized the purchasing 
corporation and the relevant target (i.e., the target the stock of which 
the particular U.S. person held or sold under the circumstances 
described in paragraph (e)(4)(i) of this section);
    (B) Identify those corporations as the purchasing corporation and 
the foreign target, respectively; and
    (C) Contain the following declaration (or a substantially similar 
declaration):


[[Page 103]]


    THIS DOCUMENT SERVES AS NOTICE OF AN ELECTION UNDER SECTION 338 FOR 
THE ABOVE CITED FOREIGN TARGET THE STOCK OF WHICH YOU EITHER HELD OR 
SOLD UNDER THE CIRCUMSTANCES DESCRIBED IN TREASURY REGULATIONS SECTION 
1.338-2(e)(4). FOR POSSIBLE UNITED STATES FEDERAL INCOME TAX 
CONSEQUENCES UNDER SECTION 551, 951, 1248, OR 1293 OF THE INTERNAL 
REVENUE CODE OF 1986 THAT MAY APPLY TO YOU, SEE TREASURY REGULATIONS 
SECTION 1.338-9(b). YOU MAY BE REQUIRED TO ATTACH THE INFORMATION 
ATTACHED TO THIS NOTICE TO CERTAIN RETURNS.

    (iv) Timing of notice. The notice required by this paragraph (e)(4) 
must be delivered to the U.S. person on or before the later of the 120th 
day after the acquisition date of the particular target or the day on 
which Form 8023 is filed. The notice is considered delivered on the date 
it is mailed to the proper address (or an address similar enough to 
complete delivery), unless the date it is mailed cannot be reasonably 
determined. The date of mailing will be determined under the rules of 
section 7502. For example, the date of mailing is the date of U.S. 
postmark or the applicable date recorded or marked by a designated 
delivery service.
    (v) Consequence of failure to comply. A statement of section 338 
election is not valid if timely notice is not given to one or more U.S. 
persons described in this paragraph (e)(4). If the form of notice fails 
to comply with all requirements of this paragraph (e)(4), the section 
338 election is valid, but the waiver rule of Sec. 1.338-10(b)(1) does 
not apply.
    (vi) Good faith effort to comply. The purchasing corporation will be 
considered to have complied with this paragraph (e)(4), even though it 
failed to provide notice or provide timely notice to each person 
described in this paragraph (e)(4), if the Commissioner determines that 
the purchasing corporation made a good faith effort to identify and 
provide timely notice to those U.S. persons.

[T.D. 8940, 66 FR 9929, Feb. 13, 2001]



Sec. 1.338-3  Qualification for the section 338 election.

    (a) Scope. This section provides rules on whether certain 
acquisitions of stock are qualified stock purchases and on other 
miscellaneous issues under section 338.
    (b) Rules relating to qualified stock purchases--(1) Purchasing 
corporation requirement. An individual cannot make a qualified stock 
purchase of target. Section 338(d)(3) requires, as a condition of a 
qualified stock purchase, that a corporation purchase the stock of 
target. If an individual forms a corporation (new P) to acquire target 
stock, new P can make a qualified stock purchase of target if new P is 
considered for tax purposes to purchase the target stock. Facts that may 
indicate that new P does not purchase the target stock include new P's 
merging downstream into target, liquidating, or otherwise disposing of 
the target stock following the purported qualified stock purchase.
    (2) Purchase. The term purchase has the same meaning as in section 
338(h)(3). Stock in a target (or target affiliate) may be considered 
purchased if, under general principles of tax law, the purchasing 
corporation is considered to own stock of the target (or target 
affiliate) meeting the requirements of section 1504(a)(2), 
notwithstanding that no amount may be paid for (or allocated to) the 
stock.
    (3) Acquisitions of stock from related corporations--(i) In general. 
Stock acquired by a purchasing corporation from a related corporation 
(R) is generally not considered acquired by purchase. See section 
338(h)(3)(A)(iii).
    (ii) Time for testing relationship. For purposes of section 
338(h)(3)(A)(iii), a purchasing corporation is treated as related to 
another person if the relationship specified in section 
338(h)(3)(A)(iii) exists--
    (A) In the case of a single transaction, immediately after the 
purchase of target stock;
    (B) In the case of a series of acquisitions otherwise constituting a 
qualified stock purchase within the meaning of section 338(d)(3), 
immediately after the last acquisition in such series; and
    (C) In the case of a series of transactions effected pursuant to an 
integrated plan to dispose of target stock, immediately after the last 
transaction in such series.
    (iii) Cases where section 338(h)(3)(C) applies--acquisitions treated 
as purchases. If section 338(h)(3)(C) applies

[[Page 104]]

and the purchasing corporation is treated as acquiring stock by purchase 
from R, solely for purposes of determining when the stock is considered 
acquired, target stock acquired from R is considered to have been 
acquired by the purchasing corporation on the day on which the 
purchasing corporation is first considered to own that stock under 
section 318(a) (other than section 318(a)(4)).
    (iv) Examples. The following examples illustrate this paragraph 
(b)(3):

    Example 1. (i) S is the parent of a group of corporations that are 
engaged in various businesses. Prior to January 1, Year 1, S decided to 
discontinue its involvement in one line of business. To accomplish this, 
S forms a new corporation, Newco, with a nominal amount of cash. Shortly 
thereafter, on January 1, Year 1, S transfers all the stock of the 
subsidiary conducting the unwanted business (T) to Newco in exchange for 
100 shares of Newco common stock and a Newco promissory note. Prior to 
January 1, Year 1, S and Underwriter (U) had entered into a binding 
agreement pursuant to which U would purchase 60 shares of Newco common 
stock from S and then sell those shares in an Initial Public Offering 
(IPO). On January 6, Year 1, the IPO closes.
    (ii) Newco's acquisition of T stock is one of a series of 
transactions undertaken pursuant to one integrated plan. The series of 
transactions ends with the closing of the IPO and the transfer of all 
the shares of stock in accordance with the agreements. Immediately after 
the last transaction effected pursuant to the plan, S owns 40 percent of 
Newco, which does not give rise to a relationship described in section 
338(h)(3)(A)(iii). See Sec. 1.338-3(b)(3)(ii)(C). Accordingly, S and 
Newco are not related for purposes of section 338(h)(3)(A)(iii).
    (iii) Further, because Newco's basis in the T stock is not 
determined by reference to S's basis in the T stock and because the 
transaction is not an exchange to which section 351, 354, 355, or 356 
applies, Newco's acquisition of the T stock is a purchase within the 
meaning of section 338(h)(3).
    Example 2. (i) On January 1 of Year 1, P purchases 75 percent in 
value of the R stock. On that date, R owns 4 of the 100 shares of T 
stock. On June 1 of Year 1, R acquires an additional 16 shares of T 
stock. On December 1 of Year 1, P purchases 70 shares of T stock from an 
unrelated person and 12 of the 20 shares of T stock held by R.
    (ii) Of the 12 shares of T stock purchased by P from R on December 1 
of Year 1, 3 of those shares are deemed to have been acquired by P on 
January 1 of Year 1, the date on which 3 of the 4 shares of T stock held 
by R on that date were first considered owned by P under section 
318(a)(2)(C) (i.e., 4 x .75). The remaining 9 shares of T stock 
purchased by P from R on December 1 of Year 1 are deemed to have been 
acquired by P on June 1 of Year 1, the date on which an additional 12 of 
the 20 shares of T stock owned by R on that date were first considered 
owned by P under section 318(a)(2)(C) (i.e., (20 x .75)-3). Because 
stock acquisitions by P sufficient for a qualified stock purchase of T 
occur within a 12-month period (i.e., 3 shares constructively on January 
1 of Year 1, 9 shares constructively on June 1 of Year 1, and 70 shares 
actually on December 1 of Year 1), a qualified stock purchase is made on 
December 1 of Year 1.
    Example 3. (i) On February 1 of Year 1, P acquires 25 percent in 
value of the R stock from B (the sole shareholder of P). That R stock is 
not acquired by purchase. See section 338(h)(3)(A)(iii). On that date, R 
owns 4 of the 100 shares of T stock. On June 1 of Year 1, P purchases an 
additional 25 percent in value of the R stock, and on January 1 of Year 
2, P purchases another 25 percent in value of the R stock. On June 1 of 
Year 2, R acquires an additional 16 shares of the T stock. On December 1 
of Year 2, P purchases 68 shares of the T stock from an unrelated person 
and 12 of the 20 shares of the T stock held by R.
    (ii) Of the 12 shares of the T stock purchased by P from R on 
December 1 of Year 2, 2 of those shares are deemed to have been acquired 
by P on June 1 of Year 1, the date on which 2 of the 4 shares of the T 
stock held by R on that date were first considered owned by P under 
section 318(a)(2)(C) (i.e., 4 x .5). For purposes of this attribution, 
the R stock need not be acquired by P by purchase. See section 
338(h)(1). (By contrast, the acquisition of the T stock by P from R does 
not qualify as a purchase unless P has acquired at least 50 percent in 
value of the R stock by purchase. Section 338(h)(3)(C)(i).) Of the 
remaining 10 shares of the T stock purchased by P from R on December 1 
of Year 2, 1 of those shares is deemed to have been acquired by P on 
January 1 of Year 2, the date on which an additional 1 share of the 4 
shares of the T stock held by R on that date was first considered owned 
by P under section 318(a)(2)(C) (i.e., (4 x .75)-2). The remaining 9 
shares of the T stock purchased by P from R on December 1 of Year 2, are 
deemed to have been acquired by P on June 1 of Year 2, the date on which 
an additional 12 shares of the T stock held by R on that date were first 
considered owned by P under section 318(a)(2)(C) (i.e., (20 x .75)-3). 
Because a qualified stock purchase of T by P is made on December 1 of 
Year 2 only if all 12 shares of the T stock purchased by P from R on 
that date are considered acquired during a 12-month period ending on 
that date (so that, in conjunction with the 68 shares of the T stock P 
purchased on that date from the unrelated

[[Page 105]]

person, 80 of T's 100 shares are acquired by P during a 12-month period) 
and because 2 of those 12 shares are considered to have been acquired by 
P more than 12 months before December 1 of Year 2 (i.e., on June 1 of 
Year 1), a qualified stock purchase is not made. (Under Sec. 1.338-
8(j)(2), for purposes of applying the consistency rules, P is treated as 
making a qualified stock purchase of T if, pursuant to an arrangement, P 
purchases T stock satisfying the requirements of section 1504(a)(2) over 
a period of more than 12 months.)
    Example 4. Assume the same facts as in Example 3, except that on 
February 1 of Year 1, P acquires 25 percent in value of the R stock by 
purchase. The result is the same as in Example 3.

    (4) Acquisition date for tiered targets--(i) Stock sold in deemed 
asset sale. If an election under section 338 is made for target, old 
target is deemed to sell target's assets and new target is deemed to 
acquire those assets. Under section 338(h)(3)(B), new target's deemed 
purchase of stock of another corporation is a purchase for purposes of 
section 338(d)(3) on the acquisition date of target. If new target's 
deemed purchase causes a qualified stock purchase of the other 
corporation and if a section 338 election is made for the other 
corporation, the acquisition date for the other corporation is the same 
as the acquisition date of target. However, the deemed sale and purchase 
of the other corporation's assets is considered to take place after the 
deemed sale and purchase of target's assets.
    (ii) Example. The following example illustrates this paragraph 
(b)(4):

    Example. A owns all of the T stock. T owns 50 of the 100 shares of X 
stock. The other 50 shares of X stock are owned by corporation Y, which 
is unrelated to A, T, or P. On January 1 of Year 1, P makes a qualified 
stock purchase of T from A and makes a section 338 election for T. On 
December 1 of Year 1, P purchases the 50 shares of X stock held by Y. A 
qualified stock purchase of X is made on December 1 of Year 1, because 
the deemed purchase of 50 shares of X stock by new T because of the 
section 338 election for T and the actual purchase of 50 shares of X 
stock by P are treated as purchases made by one corporation. Section 
338(h)(8). For purposes of determining whether those purchases occur 
within a 12-month acquisition period as required by section 338(d)(3), T 
is deemed to purchase its X stock on T's acquisition date, i.e., January 
1 of Year 1.

    (5) Effect of redemptions--(i) General rule. Except as provided in 
this paragraph (b)(5), a qualified stock purchase is made on the first 
day on which the percentage ownership requirements of section 338(d)(3) 
are satisfied by reference to target stock that is both--
    (A) Held on that day by the purchasing corporation; and
    (B) Purchased by the purchasing corporation during the 12-month 
period ending on that day.
    (ii) Redemptions from persons unrelated to the purchasing 
corporation. Target stock redemptions from persons unrelated to the 
purchasing corporation that occur during the 12-month acquisition period 
are taken into account as reductions in target's outstanding stock for 
purposes of determining whether target stock purchased by the purchasing 
corporation in the 12-month acquisition period satisfies the percentage 
ownership requirements of section 338(d)(3).
    (iii) Redemptions from the purchasing corporation or related persons 
during 12-month acquisition period--(A) General rule. For purposes of 
the percentage ownership requirements of section 338(d)(3), a redemption 
of target stock during the 12-month acquisition period from the 
purchasing corporation or from any person related to the purchasing 
corporation is not taken into account as a reduction in target's 
outstanding stock.
    (B) Exception for certain redemptions from related corporations. A 
redemption of target stock during the 12-month acquisition period from a 
corporation related to the purchasing corporation is taken into account 
as a reduction in target's outstanding stock to the extent that the 
redeemed stock would have been considered purchased by the purchasing 
corporation (because of section 338(h)(3)(C)) during the 12-month 
acquisition period if the redeemed stock had been acquired by the 
purchasing corporation from the related corporation on the day of the 
redemption. See paragraph (b)(3) of this section.
    (iv) Examples. The following examples illustrate this paragraph 
(b)(5):

    Example 1. QSP on stock purchase date; redemption from unrelated 
person during 12-month period. A owns all 100 shares of T stock. On 
January 1 of Year 1, P purchases 40 shares of the T stock from A. On 
July 1 of

[[Page 106]]

Year 1, T redeems 25 shares from A. On December 1 of Year 1, P purchases 
20 shares of the T stock from A. P makes a qualified stock purchase of T 
on December 1 of Year 1, because the 60 shares of T stock purchased by P 
within the 12-month period ending on that date satisfy the 80-percent 
ownership requirements of section 338(d)(3) (i.e., 60/75 shares), 
determined by taking into account the redemption of 25 shares.
    Example 2. QSP on stock redemption date; redemption from unrelated 
person during 12-month period. The facts are the same as in Example 1, 
except that P purchases 60 shares of T stock on January 1 of Year 1 and 
none on December 1 of Year 1. P makes a qualified stock purchase of T on 
July 1 of Year 1, because that is the first day on which the T stock 
purchased by P within the preceding 12-month period satisfies the 80-
percent ownership requirements of section 338(d)(3) (i.e., 60/75 
shares), determined by taking into account the redemption of 25 shares.
    Example 3. Redemption from purchasing corporation not taken into 
account. On December 15 of Year 1, T redeems 30 percent of its stock 
from P. The redeemed stock was held by P for several years and 
constituted P's total interest in T. On December 1 of Year 2, P 
purchases the remaining T stock from A. P does not make a qualified 
stock purchase of T on December 1 of Year 2. For purposes of the 80-
percent ownership requirements of section 338(d)(3), the redemption of 
P's T stock on December 15 of Year 1 is not taken into account as a 
reduction in T's outstanding stock.
    Example 4. Redemption from related person taken into account. On 
January 1 of Year 1, P purchases 60 of the 100 shares of X stock. On 
that date, X owns 40 of the 100 shares of T stock. On April 1 of Year 1, 
T redeems X's T stock and P purchases the remaining 60 shares of T stock 
from an unrelated person. For purposes of the 80-percent ownership 
requirements of section 338(d)(3), the redemption of the T stock from X 
(a person related to P) is taken into account as a reduction in T's 
outstanding stock. If P had purchased the 40 redeemed shares from X on 
April 1 of Year 1, all 40 of the shares would have been considered 
purchased (because of section 338(h)(3)(C)(i)) during the 12-month 
period ending on April 1 of Year 1 (24 of the 40 shares would have been 
considered purchased by P on January 1 of Year 1 and the remaining 16 
shares would have been considered purchased by P on April 1 of Year 1). 
See paragraph (b)(3) of this section. Accordingly, P makes a qualified 
stock purchase of T on April 1 of Year 1, because the 60 shares of T 
stock purchased by P on that date satisfy the 80-percent ownership 
requirements of section 338(d)(3) (i.e., 60/60 shares), determined by 
taking into account the redemption of 40 shares.

    (c) Effect of post-acquisition events on eligibility for section 338 
election--(1) Post-acquisition elimination of target. (i) The purchasing 
corporation may make an election under section 338 for target even 
though target is liquidated on or after the acquisition date. If target 
liquidates on the acquisition date, the liquidation is considered to 
occur on the following day and immediately after new target's deemed 
purchase of assets. The purchasing corporation may also make an election 
under section 338 for target even though target is merged into another 
corporation, or otherwise disposed of by the purchasing corporation 
provided that, under the facts and circumstances, the purchasing 
corporation is considered for tax purposes as the purchaser of the 
target stock. See Sec. 1.338(h)(10)-1T(c)(2) for special rules 
concerning section 338(h)(10) elections in certain multi-step 
transactions.
    (ii) The following examples illustrate this paragraph (c)(1):

    Example 1. On January 1 of Year 1, P purchases 100 percent of the 
outstanding common stock of T. On June 1 of Year 1, P sells the T stock 
to an unrelated person. Assuming that P is considered for tax purposes 
as the purchaser of the T stock, P remains eligible, after June 1 of 
Year 1, to make a section 338 election for T that results in a deemed 
asset sale of T's assets on January 1 of Year 1.
    Example 2. On January 1 of Year 1, P makes a qualified stock 
purchase of T. On that date, T owns the stock of T1. On March 1 of Year 
1, T sells the T1 stock to an unrelated person. On April 1 of Year 1, P 
makes a section 338 election for T. Notwithstanding that the T1 stock 
was sold on March 1 of Year 1, the section 338 election for T on April 1 
of Year 1 results in a qualified stock purchase by T of T1 on January 1 
of Year 1. See paragraph (b)(4)(i) of this section.

    (2) Post-acquisition elimination of the purchasing corporation. An 
election under section 338 may be made for target after the acquisition 
of assets of the purchasing corporation by another corporation in a 
transaction described in section 381(a), provided that the purchasing 
corporation is considered for tax purposes as the purchaser of the 
target stock. The acquiring corporation in the section 381(a) 
transaction may make an election under section 338 for target.

[[Page 107]]

    (d) Consequences of post-acquisition elimination of target where 
section 338 election not made--(1) Scope. The rules of this paragraph 
(d) apply to the transfer of target assets to the purchasing corporation 
(or another member of the same affiliated group as the purchasing 
corporation) (the transferee) following a qualified stock purchase of 
target stock, if the purchasing corporation does not make a section 338 
election for target. Notwithstanding the rules of this paragraph (d), 
section 354(a) (and so much of section 356 as relates to section 354) 
cannot apply to any person other than the purchasing corporation or 
another member of the same affiliated group as the purchasing 
corporation unless the transfer of target assets is pursuant to a 
reorganization as determined without regard to this paragraph (d).
    (2) Continuity of interest. By virtue of section 338, in determining 
whether the continuity of interest requirement of Sec. 1.368-1(b) is 
satisfied on the transfer of assets from target to the transferee, the 
purchasing corporation's target stock acquired in the qualified stock 
purchase represents an interest on the part of a person who was an owner 
of the target's business enterprise prior to the transfer that can be 
continued in a reorganization.
    (3) Control requirement. By virtue of section 338, the acquisition 
of target stock in the qualified stock purchase will not prevent the 
purchasing corporation from qualifying as a shareholder of the target 
transferor for the purpose of determining whether, immediately after the 
transfer of target assets, a shareholder of the transferor is in control 
of the corporation to which the assets are transferred within the 
meaning of section 368(a)(1)(D).
    (4) Solely for voting stock requirement. By virtue of section 338, 
the acquisition of target stock in the qualified stock purchase for 
consideration other than voting stock will not prevent the subsequent 
transfer of target assets from satisfying the solely for voting stock 
requirement for purposes of determining if the transfer of target assets 
qualifies as a reorganization under section 368(a)(1)(C).
    (5) Example. The following example illustrates this paragraph (d):

    Example. (i) Facts. P, T, and X are domestic corporations. T and X 
each operate a trade or business. A and K, individuals unrelated to P, 
own 85 and 15 percent, respectively, of the stock of T. P owns all of 
the stock of X. The total adjusted basis of T's property exceeds the sum 
of T's liabilities plus the amount of liabilities to which T's property 
is subject. P purchases all of A's T stock for cash in a qualified stock 
purchase. P does not make an election under section 338(g) with respect 
to its acquisition of T stock. Shortly after the acquisition date, and 
as part of the same plan, T merges under applicable state law into X in 
a transaction that, but for the question of continuity of interest, 
satisfies all the requirements of section 368(a)(1)(A). In the merger, 
all of T's assets are transferred to X. P and K receive X stock in 
exchange for their T stock. P intends to retain the stock of X 
indefinitely.
    (ii) Status of transfer as a reorganization. By virtue of section 
338, for the purpose of determining whether the continuity of interest 
requirement of Sec. 1.368-1(b) is satisfied, P's T stock acquired in 
the qualified stock purchase represents an interest on the part of a 
person who was an owner of T's business enterprise prior to the transfer 
that can be continued in a reorganization through P's continuing 
ownership of X. Thus, the continuity of interest requirement is 
satisfied and the merger of T into X is a reorganization within the 
meaning of section 368(a)(1)(A). Moreover, by virtue of section 338, the 
requirement of section 368(a)(1)(D) that a target shareholder control 
the transferee immediately after the transfer is satisfied because P 
controls X immediately after the transfer. In addition, all of T's 
assets are transferred to X in the merger and P and K receive the X 
stock exchanged therefor in pursuance of the plan of reorganization. 
Thus, the merger of T into X is also a reorganization within the meaning 
of section 368(a)(1)(D).
    (iii) Treatment of T and X. Under section 361(a), T recognizes no 
gain or loss in the merger. Under section 362(b), X's basis in the 
assets received in the merger is the same as the basis of the assets in 
T's hands. X succeeds to and takes into account the items of T as 
provided in section 381.
    (iv) Treatment of P. By virtue of section 338, the transfer of T 
assets to X is a reorganization. Pursuant to that reorganization, P 
exchanges its T stock solely for stock of X, a party to the 
reorganization. Because P is the purchasing corporation, section 354 
applies to P's exchange of T stock for X stock in the merger of T into 
X. Thus, P recognizes no gain or loss on the exchange. Under section 
358, P's basis in the X stock received in the exchange is the same as 
the basis of P's T stock exchanged therefor.

[[Page 108]]

    (v) Treatment of K. Because K is not the purchasing corporation (or 
an affiliate thereof), section 354 cannot apply to K's exchange of T 
stock for X stock in the merger of T into X unless the transfer of T's 
assets is pursuant to a reorganization as determined without regard to 
this paragraph (d). Under general principles of tax law applicable to 
reorganizations, the continuity of interest requirement is not satisfied 
because P's stock purchase and the merger of T into X are pursuant to an 
integrated transaction in which A, the owner of 85 percent of the stock 
of T, received solely cash in exchange for A's T stock. See, e.g., Sec. 
1.368-1(e)(1)(i); Yoc Heating v. Commissioner, 61 T.C. 168 (1973); Kass 
v. Commissioner, 60 T.C. 218 (1973), aff'd, 491 F.2d 749 (3d Cir. 1974). 
Thus, the requisite continuity of interest under Sec. 1.368-1(b) is 
lacking and section 354 does not apply to K's exchange of T stock for X 
stock. K recognizes gain or loss, if any, pursuant to section 1001(c) 
with respect to its T stock.

[T.D. 8940, 66 FR 9929, Feb. 13, 2001; 66 FR 17363, Mar. 30, 2001, as 
amended by T.D. 9071, 68 FR 40768, July 9, 2003]



Sec. 1.338-4  Aggregate deemed sale price; various aspects of taxation 
of the deemed asset sale.

    (a) Scope. This section provides rules under section 338(a)(1) to 
determine the aggregate deemed sale price (ADSP) for target. ADSP is the 
amount for which old target is deemed to have sold all of its assets in 
the deemed asset sale. ADSP is allocated among target's assets in 
accordance with Sec. 1.338-6 to determine the amount for which each 
asset is deemed to have been sold. When a subsequent increase or 
decrease is required under general principles of tax law with respect to 
an element of ADSP, the redetermined ADSP is allocated among target's 
assets in accordance with Sec. 1.338-7. This Sec. 1.338-4 also 
provides rules regarding the recognition of gain or loss on the deemed 
sale of target affiliate stock. Notwithstanding section 
338(h)(6)(B)(ii), stock held by a target affiliate in a foreign 
corporation or in a corporation that is a DISC or that is described in 
section 1248(e) is not excluded from the operation of section 338.
    (b) Determination of ADSP--(1) General rule. ADSP is the sum of--
    (i) The grossed-up amount realized on the sale to the purchasing 
corporation of the purchasing corporation's recently purchased target 
stock (as defined in section 338(b)(6)(A)); and
    (ii) The liabilities of old target.
    (2) Time and amount of ADSP--(i) Original determination. ADSP is 
initially determined at the beginning of the day after the acquisition 
date of target. General principles of tax law apply in determining the 
timing and amount of the elements of ADSP.
    (ii) Redetermination of ADSP. ADSP is redetermined at such time and 
in such amount as an increase or decrease would be required, under 
general principles of tax law, for the elements of ADSP. For example, 
ADSP is redetermined because of an increase or decrease in the amount 
realized for recently purchased stock or because liabilities not 
originally taken into account in determining ADSP are subsequently taken 
into account. Increases or decreases with respect to the elements of 
ADSP result in the reallocation of ADSP among target's assets under 
Sec. 1.338-7.
    (iii) Example. The following example illustrates this paragraph 
(b)(2):

    Example. In Year 1, T, a manufacturer, purchases a customized 
delivery truck from X with purchase money indebtedness having a stated 
principal amount of $100,000. P acquires all of the stock of T in Year 3 
for $700,000 and makes a section 338 election for T. Assume T has no 
liabilities other than its purchase money indebtedness to X. In Year 4, 
when T is neither insolvent nor in a title 11 case, T and X agree to 
reduce the amount of the purchase money indebtedness to $80,000. Assume 
further that the reduction would be a purchase price reduction under 
section 108(e)(5). T and X's agreement to reduce the amount of the 
purchase money indebtedness would not, under general principles of tax 
law that would apply if the deemed asset sale had actually occurred, 
change the amount of liabilities of old target taken into account in 
determining its amount realized. Accordingly, ADSP is not redetermined 
at the time of the reduction. See Sec. 1.338-5(b)(2)(iii) Example 1 for 
the effect on AGUB.

    (c) Grossed-up amount realized on the sale to the purchasing 
corporation of the purchasing corporation's recently purchased target 
stock--(1) Determination of amount. The grossed-up amount realized on 
the sale to the purchasing corporation of the purchasing corporation's 
recently purchased target stock is an amount equal to--

[[Page 109]]

    (i) The amount realized on the sale to the purchasing corporation of 
the purchasing corporation's recently purchased target stock determined 
as if the selling shareholder(s) were required to use old target's 
accounting methods and characteristics and the installment method were 
not available and determined without regard to the selling costs taken 
into account under paragraph (c)(1)(iii) of this section;
    (ii) Divided by the percentage of target stock (by value, determined 
on the acquisition date) attributable to that recently purchased target 
stock;
    (iii) Less the selling costs incurred by the selling shareholders in 
connection with the sale to the purchasing corporation of the purchasing 
corporation's recently purchased target stock that reduce their amount 
realized on the sale of the stock (e.g., brokerage commissions and any 
similar costs to sell the stock).
    (2) Example. The following example illustrates this paragraph (c):

    Example. T has two classes of stock outstanding, voting common stock 
and preferred stock described in section 1504(a)(4). On March 1 of Year 
1, P purchases 40 percent of the outstanding T stock from S1 for $500, 
20 percent of the outstanding T stock from S2 for $225, and 20 percent 
of the outstanding T stock from S3 for $275. On that date, the fair 
market value of all the T voting common stock is $1,250 and the 
preferred stock $750. S1, S2, and S3 incur $40, $35, and $25 
respectively of selling costs. S1 continues to own the remaining 20 
percent of the outstanding T stock. The grossed-up amount realized on 
the sale to P of P's recently purchased T stock is calculated as 
follows: The total amount realized (without regard to selling costs) is 
$1,000 (500 + 225 + 275). The percentage of T stock by value on the 
acquisition date attributable to the recently purchased T stock is 50% 
(1,000/(1,250 + 750)). The selling costs are $100 (40 + 35 + 25). The 
grossed-up amount realized is $1,900 (1,000/.5 - 100).

    (d) Liabilities of old target--(1) In general. In general, the 
liabilities of old target are measured as of the beginning of the day 
after the acquisition date. (But see Sec. 1.338-1(d) (regarding certain 
transactions on the acquisition date).) In order to be taken into 
account in ADSP, a liability must be a liability of target that is 
properly taken into account in amount realized under general principles 
of tax law that would apply if old target had sold its assets to an 
unrelated person for consideration that included the discharge of its 
liabilities. See Sec. 1.1001-2(a). Such liabilities may include 
liabilities for the tax consequences resulting from the deemed sale.
    (2) Time and amount of liabilities. The time for taking into account 
liabilities of old target in determining ADSP and the amount of the 
liabilities taken into account is determined as if old target had sold 
its assets to an unrelated person for consideration that included the 
discharge of the liabilities by the unrelated person. For example, if no 
amount of a target liability is properly taken into account in amount 
realized as of the beginning of the day after the acquisition date, the 
liability is not initially taken into account in determining ADSP 
(although it may be taken into account at some later date).
    (e) Deemed sale tax consequences. Gain or loss on each asset in the 
deemed sale is computed by reference to the ADSP allocated to that 
asset. ADSP is allocated under the rules of Sec. 1.338-6. Though deemed 
sale tax consequences may increase or decrease ADSP by creating or 
reducing a tax liability, the amount of the tax liability itself may be 
a function of the size of the deemed sale tax consequences. Thus, these 
determinations may require trial and error computations.
    (f) Other rules apply in determining ADSP. ADSP may not be applied 
in such a way as to contravene other applicable rules. For example, a 
capital loss cannot be applied to reduce ordinary income in calculating 
the tax liability on the deemed sale for purposes of determining ADSP.
    (g) Examples. The following examples illustrate this section. For 
purposes of the examples in this paragraph (g), unless otherwise stated, 
T is a calendar year taxpayer that files separate returns and that has 
no loss, tax credit, or other carryovers to Year 1. Depreciation for 
Year 1 is not taken into account. T has no liabilities other than the 
Federal income tax liability resulting from the deemed asset sale, and 
the T shareholders have no selling costs. Assume that T's tax rate for 
any ordinary income or net capital gain resulting from the deemed sale 
of assets is 34

[[Page 110]]

percent and that any capital loss is offset by capital gain. On July 1 
of Year 1, P purchases all of the stock of T and makes a section 338 
election for T. The examples are as follows:

    Example 1. One class. (i) On July 1 of Year 1, T's only asset is an 
item of section 1245 property with an adjusted basis to T of $50,400, a 
recomputed basis of $80,000, and a fair market value of $100,000. P 
purchases all of the T stock for $75,000, which also equals the amount 
realized for the stock determined as if the selling shareholder(s) were 
required to use old target's accounting methods and characteristics.
    (ii) ADSP is determined as follows (for purposes of this section 
(g), G is the grossed-up amount realized on the sale to P of P's 
recently purchased T stock, L is T's liabilities other than T's tax 
liability for the deemed sale tax consequences, TR is the 
applicable tax rate, and B is the adjusted basis of the asset deemed 
sold):

ADSP = G + L + TR x (ADSP-B)
ADSP = ($75,000/1) + $0 + .34 x (ADSP - $50,400)
ADSP = $75,000 + .34ADSP - $17,136 .66ADSP = $57,864
ADSP = $87,672.72

    (iii) Because ADSP for T ($87,672.72) does not exceed the fair 
market value of T's asset ($100,000), a Class V asset, T's entire ADSP 
is allocated to that asset. Thus, T's deemed sale results in $37,272.72 
of taxable income (consisting of $29,600 of ordinary income and 
$7,672.72 of capital gain).
    (iv) The facts are the same as in paragraph (i) of this Example 1, 
except that on July 1 of Year 1, P purchases only 80 of the 100 shares 
of T stock for $60,000. The grossed-up amount realized on the sale to P 
of P's recently purchased T stock (G) is $75,000 ($60,000/.8). 
Consequently, ADSP and the deemed sale tax consequences are the same as 
in paragraphs (ii) and (iii) of this Example 1.
    (v) The facts are the same as in paragraph (i) of this Example 1, 
except that T also has goodwill (a Class VII asset) with an appraised 
value of $10,000. The results are the same as in paragraphs (ii) and 
(iii) of this Example 1. Because ADSP does not exceed the fair market 
value of the Class V asset, no amount is allocated to the Class VII 
asset (goodwill).
    Example 2. More than one class. (i) P purchases all of the T stock 
for $140,000, which also equals the amount realized for the stock 
determined as if the selling shareholder(s) were required to use old 
target's accounting methods and characteristics. On July 1 of Year 1, T 
has liabilities (not including the tax liability for the deemed sale tax 
consequences) of $50,000, cash (a Class I asset) of $10,000, actively 
traded securities (a Class II asset) with a basis of $4,000 and a fair 
market value of $10,000, goodwill (a Class VII asset) with a basis of 
$3,000, and the following Class V assets:

------------------------------------------------------------------------
                                                               Ratio of
                                                              asset FMV
              Asset                   Basis         FMV        to total
                                                             Class V FMV
------------------------------------------------------------------------
Land.............................       $5,000      $35,000          .14
Building.........................       10,000       50,000          .20
Equipment A (Recomputed basis            5,000       90,000          .36
 $80,000)........................
Equipment B (Recomputed basis           10,000       75,000          .30
 $20,000)........................
                                  --------------------------------------
    Totals.......................      $30,000     $250,000         1.00
------------------------------------------------------------------------

    (ii) ADSP exceeds $20,000. Thus, $10,000 of ADSP is allocated to the 
cash and $10,000 to the actively traded securities. The amount allocated 
to an asset (other than a Class VII asset) cannot exceed its fair market 
value (however, the fair market value of any property subject to 
nonrecourse indebtedness is treated as being not less than the amount of 
such indebtedness; see Sec. 1.338-6(a)(2)). See Sec. 1.338-6(c)(1) 
(relating to fair market value limitation).
    (iii) The portion of ADSP allocable to the Class V assets is 
preliminarily determined as follows (in the formula, the amount 
allocated to the Class I assets is referred to as I and the amount 
allocated to the Class II assets as II):

ADSPV = (G-(I + II)) + L+ TR x [(II - 
BII) + (ADSPV - BV)]
ADSPV = ($140,000 - ($10,000 + $10,000)) + $50,000 + .34 x 
[($10,000 - $4,000) + (ADSPV - ($5,000 + $10,000 + $5,000 + 
$10,000))]
ADSPV = $161,840 + .34ADSPV
.66 ADSPV = $161,840
ADSPV = $245,212.12

    (iv) Because, under the preliminary calculations of ADSP, the amount 
to be allocated to the Class I, II, III, IV, V, and VI assets does not 
exceed their aggregate fair market value, no ADSP amount is allocated to 
goodwill. Accordingly, the deemed sale of the goodwill results in a 
capital loss of $3,000. The portion of ADSP allocable to the

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Class V assets is finally determined by taking into account this loss as 
follows:

ADSPV = (G - (I + II)) + L + T R x [(II - 
BII) + (ADSPV - BV) + 
(ADSPVII - B VII)]
ADSPV = ($140,000 - ($10,000 + $10,000))+ $50,000 + .34 x 
[($10,000 - $4,000) + (ADSPV - $30,000) + ($0 - $3,000)]
ADSPV = $160,820 + .34ADSPV
.66 ADSPV = $160,820
ADSPV = $243,666.67

    (v) The allocation of ADSPV among the Class V assets is 
in proportion to their fair market values, as follows:

------------------------------------------------------------------------
             Asset                    ADSP                 Gain
------------------------------------------------------------------------
Land..........................        $34,113.33  $29,113.33 (capital
                                                   gain).
Building......................         48,733.34  38,733.34 (capital
                                                   gain).
Equipment A...................         87,720.00  82,720.00 (75,000
                                                   ordinary income 7,720
                                                   capital gain).
Equipment B...................         73,100.00  63,100.00 (10,000
                                                   ordinary income
                                                   53,100 capital gain).
                               -----------------------------------------
    Totals....................        243,666.67  213,666.67.
------------------------------------------------------------------------

    Example 3. More than one class. (i) The facts are the same as in 
Example 2, except that P purchases the T stock for $150,000, rather than 
$140,000. The amount realized for the stock determined as if the selling 
shareholder(s) were required to use old target's accounting methods and 
characteristics is also $150,000.
    (ii) As in Example 2, ADSP exceeds $20,000. Thus, $10,000 of ADSP is 
allocated to the cash and $10,000 to the actively traded securities.
    (iii) The portion of ADSP allocable to the Class V assets as 
preliminarily determined under the formula set forth in paragraph (iii) 
of Example 2 is $260,363.64. The amount allocated to the Class V assets 
cannot exceed their aggregate fair market value ($250,000). Thus, 
preliminarily, the ADSP amount allocated to Class V assets is $250,000.
    (iv) Based on the preliminary allocation, the ADSP is determined as 
follows (in the formula, the amount allocated to the Class I assets is 
referred to as I, the amount allocated to the Class II assets as II, and 
the amount allocated to the Class V assets as V):

ADSP = G + L + TR x [(II - BII) + (V - 
BV) + (ADSP - (I + II + V + BVII))]
ADSP = $150,000 + $50,000 + .34 x [($10,000 - $4,000) + ($250,000 - 
$30,000) + (ADSP - ($10,000 + $10,000 + $250,000 + $3,000))]
ADSP = $200,000 + .34ADSP - $15,980
.66ADSP = $184,020
ADSP = $278,818.18

    (v) Because ADSP as determined exceeds the aggregate fair market 
value of the Class I, II, III, IV, V, and VI assets, the $250,000 amount 
preliminarily allocated to the Class V assets is appropriate. Thus, the 
amount of ADSP allocated to Class V assets equals their aggregate fair 
market value ($250,000), and the allocated ADSP amount for each Class V 
asset is its fair market value. Further, because there are no Class VI 
assets, the allocable ADSP amount for the Class VII asset (goodwill) is 
$8,818.18 (the excess of ADSP over the aggregate ADSP amounts for the 
Class I, II, III, IV, V and VI assets).
    Example 4. Amount allocated to T1 stock. (i) The facts are the same 
as in Example 2, except that T owns all of the T1 stock (instead of the 
building), and T1's only asset is the building. The T1 stock and the 
building each have a fair market value of $50,000, and the building has 
a basis of $10,000. A section 338 election is made for T1 (as well as 
T), and T1 has no liabilities other than the tax liability for the 
deemed sale tax consequences. T is the common parent of a consolidated 
group filing a final consolidated return described in Sec. 1.338-
10(a)(1).
    (ii) ADSP exceeds $20,000. Thus, $10,000 of ADSP is allocated to the 
cash and $10,000 to the actively traded securities.
    (iii) Because T does not recognize any gain on the deemed sale of 
the T1 stock under paragraph (h)(2) of this section, appropriate 
adjustments must be made to reflect accurately the fair market value of 
the T and T1 assets in determining the allocation of ADSP among T's 
Class V assets (including the T1 stock). In preliminarily calculating 
ADSPV in this case, the T1 stock can be disregarded and, 
because T owns all of the T1 stock, the T1 asset can be treated as a T 
asset. Under this assumption, ADSPV is $243,666.67. See 
paragraph (iv) of Example 2.
    (iv) Because the portion of the preliminary ADSP allocable to Class 
V assets ($243,666.67) does not exceed their fair market value 
($250,000), no amount is allocated to Class VII assets for T. Further, 
this amount ($243,666.67) is allocated among T's Class V assets in 
proportion to their fair market values. See paragraph (v) of Example 2. 
Tentatively, $48,733.34 of this amount is allocated to the T1 stock.
    (v) The amount tentatively allocated to the T1 stock, however, 
reflects the tax incurred on the deemed sale of the T1 asset equal to 
$13,169.34 (.34x($48,733.34-$10,000)). Thus, the ADSP allocable to the 
Class V assets of T, and the ADSP allocable to the T1

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stock, as preliminarily calculated, each must be reduced by $13,169.34. 
Consequently, these amounts, respectively, are $230,497.33 and 
$35,564.00. In determining ADSP for T1, the grossed-up amount realized 
on the deemed sale to new T of new T's recently purchased T1 stock is 
$35,564.00.
    (vi) The facts are the same as in paragraph (i) of this Example 4, 
except that the T1 building has a $12,500 basis and a $62,500 value, all 
of the outstanding T1 stock has a $62,500 value, and T owns 80 percent 
of the T1 stock. In preliminarily calculating ADSPV, the T1 
stock can be disregarded but, because T owns only 80 percent of the T1 
stock, only 80 percent of T1 asset basis and value should be taken into 
account in calculating T's ADSP. By taking into account 80 percent of 
these amounts, the remaining calculations and results are the same as in 
paragraphs (ii), (iii), (iv), and (v) of this Example 4, except that the 
grossed-up amount realized on the sale of the recently purchased T1 
stock is $44,455.00 ($35,564.00/0.8).

    (h) Deemed sale of target affiliate stock--(1) Scope. This paragraph 
(h) prescribes rules relating to the treatment of gain or loss realized 
on the deemed sale of stock of a target affiliate when a section 338 
election (but not a section 338(h)(10) election) is made for the target 
affiliate. For purposes of this paragraph (h), the definition of 
domestic corporation in Sec. 1.338-2(c)(9) is applied without the 
exclusion therein for DISCs, corporations described in section 1248(e), 
and corporations to which an election under section 936 applies.
    (2) In general. Except as otherwise provided in this paragraph (h), 
if a section 338 election is made for target, target recognizes no gain 
or loss on the deemed sale of stock of a target affiliate having the 
same acquisition date and for which a section 338 election is made if--
    (i) Target directly owns stock in the target affiliate satisfying 
the requirements of section 1504(a)(2);
    (ii) Target and the target affiliate are members of a consolidated 
group filing a final consolidated return described in Sec. 1.338-
10(a)(1); or
    (iii) Target and the target affiliate file a combined return under 
Sec. 1.338-10(a)(4).
    (3) Deemed sale of foreign target affiliate by a domestic target. A 
domestic target recognizes gain or loss on the deemed sale of stock of a 
foreign target affiliate. For the proper treatment of such gain or loss, 
see, e.g., sections 1246, 1248, 1291 et seq., and 338(h)(16) and Sec. 
1.338-9.
    (4) Deemed sale producing effectively connected income. A foreign 
target recognizes gain or loss on the deemed sale of stock of a foreign 
target affiliate to the extent that such gain or loss is effectively 
connected (or treated as effectively connected) with the conduct of a 
trade or business in the United States.
    (5) Deemed sale of insurance company target affiliate electing under 
section 953(d). A domestic target recognizes gain (but not loss) on the 
deemed sale of stock of a target affiliate that has in effect an 
election under section 953(d) in an amount equal to the lesser of the 
gain realized or the earnings and profits described in section 
953(d)(4)(B).
    (6) Deemed sale of DISC target affiliate. A foreign or domestic 
target recognizes gain (but not loss) on the deemed sale of stock of a 
target affiliate that is a DISC or a former DISC (as defined in section 
992(a)) in an amount equal to the lesser of the gain realized or the 
amount of accumulated DISC income determined with respect to such stock 
under section 995(c). Such gain is included in gross income as a 
dividend as provided in sections 995(c)(2) and 996(g).
    (7) Anti-stuffing rule. If an asset the adjusted basis of which 
exceeds its fair market value is contributed or transferred to a target 
affiliate as transferred basis property (within the meaning of section 
7701(a)(43)) and a purpose of such transaction is to reduce the gain (or 
increase the loss) recognized on the deemed sale of such target 
affiliate's stock, the gain or loss recognized by target on the deemed 
sale of stock of the target affiliate is determined as if such asset had 
not been contributed or transferred.
    (8) Examples. The following examples illustrate this paragraph (h):

    Example 1. (i) P makes a qualified stock purchase of T and makes a 
section 338 election for T. T's sole asset, all of the T1 stock, has a 
basis of $50 and a fair market value of $150. T's deemed purchase of the 
T1 stock results in a qualified stock purchase of T1 and a section 338 
election is made for T1. T1's assets have a basis of $50 and a fair 
market value of $150.
    (ii) T realizes $100 of gain on the deemed sale of the T1 stock, but 
the gain is not recognized because T directly owns stock in T1

[[Page 113]]

satisfying the requirements of section 1504(a)(2) and a section 338 
election is made for T1.
    (iii) T1 recognizes gain of $100 on the deemed sale of its assets.
    Example 2. The facts are the same as in Example 1, except that P 
does not make a section 338 election for T1. Because a section 338 
election is not made for T1, the $100 gain realized by T on the deemed 
sale of the T1 stock is recognized.
    Example 3. (i) P makes a qualified stock purchase of T and makes a 
section 338 election for T. T owns all of the stock of T1 and T2. T's 
deemed purchase of the T1 and T2 stock results in a qualified stock 
purchase of T1 and T2 and section 338 elections are made for T1 and T2. 
T1 and T2 each own 50 percent of the vote and value of T3 stock. The 
deemed purchases by T1 and T2 of the T3 stock result in a qualified 
stock purchase of T3 and a section 338 election is made for T3. T is the 
common parent of a consolidated group and all of the deemed asset sales 
are reported on the T group's final consolidated return. See Sec. 
1.338-10(a)(1).
    (ii) Because T, T1, T2 and T3 are members of a consolidated group 
filing a final consolidated return, no gain or loss is recognized by T, 
T1 or T2 on their respective deemed sales of target affiliate stock.
    Example 4. (i) T's sole asset, all of the FT1 stock, has a basis of 
$25 and a fair market value of $150. FT1's sole asset, all of the FT2 
stock, has a basis of $75 and a fair market value of $150. FT1 and FT2 
each have $50 of accumulated earnings and profits for purposes of 
section 1248(c) and (d). FT2's assets have a basis of $125 and a fair 
market value of $150, and their sale would not generate subpart F income 
under section 951. The sale of the FT2 stock or assets would not 
generate income effectively connected with the conduct of a trade or 
business within the United States. FT1 does not have an election in 
effect under section 953(d) and neither FT1 nor FT2 is a passive foreign 
investment company.
    (ii) P makes a qualified stock purchase of T and makes a section 338 
election for T. T's deemed purchase of the FT1 stock results in a 
qualified stock purchase of FT1 and a section 338 election is made for 
FT1. Similarly, FT1's deemed purchase of the FT2 stock results in a 
qualified stock purchase of FT2 and a section 338 election is made for 
FT2.
    (iii) T recognizes $125 of gain on the deemed sale of the FT1 stock 
under paragraph (h)(3) of this section. FT1 does not recognize $75 of 
gain on the deemed sale of the FT2 stock under paragraph (h)(2) of this 
section. FT2 recognizes $25 of gain on the deemed sale of its assets. 
The $125 gain T recognizes on the deemed sale of the FT1 stock is 
included in T's income as a dividend under section 1248, because FT1 and 
FT2 have sufficient earnings and profits for full recharacterization 
($50 of accumulated earnings and profits in FT1, $50 of accumulated 
earnings and profits in FT2, and $25 of deemed sale earnings and profits 
in FT2). Section 1.338-9(b). For purposes of sections 901 through 908, 
the source and foreign tax credit limitation basket of $25 of the 
recharacterized gain on the deemed sale of the FT1 stock is determined 
under section 338(h)(16).

[T.D. 8940, 66 FR 9929, Feb. 13, 2001; 66 FR 17466, Mar. 30, 2001]



Sec. 1.338-5  Adjusted grossed-up basis.

    (a) Scope. This section provides rules under section 338(b) to 
determine the adjusted grossed-up basis (AGUB) for target. AGUB is the 
amount for which new target is deemed to have purchased all of its 
assets in the deemed purchase under section 338(a)(2). AGUB is allocated 
among target's assets in accordance with Sec. 1.338-6 to determine the 
price at which the assets are deemed to have been purchased. When a 
subsequent increase or decrease with respect to an element of AGUB is 
required under general principles of tax law, redetermined AGUB is 
allocated among target's assets in accordance with Sec. 1.338-7.
    (b) Determination of AGUB--(1) General rule. AGUB is the sum of--
    (i) The grossed-up basis in the purchasing corporation's recently 
purchased target stock;
    (ii) The purchasing corporation's basis in nonrecently purchased 
target stock; and
    (iii) The liabilities of new target.
    (2) Time and amount of AGUB--(i) Original determination. AGUB is 
initially determined at the beginning of the day after the acquisition 
date of target. General principles of tax law apply in determining the 
timing and amount of the elements of AGUB.
    (ii) Redetermination of AGUB. AGUB is redetermined at such time and 
in such amount as an increase or decrease would be required, under 
general principles of tax law, with respect to an element of AGUB. For 
example, AGUB is redetermined because of an increase or decrease in the 
amount paid or incurred for recently purchased stock or nonrecently 
purchased stock or because liabilities not originally taken into account 
in determining AGUB are subsequently taken into account. An

[[Page 114]]

increase or decrease to one element of AGUB also may cause an increase 
or decrease to another element of AGUB. For example, if there is an 
increase in the amount paid or incurred for recently purchased stock 
after the acquisition date, any increase in the basis of nonrecently 
purchased stock because a gain recognition election was made is also 
taken into account when AGUB is redetermined. Increases or decreases 
with respect to the elements of AGUB result in the reallocation of AGUB 
among target's assets under Sec. 1.338-7.
    (iii) Examples. The following examples illustrate this paragraph 
(b)(2):

    Example 1. In Year 1, T, a manufacturer, purchases a customized 
delivery truck from X with purchase money indebtedness having a stated 
principal amount of $100,000. P acquires all of the stock of T in Year 3 
for $700,000 and makes a section 338 election for T. Assume T has no 
liabilities other than its purchase money indebtedness to X. In Year 4, 
when T is neither insolvent nor in a title 11 case, T and X agree to 
reduce the amount of the purchase money indebtedness to $80,000. Assume 
that the reduction would be a purchase price reduction under section 
108(e)(5). T and X's agreement to reduce the amount of the purchase 
money indebtedness would, under general principles of tax law that would 
apply if the deemed asset sale had actually occurred, change the amount 
of liabilities of old target taken into account in determining its 
basis. Accordingly, AGUB is redetermined at the time of the reduction. 
See paragraph (e)(2) of this section. Thus the purchase price reduction 
affects the basis of the truck only indirectly, through the mechanism of 
Sec. Sec. 1.338-6 and 1.338-7. See Sec. 1.338-4(b)(2)(iii) Example for 
the effect on ADSP.
    Example 2. T, an accrual basis taxpayer, is a chemical manufacturer. 
In Year 1, T is obligated to remediate environmental contamination at 
the site of one of its plants. Assume that all the events have occurred 
that establish the fact of the liability and the amount of the liability 
can be determined with reasonable accuracy but economic performance has 
not occurred with respect to the liability within the meaning of section 
461(h). P acquires all of the stock of T in Year 1 and makes a section 
338 election for T. Assume that, if a corporation unrelated to T had 
actually purchased T's assets and assumed T's obligation to remediate 
the contamination, the corporation would not satisfy the economic 
performance requirements until Year 5. Under section 461(h), the assumed 
liability would not be treated as incurred and taken into account in 
basis until that time. The incurrence of the liability in Year 5 under 
the economic performance rules is an increase in the amount of 
liabilities properly taken into account in basis and results in the 
redetermination of AGUB. (Respecting ADSP, compare Sec. 1.461-4(d)(5), 
which provides that economic performance occurs for old T as the amount 
of the liability is properly taken into account in amount realized on 
the deemed asset sale. Thus ADSP is not redetermined when new T 
satisfies the economic performance requirements.)

    (c) Grossed-up basis of recently purchased stock. The purchasing 
corporation's grossed-up basis of recently purchased target stock (as 
defined in section 338(b)(6)(A)) is an amount equal to--
    (1) The purchasing corporation's basis in recently purchased target 
stock at the beginning of the day after the acquisition date determined 
without regard to the acquisition costs taken into account in paragraph 
(c)(3) of this section;
    (2) Multiplied by a fraction, the numerator of which is 100 minus 
the number that is the percentage of target stock (by value, determined 
on the acquisition date) attributable to the purchasing corporation's 
nonrecently purchased target stock, and the denominator of which is the 
number equal to the percentage of target stock (by value, determined on 
the acquisition date) attributable to the purchasing corporation's 
recently purchased target stock;
    (3) Plus the acquisition costs the purchasing corporation incurred 
in connection with its purchase of the recently purchased stock that are 
capitalized in the basis of such stock (e.g., brokerage commissions and 
any similar costs incurred by the purchasing corporation to acquire the 
stock).
    (d) Basis of nonrecently purchased stock; gain recognition 
election--(1) No gain recognition election. In the absence of a gain 
recognition election under section 338(b)(3) and this section, the 
purchasing corporation retains its basis in the nonrecently purchased 
stock.
    (2) Procedure for making gain recognition election. A gain 
recognition election may be made for nonrecently purchased stock of 
target (or a target affiliate) only if a section 338 election is made 
for target (or the target affiliate). The gain recognition election is 
made by attaching a gain recognition

[[Page 115]]

statement to a timely filed Form 8023 for target. The gain recognition 
statement must contain the information specified in the form and its 
instructions. The gain recognition election is irrevocable. If a section 
338(h)(10) election is made for target, see Sec. 1.338(h)(10)-1(d)(1) 
(providing that the purchasing corporation is automatically deemed to 
have made a gain recognition election for its nonrecently purchased T 
stock).
    (3) Effect of gain recognition election--(i) In general. If the 
purchasing corporation makes a gain recognition election, then for all 
purposes of the Internal Revenue Code--
    (A) The purchasing corporation is treated as if it sold on the 
acquisition date the nonrecently purchased target stock for the basis 
amount determined under paragraph (d)(3)(ii) of this section; and
    (B) The purchasing corporation's basis on the acquisition date in 
nonrecently purchased target stock immediately following the deemed sale 
in paragraph (d)(3)(i)(A) of this section is the basis amount.
    (ii) Basis amount. The basis amount is equal to the amount in 
paragraph (c)(1) of this section (the purchasing corporation's basis in 
recently purchased target stock at the beginning of the day after the 
acquisition date determined without regard to the acquisition costs 
taken into account in paragraph (c)(3) of this section) multiplied by a 
fraction the numerator of which is the percentage of target stock (by 
value, determined on the acquisition date) attributable to the 
purchasing corporation's nonrecently purchased target stock and the 
denominator of which is 100 percent minus the numerator amount. Thus, if 
target has a single class of outstanding stock, the purchasing 
corporation's basis in each share of nonrecently purchased target stock 
after the gain recognition election is equal to the average price per 
share of the purchasing corporation's recently purchased target stock.
    (iii) Losses not recognized. Only gains (unreduced by losses) on the 
nonrecently purchased target stock are recognized.
    (iv) Stock subject to election. The gain recognition election 
applies to--
    (A) All nonrecently purchased target stock; and
    (B) Any nonrecently purchased stock in a target affiliate having the 
same acquisition date as target if such target affiliate stock is held 
by the purchasing corporation on such date.
    (e) Liabilities of new target--(1) In general. The liabilities of 
new target are the liabilities of target as of the beginning of the day 
after the acquisition date (but see Sec. 1.338-1(d) (regarding certain 
transactions on the acquisition date)). In order to be taken into 
account in AGUB, a liability must be a liability of target that is 
properly taken into account in basis under general principles of tax law 
that would apply if new target had acquired its assets from an unrelated 
person for consideration that included discharge of the liabilities of 
that unrelated person. Such liabilities may include liabilities for the 
tax consequences resulting from the deemed sale.
    (2) Time and amount of liabilities. The time for taking into account 
liabilities of old target in determining AGUB and the amount of the 
liabilities taken into account is determined as if new target had 
acquired its assets from an unrelated person for consideration that 
included the discharge of its liabilities.
    (3) Interaction with deemed sale tax consequences. In general, see 
Sec. 1.338-4(e). Although ADSP and AGUB are not necessarily linked, if 
an increase in the amount realized for recently purchased stock of 
target is taken into account after the acquisition date, and if the tax 
on the deemed sale tax consequences is a liability of target, any 
increase in that liability is also taken into account in redetermining 
AGUB.
    (f) Adjustments by the Internal Revenue Service. In connection with 
the examination of a return, the Commissioner may increase (or decrease) 
AGUB under the authority of section 338(b)(2) and allocate such amounts 
to target's assets under the authority of section 338(b)(5) so that AGUB 
and the basis of target's assets properly reflect the cost to the 
purchasing corporation of its interest in target's assets. Such items 
may include distributions from target to the purchasing corporation, 
capital contributions from the purchasing corporation to target during 
the 12-month

[[Page 116]]

acquisition period, or acquisitions of target stock by the purchasing 
corporation after the acquisition date from minority shareholders. See 
also Sec. 1.338-1(d) (regarding certain transactions on the acquisition 
date).
    (g) Examples. The following examples illustrate this section. For 
purposes of the examples in this paragraph (g), T has no liabilities 
other than the tax liability for the deemed sale tax consequences, T 
shareholders incur no costs in selling the T stock, and P incurs no 
costs in acquiring the T stock. The examples are as follows:

    Example 1. (i) Before July 1 of Year 1, P purchases 10 of the 100 
shares of T stock for $5,000. On July 1 of Year 2, P purchases 80 shares 
of T stock for $60,000 and makes a section 338 election for T. As of 
July 1 of Year 2, T's only asset is raw land with an adjusted basis to T 
of $50,400 and a fair market value of $100,000. T has no loss or tax 
credit carryovers to Year 2. T's marginal tax rate for any ordinary 
income or net capital gain resulting from the deemed asset sale is 34 
percent. The 10 shares purchased before July 1 of Year 1 constitute 
nonrecently purchased T stock with respect to P's qualified stock 
purchase of T stock on July 1 of Year 2.
    (ii) The ADSP formula as applied to these facts is the same as in 
Sec. 1.338-4(g) Example 1. Accordingly, the ADSP for T is $87,672.72. 
The existence of nonrecently purchased T stock is irrelevant for 
purposes of the ADSP formula, because that formula treats P's 
nonrecently purchased T stock in the same manner as T stock not held by 
P.
    (iii) The total tax liability resulting from T's deemed asset sale, 
as calculated under the ADSP formula, is $12,672.72.
    (iv) If P does not make a gain recognition election, the AGUB of new 
T's assets is $85,172.72, determined as follows (In the following 
formula below, GRP is the grossed-up basis in P's recently purchased T 
stock, BNP is P's basis in nonrecently purchased T stock, L is T's 
liabilities, and X is P's acquisition costs for the recently purchased T 
stock):

AGUB = GRP + BNP + L + X
AGUB = $60,000 x [(1 - .1)/.8] + $5,000 + $12,672.72 + 0
AGUB = $85,172.72

    (v) If P makes a gain recognition election, the AGUB of new T's 
assets is $87,672.72, determined as follows:

AGUB = $60,000 x [(1 - .1)/.8] + $60,000 x [(1 - .1)/.8] x [.1/(1 - .1)] 
+ $12,672.72
AGUB = $87,672.72

    (vi) The calculation of AGUB if P makes a gain recognition election 
may be simplified as follows:

AGUB = $60,000/.8 + $12,672.72
AGUB = $87,672.72

    (vii) As a result of the gain recognition election, P's basis in its 
nonrecently purchased T stock is increased from $5,000 to $7,500 (i.e., 
$60,000 x [(1 - .1)/.8] x [.1/(1 - .1)]). Thus, P recognizes a gain in 
Year 2 with respect to its nonrecently purchased T stock of $2,500 
(i.e., $7,500 - $5,000).
    Example 2. On January 1 of Year 1, P purchases one-third of the T 
stock. On March 1 of Year 1, T distributes a dividend to all of its 
shareholders. On April 15 of Year 1, P purchases the remaining T stock 
and makes a section 338 election for T. In appropriate circumstances, 
the Commissioner may decrease the AGUB of T to take into account the 
payment of the dividend and properly reflect the fair market value of 
T's assets deemed purchased.
    Example 3. (i) T's sole asset is a building worth $100,000. At this 
time, T has 100 shares of stock outstanding. On August 1 of Year 1, P 
purchases 10 of the 100 shares of T stock for $8,000. On June 1 of Year 
2, P purchases 50 shares of T stock for $50,000. On June 15 of Year 2, P 
contributes a tract of land to the capital of T and receives 10 
additional shares of T stock as a result of the contribution. Both the 
basis and fair market value of the land at that time are $10,800. On 
June 30 of Year 2, P purchases the remaining 40 shares of T stock for 
$40,000 and makes a section 338 election for T. The AGUB of T is 
$108,800.
    (ii) To prevent the shifting of basis from the contributed property 
to other assets of T, the Commissioner may allocate $10,800 of the AGUB 
to the land, leaving $98,000 to be allocated to the building. See 
paragraph (f) of this section. Otherwise, applying the allocation rules 
of Sec. 1.338-6 would, on these facts, result in an allocation to the 
recently contributed land of an amount less than its value of $10,800, 
with the difference being allocated to the building already held by T.

[T.D. 8940, 66 FR 9929, Feb. 13, 2001]



Sec. 1.338-6  Allocation of ADSP and AGUB among target assets.

    (a) Scope--(1) In general. This section prescribes rules for 
allocating ADSP and AGUB among the acquisition date assets of a target 
for which a section 338 election is made.
    (2) Fair market value--(i) In general. Generally, the fair market 
value of an asset is its gross fair market value (i.e., fair market 
value determined without regard to mortgages, liens, pledges, or other 
liabilities). However, for purposes of determining the amount of old 
target's deemed sale tax consequences, the fair market value of any 
property subject to a nonrecourse

[[Page 117]]

indebtedness will be treated as being not less than the amount of such 
indebtedness. (For purposes of the preceding sentence, a liability that 
was incurred because of the acquisition of the property is disregarded 
to the extent that such liability was not taken into account in 
determining old target's basis in such property.)
    (ii) Transaction costs. Transaction costs are not taken into account 
in allocating ADSP or AGUB to assets in the deemed sale (except 
indirectly through their effect on the total ADSP or AGUB to be 
allocated).
    (iii) Internal Revenue Service authority. In connection with the 
examination of a return, the Internal Revenue Service may challenge the 
taxpayer's determination of the fair market value of any asset by any 
appropriate method and take into account all factors, including any lack 
of adverse tax interests between the parties.
    (b) General rule for allocating ADSP and AGUB--(1) Reduction in the 
amount of consideration for Class I assets. Both ADSP and AGUB, in the 
respective allocation of each, are first reduced by the amount of Class 
I assets. Class I assets are cash and general deposit accounts 
(including savings and checking accounts) other than certificates of 
deposit held in banks, savings and loan associations, and other 
depository institutions. If the amount of Class I assets exceeds AGUB, 
new target will immediately realize ordinary income in an amount equal 
to such excess. The amount of ADSP or AGUB remaining after the reduction 
is to be allocated to the remaining acquisition date assets.
    (2) Other assets--(i) In general. Subject to the limitations and 
other rules of paragraph (c) of this section, ADSP and AGUB (as reduced 
by the amount of Class I assets) are allocated among Class II 
acquisition date assets of target in proportion to the fair market 
values of such Class II assets at such time, then among Class III assets 
so held in such proportion, then among Class IV assets so held in such 
proportion, then among Class V assets so held in such proportion, then 
among Class VI assets so held in such proportion, and finally to Class 
VII assets. If an asset is described below as includible in more than 
one class, then it is included in such class with the lower or lowest 
class number (for instance, Class III has a lower class number than 
Class IV).
    (ii) Class II assets. Class II assets are actively traded personal 
property within the meaning of section 1092(d)(1) and Sec. 1.1092(d)-1 
(determined without regard to section 1092(d)(3)). In addition, Class II 
assets include certificates of deposit and foreign currency even if they 
are not actively traded personal property. Class II assets do not 
include stock of target affiliates, whether or not of a class that is 
actively traded, other than actively traded stock described in section 
1504(a)(4). Examples of Class II assets include U.S. government 
securities and publicly traded stock.
    (iii) Class III assets. Class III assets are assets that the 
taxpayer marks to market at least annually for Federal income tax 
purposes and debt instruments (including accounts receivable). However, 
Class III assets do not include--
    (A) Debt instruments issued by persons related at the beginning of 
the day following the acquisition date to the target under section 
267(b) or 707;
    (B) Contingent debt instruments subject to Sec. 1.1275-4, Sec. 
1.483-4, or section 988, unless the instrument is subject to the non-
contingent bond method of Sec. 1.1275-4(b) or is described in Sec. 
1.988-2(b)(2)(i)(B)(2); and
    (C) Debt instruments convertible into the stock of the issuer or 
other property.
    (iv) Class IV assets. Class IV assets are stock in trade of the 
taxpayer or other property of a kind that would properly be included in 
the inventory of taxpayer if on hand at the close of the taxable year, 
or property held by the taxpayer primarily for sale to customers in the 
ordinary course of its trade or business.
    (v) Class V assets. Class V assets are all assets other than Class 
I, II, III, IV, VI, and VII assets.
    (vi) Class VI assets. Class VI assets are all section 197 
intangibles, as defined in section 197, except goodwill and going 
concern value.
    (vii) Class VII assets. Class VII assets are goodwill and going 
concern value (whether or not the goodwill or going

[[Page 118]]

concern value qualifies as a section 197 intangible).
    (3) Other items designated by the Internal Revenue Service. Similar 
items may be added to any class described in this paragraph (b) by 
designation in the Internal Revenue Bulletin by the Internal Revenue 
Service (see Sec. 601.601(d)(2) of this chapter).
    (c) Certain limitations and other rules for allocation to an asset--
(1) Allocation not to exceed fair market value. The amount of ADSP or 
AGUB allocated to an asset (other than Class VII assets) cannot exceed 
the fair market value of that asset at the beginning of the day after 
the acquisition date.
    (2) Allocation subject to other rules. The amount of ADSP or AGUB 
allocated to an asset is subject to other provisions of the Internal 
Revenue Code or general principles of tax law in the same manner as if 
such asset were transferred to or acquired from an unrelated person in a 
sale or exchange. For example, if the deemed asset sale is a transaction 
described in section 1056(a) (relating to basis limitation for player 
contracts transferred in connection with the sale of a franchise), the 
amount of AGUB allocated to a contract for the services of an athlete 
cannot exceed the limitation imposed by that section. As another 
example, section 197(f)(5) applies in determining the amount of AGUB 
allocated to an amortizable section 197 intangible resulting from an 
assumption-reinsurance transaction.
    (3) Special rule for allocating AGUB when purchasing corporation has 
nonrecently purchased stock--(i) Scope. This paragraph (c)(3) applies if 
at the beginning of the day after the acquisition date--
    (A) The purchasing corporation holds nonrecently purchased stock for 
which a gain recognition election under section 338(b)(3) and Sec. 
1.338-5(d) is not made; and
    (B) The hypothetical purchase price determined under paragraph 
(c)(3)(ii) of this section exceeds the AGUB determined under Sec. 
1.338-5(b).
    (ii) Determination of hypothetical purchase price. Hypothetical 
purchase price is the AGUB that would result if a gain recognition 
election were made.
    (iii) Allocation of AGUB. Subject to the limitations in paragraphs 
(c)(1) and (2) of this section, the portion of AGUB (after reduction by 
the amount of Class I assets) to be allocated to each Class II, III, IV, 
V, VI, and VII asset of target held at the beginning of the day after 
the acquisition date is determined by multiplying--
    (A) The amount that would be allocated to such asset under the 
general rules of this section were AGUB equal to the hypothetical 
purchase price; by
    (B) A fraction, the numerator of which is actual AGUB (after 
reduction by the amount of Class I assets) and the denominator of which 
is the hypothetical purchase price (after reduction by the amount of 
Class I assets).
    (4) Liabilities taken into account in determining amount realized on 
subsequent disposition. In determining the amount realized on a 
subsequent sale or other disposition of property deemed purchased by new 
target, Sec. 1.1001-2(a)(3) shall not apply to any liability that was 
taken into account in AGUB.
    (5) Allocation to certain nuclear decommissioning funds. [Reserved] 
For further guidance, see Sec. 1.338-6T.
    (d) Examples. The following examples illustrate Sec. Sec. 1.338-4, 
1.338-5, and this section:

    Example 1. (i) T owns 90 percent of the outstanding T1 stock. P 
purchases 100 percent of the outstanding T stock for $2,000. There are 
no acquisition costs. P makes a section 338 election for T and, as a 
result, T1 is considered acquired in a qualified stock purchase. A 
section 338 election is made for T1. The grossed-up basis of the T stock 
is $2,000 (i.e., $2,000 + 1/1).
    (ii) The liabilities of T as of the beginning of the day after the 
acquisition date (including the tax liability for the deemed sale tax 
consequences) that would, under general principles of tax law, properly 
be taken into account at that time, are as follows:

Liabilities (nonrecourse mortgage plus unsecured liabilities)..     $700
Taxes Payable..................................................      300
                                                                --------
    Total......................................................    1,000
 

    (iii) The AGUB of T is determined as follows:

Grossed-up basis...............................................   $2,000
Total liabilities..............................................    1,000
                                                                --------
    AGUB.......................................................    3,000
 

    (iv) Assume that ADSP is also $3,000.
    (v) Assume that, at the beginning of the day after the acquisition 
date, T's cash and

[[Page 119]]

the fair market values of T's Class II, III, IV, and V assets are as 
follows:

------------------------------------------------------------------------
                                                                   Fair
         Asset class                        Asset                 market
                                                                  value
------------------------------------------------------------------------
I...........................  Cash.............................   * $200
II..........................  Portfolio of actively traded           300
                               securities.
III.........................  Accounts receivable..............      600
IV..........................  Inventory........................      300
V...........................  Building.........................      800
V...........................  Land.............................      200
V...........................  Investment in T1.................      450
                                                                --------
                               Total...........................   2,850
------------------------------------------------------------------------
*Amount.

    (vi) Under paragraph (b)(1) of this section, the amount of ADSP and 
AGUB allocable to T's Class II, III, IV, and V assets is reduced by the 
amount of cash to $2,800, i.e., $3,000--$200. $300 of ADSP and of AGUB 
is then allocated to actively traded securities. $600 of ADSP and of 
AGUB is then allocated to accounts receivable. $300 of ADSP and of AGUB 
is then allocated to the inventory. Since the remaining amount of ADSP 
and of AGUB is $1,600 (i.e., $3,000--($200 + $300 + $600 + $300)), an 
amount which exceeds the sum of the fair market values of T's Class V 
assets, the amount of ADSP and of AGUB allocated to each Class V asset 
is its fair market value:

Building.......................................................     $800
Land...........................................................      200
Investment in T1...............................................      450
                                                                --------
    Total......................................................    1,450
 

    (vii) T has no Class VI assets. The amount of ADSP and of AGUB 
allocated to T's Class VII assets (goodwill and going concern value) is 
$150, i.e., $1,600-$1,450.
    (viii) The grossed-up basis of the T1 stock is $500, i.e., $450 x 
1/.9.
    (ix) The liabilities of T1 as of the beginning of the day after the 
acquisition date (including the tax liability for the deemed sale tax 
consequences) that would, under general principles of tax law, properly 
be taken into account at that time, are as follows:

General Liabilities.............................................    $100
Taxes Payable...................................................      20
                                                                 -------
    Total.......................................................     120
 

    (x) The AGUB of T1 is determined as follows:

Grossed-up basis of T1 Stock....................................   $ 500
Liabilities.....................................................     120
                                                                 -------
    AGUB........................................................     620
 

    (xi) Assume that ADSP is also $620.
    (xii) Assume that at the beginning of the day after the acquisition 
date, T1's cash and the fair market values of its Class IV and VI assets 
are as follows:

------------------------------------------------------------------------
                                                                   Fair
         Asset class                        Asset                 market
                                                                  value
------------------------------------------------------------------------
I...........................  Cash.............................     *$50
IV..........................  Inventory........................      200
VI..........................  Patent...........................      350
                                                                --------
                               Total...........................     600
------------------------------------------------------------------------
* Amount.

    (xiii) The amount of ADSP and of AGUB allocable to T1's Class IV and 
VI assets is first reduced by the $50 of cash.
    (xiv) Because the remaining amount of ADSP and of AGUB ($570) is an 
amount which exceeds the fair market value of T1's only Class IV asset, 
the inventory, the amount allocated to the inventory is its fair market 
value ($200). After that, the remaining amount of ADSP and of AGUB 
($370) exceeds the fair market value of T1's only Class VI asset, the 
patent. Thus, the amount of ADSP and of AGUB allocated to the patent is 
its fair market value ($350).
    (xv) The amount of ADSP and of AGUB allocated to T1's Class VII 
assets (goodwill and going concern value) is $20, i.e., $570-$550.
    Example 2. (i) Assume that the facts are the same as in Example 1 
except that P has, for five years, owned 20 percent of T's stock, which 
has a basis in P's hands at the beginning of the day after the 
acquisition date of $100, and P purchases the remaining 80 percent of 
T's stock for $1,600. P does not make a gain recognition election under 
section 338(b)(3).
    (ii) Under Sec. 1.338-5(c), the grossed-up basis of recently 
purchased T stock is $1,600, i.e., $1,600 x (1-.2)/.8.
    (iii) The AGUB of T is determined as follows:

Grossed-up basis of recently purchased stock as determined        $1,600
 under Sec.  1.338-5(c) ($1,600 x (1-.2)/.8)..................
Basis of nonrecently purchased stock...........................      100
Liabilities....................................................    1,000
                                                                --------
    AGUB.......................................................    2,700
 

    (iv) Since P holds nonrecently purchased stock, the hypothetical 
purchase price of the T stock must be computed and is determined as 
follows:

Grossed-up basis of recently purchased stock as determined        $1,600
 under Sec.  1.338-5(c) ($1,600 x (1-.2)/.8)..................
Basis of nonrecently purchased stock as if the gain recognition      400
 election under Sec.  1.338-5(d)(2) had been made ($1,600 x .2/
 (1-.2)).......................................................
Liabilities....................................................    1,000
                                                                --------
    Total......................................................    3,000
 

    (v) Since the hypothetical purchase price ($3,000) exceeds the AGUB 
($2,700) and no gain recognition election is made under section 
338(b)(3), AGUB is allocated under paragraph (c)(3) of this section.

[[Page 120]]

    (vi) First, an AGUB amount equal to the hypothetical purchase price 
($3,000) is allocated among the assets under the general rules of this 
section. The allocation is set forth in the column below entitled 
Original Allocation. Next, the allocation to each asset in Class II 
through Class VII is multiplied by a fraction having a numerator equal 
to the actual AGUB reduced by the amount of Class I assets ($2,700-$200 
= $2,500) and a denominator equal to the hypothetical purchase price 
reduced by the amount of Class I assets ($3,000-$200 = $2,800), or 
2,500/2,800. This produces the Final Allocation:

------------------------------------------------------------------------
                                                   Original      Final
        Class                    Asset            allocation  allocation
------------------------------------------------------------------------
I....................  Cash.....................        $200        $200
II...................  Portfolio of actively             300        *268
                        traded securities.
III..................  Accounts receivable......         600         536
IV...................  Inventory................         300         268
V....................  Building.................         800         714
V....................  Land.....................         200         178
V....................  Investment in T1.........         450         402
VII..................  Goodwill and going                150         134
                        concern value.
                                                 -----------------------
                        Total...................       3,000      2,700
------------------------------------------------------------------------
* All numbers rounded for convenience.


[T.D. 8940, 66 FR 9929, Feb. 13, 2001; 66 FR 17363, Mar. 30, 2001; T.D. 
9158, 69 FR 55742, Sept. 16, 2004]



Sec. 1.338-6T  Allocation of ADSP and AGUB among target assets 
(temporary).

    (a) through (c)(4) [Reserved] For further guidance, see Sec. 1.338-
6(a) through (c)(4).
    (5) Allocation to certain nuclear decommissioning funds--(i) General 
rule. For purposes of allocating ADSP or AGUB among the acquisition date 
assets of a target (and for no other purpose), a taxpayer may elect to 
treat a nonqualified nuclear decommissioning fund (as defined in 
paragraph (c)(5)(ii) of this section) of the target as if--
    (A) Such fund were an entity classified as a corporation;
    (B) The stock of the corporation were among the acquisition date 
assets of the target and a Class V asset;
    (C) The corporation owned the assets of the fund;
    (D) The corporation bore the responsibility for decommissioning one 
or more nuclear power plants to the extent assets of the fund are 
expected to be used for that purpose; and
    (E) A section 338(h)(10) election were made for the corporation 
(regardless of whether the requirements for a section 338(h)(10) 
election are otherwise satisfied).
    (ii) Definition of nonqualified nuclear decommissioning fund. A 
nonqualified nuclear decommissioning fund means a trust, escrow account, 
Government fund or other type of agreement--
    (A) That is established in writing by the owner or licensee of a 
nuclear generating unit for the exclusive purpose of funding the 
decommissioning of one or more nuclear power plants;
    (B) That is described to the Nuclear Regulatory Commission in a 
report described in 10 CFR 50.75(b) as providing assurance that funds 
will be available for decommissioning;
    (C) That is not a Nuclear Decommissioning Reserve Fund, as described 
in section 468A;
    (D) That is maintained at all times in the United States; and
    (E) The assets of which are to be used only as permitted by 10 CFR 
50.82(a)(8).
    (iii) Availability of election. P may make the election described in 
this paragraph (c)(5) regardless of whether the selling consolidated 
group (or the selling affiliate or the S corporation shareholders) also 
makes the election. In addition, the selling consolidated group (or the 
selling affiliate or the S corporation shareholders) may make the 
election regardless of whether P also makes the election. If T is an S 
corporation, all of the S corporation shareholders, including those that 
do not sell their stock, must consent to the election for the election 
to be effective as to any S corporation shareholder.
    (iv) Time and manner of making election. The election described in 
this paragraph (c)(5) is made by taking a position on an original or 
amended tax return for the taxable year of the qualified stock purchase 
that is consistent with having made the election. Such tax return must 
be filed no later than the later of 30 days after the date on which the 
section 338 election is due or the day the original tax return for the 
taxable year of the qualified stock purchase is due (with extensions).
    (v) Irrevocability of election. An election made pursuant to this 
paragraph (c)(5) is irrevocable.

[[Page 121]]

    (vi) Effective date. This paragraph (c)(5) applies to qualified 
stock purchases occurring on or after September 15, 2004.
    (d) [Reserved] For further guidance, see Sec. 1.338-6(d).

[T.D. 9158, 69 FR 55742, Sept. 16, 2004]



Sec. 1.338-7  Allocation of redetermined ADSP and AGUB among target 
assets.

    (a) Scope. ADSP and AGUB are redetermined at such time and in such 
amount as an increase or decrease would be required under general 
principles of tax law for the elements of ADSP or AGUB. This section 
provides rules for allocating redetermined ADSP or AGUB.
    (b) Allocation of redetermined ADSP and AGUB. When ADSP or AGUB is 
redetermined, a new allocation of ADSP or AGUB is made by allocating the 
redetermined ADSP or AGUB amount under the rules of Sec. 1.338-6. If 
the allocation of the redetermined ADSP or AGUB amount under Sec. 
1.338-6 to a given asset is different from the original allocation to 
it, the difference is added to or subtracted from the original 
allocation to the asset, as appropriate. (See paragraph (d) of this 
section for new target's treatment of the amount so allocated.) Amounts 
allocable to an acquisition date asset (or with respect to a disposed-of 
acquisition date asset) are subject to all the asset allocation rules 
(for example, the fair market value limitation in Sec. 1.338-6(c)(1)) 
as if the redetermined ADSP or AGUB were the ADSP or AGUB on the 
acquisition date.
    (c) Special rules for ADSP--(1) Increases or decreases in deemed 
sale tax consequences taxable notwithstanding old target ceases to 
exist. To the extent general principles of tax law would require a 
seller in an actual asset sale to account for events relating to the 
sale that occur after the sale date, target must make such an 
accounting. Target is not precluded from realizing additional deemed 
sale tax consequences because the target is treated as a new corporation 
after the acquisition date.
    (2) Procedure for transactions in which section 338(h)(10) is not 
elected--(i) Deemed sale tax consequences included in new target's 
return. If an election under section 338(h)(10) is not made, any 
additional deemed sale tax consequences of old target resulting from an 
increase or decrease in the ADSP are included in new target's income tax 
return for new target's taxable year in which the increase or decrease 
is taken into account. For example, if after the acquisition date there 
is an increase in the allocable ADSP of section 1245 property for which 
the recomputed basis (but not the adjusted basis) exceeds the portion of 
the ADSP allocable to that particular asset on the acquisition date, the 
additional gain is treated as ordinary income to the extent it does not 
exceed such excess amount. See paragraph (c)(2)(ii) of this section for 
the special treatment of old target's carryovers and carrybacks. 
Although included in new target's income tax return, the deemed sale tax 
consequences are separately accounted for as an item of old target and 
may not be offset by income, gain, deduction, loss, credit, or other 
amount of new target. The amount of tax on income of old target 
resulting from an increase or decrease in the ADSP is determined as if 
such deemed sale tax consequences had been recognized in old target's 
taxable year ending at the close of the acquisition date. However, 
because the income resulting from the increase or decrease in ADSP is 
reportable in new target's taxable year of the increase or decrease, not 
in old target's taxable year ending at the close of the acquisition 
date, there is not a resulting underpayment of tax in that past taxable 
year of old target for purposes of calculation of interest due.
    (ii) Carryovers and carrybacks--(A) Loss carryovers to new target 
taxable years. A net operating loss or net capital loss of old target 
may be carried forward to a taxable year of new target, under the 
principles of section 172 or 1212, as applicable, but is allowed as a 
deduction only to the extent of any recognized income of old target for 
such taxable year, as described in paragraph (c)(2)(i) of this section. 
For this purpose, however, taxable years of new target are not taken 
into account in applying the limitations in section 172(b)(1) or 
1212(a)(1)(B) (or other similar limitations). In applying sections 
172(b) and 1212(a)(1), only income, gain,

[[Page 122]]

loss, deduction, credit, and other amounts of old target are taken into 
account. Thus, if old target has an unexpired net operating loss at the 
close of its taxable year in which the deemed asset sale occurred that 
could be carried forward to a subsequent taxable year, such loss may be 
carried forward until it is absorbed by old target's income.
    (B) Loss carrybacks to taxable years of old target. An ordinary loss 
or capital loss accounted for as a separate item of old target under 
paragraph (c)(2)(i) of this section may be carried back to a taxable 
year of old target under the principles of section 172 or 1212, as 
applicable. For this purpose, taxable years of new target are not taken 
into account in applying the limitations in section 172(b) or 1212(a) 
(or other similar limitations).
    (C) Credit carryovers and carrybacks. The principles described in 
paragraphs (c)(2)(ii)(A) and (B) of this section apply to carryovers and 
carrybacks of amounts for purposes of determining the amount of a credit 
allowable under part IV, subchapter A, chapter 1 of the Internal Revenue 
Code. Thus, for example, credit carryovers of old target may offset only 
income tax attributable to items described in paragraph (c)(2)(i) of 
this section.
    (3) Procedure for transactions in which section 338(h)(10) is 
elected. If an election under section 338(h)(10) is made, any changes in 
the deemed sale tax consequences caused by an increase or decrease in 
the ADSP are accounted for in determining the taxable income (or other 
amount) of the member of the selling consolidated group, the selling 
affiliate, or the S corporation shareholders to which such income, loss, 
or other amount is attributable for the taxable year in which such 
increase or decrease is taken into account.
    (d) Special rules for AGUB--(1) Effect of disposition or 
depreciation of acquisition date assets. If an acquisition date asset 
has been disposed of, depreciated, amortized, or depleted by new target 
before an amount is added to the original allocation to the asset, the 
increased amount otherwise allocable to such asset is taken into account 
under general principles of tax law that apply when part of the cost of 
an asset not previously taken into account in basis is paid or incurred 
after the asset has been disposed of, depreciated, amortized, or 
depleted. A similar rule applies when an amount is subtracted from the 
original allocation to the asset. For purposes of the preceding 
sentence, an asset is considered to have been disposed of to the extent 
that its allocable portion of the decrease in AGUB would reduce its 
basis below zero.
    (2) Section 38 property. Section 1.47-2(c) applies to a reduction in 
basis of section 38 property under this section.
    (e) Examples. The following examples illustrate this section. Any 
amount described in the following examples is exclusive of interest. For 
rules characterizing deferred contingent payments as principal or 
interest, see Sec. Sec. 1.483-4, 1.1274-2(g), and 1.1275-4(c). The 
examples are as follows:

    Example 1. (i)(A) T's assets other than goodwill and going concern 
value, and their fair market values at the beginning of the day after 
the acquisition date, are as follows:

------------------------------------------------------------------------
                                                                  Fair
         Asset class                        Asset                market
                                                                  value
------------------------------------------------------------------------
V...........................  Building........................     $ 100
V...........................  Stock of X (not a target).......       200
                                                               ---------
                               Total..........................       300
------------------------------------------------------------------------

    (B) T has no liabilities other than a contingent liability that 
would not be taken into account under general principles of tax law in 
an asset sale between unrelated parties when the buyer assumed the 
liability or took property subject to it.
    (ii)(A) On September 1, 2000, P purchases all of the outstanding 
stock of T for $270 and makes a section 338 election for T. The grossed-
up basis of the T stock and T's AGUB are both $270. The AGUB is ratably 
allocated among T's Class V assets in proportion to their fair market 
values as follows:

------------------------------------------------------------------------
                              Asset                                Basis
------------------------------------------------------------------------
Building ($270 x 100/300).......................................     $90
Stock ($270 x 200/300)..........................................     180
                                                                 -------
    Total.......................................................     270
------------------------------------------------------------------------

    (B) No amount is allocated to the Class VII assets. New T is a 
calendar year taxpayer. Assume that the X stock is a capital asset in 
the hands of new T.
    (iii) On January 1, 2001, new T sells the X stock and uses the 
proceeds to purchase inventory.

[[Page 123]]

    (iv) Pursuant to events on June 30, 2002, the contingent liability 
of old T is at that time properly taken into account under general 
principles of tax law. The amount of the liability is $60.
    (v) T's AGUB increases by $60 from $270 to $330. This $60 increase 
in AGUB is first allocated among T's acquisition date assets in 
accordance with the provisions of Sec. 1.338-6. Because the 
redetermined AGUB for T ($330) exceeds the sum of the fair market values 
at the beginning of the day after the acquisition date of the Class V 
acquisition date assets ($300), AGUB allocated to those assets is 
limited to those fair market values under Sec. 1.338-6(c)(1). As there 
are no Class VI assets, the remaining AGUB of $30 is allocated to 
goodwill and going concern value (Class VII assets). The amount of 
increase in AGUB allocated to each acquisition date asset is determined 
as follows:

------------------------------------------------------------------------
                                        Original  Redetermined
                 Asset                    AGUB        AGUB      Increase
------------------------------------------------------------------------
Building..............................       $90        $100         $10
X Stock...............................       180         200          20
Goodwill and going concern value......         0          30          30
                                       ---------------------------------
    Total.............................       270         330          60
------------------------------------------------------------------------

    (vi) Since the X stock was disposed of before the contingent 
liability was properly taken into account for tax purposes, no amount of 
the increase in AGUB attributable to such stock may be allocated to any 
T asset. Rather, such amount ($20) is allowed as a capital loss to T for 
the taxable year 2002 under the principles of Arrowsmith v. 
Commissioner, 344 U.S. 6 (1952). In addition, the $10 increase in AGUB 
allocated to the building and the $30 increase in AGUB allocated to the 
goodwill and going concern value are treated as basis redeterminations 
in 2002. See paragraph (d)(1) of this section.
    Example 2. (i) On January 1, 2002, P purchases all of the 
outstanding stock of T and makes a section 338 election for T. Assume 
that ADSP and AGUB of T are both $500 and are allocated among T's 
acquisition date assets as follows:

------------------------------------------------------------------------
         Asset Class                        Asset                 Basis
------------------------------------------------------------------------
V...........................  Machinery........................     $150
V...........................  Land.............................      250
VII.........................  Goodwill and going concern value.      100
                                                                --------
                               Total...........................      500
------------------------------------------------------------------------

    (ii) On September 30, 2004, P filed a claim against the selling 
shareholders of T in a court of appropriate jurisdiction alleging fraud 
in the sale of the T stock.
    (iii) On January 1, 2007, the former shareholders refund $140 of the 
purchase price to P in a settlement of the lawsuit. Assume that, under 
general principles of tax law, both the seller and the buyer properly 
take into account such refund when paid. Assume also that the refund has 
no effect on the tax liability for the deemed sale tax consequences. 
This refund results in a decrease of T's ADSP and AGUB of $140, from 
$500 to $360.
    (iv) The redetermined ADSP and AGUB of $360 is allocated among T's 
acquisition date assets. Because ADSP and AGUB do not exceed the fair 
market value of the Class V assets, the ADSP and AGUB amounts are 
allocated to the Class V assets in proportion to their fair market 
values at the beginning of the day after the acquisition date. Thus, 
$135 ($150 x ($360/($150 + $250))) is allocated to the machinery and 
$225 ($250 x ($360/($150 + $250))) is allocated to the land. 
Accordingly, the basis of the machinery is reduced by $15 ($150 original 
allocation--$135 redetermined allocation) and the basis of the land is 
reduced by $25 ($250 original allocation--$225 redetermined allocation). 
No amount is allocated to the Class VII assets. Accordingly, the basis 
of the goodwill and going concern value is reduced by $100 ($100 
original allocation--$0 redetermined allocation).
    (v) Assume that, as a result of deductions under section 168, the 
adjusted basis of the machinery immediately before the decrease in AGUB 
is zero. The machinery is treated as if it were disposed of before the 
decrease is taken into account. In 2007, T recognizes income of $15, the 
character of which is determined under the principles of Arrowsmith v. 
Commissioner and the tax benefit rule. No adjustment to the basis of T's 
assets is made for any tax paid on this amount. Assume also that, as a 
result of amortization deductions, the adjusted basis of the goodwill 
and going concern value immediately before the decrease in AGUB is $40. 
A similar adjustment to income is made in 2007 with respect to the $60 
of previously amortized goodwill and going concern value.
    (vi) In summary, the basis of T's acquisition date assets, as of 
January 1, 2007, is as follows:

------------------------------------------------------------------------
                             Asset                                Basis
------------------------------------------------------------------------
Machinery......................................................       $0
Land...........................................................      225
Goodwill and going concern value...............................        0
------------------------------------------------------------------------

    Example 3. (i) Assume that the facts are the same as Sec. 1.338-
6(d) Example 2 except that the recently purchased stock is acquired for 
$1,600 plus additional payments that are contingent upon T's future 
earnings. Assume that, under general principles of tax law, such later 
payments are properly taken into account when paid. Thus, T's AGUB, 
determined as of the beginning of the day after the acquisition date 
(after reduction by T's cash of $200), is $2,500 and is allocated among 
T's acquisition date assets under Sec. 1.338-6(c)(3)(iii) as follows:

[[Page 124]]



------------------------------------------------------------------------
                                                                 Final
           Class                          Asset               allocation
------------------------------------------------------------------------
I..........................  Cash...........................        $200
II.........................  Portfolio of actively traded           *268
                              securities.
III........................  Accounts receivable............         536
IV.........................  Inventory......................         268
V..........................  Building.......................         714
V..........................  Land...........................         178
V..........................  Investment in T1...............         402
VII........................  Goodwill and going concern              134
                              value.
 
------------------------------------------------------------------------
* All numbers rounded for convenience.

    (ii) At a later point in time, P pays an additional $200 for its 
recently purchased T stock. Assume that the additional consideration 
paid would not increase T's tax liability for the deemed sale tax 
consequences.
    (iii) T's AGUB increases by $200, from $2,700 to $2,900. This $200 
increase in AGUB is accounted for in accordance with the provisions of 
Sec. 1.338-6(c)(3)(iii).
    (iv) The hypothetical purchase price of the T stock is redetermined 
as follows:

Grossed-up basis of recently purchased stock as determined        $1,800
 under Sec.  1.338-5(c) ($1,800 x (1- .2)/.8).................
Basis of nonrecently purchased stock as if the gain recognition      450
 election under Sec.  1.338-5(d)(2) had been made ($1,800 x .2/
 (1- .2))......................................................
Liabilities....................................................    1,000
                                                                --------
    Total......................................................    3,250
 

    (v) Since the redetermined hypothetical purchase price ($3,250) 
exceeds the redetermined AGUB ($2,900) and no gain recognition election 
was made under section 338(b)(3), the rules of Sec. 1.338-6(c)(3)(iii) 
are reapplied using the redetermined hypothetical purchase price and the 
redetermined AGUB.
    (vi) First, an AGUB amount equal to the redetermined hypothetical 
purchase price ($3,250) is allocated among the assets under the general 
rules of Sec. 1.338-6. The allocation is set forth in the column below 
entitled Hypothetical Allocation. Next, the allocation to each asset in 
Class II through Class VII is multiplied by a fraction with a numerator 
equal to the actual redetermined AGUB reduced by the amount of Class I 
assets ($2,900 - $200 = $2,700) and a denominator equal to the 
redetermined hypothetical purchase price reduced by the amount of Class 
I assets ($3,250 - $200 = $3,050), or 2,700/3,050. This produces the 
Final Allocation:

------------------------------------------------------------------------
                                                Hypothetical     Final
        Class                   Asset            allocation   allocation
------------------------------------------------------------------------
I...................  Cash....................         $200         $200
II..................  Portfolio of actively             300         *266
                       traded securities.
III.................  Accounts receivable.....          600          531
IV..................  Inventory...............          300          266
V...................  Building................          800          708
V...................  Land....................          200          177
V...................  Investment in T1........          450          398
VII.................  Goodwill and going                400          354
                       concern value.
                                               -------------------------
                       Total..................        3,250        2900
------------------------------------------------------------------------
* All numbers rounded for convenience.

    (vii) As illustrated by this example, reapplying Sec. 1.338-6(c)(3) 
results in a basis increase for some assets and a basis decrease for 
other assets. The amount of redetermined AGUB allocated to each 
acquisition date asset is determined as follows:

------------------------------------------------------------------------
                                     Original   Redetermined
               Asset                  (c)(3)       (c)(3)      Increase
                                    allocation   allocation   (decrease)
------------------------------------------------------------------------
Portfolio of actively traded              $268         $266         $(2)
 securities.......................
Accounts receivable...............         536          531          (5)
Inventory.........................         268          266          (2)
Building..........................         714          708          (6)
Land..............................         178          177          (1)
Investment in T1..................         402          398          (4)
Goodwill and going concern value..         134          354          220
                                   -------------------------------------
    Total.........................       2,500        2,700          200
------------------------------------------------------------------------

    Example 4. (i) On January 1, 2001, P purchases all of the 
outstanding T stock and makes a section 338 election for T. P pays $700 
of cash and promises also to pay a maximum $300 of contingent 
consideration at various times in the future. Assume that, under general 
principles of tax law, such later payments are properly taken into 
account by P when paid. Assume also, however, that the current fair 
market value of the contingent payments is reasonably ascertainable. The 
fair market value of T's assets (other than goodwill and going concern 
value) as of the beginning of the following day is as follows:

------------------------------------------------------------------------
                                                                  Fair
        Asset class                       Assets                 market
                                                                 value
------------------------------------------------------------------------
V..........................  Equipment.......................       $200
V..........................  Non-actively traded securities..        100

[[Page 125]]

 
V..........................  Building........................        500
                                                              ----------
                              Total..........................        800
------------------------------------------------------------------------

    (ii) T has no liabilities. The AGUB is $700. In calculating ADSP, 
assume that, under Sec. 1.1001-1, the current amount realized 
attributable to the contingent consideration is $200. ADSP is therefore 
$900 ($700 cash plus $200).
    (iii) (A) The AGUB of $700 is ratably allocated among T's Class V 
acquisition date assets in proportion to their fair market values as 
follows:

------------------------------------------------------------------------
                            Asset                                Basis
------------------------------------------------------------------------
Equipment ($700 x 200/800)...................................    $175.00
Non-actively traded securities ($700 x 100/800)..............      87.50
Building ($700 x 500/800)....................................     437.50
                                                              ----------
    Total....................................................     700.00
------------------------------------------------------------------------

    (B) No amount is allocated to goodwill or going concern value.
    (iv) (A) The ADSP of $900 is ratably allocated among T's Class V 
acquisition date assets in proportion to their fair market values as 
follows:

------------------------------------------------------------------------
                            Asset                                Basis
------------------------------------------------------------------------
Equipment....................................................       $200
Non-actively traded securities...............................        100
Building.....................................................        500
                                                              ----------
    Total....................................................        800
------------------------------------------------------------------------

    (B) The remaining ADSP, $100, is allocated to goodwill and going 
concern value (Class VII).
    (v) P and T file a consolidated return for 2001 and each following 
year with P as the common parent of the affiliated group.
    (vi) In 2004, a contingent amount of $120 is paid by P. For old T, 
this payment has no effect on ADSP, because the payment is accounted for 
as a separate transaction. We have assumed that, under general 
principles of tax law, the payment is properly taken into account by P 
at the time made. Therefore, in 2004, there is an increase in new T's 
AGUB of $120. The amount of the increase allocated to each acquisition 
date asset is determined as follows:

------------------------------------------------------------------------
                                       Original  Redetermined
                Asset                    AGUB        AGUB       Increase
------------------------------------------------------------------------
Equipment...........................    $175.00      $200.00      $25.00
Land................................      87.50       100.00       12.50
Building............................     437.50       500.00       62.50
Goodwill and going concern value....       0.00        20.00       20.00
                                     -----------------------------------
    Total...........................     700.00       820.00      120.00
------------------------------------------------------------------------


[T.D. 8940, 66 FR 9929, Feb. 13, 2001]



Sec. 1.338-8  Asset and stock consistency.

    (a) Introduction--(1) Overview. This section implements the 
consistency rules of sections 338(e) and (f). Under this section, no 
election under section 338 is deemed made or required with respect to 
target or any target affiliate. Instead, the person acquiring an asset 
may have a carryover basis in the asset.
    (2) General application. The consistency rules generally apply if 
the purchasing corporation acquires an asset directly from target during 
the target consistency period and target is a subsidiary in a 
consolidated group. In such a case, gain from the sale of the asset is 
reflected under the investment adjustment provisions of the consolidated 
return regulations in the basis of target stock and may reduce gain from 
the sale of the stock. See Sec. 1.1502-32 (investment adjustment 
provisions). Under the consistency rules, the purchasing corporation 
generally takes a carryover basis in the asset, unless a section 338 
election is made for target. Similar rules apply if the purchasing 
corporation acquires an asset directly from a lower-tier target 
affiliate if gain from the sale is reflected under the investment 
adjustment provisions in the basis of target stock.
    (3) Extensions of the general rules. If an arrangement exists, 
paragraph (f) of this section generally extends the carryover basis rule 
to certain cases in which the purchasing corporation acquires assets 
indirectly from target (or a lower-tier target affiliate). To prevent 
avoidance of the consistency rules, paragraph (j) of this section also 
may extend the consistency period or the 12-month acquisition period and 
may disregard the presence of conduits.
    (4) Application where certain dividends are paid. Paragraph (g) of 
this section extends the carryover basis rule to certain cases in which 
dividends are paid to a corporation that is not a member of the same 
consolidated group as the distributing corporation. Generally, this rule 
applies where a 100 percent dividends received deduction is used in 
conjunction with asset dispositions to achieve an effect similar to that 
available under the investment adjustment

[[Page 126]]

provisions of the consolidated return regulations.
    (5) Application to foreign target affiliates. Paragraph (h) of this 
section extends the carryover basis rule to certain cases involving 
target affiliates that are controlled foreign corporations.
    (6) Stock consistency. This section limits the application of the 
stock consistency rules to cases in which the rules are necessary to 
prevent avoidance of the asset consistency rules. Following the general 
treatment of a section 338(h)(10) election, a sale of a corporation's 
stock is treated as a sale of the corporation's assets if a section 
338(h)(10) election is made. Because gain from this asset sale may be 
reflected in the basis of the stock of a higher-tier target, the 
carryover basis rule may apply to the assets.
    (b) Consistency for direct acquisitions--(1) General rule. The basis 
rules of paragraph (d) of this section apply to an asset if--
    (i) The asset is disposed of during the target consistency period;
    (ii) The basis of target stock, as of the target acquisition date, 
reflects gain from the disposition of the asset (see paragraph (c) of 
this section); and
    (iii) The asset is owned, immediately after its acquisition and on 
the target acquisition date, by a corporation that acquires stock of 
target in the qualified stock purchase (or by an affiliate of an 
acquiring corporation).
    (2) Section 338(h)(10) elections. For purposes of this section, if a 
section 338(h)(10) election is made for a corporation acquired in a 
qualified stock purchase--
    (i) The acquisition is treated as an acquisition of the 
corporation's assets (see Sec. 1.338(h)(10)-1); and
    (ii) The corporation is not treated as target.
    (c) Gain from disposition reflected in basis of target stock. For 
purposes of this section:
    (1) General rule. Gain from the disposition of an asset is reflected 
in the basis of a corporation's stock if the gain is taken into account 
under Sec. 1.1502-32, directly or indirectly, in determining the basis 
of the stock, after applying section 1503(e) and other provisions of the 
Internal Revenue Code.
    (2) Gain not reflected if section 338 election made for target. Gain 
from the disposition of an asset that is otherwise reflected in the 
basis of target stock as of the target acquisition date is not 
considered reflected in the basis of target stock if a section 338 
election is made for target.
    (3) Gain reflected by reason of distributions. Gain from the 
disposition of an asset is not considered reflected in the basis of 
target stock merely by reason of the receipt of a distribution from a 
target affiliate that is not a member of the same consolidated group as 
the distributee. See paragraph (g) of this section for the treatment of 
dividends eligible for a 100 percent dividends received deduction.
    (4) Controlled foreign corporations. For a limitation applicable to 
gain of a target affiliate that is a controlled foreign corporation, see 
paragraph (h)(2) of this section.
    (5) Gain recognized outside the consolidated group. Gain from the 
disposition of an asset by a person other than target or a target 
affiliate is not reflected in the basis of a corporation's stock unless 
the person is a conduit, as defined in paragraph (j)(4) of this section.
    (d) Basis of acquired assets--(1) Carryover basis rule. If this 
paragraph (d) applies to an asset, the asset's basis immediately after 
its acquisition is, for all purposes of the Internal Revenue Code, its 
adjusted basis immediately before its disposition.
    (2) Exceptions to carryover basis rule for certain assets. The 
carryover basis rule of paragraph (d)(1) of this section does not apply 
to the following assets--
    (i) Any asset disposed of in the ordinary course of a trade or 
business (see section 338(e)(2)(A));
    (ii) Any asset the basis of which is determined wholly by reference 
to the adjusted basis of the asset in the hands of the person that 
disposed of the asset (see section 338(e)(2)(B));
    (iii) Any debt or equity instrument issued by target or a target 
affiliate (see paragraph (h)(3) of this section for an exception 
relating to the stock of a target affiliate that is a controlled foreign 
corporation);
    (iv) Any asset the basis of which immediately after its acquisition 
would otherwise be less than its adjusted

[[Page 127]]

basis immediately before its disposition; and
    (v) Any asset identified by the Internal Revenue Service in a 
revenue ruling or revenue procedure.
    (3) Exception to carryover basis rule for de minimis assets. The 
carryover basis rules of this section do not apply to an asset if the 
asset is not disposed of as part of the same arrangement as the 
acquisition of target and the aggregate amount realized for all assets 
otherwise subject to the carryover basis rules of this section does not 
exceed $250,000.
    (4) Mitigation rule--(i) General rule. If the carryover basis rules 
of this section apply to an asset and the asset is transferred to a 
domestic corporation in a transaction to which section 351 applies or as 
a contribution to capital and no gain is recognized, the transferor's 
basis in the stock of the transferee (but not the transferee's basis in 
the asset) is determined without taking into account the carryover basis 
rules of this section.
    (ii) Time for transfer. This paragraph (d)(4) applies only if the 
asset is transferred before the due date (including extensions) for the 
transferor's income tax return for the year that includes the last date 
for which a section 338 election may be made for target.
    (e) Examples--(1) In general. For purposes of the examples in this 
section, unless otherwise stated, the basis of each asset is the same 
for determining earnings and profits and taxable income, the exceptions 
to paragraph (d)(1) of this section do not apply, the taxable year of 
all persons is the calendar year, and the following facts apply: S is 
the common parent of a consolidated group that includes T, T1, T2, and 
T3; S owns all of the stock of T and T3; and T owns all of the stock of 
T1, which owns all of the stock of T2. B is unrelated to the S group and 
owns all of the stock of P, which owns all of the stock of P1. Y and Y1 
are partnerships that are unrelated to the S group but may be related to 
the P group. Z is a corporation that is not related to any of the other 
parties.
[GRAPHIC] [TIFF OMITTED] TC17OC91.000

    (2) Direct acquisitions. Paragraphs (b), (c), and (d) of this 
section may be illustrated by the following examples:

    Example 1. Asset acquired from target by purchasing corporation. (a) 
On February 1 of Year 1, T sells an asset to P1 and recognizes gain. T's 
gain from the disposition of the asset is

[[Page 128]]

taken into account under Sec. 1.1502-32 in determining S's basis in the 
T stock. On January 1 of Year 2, P1 makes a qualified stock purchase of 
T from S. No section 338 election is made for T.
    (b) T disposed of the asset during its consistency period, gain from 
the asset disposition is reflected in the basis of the T stock as of T's 
acquisition date (January 1 of Year 2), and the asset is owned both 
immediately after the asset disposition (February 1 of Year 1) and on 
T's acquisition date by P1, the corporation that acquired T stock in the 
qualified stock purchase. Consequently, under paragraph (b) of this 
section, paragraph (d)(1) of this section applies to the asset and P1's 
basis in the asset is T's adjusted basis in the asset immediately before 
the sale to P1.
    Example 2. Gain from section 338(h)(10) election reflected in stock 
basis. (a) On February 1 of Year 1, P1 makes a qualified stock purchase 
of T2 from T1. A section 338(h)(10) election is made for T2 and T2 
recognizes gain on each of its assets. T2's gain is taken into account 
under Sec. 1.1502-32 in determining S's basis in the T stock. On 
January 1 of Year 2, P1 makes a qualified stock purchase of T from S. No 
section 338 election is made for T.
    (b) Under paragraph (b)(2) of this section, the acquisition of the 
T2 stock is treated as an acquisition of T2's assets on February 1 of 
Year 1, because a section 338(h)(10) election is made for T2. The gain 
recognized by T2 under section 338(h)(10) is reflected in S's basis in 
the T stock as of T's acquisition date. Because the other requirements 
of paragraph (b) of this section are satisfied, paragraph (d)(1) of this 
section applies to the assets and new T2's basis in its assets is old 
T2's adjusted basis in the assets immediately before the disposition.
    Example 3. Corporation owning asset ceases affiliation with 
corporation purchasing target before target acquisition date. (a) On 
February 1 of Year 1, T sells an asset to P1 and recognizes gain. On 
December 1 of Year 1, P disposes of all of the P1 stock while P1 still 
owns the asset. On January 1 of Year 2, P makes a qualified stock 
purchase of T from S. No section 338 election is made for T.
    (b) Immediately after T's disposition of the asset, the asset is 
owned by P1 which is affiliated on that date with P, the corporation 
that acquired T stock in the qualified stock purchase. However, the 
asset is owned by a corporation (P1) that is no longer affiliated with P 
on T's acquisition date. Although the other requirements of paragraph 
(b) of this section are satisfied, the requirements of paragraph 
(b)(1)(iii) of this section are not satisfied. Consequently, the basis 
rules of paragraph (d) of this section do not apply to the asset by 
reason of P1's acquisition.
    (c) If P acquires all of the Z stock and P1 transfers the asset to Z 
on or before T's acquisition date (January 1 of Year 2), the asset is 
owned by an affiliate of P both on February 1 of Year 1 (P1) and on 
January 1 of Year 2 (Z). Consequently, all of the requirements of 
paragraph (b) of this section are satisfied and paragraph (d)(1) of this 
section applies to the asset and P1's basis in the asset is T's adjusted 
basis in the asset immediately before the sale to P1.
    Example 4. Gain reflected in stock basis notwithstanding offsetting 
loss or distribution. (a) On April 1 of Year 1, T sells an asset to P1 
and recognizes gain. In Year 1, T distributes an amount equal to the 
gain. On March 1 of Year 2, P makes a qualified stock purchase of T from 
S. No section 338 election is made for T.
    (b) Although, as a result of the distribution, there is no 
adjustment with respect to the T stock under Sec. 1.1502-32 for Year 1, 
T's gain from the disposition of the asset is considered reflected in 
S's basis in the T stock. The gain is considered to have been taken into 
account under Sec. 1.1502-32 in determining the adjustments to S's 
basis in the T stock because S's basis in the T stock is different from 
what it would have been had there been no gain.
    (c) If T distributes an amount equal to the gain on February 1 of 
Year 2, rather than in Year 1, the results would be the same because S's 
basis in the T stock is different from what it would have been had there 
been no gain. If the distribution in Year 2 is by reason of an election 
under Sec. 1.1502-32(f)(2), the results would be the same.
    (d) If, in Year 1, T does not make a distribution and the S group 
does not file a consolidated return, but, in Year 2, the S group does 
file a consolidated return and makes an election under Sec. 1.1502-
32(f)(2) for T, the results would be the same. S's basis in the T stock 
is different from what it would have been had there been no gain. 
Paragraph (c)(3) of this section (gain not considered reflected by 
reason of distributions) does not apply to the deemed distribution under 
the election because S and T are members of the same consolidated group. 
If T distributes an amount equal to the gain in Year 2 and no election 
is made under Sec. 1.1502-32(f)(2), the results would be the same.
    (e) If, in Year 1, T incurs an unrelated loss in an amount equal to 
the gain, rather than distributing an amount equal to the gain, the 
results would be the same because the gain is taken into account under 
Sec. 1.1502-32 in determining S's basis in the T stock.
    Example 5. Gain of a target affiliate reflected in stock basis after 
corporate reorganization. (a) On February 1 of Year 1, T3 sells an asset 
to P1 and recognizes gain. On March 1 of Year 1, S contributes the T3 
stock to T in a transaction qualifying under section 351. On January 15 
of Year 2, P1 makes a qualified stock purchase of T from S. No section 
338 election is made for T.

[[Page 129]]

    (b) T3's gain from the asset sale is taken into account under Sec. 
1.1502-32 in determining S's basis in the T3 stock. Under section 358, 
the gain that is taken into account under Sec. 1.1502-32 in determining 
S's basis in the T3 stock is also taken into account in determining S's 
basis in the T stock following S's contribution of the T3 stock to T. 
Consequently, under paragraph (b) of this section, paragraph (d)(1) of 
this section applies to the asset and P1's basis in the asset is T3's 
adjusted basis in the asset immediately before the sale to P1.
    (c) If on March 1 of Year 1, rather than S contributing the T3 stock 
to T, S causes T3 to merge into T in a transaction qualifying under 
section 368(a)(1)(D), the results would be the same.
    Example 6. Gain not reflected if election under section 338 made. 
(a) On February 1 of Year 1, T1 sells an asset to P1 and recognizes 
gain. On January 1 of Year 2, P1 makes a qualified stock purchase of T1 
from T. A section 338 election (but not a section 338(h)(10) election) 
is made for T1.
    (b) Under paragraph (c)(2) of this section, because a section 338 
election is made for T1, T's basis in the T1 stock is considered not to 
reflect gain from the disposition. Consequently, the requirement of 
paragraph (b)(1)(ii) of this section is not satisfied. Thus, P1's basis 
in the asset is not determined under paragraph (d) of this section. 
Although the section 338 election for T1 results in a qualified stock 
purchase of T2, the requirement of paragraph (b)(1)(ii) of this section 
is not satisfied with respect to T2, whether or not a section 338 
election is made for T2.
    (c) If, on January 1 of Year 2, P1 makes a qualified stock purchase 
of T from S and a section 338 election for T, rather than T1, S's basis 
in the T stock is considered not to reflect gain from T1's disposition 
of the asset. However, the section 338 election for T results in a 
qualified stock purchase of T1. Because the gain is reflected in T's 
basis in the T1 stock, the requirements of paragraph (b) of this section 
are satisfied. Consequently, P1's basis in the asset is determined under 
paragraph (d)(1) of this section unless a section 338 election is also 
made for T1.

    (f) Extension of consistency to indirect acquisitions--(1) 
Introduction. If an arrangement exists (see paragraph (j)(5) of this 
section), this paragraph (f) generally extends the consistency rules to 
indirect acquisitions that have the same effect as direct acquisitions. 
For example, this paragraph (f) applies if, pursuant to an arrangement, 
target sells an asset to an unrelated person who then sells the asset to 
the purchasing corporation.
    (2) General rule. This paragraph (f) applies to an asset if, 
pursuant to an arrangement--
    (i) The asset is disposed of during the target consistency period;
    (ii) The basis of target stock as of, or at any time before, the 
target acquisition date reflects gain from the disposition of the asset; 
and
    (iii) The asset ownership requirements of paragraph (b)(1)(iii) of 
this section are not satisfied, but the asset is owned, at any time 
during the portion of the target consistency period following the target 
acquisition date, by--
    (A) A corporation--
    (1) The basis of whose stock, as of, or at any time before, the 
target acquisition date, reflects gain from the disposition of the 
asset; and
    (2) That is affiliated, at any time during the target consistency 
period, with a corporation that acquires stock of target in the 
qualified stock purchase; or
    (B) A corporation that at the time it owns the asset is affiliated 
with a corporation described in paragraph (f)(2)(iii)(A) of this 
section.
    (3) Basis of acquired assets. If this paragraph (f) applies to an 
asset, the principles of the basis rules of paragraph (d) of this 
section apply to the asset as of the date, following the disposition 
with respect to which gain is reflected in the basis of target's stock, 
that the asset is first owned by a corporation described in paragraph 
(f)(2)(iii) of this section. If the principles of the carryover basis 
rule of paragraph (d)(1) of this section apply to an asset, the asset's 
basis also is reduced (but not below zero) by the amount of any 
reduction in its basis occurring after the disposition with respect to 
which gain is reflected in the basis of target's stock.
    (4) Examples. This paragraph (f) may be illustrated by the following 
examples:

    Example 1. Acquisition of asset from unrelated party by purchasing 
corporation. (a) On February 1 of Year 1, T sells an asset to Z and 
recognizes gain. On February 15 of Year 1, P1 makes a qualified stock 
purchase of T from S. No section 338 election is made for T. P1 buys the 
asset from Z on March 1 of Year 1, before Z has reduced the basis of the 
asset through depreciation or otherwise.

[[Page 130]]

    (b) Paragraph (b) of this section does not apply to the asset 
because the asset ownership requirements of paragraph (b)(1)(iii) of 
this section are not satisfied. However, the asset ownership 
requirements of paragraph (f)(2)(iii) of this section are satisfied 
because, during the portion of T's consistency period following T's 
acquisition date, the asset is owned by P1 while it is affiliated with 
T. Consequently, paragraph (f) of this section applies to the asset if 
there is an arrangement for T to dispose of the asset during T's 
consistency period, for the gain to be reflected in S's basis in the T 
stock as of T's acquisition date, and for P1 to own the asset during the 
portion of T's consistency period following T's acquisition date. If the 
arrangement exists, under paragraph (f)(3) of this section, P1's basis 
in the asset is determined as of March 1 of Year 1, under the principles 
of paragraph (d) of this section. Consequently, P1's basis in the asset 
is T's adjusted basis in the asset immediately before the sale to Z.
    (c) If P1 acquires the asset from Z on January 15 of Year 2 (rather 
than on March 1 of Year 1), and Z's basis in the asset has been reduced 
through depreciation at the time of the acquisition, P1's basis in the 
asset as of January 15 of Year 2 would be T's adjusted basis in the 
asset immediately before the sale to Z, reduced (but not below zero) by 
the amount of the depreciation. Z's basis and depreciation are 
determined without taking into account the basis rules of paragraph (d) 
of this section.
    (d) If P, rather than P1, acquires the asset from Z, the results 
would be the same.
    (e) If, on March 1 of Year 1, P1 acquires the Z stock, rather than 
acquiring the asset from Z, paragraph (f) of this section would apply to 
the asset if an arrangement exists. However, under paragraph (f)(3) of 
this section, Z's basis in the asset would be determined as of February 
1 of Year 1, the date the asset is first owned by a corporation (Z) 
described in paragraph (f)(2)(iii) of this section. Consequently, Z's 
basis in the asset as of February 1 of Year 1, determined under the 
principles of paragraph (d) of this section, would be T's adjusted basis 
in the asset immediately before the sale to Z.
    Example 2. Acquisition of asset from target by target affiliate. (a) 
On February 1 of Year 1, T contributes an asset to T1 in a transaction 
qualifying under section 351 and in which T recognizes gain under 
section 351(b) that is deferred under Sec. 1.1502-13. On March 1 of 
Year 1, P1 makes a qualified stock purchase of T from S and, pursuant to 
Sec. 1.1502-13, the deferred gain is taken into account by T 
immediately before T ceases to be a member of the S group. No section 
338 election is made for T.
    (b) Paragraph (b) of this section does not apply to the asset 
because the asset ownership requirements of paragraph (b)(1)(iii) of 
this section are not satisfied.
    (c) T1 is not described in paragraph (f)(2)(iii)(A) of this section 
because the basis of the T1 stock does not reflect gain from the 
disposition of the asset. Although, under section 358(a)(1)(B)(ii), T's 
basis in the T1 stock is increased by the amount of the gain, the gain 
is not taken into account directly or indirectly under Sec. 1.1502-32 
in determining T's basis in the T1 stock.
    (d) T1 is described in paragraph (f)(2)(iii)(B) of this section 
because, during the portion of T's consistency period following T's 
acquisition date, T1 owns the asset while it is affiliated with T, a 
corporation described in paragraph (f)(2)(iii)(A) of this section. 
Consequently, paragraph (f) of this section applies to the asset if 
there is an arrangement. Under paragraph (j)(5) of this section, the 
fact that, at the time T1 acquires the asset from T, T1 is related 
(within the meaning of section 267(b)) to T indicates that an 
arrangement exists.
    Example 3. Acquisition of asset from target and indirect acquisition 
of target stock. (a) On February 1 of Year 1, T sells an asset to P1 and 
recognizes gain. On March 1 of Year 1, Z makes a qualified stock 
purchase of T from S. No section 338 election is made for T. On January 
1 of Year 2, P1 acquires the T stock from Z other than in a qualified 
stock purchase.
    (b) The asset ownership requirements of paragraph (b)(1)(iii) of 
this section are not satisfied because the asset was never owned by Z, 
the corporation that acquired T stock in the qualified stock purchase 
(or by a corporation that was affiliated with Z at the time it owned the 
asset). However, because the asset is owned by P1 while it is affiliated 
with T during the portion of T's consistency period following T's 
acquisition date, paragraph (f) of this section applies to the asset if 
there is an arrangement. If there is an arrangement, the principles of 
the carryover basis rule of paragraph (d)(1) of this section apply to 
determine P1's basis in the asset unless Z makes a section 338 election 
for T. See paragraph (c)(2) of this section.
    (c) If P1 also makes a qualified stock purchase of T from Z, the 
results would be the same. If there is an arrangement, the principles of 
the carryover basis rule of paragraph (d)(1) of this section apply to 
determine P1's basis in the asset unless Z makes a section 338 election 
for T. However, these principles apply to determine P1's basis in the 
asset if P1, but not Z, makes a section 338 election for T. The basis of 
the T stock no longer reflects, as of T's acquisition date by P1, the 
gain from the disposition of the asset.
    (d) Assume Z purchases the T stock other than in a qualified stock 
purchase and P1 makes a qualified stock purchase of T from Z. Paragraph 
(b) of this section does not

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apply to the asset because gain from the disposition of the asset is not 
reflected in the basis of T's stock as of T's acquisition date (January 
1 of Year 2). However, because the gain is reflected in S's basis in the 
T stock before T's acquisition date and the asset is owned by P1 while 
it is affiliated with T during the portion of T's consistency period 
following T's acquisition date, paragraph (f) of this section applies to 
the asset if there is an arrangement. If there is an arrangement, the 
principles of the carryover basis rule of paragraph (d)(1) of this 
section apply to determine P1's basis in the asset even if P1 makes a 
section 338 election for T. The basis of the T stock no longer reflects, 
as of T's acquisition date, the gain from the disposition of the asset.
    Example 4. Asset acquired from target affiliate by corporation that 
becomes its affiliate. (a) On February 1 of Year 1, T1 sells an asset to 
P1 and recognizes gain. On February 15 of Year 1, Z makes a qualified 
stock purchase of T from S. No section 338 election is made for T. On 
June 1 of Year 1, P1 acquires the T1 stock from T, other than in a 
qualified stock purchase.
    (b) The asset ownership requirements of paragraph (b)(1)(iii) of 
this section are not satisfied because the asset was never owned by Z, 
the corporation that acquired T stock in the qualified stock purchase 
(or by a corporation that was affiliated with Z at the time it owned the 
asset).
    (c) P1 is not described in paragraph (f)(2)(iii)(A) of this section 
because gain from the disposition of the asset is not reflected in the 
basis of the P1 stock.
    (d) P1 is described in paragraph (f)(2)(iii)(B) of this section 
because the asset is owned by P1 while P1 is affiliated with T1 during 
the portion of T's consistency period following T's acquisition date. T1 
becomes affiliated with Z, the corporation that acquired T stock in the 
qualified stock purchase, during T's consistency period, and, as of T's 
acquisition date, the basis of T1's stock reflects gain from the 
disposition of the asset. Consequently, paragraph (f) of this section 
applies to the asset if there is an arrangement.
    Example 5. De minimis rules. (a) On February 1 of Year 1, T sells an 
asset to P and recognizes gain. On February 15 of Year 1, T1 sells an 
asset to Z and recognizes gain. The aggregate amount realized by T and 
T1 on their respective sales of assets is not more than $250,000. On 
March 1 of Year 1, T3 sells an asset to P and recognizes gain. On April 
1 of Year 1, P makes a qualified stock purchase of T from S. No section 
338 election is made for T. On June 1 of Year 1, P1 buys from Z the 
asset sold by T1.
    (b) Under paragraph (b) of this section, the basis rules of 
paragraph (d) of this section apply to the asset sold by T. Under 
paragraph (f) of this section, the principles of the basis rules of 
paragraph (d) of this section apply to the asset sold by T1 if there is 
an arrangement. Because T3's gain is not reflected in the basis of the T 
stock, the basis rules of this section do not apply to the asset sold by 
T3.
    (c) The de minimis rule of paragraph (d)(3) of this section applies 
to an asset if the asset is not disposed of as part of the same 
arrangement as the acquisition of T and the aggregate amount realized 
for all assets otherwise subject to the carryover basis rules does not 
exceed $250,000. The aggregate amount realized by T and T1 does not 
exceed $250,000. (The asset sold by T3 is not taken into account for 
purposes of the de minimis rule.) Thus, the de minimis rule applies to 
the asset sold by T if the asset is not disposed of as part of the same 
arrangement as the acquisition of T.
    (d) If, under paragraph (f) of this section, the principles of the 
carryover basis rules of paragraph (d)(1) of this section otherwise 
apply to the asset sold by T1 because of an arrangement, the de minimis 
rules of this section do not apply to the asset because of the 
arrangement.
    (e) Assume on June 1 of Year 1, Z acquires the T1 stock from T, 
other than in a qualified stock purchase, rather than P1 buying the T1 
asset, and paragraph (f) of this section applies because there is an 
arrangement. Because the asset was disposed of and the T1 stock was 
acquired as part of the arrangement, the de minimis rules of this 
section do not apply to the asset.

    (g) Extension of consistency if dividends qualifying for 100 percent 
dividends received deduction are paid--(1) General rule for direct 
acquisitions from target. Unless a section 338 election is made for 
target, the basis rules of paragraph (d) of this section apply to an 
asset if--
    (i) Target recognizes gain (whether or not deferred) on disposition 
of the asset during the portion of the target consistency period that 
ends on the target acquisition date;
    (ii) The asset is owned, immediately after the asset disposition and 
on the target acquisition date, by a corporation that acquires stock of 
target in the qualified stock purchase (or by an affiliate of an 
acquiring corporation); and
    (iii) During the portion of the target consistency period that ends 
on the target acquisition date, the aggregate amount of dividends paid 
by target, to which section 243(a)(3) applies, exceeds the greater of--
    (A) $250,000; or
    (B) 125 percent of the yearly average amount of dividends paid by 
target, to

[[Page 132]]

which section 243(a)(3) applies, during the three calendar years 
immediately preceding the year in which the target consistency period 
begins (or, if shorter, the period target was in existence).
    (2) Other direct acquisitions having same effect. The basis rules of 
paragraph (d) of this section also apply to an asset if the effect of a 
transaction described in paragraph (g)(1) of this section is achieved 
through any combination of disposition of assets and payment of 
dividends to which section 243(a)(3) applies (or any other dividends 
eligible for a 100 percent dividends received deduction). See paragraph 
(h)(4) of this section for additional rules relating to target 
affiliates that are controlled foreign corporations.
    (3) Indirect acquisitions. The principles of paragraph (f) of this 
section also apply for purposes of this paragraph (g).
    (4) Examples. This paragraph (g) may be illustrated by the following 
examples:

    Example 1. Asset acquired from target paying dividends to which 
section 243(a)(3) applies. (a) The S group does not file a consolidated 
return. In Year 1, Year 2, and Year 3, T pays dividends to S to which 
section 243(a)(3) applies of $200,000, $250,000, and $300,000, 
respectively. On February 1 of Year 4, T sells an asset to P and 
recognizes gain. On January 1 of Year 5, P makes a qualified stock 
purchase of T from S. No section 338 election is made for T. During the 
portion of T's consistency period that ends on T's acquisition date, T 
pays S dividends to which section 243(a)(3) applies of $1,000,000.
    (b) Under paragraph (g)(1) of this section, paragraph (d) of this 
section applies to the asset. T recognizes gain on disposition of the 
asset during the portion of T's consistency period that ends on T's 
acquisition date, the asset is owned by P immediately after the 
disposition and on T's acquisition date, and T pays dividends described 
in paragraph (g)(1)(iii) of this section. Consequently, under paragraph 
(d)(1) of this section, P's basis in the asset is T's adjusted basis in 
the asset immediately before the sale to P.
    (c) If T is a controlled foreign corporation, the results would be 
the same if T pays dividends in the amount described in paragraph 
(g)(1)(iii) of this section that qualify for a 100 percent dividends 
received deduction. See sections 243(e) and 245.
    (d) If S and T3 file a consolidated return in which T, T1, and T2 do 
not join, the results would be the same because the dividends paid by T 
are still described in paragraph (g)(1)(iii) of this section.
    (e) If T, T1, and T2 file a consolidated return in which S and T3 do 
not join, the results would be the same because the dividends paid by T 
are still described in paragraph (g)(1)(iii) of this section.
    Example 2. Asset disposition by target affiliate achieving same 
effect. (a) The S group does not file a consolidated return. On February 
1 of Year 1, T2 sells an asset to P and recognizes gain. T pays 
dividends to S described in paragraph (g)(1)(iii) of this section. On 
January 1 of Year 2, P makes a qualified stock purchase of T from S. No 
section 338 election is made for T.
    (b) Paragraph (g)(1) of this section does not apply to the asset 
because T did not recognize gain on the disposition of the asset. 
However, under paragraph (g)(2) of this section, because the asset 
disposition by T2 and the dividends paid by T achieve the effect of a 
transaction described in paragraph (g)(1) of this section, the carryover 
basis rule of paragraph (d)(1) of this section applies to the asset. The 
effect was achieved because T2 is a lower-tier affiliate of T and the 
dividends paid by T to S reduce the value to S of T and its lower-tier 
affiliates.
    (c) If T2 is a controlled foreign corporation, the results would be 
the same because T2 is a lower-tier affiliate of T and the dividends 
paid by T to S reduce the value to S of T and its lower-tier affiliates.
    (d) If P buys an asset from T3, rather than T2, the asset 
disposition and the dividends do not achieve the effect of a transaction 
described in paragraph (g)(1) of this section because T3 is not a lower-
tier affiliate of T. Thus, the basis rules of paragraph (d) of this 
section do not apply to the asset. The results would be the same whether 
or not P also acquires the T3 stock (whether or not in a qualified stock 
purchase).
    Example 3. Dividends by target affiliate achieving same effect. (a) 
The S group does not file a consolidated return. On February 1 of Year 
1, T1 sells an asset to P and recognizes gain. On January 1 of Year 2, P 
makes a qualified stock purchase of T from S. No section 338 election is 
made for T. T does not pay dividends to S described in paragraph 
(g)(1)(iii) of this section. However, T1 pays dividends to T that would 
be described in paragraph (g)(1)(iii) of this section if T1 were a 
target.
    (b) Paragraph (g)(1) of this section does not apply to the asset 
because T did not recognize gain on the disposition of the asset and did 
not pay dividends described in paragraph (g)(1)(iii) of this section. 
Further, paragraph (g)(2) of this section does not apply because the 
dividends paid by T1 to T do not reduce the value to S of T and its 
lower-tier affiliates.
    (c) If both S and T own T1 stock and T1 pays dividends to S that 
would be described in paragraph (g)(1)(iii) of this section if T1 were a 
target, paragraph (g)(2) of this section

[[Page 133]]

would apply because the dividends paid by T1 to S reduce the value to S 
of T and its lower-tier affiliates. If T, rather than T1, sold the asset 
to P, the results would be the same. Further, if T and T1 pay dividends 
to S that, only when aggregated, would be described in paragraph 
(g)(1)(iii) of this section (if they were all paid by T), the results 
would be the same.
    Example 4. Gain reflected by reason of dividends. (a) S and T file a 
consolidated return in which T1 and T2 do not join. On February 1 of 
Year 1, T1 sells an asset to P and recognizes gain. On January 1 of Year 
2, P makes a qualified stock purchase of T from S. No section 338 
election is made for T. T1 pays dividends to T that would be described 
in paragraph (g)(1)(iii) of this section if T1 were a target.
    (b) The requirements of paragraph (b) of this section are not 
satisfied because, under paragraph (c)(3) of this section, gain from 
T1's sale is not reflected in S's basis in the T stock by reason of the 
dividends paid by T1 to T.
    (c) Although the dividends paid by T1 to T do not reduce the value 
to S of T and its lower-tier affiliates, paragraph (g)(2) of this 
section applies because the dividends paid by T1 to T are taken into 
account under Sec. 1.1502-32 in determining S's basis in the T stock. 
Consequently, the carryover basis rule of paragraph (d)(1) of this 
section applies to the asset.

    (h) Consistency for target affiliates that are controlled foreign 
corporations--(1) In general. This paragraph (h) applies only if target 
is a domestic corporation. For additional rules that may apply with 
respect to controlled foreign corporations, see paragraph (g) of this 
section. The definitions and nomenclature of Sec. 1.338-2(b) and (c) 
and paragraph (e) of this section apply for purposes of this section.
    (2) Income or gain resulting from asset dispositions--(i) General 
rule. Income or gain of a target affiliate that is a controlled foreign 
corporation from the disposition of an asset is not reflected in the 
basis of target stock under paragraph (c) of this section unless the 
income or gain results in an inclusion under section 951(a)(1)(A), 
951(a)(1)(C), 1291 or 1293.
    (ii) Basis of controlled foreign corporation stock. If, by reason of 
paragraph (h)(2)(i) of this section, the carryover basis rules of this 
section apply to an asset, no increase in basis in the stock of a 
controlled foreign corporation under section 961(a) or 1293(d)(1), or 
under regulations issued pursuant to section 1297(b)(5), is allowed to 
target or a target affiliate to the extent the increase is attributable 
to income or gain described in paragraph (h)(2)(i) of this section. A 
similar rule applies to the basis of any property by reason of which the 
stock of the controlled foreign corporation is considered owned under 
section 958(a)(2) or 1297(a).
    (iii) Operating rule. For purposes of this paragraph (h)(2)--
    (A) If there is an income inclusion under section 951 (a)(1)(A) or 
(C), the shareholder's income inclusion is first attributed to the 
income or gain of the controlled foreign corporation from the 
disposition of the asset to the extent of the shareholder's pro rata 
share of such income or gain; and
    (B) Any income or gain under section 1293 is first attributed to the 
income or gain from the disposition of the asset to the extent of the 
shareholder's pro rata share of the income or gain.
    (iv) Increase in asset or stock basis--(A) If the carryover basis 
rules under paragraph (h)(2)(i) of this section apply to an asset, and 
the purchasing corporation disposes of the asset to an unrelated party 
in a taxable transaction and recognizes and includes in its U.S. gross 
income or the U.S. gross income of its shareholders the greater of the 
income or gain from the disposition of the asset by the selling 
controlled foreign corporation that was reflected in the basis of the 
target stock under paragraph (c) of this section, or the gain recognized 
on the asset by the purchasing corporation on the disposition of the 
asset, then the purchasing corporation or the target or a target 
affiliate, as appropriate, shall increase the basis of the selling 
controlled foreign corporation stock subject to paragraph (h)(2)(ii) of 
this section, as of the date of the disposition of the asset by the 
purchasing corporation, by the amount of the basis increase that was 
denied under paragraph (h)(2)(ii) of this section. The preceding 
sentence shall apply only to the extent that the controlled foreign 
corporation stock is owned (within the meaning of section 958(a)) by a 
member of the purchasing corporation's affiliated group.
    (B) If the carryover basis rules under paragraph (h)(2)(i) of this 
section apply

[[Page 134]]

to an asset, and the purchasing corporation or the target or a target 
affiliate, as appropriate, disposes of the stock of the selling 
controlled foreign corporation to an unrelated party in a taxable 
transaction and recognizes and includes in its U.S. gross income or the 
U.S. gross income of its shareholders the greater of the gain equal to 
the basis increase that was denied under paragraph (h)(2)(ii) of this 
section, or the gain recognized in the stock by the purchasing 
corporation or by the target or a target affiliate, as appropriate, on 
the disposition of the stock, then the purchasing corporation shall 
increase the basis of the asset, as of the date of the disposition of 
the stock of the selling controlled foreign corporation by the 
purchasing corporation or by the target or a target affiliate, as 
appropriate, by the amount of the basis increase that was denied 
pursuant to paragraph (h)(2)(i) of this section. The preceding sentence 
shall apply only to the extent that the asset is owned (within the 
meaning of section 958(a)) by a member of the purchasing corporation's 
affiliated group.
    (3) Stock issued by target affiliate that is a controlled foreign 
corporation. The exception to the carryover basis rules of this section 
provided in paragraph (d)(2)(iii) of this section does not apply to 
stock issued by a target affiliate that is a controlled foreign 
corporation. After applying the carryover basis rules of this section to 
the stock, the basis in the stock is increased by the amount treated as 
a dividend under section 1248 on the disposition of the stock (or that 
would have been so treated but for section 1291), except to the extent 
the basis increase is attributable to the disposition of an asset in 
which a carryover basis is taken under this section.
    (4) Certain distributions--(i) General rule. In the case of a target 
affiliate that is a controlled foreign corporation, paragraph (g) of 
this section applies with respect to the target affiliate by treating 
any reference to a dividend to which section 243(a)(3) applies as a 
reference to any amount taken into account under Sec. 1.1502-32 in 
determining the basis of target stock that is--
    (A) A dividend;
    (B) An amount treated as a dividend under section 1248 (or that 
would have been so treated but for section 1291); or
    (C) An amount included in income under section 951(a)(1)(B).
    (ii) Basis of controlled foreign corporation stock. If the carryover 
basis rules of this section apply to an asset, the basis in the stock of 
the controlled foreign corporation (or any property by reason of which 
the stock is considered owned under section 958(a)(2)) is reduced (but 
not below zero) by the sum of any amounts that are treated, solely by 
reason of the disposition of the asset, as a dividend, amount treated as 
a dividend under section 1248 (or that would have been so treated but 
for section 1291), or amount included in income under section 
951(a)(1)(B). For this purpose, any dividend, amount treated as a 
dividend under section 1248 (or that would have been so treated but for 
section 1291), or amount included in income under section 951(a)(1)(B) 
is considered attributable first to earnings and profits resulting from 
the disposition of the asset.
    (iii) Increase in asset or stock basis--(A) If the carryover basis 
rules under paragraphs (g) and (h)(4)(i) of this section apply to an 
asset, and the purchasing corporation disposes of the asset to an 
unrelated party in a taxable transaction and recognizes and includes in 
its U.S. gross income or the U.S. gross income of its shareholders the 
greater of the gain equal to the basis increase denied in the asset 
pursuant to paragraphs (g) and (h)(4)(i) of this section, or the gain 
recognized on the asset by the purchasing corporation on the disposition 
of the asset, then the purchasing corporation or the target or a target 
affiliate, as appropriate, shall increase the basis of the selling 
controlled foreign corporation stock subject to paragraph (h)(4)(ii) of 
this section, as of the date of the disposition of the asset by the 
purchasing corporation, by the amount of the basis reduction under 
paragraph (h)(4)(ii) of this section. The preceding sentence shall apply 
only to the extent that the controlled foreign corporation stock is 
owned (within the meaning of section 958(a)) by a member of the 
purchasing corporation's affiliated group.

[[Page 135]]

    (B) If the carryover basis rules under paragraphs (g) and (h)(4)(i) 
of this section apply to an asset, and the purchasing corporation or the 
target or a target affiliate, as appropriate, disposes of the stock of 
the selling controlled foreign corporation to an unrelated party in a 
taxable transaction and recognizes and includes in its U.S. gross income 
or the U.S. gross income of its shareholders the greater of the amount 
of the basis reduction under paragraph (h)(4)(ii) of this section, or 
the gain recognized in the stock by the purchasing corporation or by the 
target or a target affiliate, as appropriate, on the disposition of the 
stock, then the purchasing corporation shall increase the basis of the 
asset, as of the date of the disposition of the stock of the selling 
controlled foreign corporation by the purchasing corporation or by the 
target or a target affiliate, as appropriate, by the amount of the basis 
increase that was denied pursuant to paragraphs (g) and (h)(4)(i) of 
this section. The preceding sentence shall apply only to the extent that 
the asset is owned (within the meaning of section 958(a)) by a member of 
the purchasing corporation's affiliated group.
    (5) Examples. This paragraph (h) may be illustrated by the following 
examples:

    Example 1. Stock of target affiliate that is a CFC. (a) The S group 
files a consolidated return; however, T2 is a controlled foreign 
corporation. On December 1 of Year 1, T1 sells the T2 stock to P and 
recognizes gain. On January 2 of Year 2, P makes a qualified stock 
purchase of T from S. No section 338 election is made for T.
    (b) Under paragraph (b)(1) of this section, paragraph (d) of this 
section applies to the T2 stock. Under paragraph (h)(3) of this section, 
paragraph (d)(2)(iii) of this section does not apply to the T2 stock. 
Consequently, paragraph (d)(1) of this section applies to the T2 stock. 
However, after applying paragraph (d)(1) of this section, P's basis in 
the T2 stock is increased by the amount of T1's gain on the sale of the 
T2 stock that is treated as a dividend under section 1248. Because P has 
a carryover basis in the T2 stock, the T2 stock is not considered 
purchased within the meaning of section 338(h)(3) and no section 338 
election may be made for T2.
    Example 2. Stock of target affiliate CFC; inclusion under subpart F. 
(a) The S group files a consolidated return; however, T2 is a controlled 
foreign corporation. On December 1 of Year 1, T2 sells an asset to P and 
recognizes subpart F income that results in an inclusion in T1's gross 
income under section 951(a)(1)(A). On January 2 of Year 2, P makes a 
qualified stock purchase of T from S. No section 338 election is made 
for T.
    (b) Because gain from the disposition of the asset results in an 
inclusion under section 951(a)(1)(A), the gain is reflected in the basis 
of the T stock as of T's acquisition date. See paragraph (h)(2)(i) of 
this section. Consequently, under paragraph (b)(1) of this section, 
paragraph (d)(1) of this section applies to the asset. In addition, 
under paragraph (h)(2)(ii) of this section, T1's basis in the T2 stock 
is not increased under section 961(a) by the amount of the inclusion 
that is attributable to the sale of the asset.
    (c) If, in addition to making a qualified stock purchase of T, P 
acquires the T2 stock from T1 on January 1 of Year 2, the results are 
the same for the asset sold by T2. In addition, under paragraph 
(h)(2)(ii) of this section, T1's basis in the T2 stock is not increased 
by the amount of the inclusion that is attributable to the gain on the 
sale of the asset. Further, under paragraph (h)(3) of this section, 
paragraph (d)(1) of this section applies to the T2 stock. However, after 
applying paragraph (d)(1) of this section, P's basis in the T2 stock is 
increased by the amount of T1's gain on the sale of the T2 stock that is 
treated as a dividend under section 1248. Finally, because P has a 
carryover basis in the T2 stock, the T2 stock is not considered 
purchased within the meaning of section 338(h)(3) and no section 338 
election may be made for T2.
    (d) If P makes a qualified stock purchase of T2 from T1, rather than 
of T from S, and T1's gain on the sale of T2 is treated as a dividend 
under section 1248, under paragraph (h)(1) of this section, paragraphs 
(h)(2) and (3) of this section do not apply because there is no target 
that is a domestic corporation. Consequently, the carryover basis rules 
of paragraph do not apply to the asset sold by T2 or the T2 stock.
    Example 3. Gain reflected by reason of section 1248 dividend; gain 
from non-subpart F asset. (a) The S group files a consolidated return; 
however, T2 is a controlled foreign corporation. In Years 1 through 4, 
T2 does not pay any dividends to T1 and no amount is included in T1's 
income under section 951(a)(1)(B). On December 1 of Year 4, T2 sells an 
asset with a basis of $400,000 to P for $900,000. T2's gain of $500,000 
is not subpart F income. On December 15 of Year 4, T1 sells T2, in which 
it has a basis of $600,000, to P for $1,600,000. Under section 1248, 
$800,000 of T1's gain of $1,000,000 is treated as a dividend. However, 
in the absence of the sale of the asset by T2 to P, only $300,000 would 
have been treated as a dividend under section 1248. On December 30 of 
Year 4, P makes a qualified stock purchase of T1 from T. No section 338 
election is made for T1.

[[Page 136]]

    (b) Under paragraph (h)(4) of this section, paragraph (g)(2) of this 
section applies by reference to the amount treated as a dividend under 
section 1248 on the disposition of the T2 stock. Because the amount 
treated as a dividend is taken into account in determining T's basis in 
the T1 stock under Sec. 1.1502-32, the sale of the T2 stock and the 
deemed dividend have the effect of a transaction described in paragraph 
(g)(1) of this section. Consequently, paragraph (d)(1) of this section 
applies to the asset sold by T2 to P and P's basis in the asset is 
$400,000 as of December 1 of Year 4.
    (c) Under paragraph (h)(3) of this section, paragraph (d)(1) of this 
section applies to the T2 stock and P's basis in the T2 stock is 
$600,000 as of December 15 of Year 4. Under paragraphs (h)(3) and 
(4)(ii) of this section, however, P's basis in the T2 stock is increased 
by $300,000 (the amount of T1's gain treated as a dividend under section 
1248 ($800,000), other than the amount treated as a dividend solely as a 
result of the sale of the asset by T2 to P ($500,000)) to $900,000.
    (i) [Reserved]
    (j) Anti-avoidance rules. For purposes of this section--
    (1) Extension of consistency period. The target consistency period 
is extended to include any continuous period that ends on, or begins on, 
any day of the consistency period during which a purchasing corporation, 
or any person related, within the meaning of section 267(b) or 
707(b)(1), to a purchasing corporation, has an arrangement--
    (i) To purchase stock of target; or
    (ii) To own an asset to which the carryover basis rules of this 
section apply, taking into account the extension.
    (2) Qualified stock purchase and 12-month acquisition period. The 
12-month acquisition period is extended if, pursuant to an arrangement, 
a corporation acquires by purchase stock of another corporation 
satisfying the requirements of section 1504(a)(2) over a period of more 
than 12 months.
    (3) Acquisitions by conduits--(i) Asset ownership--(A) General rule. 
A corporation is treated as owning any portion of an asset attributed to 
the corporation from a conduit under section 318(a) (treating any asset 
as stock for this purpose), for purposes of--
    (1) The asset ownership requirements of this section; and
    (2) Determining whether a controlled foreign corporation is a target 
affiliate for purposes of paragraph (h) of this section.
    (B) Application of carryover basis rule. If the basis rules of this 
section apply to the asset, the basis rules of this section apply to the 
entire asset (not just the portion for which ownership is attributed).
    (ii) Stock acquisitions--(A) Purchase by conduit. A corporation is 
treated as purchasing stock of another corporation attributed to the 
corporation from a conduit under section 318(a) on the day the stock is 
purchased by the conduit. The corporation is not treated as purchasing 
the stock, however, if the conduit purchased the stock more than two 
years before the date the stock is first attributed to the corporation.
    (B) Purchase of conduit by corporation. If a corporation purchases 
an interest in a conduit (treating the interest as stock for this 
purpose), the corporation is treated as purchasing on that date any 
stock owned by a conduit on that date and attributed to the corporation 
under section 318(a) with respect to the interest in the conduit that 
was purchased.
    (C) Purchase of conduit by conduit. If a conduit (the first conduit) 
purchases an interest in a second conduit (treating the interest as 
stock for this purpose), the first conduit is treated as purchasing on 
that date any stock owned by a conduit on that date and attributed to 
the first conduit under section 318(a) with respect to the interest in 
the second conduit that was purchased.
    (4) Conduit. A person (other than a corporation) is a conduit as to 
a corporation if--
    (i) The corporation would be treated under section 318(a)(2)(A) and 
(B) (attribution from partnerships, estates, and trusts) as owning any 
stock owned by the person; and
    (ii) The corporation, together with its affiliates, would be treated 
as owning an aggregate of at least 50 percent of the stock owned by the 
person.
    (5) Existence of arrangement. The existence of an arrangement is 
determined under all the facts and circumstances. For an arrangement to 
exist, there need not be an enforceable, written, or unconditional 
agreement, and all the parties to the transaction need not have 
participated in each step of the transaction. One factor indicating the 
existence of an arrangement

[[Page 137]]

is the participation of a related party. For this purpose, persons are 
related if they are related within the meaning of section 267(b) or 
707(b)(1).
    (6) Predecessor and successor--(i) Persons. A reference to a person 
(including target, target affiliate, and purchasing corporation) 
includes, as the context may require, a reference to a predecessor or 
successor. For this purpose, a predecessor is a transferor or 
distributor of assets to a person (the successor) in a transaction--
    (A) To which section 381(a) applies; or
    (B) In which the successor's basis for the assets is determined, 
directly or indirectly, in whole or in part, by reference to the basis 
of the transferor or distributor.
    (ii) Assets. A reference to an asset (the first asset) includes, as 
the context may require, a reference to any asset the basis of which is 
determined, directly or indirectly, in whole or in part, by reference to 
the first asset.
    (7) Examples. This paragraph (j) may be illustrated by the following 
examples:

    Example 1. Asset owned by conduit treated as owned by purchaser of 
target stock. (a) P owns a 60-percent interest in Y. On March 1 of Year 
1, T sells an asset to Y and recognizes gain. On January 1 of Year 2, P 
makes a qualified stock purchase of T from S. No section 338 election is 
made for T.
    (b) Under paragraph (j)(4) of this section, Y is a conduit with 
respect to P. Consequently, under paragraph (j)(3)(i)(A) of this 
section, P is treated as owning 60% of the asset on March 1 of Year 1 
and January 1 of Year 2. Because P is treated as owning part or all of 
the asset both immediately after the asset disposition and on T's 
acquisition date, paragraph (b) of this section applies to the asset. 
Consequently, paragraph (d)(1) of this section applies to the asset and 
Y's basis in the asset is T's adjusted basis in the asset immediately 
before the sale to Y.
    Example 2. Corporation whose stock is owned by conduit treated as 
affiliate. (a) P owns an 80-percent interest in Y. Y owns all of the 
stock of Z. On March 1 of Year 1, T sells an asset to Z and recognizes 
gain. On January 1 of Year 2, P makes a qualified stock purchase of T 
from S. No section 338 election is made for T.
    (b) Under paragraph (j)(4) of this section, Y is a conduit with 
respect to P. Consequently, under paragraph (j)(3)(i)(A) of this 
section, P is treated as owning 80% of the Z stock and Z is therefore 
treated as an affiliate of P for purposes of applying the asset 
ownership requirements of paragraph (b)(1)(iii) of this section. Because 
Z, an affiliate of P, owns the asset both immediately after the asset 
disposition and on T's acquisition date, paragraph (b) of this section 
applies to the asset, and the asset's basis is determined under 
paragraph (d) of this section.
    (c) If, instead of owning an 80-percent interest in Y, P owned a 79-
percent interest in Y, Z would not be treated as an affiliate of P and 
paragraph (b) of this section would not apply to the asset.
    Example 3. Qualified stock purchase by reason of stock purchase by 
conduit. (a) P owns a 90-percent interest in Y. Y owns a 60-percent 
interest in Y1. On February 1 of Year 2, T sells an asset to P and 
recognizes gain. On January 1 of Year 3, P purchases 70% of the T stock 
from S and Y1 purchases the remaining 30% of the T stock from S.
    (b) Under paragraph (j)(3)(ii)(A) of this section, P is treated as 
purchasing on January 1 of Year 3, the 16.2% of the T stock that is 
attributed to P from Y and Y1 under section 318(a). Thus, for purposes 
of this section, P is treated as making a qualified stock purchase of T 
on January 1 of Year 3, paragraph (b) of this section applies to the 
asset, and the asset's basis is determined under paragraph (d) of this 
section. However, because P is not treated as having made a qualified 
stock purchase of T for purposes of making an election under section 
338, no election can be made for T.
    (c) If Y1 purchases 20% of the T stock from S on December 1 of Year 
1, rather than 30% on January 1 of Year 3, P would be treated as 
purchasing 10.8% of the T stock on December 1 of Year 1. Thus, if 
paragraph (j)(2) of this section (relating to extension of the 12-month 
acquisition period) does not apply, P would not be treated as making a 
qualified stock purchase of T, because P is not treated as purchasing T 
stock satisfying the requirements of section 1504(a)(2) within a 12-
month period.
    Example 4. Successor asset. (a) On February 1 of Year 1, T sells 
stock of X to P1 and recognizes gain. On December 1 of Year 1, P1 
exchanges its X stock for stock in new X in a reorganization qualifying 
under section 368(a)(1)(F). On January 1 of Year 2, P1 makes a qualified 
stock purchase of T from S. No section 338 election is made for T.
    (b) The asset ownership requirements of paragraph (b)(1)(iii) of 
this section are satisfied because, under paragraph (j)(6)(ii) of this 
section, P1 is treated as owning the X stock on T's acquisition date. P1 
is treated as owning the X stock on that date because P1 owns the new X 
stock and P1's basis in the new X stock is determined by reference to 
P1's basis in the X stock. Consequently, under paragraph (d)(1) of this 
section, P1's basis in

[[Page 138]]

the X stock on February 1 of Year 1 is T's adjusted basis in the X stock 
immediately before the sale to P1.

[T.D. 8515, 59 FR 2972, Jan. 20, 1994, as amended by T.D. 8597, 60 FR 
36679, July 18, 1995; T.D. 8710, 62 FR 3459, Jan. 23, 1997. Redesignated 
by T.D. 8858, 65 FR 1246, Jan. 7, 2000, as amended by T.D. 8940, 66 FR 
9929, Feb. 13, 2001; 66 FR 17466, Mar. 30, 2001]



Sec. 1.338-9  International aspects of section 338.

    (a) Scope. This section provides guidance regarding international 
aspects of section 338. As provided in Sec. 1.338-2(c)(18), a foreign 
corporation, a DISC, or a corporation for which a section 936 election 
has been made is considered a target affiliate for all purposes of 
section 338. In addition, stock described in section 338(h)(6)(B)(ii) 
held by a target affiliate is not excluded from the operation of section 
338.
    (b) Application of section 338 to foreign targets--(1) In general. 
For purposes of subtitle A, the deemed sale tax consequences, as defined 
in Sec. 1.338-2(c)(7), of a foreign target for which a section 338 
election is made (FT), and the corresponding earnings and profits, are 
taken into account in determining the taxation of FT and FT's direct and 
indirect shareholders. See, however, section 338(h)(16). For example, 
the income and earnings and profits of FT are determined, for purposes 
of sections 551, 951, 1248, and 1293, by taking into account the deemed 
sale tax sentence consequences.
    (2) Ownership of FT stock on the acquisition date. A person who 
transfers FT stock to the purchasing corporation on FT's acquisition 
date is considered to own the transferred stock at the close of FT's 
acquisition date. See, e.g., Sec. 1.951-1(f) (relating to determination 
of holding period for purposes of sections 951 through 964). If on the 
acquisition date the purchasing corporation owns a block of FT stock 
that was acquired before FT's acquisition date, the purchasing 
corporation is considered to own such block of stock at the close of the 
acquisition date.
    (3) Carryover FT stock--(i) Definition. FT stock is carryover FT 
stock if--
    (A) FT was a controlled foreign corporation within the meaning of 
section 957 (taking into account section 953(c)) at any time during the 
portion of the 12-month acquisition period that ends on the acquisition 
date; and
    (B) Such stock is owned as of the beginning of the day after FT's 
acquisition date by a person other than a purchasing corporation, or by 
a purchasing corporation if the stock is nonrecently purchased and is 
not subject to a gain recognition election under Sec. 1.338-5(d).
    (ii) Carryover of earnings and profits. The earnings and profits of 
old FT (and associated foreign taxes) attributable to the carryover FT 
stock (adjusted to reflect deemed sale tax sentence consequences) carry 
over to new FT solely for purposes of--
    (A) Characterizing an actual distribution with respect to a share of 
carryover FT stock as a dividend;
    (B) Characterizing gain on a post-acquisition date transfer of a 
share of carryover FT stock as a dividend under section 1248 (if such 
section is otherwise applicable);
    (C) Characterizing an investment of earnings in United States 
property as income under sections 951(a)(1)(B) and 956 (if such sections 
are otherwise applicable); and
    (D) Determining foreign taxes deemed paid under sections 902 and 960 
with respect to the amount treated as a dividend or income by virtue of 
this paragraph (b)(3)(ii) (subject to the operation of section 
338(h)(16)).
    (iii) Cap on carryover of earnings and profits. The amount of 
earnings and profits of old FT taken into account with respect to a 
share of carryover FT stock is limited to the amount that would have 
been included in gross income of the owner of such stock as a dividend 
under section 1248 if--
    (A) The shareholder transferred that share to the purchasing 
corporation on FT's acquisition date for a consideration equal to the 
fair market value of that share on that date; or
    (B) In the case of nonrecently purchased FT stock treated as 
carryover FT stock, a gain recognition election under section 
338(b)(3)(A) applied to that share. For purposes of the preceding 
sentence, a shareholder that is a controlled foreign corporation is 
considered to be a United States person, and the principle of section 
1248(c)(2)(D)(ii) (concerning a United

[[Page 139]]

States person's indirect ownership of stock in a foreign corporation) 
applies in determining the correct holding period.
    (iv) Post-acquisition date distribution of old FT earnings and 
profits. A post-acquisition date distribution with respect to a share of 
carryover FT stock is considered to be derived first from earnings and 
profits derived after FT's acquisition date and then from earnings and 
profits derived on or before FT's acquisition date.
    (v) Old FT earnings and profits unaffected by post-acquisition date 
deficits. The carryover amount for a share of carryover FT stock is not 
reduced by deficits in earnings and profits incurred by new FT. This 
rule applies for purposes of determining the amount of foreign taxes 
deemed paid regardless of the fact that there are no accumulated 
earnings and profits. For example, a distribution by new FT with respect 
to a share of carryover FT stock is treated as a dividend by the 
distributee to the extent of the carryover amount for that share 
notwithstanding that new FT has no earnings and profits.
    (vi) Character of FT stock as carryover FT stock eliminated upon 
disposition. A share of FT stock is not considered carryover FT stock 
after it is disposed of provided that all gain realized on the transfer 
is recognized at the time of the transfer, or that, if less than all of 
the realized gain is recognized, the recognized amount equals or exceeds 
the remaining carryover amount for that share.
    (4) Passive foreign investment company stock. Stock that is owned as 
of the beginning of the day after FT's acquisition date by a person 
other than a purchasing corporation, or by a purchasing corporation if 
the FT stock is nonrecently purchased stock not subject to a gain 
recognition election under Sec. 1.338-5(d), is treated as passive 
foreign investment company stock to the extent provided in section 
1297(b)(1).
    (c) Dividend treatment under section 1248(e). The principles of this 
paragraph (b) apply to shareholders of a domestic corporation subject to 
section 1248(e).
    (d) Allocation of foreign taxes. If a section 338 election is made 
for target (whether foreign or domestic), and target's taxable year 
under foreign law (if any) does not close at the end of the acquisition 
date, foreign income taxes attributable to the foreign taxable income 
earned by target during such foreign taxable year are allocated to old 
target and new target. Such allocation is made under the principles of 
Sec. 1.1502-76(b).
    (e) Operation of section 338(h)(16). [Reserved]
    (f) Examples. (1) Except as otherwise provided, all corporations use 
the calendar year as the taxable year, have no earnings and profits (or 
deficit) accumulated for any taxable year, and have only one class of 
outstanding stock.
    (2) This section may be illustrated by the following examples:

    Example 1. Gain recognition election for carryover FT stock. (a) A 
has owned 90 of the 100 shares of CFCT stock since CFCT was organized on 
March 13, 1989. P has owned the remaining 10 shares of CFCT stock since 
CFCT was organized. Those 10 shares constitute nonrecently purchased 
stock in P's hands within the meaning of section 338(b)(6)(B). On 
November 1, 1994, P purchases A's 90 shares of CFCT stock for $90,000 
and makes a section 338 election for CFCT. P also makes a gain 
recognition election under section 338(b)(3)(A) and Sec. 1.338-5(d).
    (b) CFCT's earnings and profits for its short taxable year ending on 
November 1, 1994, are $50,000, determined without taking into account 
the deemed asset sale. Assume A recognizes gain of $81,000 on the sale 
of the CFCT stock. Further, assume that CFCT recognizes gain of $40,000 
by reason of its deemed sale of assets under section 338(a)(1).
    (c) A's sale of CFCT stock to P is a transfer to which section 1248 
and paragraphs (b)(1) and (2) of this section apply. For purposes of 
applying section 1248(a) to A, the earnings and profits of CFCT for its 
short taxable year ending on November 1, 1994, are $90,000 (the earnings 
and profits for that taxable year as determined under Sec. 1.1248-2(e) 
($50,000) plus earnings from the deemed sale ($40,000)). Thus, A's 
entire gain is characterized as a dividend under section 1248 (but see 
section 338(h)(16)).
    (d) Assume that P recognizes a gain of $9,000 with respect to the 10 
shares of nonrecently purchased CFCT stock by reason of the gain 
recognition election. Because P is treated as selling the nonrecently 
purchased stock for all purposes of the Internal Revenue Code, section 
1248 applies. Thus, under Sec. 1.1248-2(e), $9,000 of the $90,000 of 
earnings and profits for 1994 are attributable to the block of 10 shares 
of CFCT stock deemed sold by P at the close of November 1, 1994 ($90,000 
x 10/100). Accordingly, P's entire gain on the

[[Page 140]]

deemed sale of 10 shares of CFCT stock is included under section 1248(a) 
in P's gross income as a dividend (but see section 338(h)(16)).
    Example 2. No gain recognition election for carryover FT stock. (a) 
Assume the same facts as in Example 1, except that P does not make a 
gain recognition election.
    (b) The 10 shares of nonrecently purchased CFCT stock held by P is 
carryover FT stock under paragraph (b)(3) of this section. Accordingly, 
the earnings and profits (and attributable foreign taxes) of old CFCT 
carry over to new CFCT solely for purposes of that block of 10 shares. 
The amount of old CFCT's earnings and profits taken into account with 
respect to that block in the event, for example, of a distribution by 
new CFCT with respect to that block is the amount of the section 1248 
dividend that P would have recognized with respect to that block had it 
made a gain recognition election under section 338(b)(3)(A). Under the 
facts of Example 1, P would have recognized a gain of $9,000 with 
respect to that block, all of which would have been a section 1248 
dividend ($90,000 x 10/100). Accordingly, the carryover amount for the 
block of 10 shares of nonrecently purchased CFCT stock is $9,000.
    Example 3. Sale of controlled foreign corporation stock prior to and 
on the acquisition date. (a) X and Y, both U.S. corporations, have each 
owned 50% of the CFCT stock since 1986. Among CFCT's assets are assets 
the sale of which would generate subpart F income. On December 31, 1994, 
X sells its CFCT stock to P. On June 30, 1995, Y sells its CFCT stock to 
P. P makes a section 338 election for CFCT. In both 1994 and 1995, CFCT 
has subpart F income resulting from operations.
    (b) For taxable year 1994, X and Y are United States shareholders on 
the last day of CFCT's taxable year, so pursuant to section 951(a)(1)(A) 
each must include in income its pro rata share of CFCT's subpart F 
income for 1994. Because P's holding period in the CFCT stock acquired 
from X does not begin until January 1, 1995, P is not a United States 
shareholder on the last day of 1994 for purposes of section 951(a)(1)(A) 
(see Sec. 1.951-1(f)). X must then determine the extent to which 
section 1248 recharacterizes its gain on the sale of CFCT stock as a 
dividend.
    (c) For the short taxable year ending June 30, 1995, Y is considered 
to own the CFCT stock sold to P at the close of CFCT's acquisition date. 
Because the acquisition date is the last day of CFCT's taxable year, Y 
and P are United States shareholders on the last day of CFCT's taxable 
year. Pursuant to section 951(a)(1)(A), each must include its pro rata 
share of CFCT's subpart F income for the short taxable year ending June 
30, 1995. This includes any income generated on the deemed sale of 
CFCT's assets. Y must then determine the extent to which section 1248 
recharacterizes its gain on the sale of the CFCT stock as a dividend, 
taking into account any increase in CFCT's earnings and profits due to 
the deemed sale of assets.
    Example 4. Acquisition of control for purposes of section 951 prior 
to the acquisition date. FS owns 100% of the FT stock. On July 1, 1994, 
P buys 60% of the FT stock. On December 31, 1994, P buys the remaining 
40% of the FT stock and makes a section 338 election for FT. For tax 
year 1994, FT has earnings and profits of $1,000 (including earnings 
resulting from the deemed sale). The section 338 election results in 
$500 of subpart F income. As a result of the section 338 election, P 
must include in gross income the following amount under section 
951(a)(1)(A) (see Sec. 1.951-(b)(2)):


FT's subpart F income for 1994................................   $500.00
Less: reduction under section 951(a)(2)(A) for period (1-1-94     249.32
 through 7-1-94) during which FT is not a controlled foreign
 corporation ($500x182/365)...................................
                                                               ---------
Subpart F income as limited by section 951 (a)(2)(A)..........    250.68
P's pro rata share of subpart F income as determined under        150.41
 section 951(a)(2)(A) (60%x250.68)............................
 

    Example 5. Coordination with section 936. (a) T is a corporation for 
which a section 936 election has been made. P makes a qualified stock 
purchase of T and makes a section 338 election for T.
    (b) T's deemed sale of assets under section 338 constitutes a sale 
for purposes of subtitle A of the Internal Revenue Code, including 
section 936(a)(1)(A)(ii). To the extent that the assets deemed sold are 
used in the conduct of an active trade or business in a possession for 
purposes of section 936(a)(1)(A)(i), and assuming all the other 
conditions of section 936 are satisfied, the income from the deemed sale 
qualifies for the credit granted by section 936(a). The source of income 
from the deemed sale is determined as if the assets had actually been 
sold and is not affected for purposes of section 936 by section 
338(h)(16).
    (c) Because new T is treated a new corporation for purposes of 
subtitle A of the Internal Revenue Code, the three year testing period 
in section 936(a)(2)(A) begins again for new T on the day following T's 
acquisition date. Thus, if the character or source of old T's gross 
income disqualified it for the credit under section 936, a fresh start 
is allowed by a section 338 election.

[T.D. 8515, 59 FR 2978, Jan. 20, 1994. Redesignated by T.D. 8858, 65 FR 
1246, Jan. 7, 2000, as amended by T.D. 8940, 66 FR 9929, Feb. 13, 2001; 
66 FR 17466, Mar. 30, 2001]



Sec. 1.338-10  Filing of returns.

    (a) Returns including tax liability from deemed asset sale--(1) In 
general. Except as provided in paragraphs (a)(2) and (3)

[[Page 141]]

of this section, any deemed sale tax consequences are reported on the 
final return of old target filed for old target's taxable year that ends 
at the close of the acquisition date. Paragraphs (a)(2), (3) and (4) of 
this section do not apply to elections under section 338(h)(10). If old 
target is the common parent of an affiliated group, the final return may 
be a consolidated return (any such consolidated return must also include 
any deemed sale tax consequences of any members of the consolidated 
group that are acquired by the purchasing corporation on the same 
acquisition date as old target).
    (2) Old target's final taxable year otherwise included in 
consolidated return of selling group--(i) General rule. If the selling 
group files a consolidated return for the period that includes the 
acquisition date, old target is disaffiliated from that group 
immediately before the deemed asset sale and must file a deemed sale 
return separate from the group, which includes only the deemed sale tax 
consequences and the carryover items specified in paragraph (a)(2)(iii) 
of this section. The deemed asset sale occurs at the close of the 
acquisition date and is the last transaction of old target and the only 
transaction reported on the separate return. Except as provided in Sec. 
1.338-1(d) (regarding certain transactions on the acquisition date), any 
transactions of old target occurring on the acquisition date other than 
the deemed asset sale are included in the selling group's consolidated 
return. A deemed sale return includes a combined deemed sale return as 
defined in paragraph (a)(4) of this section.
    (ii) Separate taxable year. The deemed asset sale included in the 
deemed sale return under this paragraph (a)(2) occurs in a separate 
taxable year, except that old target's taxable year of the sale and the 
consolidated year of the selling group that includes the acquisition 
date are treated as the same year for purposes of determining the number 
of years in a carryover or carryback period.
    (iii) Carryover and carryback of tax attributes. Target's attributes 
may be carried over to, and carried back from, the deemed sale return 
under the rules applicable to a corporation that ceases to be a member 
of a consolidated group.
    (iv) Old target is a component member of purchasing corporation's 
controlled group. For purposes of its deemed sale return, target is a 
component member of the controlled group of corporations including the 
purchasing corporation unless target is treated as an excluded member 
under section 1563(b)(2).
    (3) Old target is an S corporation. If target is an S corporation 
for the period that ends on the day before the acquisition date and a 
section 338 election (but not a section 338(h)(10) election) is filed 
for target, old target files a return as a C corporation reflecting its 
activities on the acquisition date, including target's deemed sale. See 
section 1362(d)(2). For purposes of this return, target is a component 
member of the controlled group of corporations including the purchasing 
corporation unless target is treated as an excluded member under section 
1563(b)(2).
    (4) Combined deemed sale return--(i) General rule. Under section 
338(h)(15), a combined deemed sale return (combined return) may be filed 
for all targets from a single selling consolidated group (as defined in 
Sec. 1.338(h)(10)-1(b)(3)) that are acquired by the purchasing 
corporation on the same acquisition date and that otherwise would be 
required to file separate deemed sale returns. The combined return must 
include all such targets. For example, T and T1 may be included in a 
combined return if--
    (A) T and T1 are directly owned subsidiaries of S;
    (B) S is the common parent of a consolidated group; and
    (C) P makes qualified stock purchases of T and T1 on the same 
acquisition date.
    (ii) Gain and loss offsets. Gains and losses recognized on the 
deemed asset sales by targets included in a combined return are treated 
as the gains and losses of a single target. In addition, loss carryovers 
of a target that were not subject to the separate return limitation year 
restrictions (SRLY restrictions) of the consolidated return regulations 
while that target was a member of the selling consolidated group may be 
applied without limitation to the gains of other targets included in the

[[Page 142]]

combined return. If, however, a target has loss carryovers that were 
subject to the SRLY restrictions while that target was a member of the 
selling consolidated group, the use of those losses in the combined 
return continues to be subject to those restrictions, applied in the 
same manner as if the combined return were a consolidated return. A 
similar rule applies, when appropriate, to other tax attributes.
    (iii) Procedure for filing a combined return. A combined return is 
made by filing a single corporation income tax return in lieu of 
separate deemed sale returns for all targets required to be included in 
the combined return. The combined return reflects the deemed asset sales 
of all targets required to be included in the combined return. If the 
targets included in the combined return constitute a single affiliated 
group within the meaning of section 1504(a), the income tax return is 
signed by an officer of the common parent of that group. Otherwise, the 
return must be signed by an officer of each target included in the 
combined return. Rules similar to the rules in Sec. 1.1502-75(j) apply 
for purposes of preparing the combined return. The combined return must 
include an attachment prominently identified as an ``ELECTION TO FILE A 
COMBINED RETURN UNDER SECTION 338(h)(15).'' The attachment must--
    (A) Contain the name, address, and employer identification number of 
each target required to be included in the combined return;
    (B) Contain the following declaration (or a substantially similar 
declaration): EACH TARGET IDENTIFIED IN THIS ELECTION TO FILE A COMBINED 
RETURN CONSENTS TO THE FILING OF A COMBINED RETURN;
    (C) For each target, be signed by a person who states under 
penalties of perjury that he or she is authorized to act on behalf of 
such target.
    (iv) Consequences of filing a combined return. Each target included 
in a combined return is severally liable for any tax associated with the 
combined return. See Sec. 1.338-1(b)(3).
    (5) Deemed sale excluded from purchasing corporation's consolidated 
return. Old target may not be considered a member of any affiliated 
group that includes the purchasing corporation with respect to its 
deemed asset sale.
    (6) Due date for old target's final return--(i) General rule. Old 
target's final return is generally due on the 15th day of the third 
calendar month following the month in which the acquisition date occurs. 
See section 6072 (time for filing income tax returns).
    (ii) Application of Sec. 1.1502-76(c)--(A) In general. Section 
1.1502-76(c) applies to old target's final return if old target was a 
member of a selling group that did not file consolidated returns for the 
taxable year of the common parent that precedes the year that includes 
old target's acquisition date. If the selling group has not filed a 
consolidated return that includes old target's taxable period that ends 
on the acquisition date, target may, on or before the final return due 
date (including extensions), either--
    (1) File a deemed sale return on the assumption that the selling 
group will file the consolidated return; or
    (2) File a return for so much of old target's taxable period as ends 
at the close of the acquisition date on the assumption that the 
consolidated return will not be filed.
    (B) Deemed extension. For purposes of applying Sec. 1.1502-
76(c)(2), an extension of time to file old target's final return is 
considered to be in effect until the last date for making the election 
under section 338.
    (C) Erroneous filing of deemed sale return. If, under this paragraph 
(a)(6)(ii), target files a deemed sale return but the selling group does 
not file a consolidated return, target must file a substituted return 
for old target not later than the due date (including extensions) for 
the return of the common parent with which old target would have been 
included in the consolidated return. The substituted return is for so 
much of old target's taxable year as ends at the close of the 
acquisition date. Under Sec. 1.1502-76(c)(2), the deemed sale return is 
not considered a return for purposes of section 6011 (relating to the 
general requirement of filing a return) if a substituted return must be 
filed.
    (D) Erroneous filing of return for regular tax year. If, under this 
paragraph (a)(6)(ii), target files a return for so

[[Page 143]]

much of old target's regular taxable year as ends at the close of the 
acquisition date but the selling group files a consolidated return, 
target must file an amended return for old target not later than the due 
date (including extensions) for the selling group's consolidated return. 
(The amended return is a deemed sale return.)
    (E) Last date for payment of tax. If either a substituted or amended 
final return of old target is filed under this paragraph (a)(6)(ii), the 
last date prescribed for payment of tax is the final return due date (as 
defined in paragraph (a)(6)(i) of this section).
    (7) Examples. The following examples illustrate this paragraph (a):

    Example 1. (i) S is the common parent of a consolidated group that 
includes T. The S group files calendar year consolidated returns. At the 
close of June 30 of Year 1, P makes a qualified stock purchase of T from 
S. P makes a section 338 election for T, and T's deemed asset sale 
occurs as of the close of T's acquisition date (June 30).
    (ii) T is considered disaffiliated for purposes of reporting the 
deemed sale tax consequences. Accordingly, T is included in the S 
group's consolidated return through T's acquisition date except that the 
tax liability for the deemed sale tax consequences is reported in a 
separate deemed sale return of T. Provided that T is not treated as an 
excluded member under section 1563(b)(2), T is a component member of P's 
controlled group for the taxable year of the deemed asset sale, and the 
taxable income bracket amounts available in calculating tax on the 
deemed sale return must be limited accordingly.
    (iii) If P purchased the stock of T at 10 a.m. on June 30 of Year 1, 
the results would be the same. See paragraph (a)(2)(i) of this section.
    Example 2. The facts are the same as in Example 1, except that the S 
group does not file consolidated returns. T must file a separate return 
for its taxable year ending on June 30 of Year 1, which return includes 
the deemed asset sale.

    (b) Waiver--(1) Certain additions to tax. An addition to tax or 
additional amount (addition) under subchapter A of chapter 68 of the 
Internal Revenue Code arising on or before the last day for making the 
election under section 338 because of circumstances that would not exist 
but for an election under section 338 is waived if--
    (i) Under the particular statute the addition is excusable upon a 
showing of reasonable cause; and
    (ii) Corrective action is taken on or before the last day.
    (2) Notification. The Internal Revenue Service should be notified at 
the time of correction (e.g., by attaching a statement to a return that 
constitutes corrective action) that the waiver rule of this paragraph 
(b) is being asserted.
    (3) Elections or other actions required to be specified on a timely 
filed return--(i) In general. If paragraph (b)(1) of this section 
applies or would apply if there were an underpayment, any election or 
other action that must be specified on a timely filed return for the 
taxable period covered by the late filed return described in paragraph 
(b)(1) of this section is considered timely if specified on a late-filed 
return filed on or before the last day for making the election under 
section 338.
    (ii) New target in purchasing corporation's consolidated return. If 
new target is includible for its first taxable year in a consolidated 
return filed by the affiliated group of which the purchasing corporation 
is a member on or before the last day for making the election under 
section 338, any election or other action that must be specified in a 
timely filed return for new target's first taxable year (but which is 
not specified in the consolidated return) is considered timely if 
specified in an amended return filed on or before such last day, at the 
place where the consolidated return was filed.
    (4) Examples. The following examples illustrate this paragraph (b):

    Example 1. T is an unaffiliated corporation with a tax year ending 
March 31. At the close of September 20 of Year 1, P makes a qualified 
stock purchase of T. P does not join in filing a consolidated return. P 
makes a section 338 election for T on or before June 15 of Year 2, which 
causes T's taxable year to end as of the close of September 20 of Year 
1. An income tax return for T's taxable period ending on September 20 of 
Year 1 was due on December 15 of Year 1. Additions to tax for failure to 
file a return and to pay tax shown on a return will not be imposed if 
T's return is filed and the tax paid on or before June 15 of Year 2. 
(This waiver applies even if the acquisition date coincides with the 
last day of T's former taxable year, i.e., March 31 of Year 2.) Interest 
on any underpayment of tax for old T's short taxable year ending 
September 20 of Year 1 runs from December 15 of Year 1. A statement 
indicating that the

[[Page 144]]

waiver rule of this paragraph is being asserted should be attached to 
T's return.
    Example 2. Assume the same facts as in Example 1. Assume further 
that new T adopts the calendar year by filing, on or before June 15 of 
Year 2, its first return (for the period beginning on September 21 of 
Year 1 and ending on December 31 of Year 1) indicating that a calendar 
year is chosen. See Sec. 1.338-1(b)(1). Any additions to tax or amounts 
described in this paragraph (b) that arise because of the late filing of 
a return for the period ending on December 31 of Year 1 are waived, 
because they are based on circumstances that would not exist but for the 
section 338 election. Notwithstanding this waiver, however, the return 
is still considered due March 15 of Year 2, and interest on any 
underpayment runs from that date.
    Example 3. Assume the same facts as in Example 2, except that T's 
former taxable year ends on October 31. Although prior to the election 
old T had a return due on January 15 of Year 2 for its year ending 
October 31 of Year 1, that return need not be filed because a timely 
election under section 338 was made. Instead, old T must file a final 
return for the period ending on September 20 of Year 1, which is due on 
December 15 of Year 1.

[T.D. 8940, 66 FR 9948, Feb. 13, 2001]



Sec. 1.338(h)(10)-1  Deemed asset sale and liquidation.

    (a) Scope. This section prescribes rules for qualification for a 
section 338(h)(10) election and for making a section 338(h)(10) 
election. This section also prescribes the consequences of such 
election. The rules of this section are in addition to the rules of 
Sec. Sec. 1.338-1 through 1.338-10 and, in appropriate cases, apply 
instead of the rules of Sec. Sec. 1.338-1 through 1.338-10.
    (b) Definitions--(1) Consolidated target. A consolidated target is a 
target that is a member of a consolidated group within the meaning of 
Sec. 1.1502-1(h) on the acquisition date and is not the common parent 
of the group on that date.
    (2) Selling consolidated group. A selling consolidated group is the 
consolidated group of which the consolidated target is a member on the 
acquisition date.
    (3) Selling affiliate; affiliated target. A selling affiliate is a 
domestic corporation that owns on the acquisition date an amount of 
stock in a domestic target, which amount of stock is described in 
section 1504(a)(2), and does not join in filing a consolidated return 
with the target. In such case, the target is an affiliated target.
    (4) S corporation target. An S corporation target is a target that 
is an S corporation immediately before the acquisition date.
    (5) S corporation shareholders. S corporation shareholders are the S 
corporation target's shareholders. Unless otherwise indicated, a 
reference to S corporation shareholders refers both to S corporation 
shareholders who do and those who do not sell their target stock.
    (6) Liquidation. Any reference in this section to a liquidation is 
treated as a reference to the transfer described in paragraph (d)(4) of 
this section notwithstanding its ultimate characterization for Federal 
income tax purposes.
    (c) Section 338(h)(10) election--(1) In general. A section 
338(h)(10) election may be made for T if P acquires stock meeting the 
requirements of section 1504(a)(2) from a selling consolidated group, a 
selling affiliate, or the S corporation shareholders in a qualified 
stock purchase.
    (2) [Reserved]. For further guidance see Sec. 1.338(h)(10)-
1T(c)(2).
    (3) Simultaneous joint election requirement. A section 338(h)(10) 
election is made jointly by P and the selling consolidated group (or the 
selling affiliate or the S corporation shareholders) on Form 8023 in 
accordance with the instructions to the form. S corporation shareholders 
who do not sell their stock must also consent to the election. The 
section 338(h)(10) election must be made not later than the 15th day of 
the 9th month beginning after the month in which the acquisition date 
occurs.
    (4) Irrevocability. A section 338(h)(10) election is irrevocable. If 
a section 338(h)(10) election is made for T, a section 338 election is 
deemed made for T.
    (5) Effect of invalid election. If a section 338(h)(10) election for 
T is not valid, the section 338 election for T is also not valid.
    (d) Certain consequences of section 338(h)(10) election. For 
purposes of subtitle A of the Internal Revenue Code (except as provided 
in Sec. 1.338-1(b)(2)), the consequences to the parties of making a 
section 338(h)(10) election for T are as follows:

[[Page 145]]

    (1) P. P is automatically deemed to have made a gain recognition 
election for its nonrecently purchased T stock, if any. The effect of a 
gain recognition election includes a taxable deemed sale by P on the 
acquisition date of any nonrecently purchased target stock. See Sec. 
1.338-5(d).
    (2) New T. The AGUB for new T's assets is determined under Sec. 
1.338-5 and is allocated among the acquisition date assets under 
Sec. Sec. 1.338-6 and 1.338-7. Notwithstanding paragraph (d)(4) of this 
section (deemed liquidation of old T), new T remains liable for the tax 
liabilities of old T (including the tax liability for the deemed sale 
tax consequences). For example, new T remains liable for the tax 
liabilities of the members of any consolidated group that are 
attributable to taxable years in which those corporations and old T 
joined in the same consolidated return. See Sec. 1.1502-6(a).
    (3) Old T--deemed sale--(i) In general. Old T is treated as 
transferring all of its assets to an unrelated person in exchange for 
consideration that includes the discharge of its liabilities in a single 
transaction at the close of the acquisition date (but before the deemed 
liquidation). See Sec. 1.338-1(a) regarding the tax characterization of 
the deemed asset sale. Except as provided in Sec. 1.338(h)(10)-1(d)(8) 
(regarding the installment method), old T recognizes all of the gain 
realized on the deemed transfer of its assets in consideration for the 
ADSP. ADSP for old T is determined under Sec. 1.338-4 and allocated 
among the acquisition date assets under Sec. Sec. 1.338-6 and 1.338-7. 
Old T realizes the deemed sale tax consequences from the deemed asset 
sale before the close of the acquisition date while old T is a member of 
the selling consolidated group (or owned by the selling affiliate or 
owned by the S corporation shareholders). If T is an affiliated target, 
or an S corporation target, the principles of Sec. Sec. 1.338-2(c)(10) 
and 1.338-10(a)(1), (5), and (6)(i) apply to the return on which the 
deemed sale tax consequences are reported. When T is an S corporation 
target, T's S election continues in effect through the close of the 
acquisition date (including the time of the deemed asset sale and the 
deemed liquidation) notwithstanding section 1362(d)(2)(B). Also, when T 
is an S corporation target (but not a qualified subchapter S 
subsidiary), any direct and indirect subsidiaries of T which T has 
elected to treat as qualified subchapter S subsidiaries under section 
1361(b)(3) remain qualified subchapter S subsidiaries through the close 
of the acquisition date.
    (ii) Tiered targets. In the case of parent-subsidiary chains of 
corporations making elections under section 338(h)(10), the deemed asset 
sale of a parent corporation is considered to precede that of its 
subsidiary. See Sec. 1.338-3(b)(4)(i).
    (4) Old T and selling consolidated group, selling affiliate, or S 
corporation shareholders--deemed liquidation; tax characterization--(i) 
In general. Old T is treated as if, before the close of the acquisition 
date, after the deemed asset sale in paragraph (d)(3) of this section, 
and while old T is a member of the selling consolidated group (or owned 
by the selling affiliate or owned by the S corporation shareholders), it 
transferred all of its assets to members of the selling consolidated 
group, the selling affiliate, or S corporation shareholders and ceased 
to exist. The transfer from old T is characterized for Federal income 
tax purposes in the same manner as if the parties had actually engaged 
in the transactions deemed to occur because of this section and taking 
into account other transactions that actually occurred or are deemed to 
occur. For example, the transfer may be treated as a distribution in 
pursuance of a plan of reorganization, a distribution in complete 
cancellation or redemption of all its stock, one of a series of 
distributions in complete cancellation or redemption of all its stock in 
accordance with a plan of liquidation, or part of a circular flow of 
cash. In most cases, the transfer will be treated as a distribution in 
complete liquidation to which section 336 or 337 applies.
    (ii) Tiered targets. In the case of parent-subsidiary chains of 
corporations making elections under section 338(h)(10), the deemed 
liquidation of a subsidiary corporation is considered to precede the 
deemed liquidation of its parent.

[[Page 146]]

    (5) Selling consolidated group, selling affiliate, or S corporation 
shareholders--(i) In general. If T is an S corporation target, S 
corporation shareholders (whether or not they sell their stock) take 
their pro rata share of the deemed sale tax consequences into account 
under section 1366 and increase or decrease their basis in T stock under 
section 1367. Members of the selling consolidated group, the selling 
affiliate, or S corporation shareholders are treated as if, after the 
deemed asset sale in paragraph (d)(3) of this section and before the 
close of the acquisition date, they received the assets transferred by 
old T in the transaction described in paragraph (d)(4)(i) of this 
section. In most cases, the transfer will be treated as a distribution 
in complete liquidation to which section 331 or 332 applies.
    (ii) Basis and holding period of T stock not acquired. A member of 
the selling consolidated group (or the selling affiliate or an S 
corporation shareholder) retaining T stock is treated as acquiring the 
stock so retained on the day after the acquisition date for its fair 
market value. The holding period for the retained stock starts on the 
day after the acquisition date. For purposes of this paragraph, the fair 
market value of all of the T stock equals the grossed-up amount realized 
on the sale to P of P's recently purchased target stock. See Sec. 
1.338-4(c).
    (iii) T stock sale. Members of the selling consolidated group (or 
the selling affiliate or S corporation shareholders) recognize no gain 
or loss on the sale or exchange of T stock included in the qualified 
stock purchase (although they may recognize gain or loss on the T stock 
in the deemed liquidation).
    (6) Nonselling minority shareholders other than nonselling S 
corporation shareholders--(i) In general. This paragraph (d)(6) 
describes the treatment of shareholders of old T other than the 
following: Members of the selling consolidated group, the selling 
affiliate, S corporation shareholders (whether or not they sell their 
stock), and P. For a description of the treatment of S corporation 
shareholders, see paragraph (d)(5) of this section. A shareholder to 
which this paragraph (d)(6) applies is called a minority shareholder.
    (ii) T stock sale. A minority shareholder recognizes gain or loss on 
the shareholder's sale or exchange of T stock included in the qualified 
stock purchase.
    (iii) T stock not acquired. A minority shareholder does not 
recognize gain or loss under this section with respect to shares of T 
stock retained by the shareholder. The shareholder's basis and holding 
period for that T stock is not affected by the section 338(h)(10) 
election.
    (7) Consolidated return of selling consolidated group. If P acquires 
T in a qualified stock purchase from a selling consolidated group--
    (i) The selling consolidated group must file a consolidated return 
for the taxable period that includes the acquisition date;
    (ii) A consolidated return for the selling consolidated group for 
that period may not be withdrawn on or after the day that a section 
338(h)(10) election is made for T; and
    (iii) Permission to discontinue filing consolidated returns cannot 
be granted for, and cannot apply to, that period or any of the 
immediately preceding taxable periods during which consolidated returns 
continuously have been filed.
    (8) Availability of the section 453 installment method. Solely for 
purposes of applying sections 453, 453A, and 453B, and the regulations 
thereunder (the installment method) to determine the consequences to old 
T in the deemed asset sale and to old T (and its shareholders, if 
relevant) in the deemed liquidation, the rules in paragraphs (d)(1) 
through (7) of this section are modified as follows:
    (i) In deemed asset sale. Old T is treated as receiving in the 
deemed asset sale new T installment obligations, the terms of which are 
identical (except as to the obligor) to P installment obligations issued 
in exchange for recently purchased stock of T. Old T is treated as 
receiving in cash all other consideration in the deemed asset sale other 
than the assumption of, or taking subject to, old T liabilities. For 
example, old T is treated as receiving in cash any amounts attributable 
to the grossing-up of amount realized under

[[Page 147]]

Sec. 1.338-4(c). The amount realized for recently purchased stock taken 
into account in determining ADSP is adjusted (and, thus, ADSP is 
redetermined) to reflect the amounts paid under an installment 
obligation for the stock when the total payments under the installment 
obligation are greater or less than the amount realized.
    (ii) In deemed liquidation. Old T is treated as distributing in the 
deemed liquidation the new T installment obligations that it is treated 
as receiving in the deemed asset sale. The members of the selling 
consolidated group, the selling affiliate, or the S corporation 
shareholders are treated as receiving in the deemed liquidation the new 
T installment obligations that correspond to the P installment 
obligations they actually received individually in exchange for their 
recently purchased stock. The new T installment obligations may be 
recharacterized under other rules. See for example Sec. 1.453-11(a)(2) 
which, in certain circumstances, treats the new T installment 
obligations deemed distributed by old T as if they were issued by new T 
in exchange for the stock in old T owned by members of the selling 
consolidated group, the selling affiliate, or the S corporation 
shareholders. The members of the selling consolidated group, the selling 
affiliate, or the S corporation shareholders are treated as receiving 
all other consideration in the deemed liquidation in cash.
    (9) Treatment consistent with an actual asset sale. No provision in 
section 338(h)(10) or this section shall produce a Federal income tax 
result under subtitle A of the Internal Revenue Code that would not 
occur if the parties had actually engaged in the transactions deemed to 
occur because of this section and taking into account other transactions 
that actually occurred or are deemed to occur. See, however, Sec. 
1.338-1(b)(2) for certain exceptions to this rule.
    (e) Examples. The following examples illustrate the provisions of 
this section:

    Example 1. (i) S1 owns all of the T stock and T owns all of the 
stock of T1 and T2. S1 is the common parent of a consolidated group that 
includes T, T1, and T2. P makes a qualified stock purchase of all of the 
T stock from S1. S1 joins with P in making a section 338(h)(10) election 
for T and for the deemed purchase of T1. A section 338 election is not 
made for T2.
    (ii) S1 does not recognize gain or loss on the sale of the T stock 
and T does not recognize gain or loss on the sale of the T1 stock 
because section 338(h)(10) elections are made for T and T1. Thus, for 
example, gain or loss realized on the sale of the T or T1 stock is not 
taken into account in earnings and profits. However, because a section 
338 election is not made for T2, T must recognize any gain or loss 
realized on the deemed sale of the T2 stock. See Sec. 1.338-4(h).
    (iii) The results would be the same if S1, T, T1, and T2 are not 
members of any consolidated group, because S1 and T are selling 
affiliates.
    Example 2. (i) S and T are solvent corporations. S owns all of the 
outstanding stock of T. S and P agree to undertake the following 
transaction: T will distribute half its assets to S, and S will assume 
half of T's liabilities. Then, P will purchase the stock of T from S. S 
and P will jointly make a section 338(h)(10) election with respect to 
the sale of T. The corporations then complete the transaction as agreed.
    (ii) Under section 338(a), the assets present in T at the close of 
the acquisition date are deemed sold by old T to new T. Under paragraph 
(d)(4) of this section, the transactions described in paragraph (d) of 
this section are treated in the same manner as if they had actually 
occurred. Because S and P had agreed that, after T's actual distribution 
to S of part of its assets, S would sell T to P pursuant to an election 
under section 338(h)(10), and because paragraph (d)(4) of this section 
deems T subsequently to have transferred all its assets to its 
shareholder, T is deemed to have adopted a plan of complete liquidation 
under section 332. T's actual transfer of assets to S is treated as a 
distribution pursuant to that plan of complete liquidation.
    Example 3. (i) S1 owns all of the outstanding stock of both T and 
S2. All three are corporations. S1 and P agree to undertake the 
following transaction. T will transfer substantially all of its assets 
and liabilities to S2, with S2 issuing no stock in exchange therefor, 
and retaining its other assets and liabilities. Then, P will purchase 
the stock of T from S1. S1 and P will jointly make a section 338(h)(10) 
election with respect to the sale of T. The corporations then complete 
the transaction as agreed.
    (ii) Under section 338(a), the remaining assets present in T at the 
close of the acquisition date are deemed sold by old T to new T. Under 
paragraph (d)(4) of this section, the transactions described in this 
section are treated in the same manner as if they had actually occurred. 
Because old T transferred substantially all of its assets to S2, and is

[[Page 148]]

deemed to have distributed all its remaining assets and gone out of 
existence, the transfer of assets to S2, taking into account the related 
transfers, deemed and actual, qualifies as a reorganization under 
section 368(a)(1)(D). Section 361(c)(1) and not section 332 applies to 
T's deemed liquidation.
    Example 4. (i) T owns two assets: an actively traded security (Class 
II) with a fair market value of $100 and an adjusted basis of $100, and 
inventory (Class IV) with a fair market value of $100 and an adjusted 
basis of $100. T has no liabilities. S is negotiating to sell all the 
stock in T to P for $100 cash and contingent consideration. Assume that 
under generally applicable tax accounting rules, P's adjusted basis in 
the T stock immediately after the purchase would be $100, because the 
contingent consideration is not taken into account. Thus, under the 
rules of Sec. 1.338-5, AGUB would be $100. Under the allocation rules 
of Sec. 1.338-6, the entire $100 would be allocated to the Class II 
asset, the actively traded security, and no amount would be allocated to 
the inventory. P, however, plans immediately to cause T to sell the 
inventory, but not the actively traded security, so it requests that, 
prior to the stock sale, S cause T to create a new subsidiary, Newco, 
and contribute the actively traded security to the capital of Newco. 
Because the stock in Newco, which would not be actively traded, is a 
Class V asset, under the rules of Sec. 1.338-6 $100 of AGUB would be 
allocated to the inventory and no amount of AGUB would be allocated to 
the Newco stock. Newco's own AGUB, $0 under the rules of Sec. 1.338-5, 
would be allocated to the actively traded security. When P subsequently 
causes T to sell the inventory, T would realize no gain or loss instead 
of realizing gain of $100.
    (ii) Assume that, if the T stock had not itself been sold but T had 
instead sold both its inventory and the Newco stock to P, T would for 
tax purposes be deemed instead to have sold both its inventory and 
actively traded security directly to P, with P deemed then to have 
created Newco and contributed the actively traded security to the 
capital of Newco. Section 338, if elected, generally recharacterizes a 
stock sale as a deemed sale of assets. However, paragraph (d)(9) of this 
section states, in general, that no provision of section 338(h)(10) or 
the regulations thereunder shall produce a Federal income tax result 
under subtitle A of the Internal Revenue Code that would not occur if 
the parties had actually engaged in the transactions deemed to occur by 
virtue of the section 338(h)(10) election, taking into account other 
transactions that actually occurred or are deemed to occur. Hence, the 
deemed sale of assets under section 338(h)(10) should be treated as one 
of the inventory and actively traded security themselves, not of the 
inventory and Newco stock. The anti-abuse rule of Sec. 1.338-1(c) does 
not apply, because the substance of the deemed sale of assets is a sale 
of the inventory and the actively traded security themselves, not of the 
inventory and the Newco stock. Otherwise, the anti-abuse rule might 
apply.
    Example 5. (i) T, a member of a selling consolidated group, has only 
one class of stock, all of which is owned by S1. On March 1 of Year 2, 
S1 sells its T stock to P for $80,000, and joins with P in making a 
section 338(h)(10) election for T. There are no selling costs or 
acquisition costs. On March 1 of Year 2, T owns land with a $50,000 
basis and $75,000 fair market value and equipment with a $30,000 
adjusted basis, $70,000 recomputed basis, and $60,000 fair market value. 
T also has a $40,000 liability. S1 pays old T's allocable share of the 
selling group's consolidated tax liability for Year 2 including the tax 
liability for the deemed sale tax consequences (a total of $13,600).
    (ii) ADSP of $120,000 ($80,000 + $40,000 + 0) is allocated to each 
asset as follows:

----------------------------------------------------------------------------------------------------------------
                 Assets                         Basis              FMV            Fraction       Allocable ADSP
----------------------------------------------------------------------------------------------------------------
Land....................................           $50,000           $75,000             \5/9\           $66,667
Equipment...............................            30,000            60,000             \4/9\            53,333
                                         -----------------------------------------------------------------------
      Total.............................            80,000           135,000                 1           120,000
----------------------------------------------------------------------------------------------------------------

    (iii) Under paragraph (d)(3) of this section, old T has gain on the 
deemed sale of $40,000 (consisting of $16,667 of capital gain and 
$23,333 of ordinary income).
    (iv) Under paragraph (d)(5)(iii) of this section, S1 recognizes no 
gain or loss upon its sale of the old T stock to P. S1 also recognizes 
no gain or loss upon the deemed liquidation of T. See paragraph (d)(4) 
of this section and section 332.
    (v) P's basis in new T stock is P's cost for the stock, $80,000. See 
section 1012.
    (vi) Under Sec. 1.338-5, the AGUB for new T is $120,000, i.e., P's 
cost for the old T stock ($80,000) plus T's liability ($40,000). This 
AGUB is allocated as basis among the new T assets under Sec. Sec. 
1.338-6 and 1.338-7.
    Example 6. (i) The facts are the same as in Example 5, except that 
S1 sells 80 percent of the old T stock to P for $64,000, rather than 100 
percent of the old T stock for $80,000.
    (ii) The consequences to P, T, and S1 are the same as in Example 5, 
except that:

[[Page 149]]

    (A) P's basis for its 80-percent interest in the new T stock is P's 
$64,000 cost for the stock. See section 1012.
    (B) Under Sec. 1.338-5, the AGUB for new T is $120,000 (i.e., 
$64,000/.8 + $40,000 + $0).
    (C) Under paragraph (d)(4) of this section, S1 recognizes no gain or 
loss with respect to the retained stock in T. See section 332.
    (D) Under paragraph (d)(5)(ii) of this section, the basis of the T 
stock retained by S1 is $16,000 (i.e., $120,000 - $40,000 (the ADSP 
amount for the old T assets over the sum of new T's liabilities 
immediately after the acquisition date) `` .20 (the proportion of T 
stock retained by S1)).
    Example 7. (i) The facts are the same as in Example 6, except that 
K, a shareholder unrelated to T or P, owns the 20 percent of the T stock 
that is not acquired by P in the qualified stock purchase. K's basis in 
its T stock is $5,000.
    (ii) The consequences to P, T, and S1 are the same as in Example 6.
    (iii) Under paragraph (d)(6)(iii) of this section, K recognizes no 
gain or loss, and K's basis in its T stock remains at $5,000.
    Example 8. (i) The facts are the same as in Example 5, except that 
the equipment is held by T1, a wholly-owned subsidiary of T, and a 
section 338(h)(10) election is also made for T1. The T1 stock has a fair 
market value of $60,000. T1 has no assets other than the equipment and 
no liabilities. S1 pays old T's and old T1's allocable shares of the 
selling group's consolidated tax liability for Year 2 including the tax 
liability for T and T1's deemed sale tax consequences.
    (ii) ADSP for T is $120,000, allocated $66,667 to the land and 
$53,333 to the stock. Old T's deemed sale results in $16,667 of capital 
gain on its deemed sale of the land. Under paragraph (d)(5)(iii) of this 
section, old T does not recognize gain or loss on its deemed sale of the 
T1 stock. See section 332.
    (iii) ADSP for T1 is $53,333 (i.e., $53,333 + $0 + $0). On the 
deemed sale of the equipment, T1 recognizes ordinary income of $23,333.
    (iv) Under paragraph (d)(5)(iii) of this section, S1 does not 
recognize gain or loss upon its sale of the old T stock to P.
    Example 9. (i) The facts are the same as in Example 8, except that P 
already owns 20 percent of the T stock, which is nonrecently purchased 
stock with a basis of $6,000, and that P purchases the remaining 80 
percent of the T stock from S1 for $64,000.
    (ii) The results are the same as in Example 8, except that under 
paragraph (d)(1) of this section and Sec. 1.338-5(d), P is deemed to 
have made a gain recognition election for its nonrecently purchased T 
stock. As a result, P recognizes gain of $10,000 and its basis in the 
nonrecently purchased T stock is increased from $6,000 to $16,000. P's 
basis in all the T stock is $80,000 (i.e., $64,000 + $16,000). The 
computations are as follows:
    (A) P's grossed-up basis for the recently purchased T stock is 
$64,000 (i.e., $64,000 (the basis of the recently purchased T stock) x 
(1-.2)/(.8) (the fraction in section 338(b)(4))).
    (B) P's basis amount for the nonrecently purchased T stock is 
$16,000 (i.e., $64,000 (the grossed-up basis in the recently purchased T 
stock) x (.2)/(1.0-.2) (the fraction in section 338(b)(3)(B))).
    (C) The gain recognized on the nonrecently purchased stock is 
$10,000 (i.e., $16,000-$6,000).
    Example 10. (i) T is an S corporation whose sole class of stock is 
owned 40 percent each by A and B and 20 percent by C. T, A, B, and C all 
use the cash method of accounting. A and B each has an adjusted basis of 
$10,000 in the stock. C has an adjusted basis of $5,000 in the stock. A, 
B, and C hold no installment obligations to which section 453A applies. 
On March 1 of Year 1, A sells its stock to P for $40,000 in cash and B 
sells its stock to P for a $25,000 note issued by P and real estate 
having a fair market value of $15,000. The $25,000 note, due in full in 
Year 7, is not publicly traded and bears adequate stated interest. A and 
B have no selling expenses. T's sole asset is real estate, which has a 
value of $110,000 and an adjusted basis of $35,000. Also, T's real 
estate is encumbered by long-outstanding purchase-money indebtedness of 
$10,000. The real estate does not have built-in gain subject to section 
1374. A, B, and C join with P in making a section 338(h)(10) election 
for T.
    (ii) Solely for purposes of application of sections 453, 453A, and 
453B, old T is considered in its deemed asset sale to receive back from 
new T the $25,000 note (considered issued by new T) and $75,000 of cash 
(total consideration of $80,000 paid for all the stock sold, which is 
then divided by .80 in the grossing-up, with the resulting figure of 
$100,000 then reduced by the amount of the installment note). Absent an 
election under section 453(d), gain is reported by old T under the 
installment method.
    (iii) In applying the installment method to old T's deemed asset 
sale, the contract price for old T's assets deemed sold is $100,000, the 
$110,000 selling price reduced by the indebtedness of $10,000 to which 
the assets are subject. (The $110,000 selling price is itself the sum of 
the $80,000 grossed-up in paragraph (ii) above to $100,000 and the 
$10,000 liability.) Gross profit is $75,000 ($110,000 selling price - 
old T's basis of $35,000). Old T's gross profit ratio is 0.75 (gross 
profit of $75,000 / $100,000 contract price). Thus, $56,250 (0.75 x the 
$75,000 cash old T is deemed to receive in Year 1) is Year 1 gain 
attributable to the sale, and $18,750 ($75,000 - $56,250) is recovery of 
basis.

[[Page 150]]

    (iv) In its liquidation, old T is deemed to distribute the $25,000 
note to B, since B actually sold the stock partly for that 
consideration. To the extent of the remaining liquidating distribution 
to B, it is deemed to receive, along with A and C, the balance of old 
T's liquidating assets in the form of cash. Under section 453(h), B, 
unless it makes an election under section 453(d), is not required to 
treat the receipt of the note as a payment for the T stock; P's payment 
of the $25,000 note in Year 7 to B is a payment for the T stock. Because 
section 453(h) applies to B, old T's deemed liquidating distribution of 
the note is, under section 453B(h), not treated as a taxable disposition 
by old T.
    (v) Under section 1366, A reports 40 percent, or $22,500, of old T's 
$56,250 gain recognized in Year 1. Under section 1367, this increases 
A's $10,000 adjusted basis in the T stock to $32,500. Next, in old T's 
deemed liquidation, A is considered to receive $40,000 for its old T 
shares, causing it to recognize an additional $7,500 gain in Year 1.
    (vi) Under section 1366, B reports 40 percent, or $22,500, of old 
T's $56,250 gain recognized in Year 1. Under section 1367, this 
increases B's $10,000 adjusted basis in its T stock to $32,500. Next, in 
old T's deemed liquidation, B is considered to receive the $25,000 note 
and $15,000 of other consideration. Applying section 453, including 
section 453(h), to the deemed liquidation, B's selling price and 
contract price are both $40,000. Gross profit is $7,500 ($40,000 selling 
price - B's basis of $32,500). B's gross profit ratio is 0.1875 (gross 
profit of $7,500 / $40,000 contract price). Thus, $2,812.50 (0.1875 x 
$15,000) is Year 1 gain attributable to the deemed liquidation. In Year 
7, when the $25,000 note is paid, B has $4,687.50 (0.1875 x $25,000) of 
additional gain.
    (vii) Under section 1366, C reports 20 percent, or $11,250, of old 
T's $56,250 gain recognized in Year 1. Under section 1367, this 
increases C's $5,000 adjusted basis in its T stock to $16,250. Next, in 
old T's deemed liquidation, C is considered to receive $20,000 for its 
old T shares, causing it to recognize an additional $3,750 gain in Year 
1. Finally, under paragraph (d)(5)(ii) of this section, C is considered 
to acquire its stock in T on the day after the acquisition date for 
$20,000 (fair market value = grossed-up amount realized of $100,000 x 
20%). C's holding period in the stock deemed received in new T begins at 
that time.

    (f) Inapplicability of provisions. The provisions of section 6043, 
Sec. 1.331-1(d), and Sec. 1.332-6 (relating to information returns and 
recordkeeping requirements for corporate liquidations) do not apply to 
the deemed liquidation of old T under paragraph (d)(4) of this section.
    (g) Required information. The Commissioner may exercise the 
authority granted in section 338(h)(10)(C)(iii) to require provision of 
any information deemed necessary to carry out the provisions of section 
338(h)(10) by requiring submission of information on any tax reporting 
form.

[T.D. 8940, 66 FR 8950, Feb. 13, 2001, as amended by T.D. 9071, 68 FR 
40768, July 9, 2003]



Sec. 1.338(h)(10)-1T  Deemed asset sale and liquidation (temporary).

    (a)-(c)(1) [Reserved]. For further guidance, see Sec. 1.338(h)(10)-
1(a) through (c)(1).
    (c)(2) Availability of section 338(h)(10) election in certain multi-
step transactions. Notwithstanding anything to the contrary in Sec. 
1.338-3(c)(1)(i), a section 338(h)(10) election may be made for T where 
P's acquisition of T stock, viewed independently, constitutes a 
qualified stock purchase and, after the stock acquisition, T merges or 
liquidates into P (or another member of the affiliated group that 
includes P), whether or not, under relevant provisions of law, including 
the step transaction doctrine, the acquisition of the T stock and the 
merger or liquidation of T qualify as a reorganization described in 
section 368(a). If a section 338(h)(10) election is made in a case where 
the acquisition of T stock followed by a merger or liquidation of T into 
P qualifies as a reorganization described in section 368(a), for all 
Federal tax purposes, P's acquisition of T stock is treated as a 
qualified stock purchase and is not treated as part of a reorganization 
described in section 368(a).
    (c)(3)-(e) (Example 10) [Reserved]. For further guidance, see Sec. 
1.338(h)(10)-1(c)(3) through (e) (Example 10).

    (e) Example 11. Stock acquisition followed by upstream merger--
without section 338(h)(10) election. (i) P owns all the stock of Y, a 
newly formed subsidiary. S owns all the stock of T. Each of P, S, T and 
Y is a domestic corporation. P acquires all of the T stock in a 
statutory merger of Y into T, with T surviving. In the merger, S 
receives consideration consisting of 50% P voting stock and 50% cash. 
Viewed independently of any other step, P's acquisition of T stock 
constitutes a qualified stock purchase. As part of the plan that 
includes P's acquisition of the T stock, T subsequently merges into P. 
Viewed independently of any other step, T's merger into P

[[Page 151]]

qualifies as a liquidation described in section 332. Absent the 
application of paragraph (c)(2) of this section, the step transaction 
doctrine would apply to treat P's acquisition of the T stock and T's 
merger into P as an acquisition by P of T's assets in a reorganization 
described in section 368(a). P and S do not make a section 338(h)(10) 
election with respect to P's purchase of the T stock.
    (ii) Because P and S do not make an election under section 
338(h)(10) for T, P's acquisition of the T stock and T's merger into P 
is treated as part of a reorganization described in section 368(a).
    Example 12. Stock acquisition followed by upstream merger--with 
section 338(h)(10) election. (i) The facts are the same as in Example 11 
except that P and S make a joint election under section 338(h)(10) for 
T.
    (ii) Pursuant to paragraph (c)(2) of this section, as a result of 
the election under section 338(h)(10), for all Federal tax purposes, P's 
acquisition of the T stock is treated as a qualified stock purchase and 
P's acquisition of the T stock is not treated as part of a 
reorganization described in section 368(a).
    Example 13. Stock acquisition followed by brother-sister merger--
with section 338(h)(10) election. (i) The facts are the same as in 
Example 12, except that, following P's acquisition of the T stock, T 
merges into X, a domestic corporation that is a wholly owned subsidiary 
of P. Viewed independently of any other step, T's merger into X 
qualifies as a reorganization described in section 368(a). Absent the 
application of paragraph (c)(2) of this section, the step transaction 
doctrine would apply to treat P's acquisition of the T stock and T's 
merger into X as an acquisition by X of T's assets in a reorganization 
described in section 368(a).
    (ii) Pursuant to paragraph (c)(2) of this section, as a result of 
the election under section 338(h)(10), for all Federal tax purposes, P's 
acquisition of T stock is treated as a qualified stock purchase and P's 
acquisition of T stock is not treated as part of a reorganization 
described in section 368(a).
    Example 14. Stock acquisition that does not qualify as a qualified 
stock purchase followed by upstream merger. (i) The facts are the same 
as in Example 11, except that, in the statutory merger of Y into T, S 
receives only P voting stock.
    (ii) Pursuant to section 1.338-3(c)(1)(i) and paragraph (c)(2) of 
this section, no election under section 338(h)(10) can be made with 
respect to P's acquisition of the T stock because, pursuant to relevant 
provisions of law, including the step transaction doctrine, that 
acquisition followed by T's merger into P is treated as a reorganization 
under section 368(a)(1)(A), and that acquisition, viewed independently 
of T's merger into P, does not constitute a qualified stock purchase 
under section 338(d)(3). Accordingly, P's acquisition of the T stock and 
T's merger into P is treated as a reorganization under section 368(a).

    (f)-(g) [Reserved]. For further guidance, see Sec. 1.338(h)(10)-
1(f) through (g).
    (h) Effective date. This section is applicable to stock acquisitions 
occurring on or after July 9, 2003.

[T.D. 9071, 68 FR 40768, July 9, 2003]



Sec. 1.338(i)-1  Effective dates.

    (a) In general. The provisions of Sec. Sec. 1.338-1 through 1.338-
7, 1.338-10 and 1.338(h)(10)-1 apply to any qualified stock purchase 
occurring after March 15, 2001. For rules applicable to qualified stock 
purchases on or before March 15, 2001, see Sec. Sec. 1.338-1T through 
1.338-7T, 1.338-10T, 1.338(h)(10)-1T and 1.338(i)-1T in effect prior to 
March 16, 2001 (see 26 CFR part 1 revised April 1, 2000).
    (b) Section 338(h)(10) elections for S corporation targets. The 
requirements of Sec. Sec. 1.338(h)(10)-1T(c)(2) and 1.338(h)(10)-
1(c)(2) that S corporation shareholders who do not sell their stock must 
also consent to an election under section 338(h)(10) will not invalidate 
an otherwise valid election made on the September 1997 revision of Form 
8023, ``Elections Under Section 338 For Corporations Making Qualified 
Stock Purchases,'' not signed by the nonselling shareholders, provided 
that the S corporation and all of its shareholders (including nonselling 
shareholders) report the tax consequences consistently with the results 
under section 338(h)(10).

[T.D. 8940, 66 FR 9954, Feb. 13, 2001]

      collapsible corporations; foreign personal holding companies



Sec. 1.341-1  Collapsible corporations; in general.

    Subject to the limitations contained in Sec. 1.341-4 and the 
exceptions contained in Sec. 1.341-6 and Sec. 1.341-7(a), the entire 
gain from the actual sale or exchange of stock of a collapsible 
corporation, (b) amounts distributed in complete or partial liquidation 
of a collapsible corporation which are treated, under section 331, as 
payment in exchange for stock, and (c) a distribution made by a 
collapsible corporation which, under section 301(c)(3), is treated, to 
the extent it exceeds the

[[Page 152]]

basis of the stock, in the same manner as a gain from the sale or 
exchange of property, shall be considered as ordinary income.

[T.D. 7655, 44 FR 68459, Nov. 29, 1979]



Sec. 1.341-2  Definitions.

    (a) Determination of collapsible corporation. (1) A collapsible 
corporation is defined by section 341(b)(1) to be a corporation formed 
or availed of principally (i) for the manufacture, construction, or 
production of property, (ii) for the purchase of property which (in the 
hands of the corporation) is property described in section 341(b)(3), or 
(iii) for the holding of stock in a corporation so formed or availed of, 
with a view to (a) the sale or exchange of stock by its shareholders 
(whether in liquidation or otherwise), or a distribution to its 
shareholders, prior to the realization by the corporation manufacturing, 
constructing, producing, or purchasing the property of a substantial 
part of the taxable income to be derived from such property, and (b) the 
realization by such shareholders of gain attributable to such property. 
See Sec. 1.341-5 for a description of the facts which will ordinarily 
be considered sufficient to establish whether or not a corporation is a 
collapsible corporation under the rules of this section. See paragraph 
(d) of Sec. 1.341-5 for examples of the application of section 341.
    (2) Under section 341(b)(1) the corporation must be formed or 
availed of with a view to the action therein described, that is, the 
sale or exchange of its stock by its shareholders, or a distribution to 
them prior to the realization by the corporation manufacturing, 
constructing, producing, or purchasing the property of a substantial 
part of the taxable income to be derived from such property, and the 
realization by the shareholders of gain attributable to such property. 
This requirement is satisfied in any case in which such action was 
contemplated by those persons in a position to determine the policies of 
the corporation, whether by reason of their owning a majority of the 
voting stock of the corporation or otherwise. The requirement is 
satisfied whether such action was contemplated, unconditionally, 
conditionally, or as a recognized possibility. If the corporation was so 
formed or availed of, it is immaterial that a particular shareholder was 
not a shareholder at the time of the manufacture, construction, 
production, or purchase of the property, or if a shareholder at such 
time, did not share in such view. Any gain of such a shareholder on his 
stock in the corporation shall be treated in the same manner as gain of 
a shareholder who did share in such view. The existence of a bona fide 
business reason for doing business in the corporate form does not, by 
itself, negate the fact that the corporation may also have been formed 
or availed of with a view to the action described in section 341(b).
    (3) A corporation is formed or availed of with a view to the action 
described in section 341(b) if the requisite view existed at any time 
during the manufacture, production, construction, or purchase referred 
to in that section. Thus, if the sale, exchange, or distribution is 
attributable solely to circumstances which arose after the manufacture, 
construction, production, or purchase (other than circumstances which 
reasonably could be anticipated at the time of such manufacture, 
construction, production, or purchase), the corporation shall, in the 
absence of compelling facts to the contrary, be considered not to have 
been so formed or availed of. However, if the sale, exchange or 
distribution is attributable to circumstances present at the time of the 
manufacture, construction, production, or purchase, the corporation 
shall, in the absence of compelling facts to the contrary, be considered 
to have been so formed or availed of.
    (4) The property referred to in section 341(b) is that property or 
the aggregate of those properties with respect to which the requisite 
view existed. In order to ascertain the property or properties as to 
which the requisite view existed, reference shall be made to each 
property as to which, at the time of the sale, exchange, or distribution 
referred to in section 341(b) there has not been a realization by the 
corporation manufacturing, constructing, producing, or purchasing the 
property of a substantial part of the taxable income to be derived from 
such property. However, where any such property is a unit of an 
integrated

[[Page 153]]

project involving several properties similar in kind, the determination 
whether the requisite view existed shall be made only if a substantial 
part of the taxable income to be derived from the project has not been 
realized at the time of the sale, exchange, or distribution, and in such 
case the determination shall be made by reference to the aggregate of 
the properties constituting the single project.
    (5) A corporation shall be deemed to have manufactured, constructed, 
produced, or purchased property if it (i) engaged in the manufacture, 
construction, or production of property to any extent, or (ii) holds 
property having a basis determined, in whole or in part, by reference to 
the cost of such property in the hands of a person who manufactured, 
constructed, produced, or purchased the property, or (iii) holds 
property having a basis determined, in whole or in part, by reference to 
the cost of property manufactured, constructed, produced, or purchased 
by the corporation. Thus, under subdivision (i) of this subparagraph, 
for example, a corporation need not have originated nor have completed 
the manufacture, construction, or production of the property. Under 
subdivision (ii) of this subparagraph, for example, if an individual 
were to transfer property constructed by him to a corporation in 
exchange for all of the capital stock of such corporation, and such 
transfer qualifies under section 351, then the corporation would be 
deemed to have constructed the property, since the basis of the property 
in the hands of the corporation would, under section 362 be determined 
by reference to the basis of the property in the hands of the 
individual. Under subdivision (iii) of this subparagraph, for example, 
if a corporation were to exchange property constructed by it for 
property of like kind constructed by another person, and such exchange 
qualifies under section 1031(a), then the corporation would be deemed to 
have constructed the property received by it in the exchange, since the 
basis of the property received by it in the exchange would, under 
section 1031(d), be determined by reference to the basis of the property 
constructed by the corporation.
    (6) In determining whether a corporation is a collapsible 
corporation by reason of the purchase of property, it is immaterial 
whether the property is purchased from the shareholders of the 
corporation or from persons other than such shareholders. The property, 
however, must be property which, in the hands of the corporation, is 
property of a kind described in section 341(b)(3). The determination 
whether property is of a kind described in section 341(b)(3) shall be 
made without regard to the fact that the corporation is formed or 
availed of with a view to the action described in section 341(b)(1).
    (7) Section 341 is applicable whether the shareholder is an 
individual, a trust, an estate, a partnership, a company, or a 
corporation.
    (b) Section 341 assets. For the purposes of this section, the term 
``section 341 assets'' means the following listed property if held for 
less than 3 years:
    (1) Stock in trade of the corporation, or other property of a kind 
which would properly be included in the inventory of the corporation if 
on hand at the close of the taxable year.
    (2) Property held primarily for sale to customers in the ordinary 
course of a trade or business.
    (3) Property used in a trade or business as defined in section 
1231(b) and held for less than 3 years, except property that is or has 
been used in connection with the manufacture, construction, production 
or sale of property described in subparagraphs (1) and (2) of this 
paragraph.
    (4) Unrealized receivables or fees pertaining to property listed in 
this paragraph. The term unrealized receivables or fees means any rights 
(contractual or otherwise) to payment for property listed in 
subparagraphs (1), (2), and (3) of this paragraph which has been 
delivered or is to be delivered and rights to payments for services 
rendered or to be rendered, to the extent such rights have not been 
included in the income of the corporation under the method of accounting 
used by it. In determining whether the assets referred to in this 
paragraph have been held for 3 years, the time such assets were held by 
a transferor shall be taken into consideration (section 1223). However, 
no such period shall begin before the date the

[[Page 154]]

manufacture, construction, production, or purchase of such assets is 
completed.



Sec. 1.341-3  Presumptions.

    (a) Unless shown to the contrary a corporation shall be considered 
to be a collapsible corporation if at the time of the transactions 
described in Sec. 1.341-1 the fair market value of the section 341 
assets held by it constitutes 50 percent or more of the fair market 
value of its total assets and the fair market value of the section 341 
assets is 120 percent or more of the adjusted basis of such assets. In 
determining the fair market value of the total assets, cash, obligations 
which are capital assets in the hands of the corporation, governmental 
obligations, and stock in any other corporation shall not be taken into 
consideration. The failure of a corporation to meet the requirements of 
this paragraph, shall not give rise to the presumption that the 
corporation was not a collapsible corporation.
    (b) The following example will illustrate the application of this 
section:

    Example A corporation, filing its income tax returns on the accrual 
basis, on July 31, 1955, owned assets with the following fair market 
values: Cash, $175,000; note receivable held for investment, $130,000; 
stocks of other corporations, $545,000; rents receivable, $15,000; and a 
building constructed by the corporation in 1953 and held thereafter as 
rental property, $750,000. The adjusted basis of the building on that 
date was $600,000. The only debt outstanding was a $500,000 mortgage on 
the building. On July 31, 1955, the corporation liquidated and 
distributed all of its assets to its shareholders. In computing whether 
the fair market value of the section 341 assets (only the building) is 
50 percent or more of the fair market value of the total assets, the 
cash, note receivable, and stocks of other corporations are not taken 
into account in determining the value of the total assets, with the 
result that the fair market value of the total assets was $765,000 
($750,000 (building) plus $15,000 rents receivable). Therefore, the 
value of the building is 98 percent of the total assets ($750,000/
$765,000). The value of the building is also 125 percent of the adjusted 
basis of the building ($750,000/$600,000). In view of the above facts, 
there arises a presumption that the corporation is a collapsible 
corporation.



Sec. 1.341-4  Limitations on application of section.

    (a) General. This section shall apply only to the extent that the 
recognized gain of a shareholder upon his stock in a collapsible 
corporation would be considered, but for the provisions of this section, 
as gain from the sale or exchange of a capital asset held for more than 
1 year (6 months for taxable years before 1977; 9 months for taxable 
years beginning in 1977). Thus, if a taxpayer sells at a gain stock of a 
collapsible corporation which he had held for six months or less, this 
section would not, in any event, apply to such gain. Also, if it is 
determined, under provisions of law other than section 341, that a sale 
or exchange at a gain of stock of a collapsible corporation which has 
been held for more than 1 year (6 months for taxable years before 1977; 
9 months for taxable years beginning in 1977) results in ordinary income 
rather than long-term capital gain, then this section (including the 
limitations contained herein) has no application whatsoever to such 
gain.
    (b) Stock ownership rules. (1) This section shall apply in the case 
of gain realized by a shareholder upon his stock in a collapsible 
corporation only if the shareholder, at any time after the actual 
commencement of the manufacture, construction, or production of the 
property, or at the time of the purchase of the property described in 
section 341(b)(3) or at any time thereafter, (i) owned, or was 
considered as owning, more than 5 percent in value of the outstanding 
stock of the corporation, or (ii) owned stock which was considered as 
owned at such time by another shareholder who then owned, or was 
considered as owning, more than 5 percent in value of the outstanding 
stock of the corporation.
    (2) The ownership of stock shall be determined in accordance with 
the rules prescribed by section 544(a)(1), (2), (3), (5), and (6), 
except that, in addition to the persons prescribed by section 544(a)(2), 
the family of an individual shall include the spouses of that 
individual's brothers and sisters, whether such brothers and sisters are 
by the whole or the half blood, and the spouses of that individual's 
lineal descendants.

[[Page 155]]

    (3) For the purpose of this limitation, treasury stock shall not be 
considered as outstanding stock.
    (4) It is possible, under this limitation, that a shareholder in a 
collapsible corporation may have gain upon his stock in that corporation 
treated differently from the gain of another shareholder in the same 
collapsible corporation.
    (c) Seventy-percent rule. (1) This section shall apply to the gain 
recognized during a taxable year upon the stock in a collapsible 
corporation only if more than 70 percent of such gain is attributable to 
the property referred to in section 341(b)(1). If more than 70 percent 
of such gain is so attributable, then all of such gain is subject to 
this section, and, if 70 percent or less of such gain is so 
attributable, then none of such gain is subject to this section.
    (2) For the purpose of this limitation, the gain attributable to the 
property referred to in section 341(b)(1) is the excess of the 
recognized gain of the shareholder during the taxable year upon his 
stock in the collapsible corporation over the recognized gain which the 
shareholder would have if the property had not been manufactured, 
constructed, produced, or purchased. In the case of gain on a 
distribution in partial liquidation or a distribution described in 
section 301(c)(3)(A), the gain attributable to the property shall not be 
less than an amount which bears the same ratio to the gain on such 
distribution as the gain which would be attributable to the property if 
there had been a complete liquidation at the time of such distribution 
bears to the total gain which would have resulted from such complete 
liquidation.
    (3) Gain may be attributable to the property referred to in section 
341(b)(1) even though such gain is represented by an appreciation in the 
value of property other than that manufactured, constructed, produced, 
or purchased. Where, for example, a corporation owns a tract of land and 
the development of one-half of the tract increases the value of the 
other half, the gain attributable to the developed half of the tract 
includes the increase in the value of the other half.
    (4) The following example will illustrate the application of the 70 
percent rule:

    Example: On January 2, 1954, A formed the Z Corporation and 
contributed $1,000,000 cash in exchange for all of the stock thereof. 
The Z Corporation invested $400,000 in one project for the purpose of 
building and selling residential houses. As of December 31, 1954, the 
residential houses in this project were all sold, resulting in a profit 
of $100,000 (after taxes). Simultaneously with the development of the 
first project and in connection with a second and separate project the Z 
Corporation invested $600,000 in land for the purpose of subdividing 
such land into lots suitable for sale as home sites and distributing 
such lots in liquidation before the realization by the corporation of a 
substantial part of the taxable income to be realized from this second 
project. As of December 31, 1954, Corporation Z had derived $60,000 in 
profits (after taxes) from the sale of some of the lots. On January 2, 
1955, the Z Corporation made a distribution in complete liquidation to 
shareholder A who received:
    (i) $560,000 in cash and notes, and
    (ii) Lots having a fair market value of $940,000.


The gain recognized to shareholder A upon the liquidation is $500,000 
($1,500,000 minus $1,000,000). The gain which would have been recognized 
to A if the second project had not been undertaken is $100,000 
($1,100,000 minus $1,000,000). Therefore, the gain attributable to the 
second project which is property referred to in section 341(b)(1), is 
$400,000 ($500,000 minus $100,000). Since this gain ($400,000) is more 
than 70 percent of the entire gain ($500,000) recognized to A on the 
liquidation, the entire gain so recognized is gain subject to section 
341(a).

    (d) Three-year rule. This section shall not apply to that portion of 
the gain of a shareholder that is realized more than three years after 
the actual completion of the manufacture, construction, production, or 
purchase of the property referred to in section 341(b)(1) to which such 
portion is attributable. However, if the actual completion of the 
manufacture, construction, production, or purchase of all of such 
property occurred more than 3 years before the date on which the gain is 
realized, this section shall not apply to any part of the gain realized.

[T.D. 6500, 25 FR 11607, Nov. 26, 1960, as amended by T.D. 6738, 29 FR 
7671, June 16, 1964; T.D. 7728, 45 FR 72650, Nov. 3, 1980]

[[Page 156]]



Sec. 1.341-5  Application of section.

    (a) Whether or not a corporation is a collapsible corporation shall 
be determined under the regulations of Sec. Sec. 1.341-2 and 1.341-3 on 
the basis of all the facts and circumstances in each particular case. 
The following paragraphs of this section set forth those facts which 
will ordinarily be considered sufficient to establish that a corporation 
is or is not a collapsible corporation. The facts set forth in the 
following paragraphs of this section are not exclusive of other facts 
which may be controlling in any particular case. For example, if the 
facts in paragraph (b) of this section, but not the facts in paragraph 
(c) of this section, are present, the corporation may nevertheless not 
be a collapsible corporation if there are other facts which clearly 
establish that the regulations of Sec. Sec. 1.341-2 and 1.341-3 are not 
satisfied. Similarly, if the facts in paragraph (c) of this section are 
present, the corporation may nevertheless be a collapsible corporation 
if there are other facts which clearly establish that the corporation 
was formed or availed of in the manner described in Sec. Sec. 1.341-2 
and 1.341-3 or if the facts in paragraph (c) of this section are not 
significant by reason of other facts, such as the fact that the 
corporation is subject to the control of persons other than those who 
were in control immediately prior to the manufacture, construction, 
production, or purchase of the property. See Sec. 1.341-4 for 
provisions which make section 341 inapplicable to certain shareholders 
of collapsible corporations.
    (b) The following facts will ordinarily be considered sufficient 
(except as otherwise provided in paragraph (a) of this section and 
paragraph (c) of this section) to establish that a corporation is a 
collapsible corporation:
    (1) A shareholder of the corporation sells or exchanges his stock, 
or receives a liquidating distribution, or a distribution described in 
section 301(c)(3)(A),
    (2) Upon such sale, exchange, or distribution, such shareholder 
realizes gain attributable to the property described in subparagraphs 
(4) and (5) of this paragraph, and
    (3) At the time of the manufacture, construction, production, or 
purchase of the property described in subparagraphs (4) and (5) of this 
paragraph, such activity was substantial in relation to the other 
activities of the corporation which manufactured, constructed, produced, 
or purchased such property.

The property referred to in subparagraphs (2) and (3) of this paragraph 
is that property or the aggregate of those properties which meet the 
following two requirements:
    (4) The property is manufactured, constructed, or produced by the 
corporation or by another corporation stock of which is held by the 
corporation, or is property purchased by the corporation or by such 
other corporation which (in the hands of the corporation holding such 
property) is property described in section 341(b)(3), and
    (5) At the time of the sale, exchange, or distribution described in 
subparagraph (1) of this paragraph, the corporation which manufactured, 
constructed, produced, or purchased such property has not realized a 
substantial part of the taxable income to be derived from such property.

In the case of property which is a unit of an integrated project 
involving several properties similar in kind, the rules of this 
subparagraph shall be applied to the aggregate of the properties 
constituting the single project rather than separately to such unit. 
Under the rules of this subparagraph, a corporation shall be considered 
a collapsible corporation by reason of holding stock in other 
corporations which manufactured, constructed, produced, or purchased the 
property only if the activity of the corporation in holding stock in 
such other corporations is substantial in relation to the other 
activities of the corporation.
    (c) The absence of any of the facts set forth in paragraph (b) of 
this section or the presence of the following facts will ordinarily be 
considered sufficient (except as otherwise provided in paragraph (a) of 
this section) to establish that a corporation is not a collapsible 
corporation:
    (1) In the case of a corporation subject to paragraph (b) of this 
section only by reason of the manufacture, construction, production, or 
purchase

[[Page 157]]

(either by the corporation or by another corporation the stock of which 
is held by the corporation) of property which is property described in 
section 341(b)(3)(A) and (B), the amount (both in quantity and value) of 
such property is not in excess of the amount which is normal--
    (i) For the purpose of the business activities of the corporation 
which manufactured, constructed, produced, or purchased the property if 
such corporation has a substantial prior business history involving the 
use of such property and continues in business, or
    (ii) For the purpose of an orderly liquidation of the business if 
the corporation which manufactured, constructed, produced, or purchased 
such property has a substantial prior business history involving the use 
of such property and is in the process of liquidation.
    (2) In the case of a corporation subject to paragraph (b) of this 
section with respect to the manufacture, construction, or production 
(either by the corporation or by another corporation the stock of which 
is held by the corporation) of property, the amount of the unrealized 
taxable income from such property is not substantial in relation to the 
amount of the taxable income realized (after the completion of a 
material part of such manufacture, construction, or production, and 
prior to the sale, exchange, or distribution referred to in paragraph 
(b)(1) of this section) from such property and from other property 
manufactured, constructed, or produced by the corporation.
    (d) The following examples will illustrate the application of this 
section:

    Example (1). (i) On January 2, 1954, A formed the W Corporation and 
contributed $50,000 cash in exchange for all of the stock thereof. The W 
Corporation borrowed $900,000 from a bank and used $800,000 of such sum 
in the construction of an apartment house on land which it purchased for 
$50,000. The apartment house was completed on December 31, 1954. On 
December 31, 1954, the corporation, having determined that the fair 
market value of the apartment house, separate and apart from the land, 
was $900,000, made a distribution (permitted under the applicable State 
law) to A of $100,000. At this time, the fair market value of the land 
was $50,000. As of December 31, 1954, the corporation has not realized 
any earnings and profits. In 1955, the corporation began the operation 
of the apartment house and received rentals therefrom. The corporation 
has since continued to own and operate the building. The corporation 
reported on the basis of the calendar year and cash receipts and 
disbursements.
    (ii) Since A received a distribution and realized a gain 
attributable to the building constructed by the corporation, since, at 
the time of such distribution, the corporation has not realized a 
substantial part of the taxable income to be derived from such building, 
and since the construction of the building was a substantial activity of 
the corporation, the W Corporation is considered a collapsible 
corporation under paragraph (b) of Sec. 1.341-5. The provisions of 
section 341(d) do not prohibit the application of section 341(a). 
Therefore, the distribution, if and to the extent that it may be 
considered long-term capital gain rather than ordinary income without 
regard to section 341, will be considered ordinary income under section 
341(a).
    (iii) In the event of the existence of additional facts and 
circumstances in the above case, the corporation, notwithstanding the 
above facts, might not be considered a collapsible corporation. See 
Sec. 1.342-2 and paragraph (a) of Sec. 1.341-5.
    Example (2). (i) On January 2, 1954, B formed X Corporation and 
became its sole shareholder. In August 1954, the corporation completed 
construction of an office building. It immediately sold this building at 
a gain of $50,000, included this entire gain in its return for 1954, and 
distributed this entire gain (less taxes) to B. In June 1955, the 
corporation completed construction of a second office building. In 
August 1955, B sold the entire stock of X Corporation at a gain of 
$12,000, which gain is attributable to the second building.
    (ii) X Corporation is a collapsible corporation under section 341(b) 
for the following reasons: The gain realized through the sale of the 
stock of X Corporation was attributable to the second office building; 
the construction of that building was a substantial activity of X 
Corporation during the time of construction and, at the time of sale, 
the corporation had not realized a substantial part of the taxable 
income to be derived from such building. Since the provisions of section 
341(d) do not prohibit the application of section 341 (a) to B, the gain 
of $12,000 to B is, accordingly, considered ordinary income.
    Example (3). The facts are the same as in Example (2), except that 
the following facts are shown: B was the president of the X Corporation 
and active in the conduct of its business. The second building was 
constructed as the first step in a project of the X Corporation for the 
development for rental purposes of a large suburban center involving the 
construction of several buildings by the corporation. The sale of the 
stock by B was caused by his retiring from all business

[[Page 158]]

activity as a result of illness arising after the second building was 
constructed. Under these additional facts, the corporation is not 
considered a collapsible corporation. See Sec. 1.341-2 and paragraph 
(a) of Sec. 1.341-5.
    Example (4). (i) On January 2, 1948, C formed the Y Corporation and 
became the sole shareholder thereof. The Y Corporation has been engaged 
solely in the business of producing motion pictures and licensing their 
exhibition. On January 2, 1955, C sold all of the stock of the Y 
Corporation at a gain. The Y Corporation has produced one motion picture 
each year since its organization and before January 2, 1955, it has 
realized a substantial part of the taxable income to be derived from 
each of its motion pictures except the last one made in 1954. This last 
motion picture was completed September 1, 1954. As of January 2, 1955, 
no license had been made for its exhibition. The fair market value on 
January 2, 1955, of this last motion picture exceeds the cost of its 
production by $50,000. A material part of the production of this last 
picture was completed on January 1, 1954, and between that date and 
January 2, 1955, the corporation had realized taxable income of $500,000 
from other motion pictures produced by it. The corporation has 
consistently distributed to its shareholder its taxable income when 
received (after adjustment for taxes).
    (ii) Although the corporation is within paragraph (b) of this 
section with respect to the production of property, the amount of the 
unrealized income from such property ($50,000) is not substantial in 
relation to the amount of the income realized, after the completion of a 
material part of the production of such property and prior to sale of 
the stock, from such property and other property produced by the 
corporation ($500,000). Accordingly, the Y Corporation is within 
paragraph (c)(2) of this section, and is not considered a collapsible 
corporation.
    Example (5). The facts are the same as in Example (4) except that C 
sold all of his stock to D on February 1, 1954. On January 2, 1955, D 
sold all of the Y Corporation stock at a gain, the gain being 
attributable to the picture completed September 1, 1954, and not 
released by the corporation for exhibition. In view of the change of 
control of the corporation, the provisions of paragraph (c)(2) of this 
section are not significant at the time of the sale by D, and the Y 
Corporation would be considered a collapsible corporation on January 2, 
1955. See Sec. 1.341-2 and paragraph (a) of Sec. 1.341-5.



Sec. 1.341-6  Exceptions to application of section.

    (a) In general--(1) Transactions excepted. Section 341(e) excepts 4 
types of transactions from the application of the collapsible 
corporation provisions. These exceptions, where applicable, eliminate 
the necessity of determining whether a corporation is a collapsible 
corporation within the meaning of section 341(b) or whether any of the 
limitations of section 341(d) are applicable. Under section 341(e)(1) 
and (2), there are 2 exceptions which are designed to allow the 
shareholders of a corporation either to sell or exchange their stock or 
to receive distributions in certain complete liquidations without having 
any gain considered under section 341(a)(1) or (2) as gain from the sale 
or exchange of property which is not a capital asset. Under section 
341(e)(3), a third exception is designed to permit the shareholders of a 
corporation to make use of section 333, relating to elections as to 
recognition of gain in certain complete liquidations occurring within 
one calendar month. Under section 341(e)(4), the fourth exception 
permits a corporation to make use of section 337, relating to 
nonrecognition of gain or loss on sales or exchanges of property by a 
corporation following the adoption of a plan of complete liquidation. 
Section 341(e) does not apply to distributions in partial liquidation or 
in redemption of stock (other than any such distribution pursuant to a 
plan of complete liquidation), or to distributions described in section 
301(c)(3)(A).
    (2) Effective date. The exceptions in section 341(e)(1), (2), and 
(3) apply only with respect to taxable years of shareholders beginning 
after December 31, 1957, and only with respect to sales or exchanges of 
stock and distributions of property occurring after September 2, 1958. 
The exception in section 341(e)(4) applies only with respect to taxable 
years of corporations beginning after December 31, 1957, and only if all 
sales or exchanges of property, and all liquidating distributions, made 
by the corporation under the plan of complete liquidation occur after 
September 2, 1958.
    (3) Definition of constructive shareholder and attribution rules. 
(i) For purposes of this section, the term constructive shareholder 
means a person who does not actually own any stock but who is considered 
to own stock by reason of the application of subdivision (ii) of this 
subparagraph.

[[Page 159]]

    (ii) For purposes of this section (other than paragraph (k), 
relating to definition of related person) a person shall be considered 
to own the stock he actually owns plus any stock which is attributed to 
him by reason of applying the rules prescribed in paragraph (b)(2) and 
(3) of Sec. 1.341-4. See section 341(e)(10).
    (iii) As an example of this subparagraph, if a husband does not 
actually own any stock in a corporation but his wife is the actual owner 
of 5 shares in the corporation, then the husband is a constructive 
shareholder who is considered to own 5 shares in the corporation.
    (4) General corporate test. No exception provided in section 341(e) 
applies unless a general corporate test and, where applicable, a 
specific shareholder test are satisfied. Under the general corporate 
test no taxpayer may utilize the provisions of section 341(e) unless the 
net increase in value (called ``net unrealized appreciation'') in the 
corporation's ``subsection (e) assets'' does not exceed 15 percent of 
the corporation's net worth. Subsection (e) assets are, in general, 
those assets of the corporation which, if sold at a gain by the 
corporation or by any actual or constructive shareholder who is 
considered to own more than 20 percent in value of the outstanding 
stock, would result in the realization of ordinary income. See paragraph 
(b) of this section for the definition of subsection (e) assets, and 
paragraph (h) of this section for definition of net unrealized 
appreciation. This subparagraph may be illustrated by the following 
examples:

    Example (1). X Corporation is in the business of selling whiskey. 
The net unrealized appreciation in its whiskey is $20,000 and the net 
worth of the corporation is $100,000. Since the corporation's whiskey is 
a subsection (e) asset and since the net unrealized appreciation in 
subsection (e) assets ($20,000) exceeds 15 percent of net worth 
($15,000), the general corporate test is not satisfied and section 
341(e) is inapplicable to the corporation or its shareholders.
    Example (2). Assume the same facts as in Example (1) except that X 
Corporation is not in the business of selling whiskey. Assume further 
that an actual shareholder who owns more than 20 percent in value of the 
outstanding X stock (or a person who is considered to own such actual 
shareholder's stock, such as his spouse) is in the business of selling 
whiskey. The result is the same as in Example (1).

    (5) Specific shareholder test. Even if the general corporate test is 
met, a shareholder selling or exchanging his stock or receiving a 
distribution with respect to his stock (referred to as a ``specific 
shareholder'') who is considered to own more than 5 percent in value of 
the outstanding stock of the corporation may not utilize the benefits of 
the exception in section 341(e)(1) (or the exception in section 
341(e)(2)) unless he satisfies the applicable specific shareholder test. 
In general, the specific shareholder test is satisfied if the net 
unrealized appreciation in subsection (e) assets of the corporation, 
plus the net unrealized appreciation in certain other assets of the 
corporation which would be subsection (e) assets in respect of the 
specific shareholder under the following circumstances, does not exceed 
15 percent of the corporation's net worth:
    (i) If the specific shareholder is considered to own more than 5 
percent but not more than 20 percent in value of the outstanding stock, 
he must take into account the net unrealized appreciation in assets of 
the corporation which would be subsection (e) assets if he was 
considered to own more than 20 percent in value of the outstanding stock 
(see paragraph (c)(3)(i) of this section);
    (ii) In addition, if the specific shareholder is considered to own 
more than 20 percent in value of the outstanding stock, he must also 
take into account the net unrealized appreciation in assets of the 
corporation which would be subsection (e) assets under section 
341(e)(5)(A)(i) and (iii) if his ownership within the preceding 3 years 
of stock in certain ``related'' corporations were taken into account in 
the manner prescribed in paragraphs (c)(3)(ii) and (d) of this section.
    (b) Subsection (e) asset defined--(1) General. The benefits of 
section 341(e) are unavailable if the net unrealized appreciation (as 
defined in paragraph (h) of this section) in certain assets of the 
corporation (hereinafter called ``subsection (e) assets'') exceeds 15 
percent of the corporation's net worth. In determining whether property 
is a subsection (e) asset, it is immaterial

[[Page 160]]

whether the property is described in section 341(b), and there shall not 
be taken into account sections 617(d) (relating to gain from 
dispositions of certain mining property), 1245 and 1250 (relating to 
gain from dispositions of certain depreciable property), 1251 (relating 
to gain from disposition of farm property where farm losses offset 
nonfarm income), 1252 (relating to gain from disposition of farm land), 
and 1254 (relating to gain from disposition of natural resource 
recapture property).
    (2) Categories of subsection (e) assets. The term subsection (e) 
assets, as defined in section 341(e)(5)(A)(i), (ii), (iii), and (iv), 
means the following categories of property held by a corporation:
    (i) The first category is property (except property described in 
section 1231(b), without regard to any holding period prescribed 
therein) which in the hands of the corporation is, or in the hands of 
any actual or constructive shareholder who is considered to own more 
than 20 percent in value of the outstanding stock of the corporation 
would be, property gain from the sale or exchange of which would under 
any provision of chapter 1 of the Code (other than section 617(d), 1245, 
1250, 1251, 1252, or 1254) be considered in whole or in part as gain 
from the sale or exchange of property which is neither a capital asset 
nor property described in section 1231(b). For example, included in this 
category is property held by a corporation which in its hands is stock 
in trade, inventory, or property held by it primarily for sale to 
customers in the ordinary course of its trade or business regardless of 
whether such property is appreciated or depreciated in value. Also 
included in this category is property held by a corporation which is a 
capital asset in its hands but which, in the hands of any actual or 
constructive shareholder who is considered to own more than 20 percent 
in value of the outstanding stock, would be stock in trade, inventory, 
or property held by such actual or constructive shareholder primarily 
for sale to customers in the ordinary course of his trade or business. 
For additional rules relating to whether property is a subsection (e) 
asset under this subdivision, see subparagraphs (3), (4), and (5) of 
this paragraph.
    (ii) The second category of subsection (e) assets is property which 
in the hands of the corporation is property described in section 1231(b) 
(without regard to any holding period prescribed therein), but only if 
there is net unrealized depreciation (within the meaning of paragraph 
(h)(2) of this section) on all such property. This subdivision may be 
illustrated by the following example:

    Example. X Corporation owns only the following section 1231(b) 
property (determined without regard to holding period).

------------------------------------------------------------------------
                                                  Fair     Unreal- ized
           Oil leaseholds             Adjusted   market    appreciation
                                        basis     value   (depreciation)
------------------------------------------------------------------------
No. 1...............................   $16,000   $10,000      ($6,000)
No. 2...............................     8,000     5,000       (3,000)
No. 3...............................     5,000     5,000             0
No. 4...............................     3,000     5,000         2,000
                                     -----------------------------------
 Totals.............................    32,000    25,000       (7,000)
------------------------------------------------------------------------


Since with respect to such property the unrealized depreciation in 
property on which there is unrealized depreciation ($9,000) exceeds the 
unrealized appreciation in property on which there is unrealized 
appreciation ($2,000), all such property is included in subsection (e) 
assets under clause (ii) of section 341(e)(5)(A).

    (iii) The third category of subsection (e) assets exists only if 
there is net unrealized appreciation on all property which in the hands 
of the corporation is property described in section 1231(b) (without 
regard to any holding period prescribed therein). In such case, any such 
section 1231(b) property (whether appreciated or depreciated) is a 
subsection (e) asset of the third category if, in the hands of an actual 
or constructive shareholder who is considered to own more than 20 
percent in value of the outstanding stock of the corporation, such 
property would be property gain from the sale or exchange of which would 
under any provision of chapter 1 of the Code (other than section 617(d), 
1245, 1250, 1251, 1252, or 1254) be considered in whole or in part as 
gain from the sale or exchange of property which is neither a capital 
asset nor property described in section 1231(b). Included in this 
category, for example, is property which in the

[[Page 161]]

hands of the corporation is property described in section 1231(b) 
(without regard to any holding period prescribed therein), but which in 
the hands of an actual or constructive more-than-20-percent shareholder 
would be property used in his trade or business held for not more than 1 
year (6 months for taxable years beginning before 1977; 9 months for 
taxable years beginning in 1977), stock in trade, inventory, or property 
held by such shareholder primarily for sale to customers in the ordinary 
course of his trade or business. For additional rules relating to 
whether property is a subsection (e) asset under this subdivision, see 
subparagraphs (3) and (4) of this paragraph. This subdivision may be 
further illustrated by the following example:

    Example. Assume the same facts as stated in the example under 
subdivision (ii) of this subparagraph, except that in addition to the 
oil leaseholds the corporation also owns land which has a fair market 
value of $30,000 and an adjusted basis of $20,000 and which in the hands 
of the corporation is property described in section 1231(b) (without 
regard to any holding period prescribed therein). Assume further that A 
is a constructive shareholder of the corporation who is considered to 
own 25 percent in value of its outstanding stock and that A holds land 
primarily for sale to customers in the ordinary course of his trade or 
business, and that no actual or constructive shareholder who is 
considered to own more than 20 percent in value of the stock of 
corporation X so holds oil leases. Since with respect to the 
corporation's section 1231(b) property the unrealized appreciation in 
such property on which there is unrealized appreciation ($12,000) 
exceeds the unrealized depreciation in such property on which there is 
unrealized depreciation ($9,000), then clause (iii), and not clause 
(ii), of section 341(e)(5)(A) is applicable. Therefore, no oil lease of 
the corporation is a subsection (e) asset. However, since in the hands 
of A, a more-than-20-percent constructive shareholder, the land would be 
property gain from the sale or exchange of which would be considered as 
gain from the sale or exchange of property which is neither a capital 
asset nor property described in section 1231(b), the land is a 
subsection (e) asset. Consequently, the net unrealized appreciation on 
subsection (e) assets of the corporation is $10,000 since the net 
unrealized depreciation on the oil leases is not taken into account.

    (iv) The fourth category of subsection (e) assets is property 
(unless included under subdivision (i), (ii), or (iii) of this 
subparagraph) which consists of a copyright, a literary, musical, or 
artistic composition, a letter or memorandum, or similar property, or 
any interest in any such property, if the property was created in whole 
or in part by the personal efforts of, or, in the case of a letter, 
memorandum, or property similar to a letter or memorandum, was prepared, 
or produced in whole or in part, for, any individual actual or 
constructive shareholder who is considered to own more than 5 percent in 
value of the outstanding stock of the corporation. For items included in 
the phrase ``similar property'' see paragraph (c) of Sec. 1.1221-1. In 
general, property is created in whole or in part by the personal efforts 
of an individual if such individual performs literary, theatrical, 
musical, artistic, or other creative or productive work which 
affirmatively contributes to the creation of the property, or if such 
individual directs and guides others in the performance of such work. An 
individual, such as a corporate executive, who merely has administrative 
control of writers, actors, artists, or personnel and who does not 
substantially engage in the direction and guidance of such persons in 
the performance of their work, does not create property by his personal 
efforts. However, a letter or memorandum, or property similar to a 
letter or memorandum, which is prepared by personnel who are under the 
administrative control of an individual, such as a corporate executive, 
shall be deemed to have been prepared or produced for him whether or not 
such letter, memorandum, or similar property is reviewed by him. In 
addition, a letter, memorandum, or property similar to a letter or 
memorandum, addressed to an individual shall be considered as prepared 
or produced for him. In the case of a letter, memorandum, or property 
similar to a letter or memorandum, this subdivision applies only to 
sales and other dispositions occurring after July 25, 1969.
    (3) Manner of determination. For purposes of determining whether 
property is a subsection (e) asset under subparagraph (2)(i) or (iii) of 
this paragraph, the determination as to whether property of a 
corporation in the hands of the corporation is, or in the hands of an 
actual or constructive shareholder

[[Page 162]]

of the corporation would be, property gain from the sale or exchange of 
which would under any provision of chapter 1 of the Code (other than 
section 617(d), 1245, 1250, 1251, 1252, or 1254) be considered in whole 
or in part as gain from the sale or exchange of property which is 
neither a capital asset nor property described in section 1231(b) shall 
be made as if all property of the corporation had been sold or exchanged 
to one person in one transaction. For example, if a corporation whose 
sole asset is an interest in a gas well has entered into a long-term 
contract for the future delivery of gas from the well, the ownership of 
which will pass to the buyer only after extraction or severance from the 
well, the determination as to whether such contract is a subsection (e) 
asset shall be made as if the contract were sold or exchanged to one 
person in one transaction together with such corporation's interest in 
the well. An assumed sale under this subparagraph does not affect the 
character of property which is held for sale to customers in the 
ordinary course of a person's trade or business or the character of a 
transaction which would be an anticipatory assignment of income. Thus, 
for example, if a corporation holds subdivided lots for sale to 
customers in the ordinary course of its trade or business, this 
subparagraph shall not be applied to change the manner in which the lots 
are held.
    (4) Shareholder reference test. For purposes of subparagraph (2)(i) 
and (iii) of this paragraph, in determining whether any property of the 
corporation would, in the hands of a particular actual or constructive 
shareholder, be property gain from the sale or exchange of which would 
be considered in whole or in part as gain from the sale or exchange of 
property which is neither a capital asset nor property described in 
section 1231(b), all the facts and circumstances of the direct and 
indirect activities of the shareholder must be taken into account. If 
the particular shareholder holds property primarily for sale to 
customers in the ordinary course of his trade or business and if similar 
property is held by the corporation, then in the hands of the 
shareholder such corporate property will be treated as held primarily 
for sale to customers in the ordinary course of his trade or business. 
Moreover, even if the shareholder does not presently so hold property 
which is similar to property held by the corporation, it may be 
determined under the particular facts and circumstances (taking into 
account an assumed sale of such corporate property by the shareholder, 
all his other direct and indirect activities, and, if applicable, the 
fact that he previously so held similar property) that he would hold the 
corporate property primarily for sale to customers in the ordinary 
course of his trade or business. See also paragraph (d) of this section, 
pertaining to effect of stock in related corporations.
    (5) Special rule for stock in shareholder's investment account. If--
    (i) A dealer in stock or securities is an actual shareholder 
(considered to own more than 20 percent of the outstanding stock of a 
corporation) and holds such stock which he actually owns in his 
investment account pursuant to section 1236(a), or
    (ii) A dealer in stock or securities is a constructive shareholder 
who is considered to own more than 20 percent of the outstanding stock 
of a corporation,

then stock or securities held by such corporation shall not be 
considered subsection (e) assets under subparagraph (2)(i) of this 
paragraph solely because such actual or constructive shareholder is a 
dealer in stock or securities. However, stock held by such corporation 
shall be considered as a subsection (e) asset if, in the hands of any 
more-than-20-percent actual or constructive shareholder of the 
corporation, the gain (or any portion thereof) upon a sale of such stock 
would (if it were held for more than 1 year (6 months for taxable years 
beginning before 1977; 9 months for taxable years beginning in 1977), 
constitute, by reason of the application of section 341, gain from the 
sale of property which is not a capital asset. This subparagraph may be 
illustrated by the following example:

    Example. Jones, a more-than-20-percent actual shareholder in 
corporation X holds his X stock in an investment account in the manner 
prescribed in section 1236(a). Jones is a dealer in stock and securities 
and holds land

[[Page 163]]

for sale to customers in the ordinary course of his trade or business. 
No other actual or constructive shareholder is a dealer in stock and 
securities or so holds land. X holds all of the stock in corporation Y, 
a collapsible corporation within the meaning of section 341(b). Y's sole 
asset is land on which unrealized appreciation exceeds 15 percent of Y's 
net worth. Since Jones holds his X stock in an investment account 
pursuant to section 1236(a), the Y stock cannot be considered a 
subsection (e) asset of the X Corporation merely because Jones is a 
dealer in stock and securities. Nevertheless, the Y stock is a 
subsection (e) asset of the X Corporation because if Jones were treated 
as having sold the Y stock, his gain would be treated as gain from the 
sale of property which is not a capital asset by reason of the 
application of section 341. If, however, the net unrealized appreciation 
on Y's land did not exceed 15 percent of Y's net worth the Y stock would 
not be a subsection (e) asset since section 341(e)(1) would except such 
sale from the application of section 341.

    (c) Sales or exchanges of stock--(1) General. Section 341(e)(1) 
provides that, if certain requirements are satisfied, the provisions of 
section 341(a)(1) shall in no event apply to certain sales or exchanges 
of stock by a shareholder. See subparagraph (5) of this paragraph for 
sales or exchanges of stock which do not qualify under section 
341(e)(1). Section 341(e)(1) applies to a sale or exchange of stock by a 
shareholder only if, at the time of such sale or exchange, the general 
corporate test and, if applicable, the specific shareholder test are 
satisfied.
    (2) General corporate test. The general corporate test is satisfied 
if the net unrealized appreciation in subsection (e) assets of the 
corporation does not exceed an amount equal to 15 percent of the net 
worth of the corporation. See paragraphs (h), (b), and (j) of this 
section for the definition of ``net unrealized appreciation,'' 
``subsection (e) assets,'' and ``net worth.''
    (3) Specific shareholder test. The specific shareholder test (if 
applicable) is satisfied if the following conditions are met:
    (i) If the shareholder selling or exchanging the stock is considered 
to own more than 5 percent but not more than 20 percent in value of the 
outstanding stock, the sum of the net unrealized appreciation in the 
following assets of the corporation must not exceed an amount equal to 
15 percent of the net worth of the corporation:
    (a) The subsection (e) assets of the corporation, plus
    (b) The other assets of the corporation which would be subsection 
(e) assets under section 341(e)(5)(A)(i) and (iii) if such shareholder 
were considered to own more than 20 percent in value of the outstanding 
stock.
    (ii) If the shareholder selling or exchanging the stock is 
considered to own more than 20 percent in value of the outstanding 
stock, the sum of the net unrealized appreciation in the following 
assets of the corporation must not exceed an amount equal to 15 percent 
of the net worth of the corporation:
    (a) The subsection (e) assets of the corporation, plus
    (b) The other assets of the corporation which would be subsection 
(e) assets under section 341(e)(5)(A)(i) and (iii) if the shareholder's 
ownership of stock in certain related corporations were taken into 
account in the manner prescribed in paragraph (d) of this section.
    (4) Example. Subparagraph (3) of this paragraph may be illustrated 
by the following example:

    Example. Assume an individual, A, and his grandfather, G, each 
actually owns 3 percent in value of the stock of corporation X, a 
corporation holding apartment houses used in its trade or business on 
which net unrealized appreciation exceeds 15 percent of X's net worth. 
A, but not G, holds apartment houses primarily for sale to customers in 
the ordinary course of trade or business. Assume that X satisfies the 
general corporate test. A and G desire to sell their stock and to take 
advantage of section 341(e)(1). Since a grandfather and grandson are 
each considered to own the other's stock under paragraph (a)(3)(ii) of 
this section, A and G are each considered to own 6 percent in value of 
corporation X's outstanding stock. Therefore, A cannot avail himself of 
section 341(e)(1) since he does not satisfy the specific shareholder 
test prescribed in subparagraph (3)(i) of this paragraph. G, however, 
who is considered to own 6 percent in value of the stock, does not hold 
apartment houses for sale to customers in the ordinary course of trade 
or business. Therefore, G satisfies the specific shareholder test and 
may benefit from section 341(e)(1).

    (5) Nonqualifying sales or exchanges. Section 341(e)(1) does not 
apply to any

[[Page 164]]

sale or exchange of stock to the issuing corporation. Thus, stock 
redemptions (including distributions in complete or partial liquidation) 
cannot qualify under section 341(e)(1). In addition, section 341(e)(1) 
does not apply in any case where a shareholder who is considered to own 
more than 20 percent in value of the outstanding stock sells or 
exchanges stock to any person related (within the meaning of paragraph 
(k) of this section) to such shareholder. A sale or exchange of stock of 
the corporation by a shareholder to which section 341(e)(1) does not 
apply because of this subparagraph shall have no effect on the 
application of this section to other sales or exchanges of stock of the 
corporation.
    (6) Example. For an illustration of the application of this 
paragraph, see Example (2) in paragraph (o) of this section.
    (d) Stock in related corporations--(1) General. This paragraph 
provides rules for applying the specific shareholder test prescribed in 
paragraph (c)(3)(ii) of this section for purposes of determining whether 
section 341(e)(1) (relating to sales or exchanges of stock of a 
corporation) or section 341(e)(2) (relating to distributions in complete 
liquidation of a corporation) applies to an actual shareholder who is 
considered as owning more than 20 percent in value of the corporation's 
outstanding stock. In general, if such a more-than-20-percent 
shareholder of such corporation (referred to as a ``first'' corporation) 
owns, or at any time during the preceding 3 years has owned, more than 
20 percent in value of the outstanding stock of a ``related'' 
corporation (see subparagraph (2) of this paragraph), then certain 
transactions in respect of the stock of the related corporation are 
taken into account in the manner prescribed in subparagraph (3) of this 
paragraph. By taking such transactions into account, such shareholder of 
the first corporation may be deemed to hold primarily for sale to 
customers in the ordinary course of trade or business property similar 
or related in service or use to property owned by the first corporation 
where his other activities, direct and indirect, are insufficient to 
treat him as so holding such property. See section 341(e)(1)(C) and 
(2)(C). The transactions in respect of stock in a related corporation 
are taken into account solely for the purpose of determining the extent 
to which assets (other than subsection (e) assets) of the first 
corporation are treated as subsection (e) assets under the shareholder 
reference tests of section 341(e)(5)(A)(i) and (iii). For purposes of 
this paragraph, the term ``similar or related in service or use'' shall 
have the same meaning as such term has in section 1033 (relating to 
involuntary conversions), without regard to subsection (g) thereof.
    (2) Related corporation defined. (i) A corporation (referred to as a 
``second'' corporation) is ``related'' to another corporation (referred 
to as a ``first'' corporation) if the stock ownership test specified in 
subdivision (ii) of this subparagraph and the more-than-70-percent-asset 
comparison test specified in subdivision (iii) of this subparagraph are 
met.
    (ii) The stock ownership test specified in this subdivision is met--
    (a) In the case of a sale or exchange referred to in paragraph 
(c)(1) of this section, if the shareholder in the first corporation is 
considered to own on the date of such sale or exchange more than 20 
percent in value of the outstanding stock of the first corporation, and 
if on such date (or at any time during the 3-year period preceding such 
date) such shareholder in the first corporation is an actual or 
constructive shareholder in the second corporation who was considered to 
own more than 20 percent in value of the outstanding stock of the second 
corporation, or
    (b) In the case of a distribution pursuant to the adoption by the 
first corporation of a plan of complete liquidation referred to in 
paragraph (e) of this section, if the shareholder in the first 
corporation is considered to own on any date after the adoption of such 
plan more than 20 percent in value of the outstanding stock of the first 
corporation, and if on such date (or at any time during the 3-year 
period preceding such date) such shareholder in the first corporation 
was an actual or constructive shareholder in the second corporation who 
was considered to own more

[[Page 165]]

than 20 percent in value of the outstanding stock of the second 
corporation.
    (iii) The more-than-70-percent-asset comparison test specified in 
this subdivision is met if more than 70 percent in value of the assets 
of the second corporation (at any of the applicable times determined 
under subdivision (ii) of this subparagraph during which the shareholder 
of the first corporation is or was considered to own more than 20 
percent in value of the outstanding stock of the second corporation) 
are, or were, assets similar or related in service or use to assets 
comprising more than 70 percent in value of the assets of the first 
corporation (at any of the times determined under subdivision (ii) of 
this subparagraph during which the shareholder of the first corporation 
is or was considered to own more than 20 percent in value of the 
outstanding stock of the first corporation).
    (iv) This subparagraph may be illustrated by the following example:

    Example. X is a first corporation and Y is a second corporation. On 
January 15, 1960, Jones purchased 21 percent in value of the outstanding 
stock of X, which he sold on January 1, 1961. On January 15, 1955, Jones 
had purchased 21 percent in value of the outstanding stock of Y which he 
sold on December 15, 1959. Since Jones owned 21 percent of the 
outstanding X stock on January 1, 1961 (the date he sold his X stock) 
and also owned 21 percent of the outstanding Y stock at some time during 
the 3-year period preceding January 1, 1961, the stock ownership test 
specified in subdivision (ii)(a) of this subparagraph is met. Assume 
that more than 70 percent in value of the assets of Y were apartment 
houses held for rental purposes at some time between January 1, 1958, 
and December 15, 1959 (the portion of the 3-year period preceding the 
date Jones sold his X stock during which he was a more-than-20-percent 
shareholder in Y) and that more than 70 percent in value of the assets 
of X were apartment houses held for rental purposes at some time during 
the period January 15, 1960, to January 1, 1961, inclusive (the portion 
of the 3-year period preceding the date he sold his X stock during which 
he was a more-than-20-percent shareholder in X). Thus, the more-than-70-
percent-asset comparison test specified in subdivision (iii) of this 
subparagraph is met. Accordingly, corporation Y is related to 
corporation X within the meaning of this subparagraph.

    (3) Manner of taking into account. If an actual shareholder in a 
first corporation who is considered to own more than 20 percent of the 
first corporation's stock, owns or has owned stock in a related 
corporation, then--
    (i) Any sale or exchange by such shareholder, during the applicable 
period specified in subparagraph (2)(ii) of this paragraph, of stock in 
the related corporation shall be treated as a sale or exchange by him of 
his proportionate share of the assets of the related corporation, if 
immediately before such sale or exchange he was an actual shareholder of 
the related corporation who was considered to own more than 20 percent 
in value of the outstanding stock of the related corporation. A 
shareholder's proportionate share of the assets of a related corporation 
shall be that percent of each asset of the related corporation as the 
fair market value of the stock of the related corporation which he 
actually sold or exchanged bears, immediately before such sale or 
exchange, to the total fair market value of the outstanding stock of 
such related corporation; and
    (ii) Any sale or exchange of property by the related corporation 
during the applicable period specified in subparagraph (2)(ii) of this 
paragraph, gain or loss on which was not recognized to the related 
corporation by reason of the application of section 337(a), shall be 
treated as a sale or exchange by him of his proportionate share of the 
related corporation's property sold or exchanged, if at the time of such 
sale or exchange he was an actual or constructive shareholder of the 
related corporation who was considered to own more than 20 percent in 
value of the outstanding stock of such related corporation. A 
shareholder's proportionate share of such related corporation's property 
sold or exchanged shall be that percent of each such property sold or 
exchanged as the fair market value of the stock which he was considered 
to own in the related corporation immediately before such sale or 
exchange bears to the total fair market value of the outstanding stock 
of such related corporation at such time.
    (4) Example. This paragraph may be illustrated by the following 
example:

    Example. (i) A owns 25 percent in value of the outstanding stock of 
Z Corporation. On

[[Page 166]]

December 31, 1959, he sells all his stock in the corporation and desires 
to take advantage of section 341(e)(1). The only asset of Z Corporation 
is an appreciated apartment house held for rental purposes but which is 
not a subsection (e) asset. However, during the preceding 3-year period 
A sold 25 percent in value of the outstanding stock of each of 3 related 
corporations. More than 70 percent in value of the assets of each 
related corporation consisted of an apartment house.
    (ii) In determining whether the apartment house owned by Z 
Corporation would be a subsection (e) asset under the shareholder 
reference test of section 341(e)(5)(A)(iii), A is treated as having sold 
a one-fourth interest in each of 3 apartment houses during the preceding 
3-year period and these sales must be taken into account, together with 
all other facts and circumstances, in determining whether the apartment 
house owned by Z Corporation would be, in the hands of A, property gain 
from the sale or exchange of which would under any provision of chapter 
1 of the Code (other than section 1245 or 1250) be considered as gain 
from the sale or exchange of property which is neither a capital asset 
nor property described in section 1231(b). However, A's sales of related 
corporation stock are not taken into account in determining whether 
section 341(e)(1) or (2) would be applicable to sales or exchanges of 
stock by (or liquidating distributions to) other shareholders of Z 
Corporation.

    (e) Distributions in certain liquidations pursuant to section 337--
(1) In general. Section 341(e)(2) provides that, if certain requirements 
are met, the provisions of section 341(a)(2) shall in no event apply to 
certain distributions in complete liquidation of a corporation. Section 
341(e)(2) applies with respect to any distribution to a shareholder 
pursuant to a plan of complete liquidation if the following 3 
requirements are satisfied:
    (i) By reason of the application of section 341(e)(4) and paragraph 
(g) of this section, section 337(a) applies to sales or exchanges of 
property by the corporation within the 12-month period beginning on the 
date of the adoption of such plan. Thus, for example, section 341(e)(2) 
is not applicable in any case where depreciable, amortizable, or 
depletable property is distributed after the date of adoption of the 
plan or if the corporation does not sell substantially all of the 
properties held by it on such date within such 12-month period, since 
such a distribution, or the failure to make such a sale, makes section 
337(a) inapplicable under section 341(e)(4).
    (ii) At all times within such 12-month period the general corporate 
test of paragraph (c)(2) of this section is satisfied.
    (iii) In respect of the shareholder who receives the distribution--
    (a) At all times within such 12-month period while such shareholder 
is considered to own more than 5 percent but not more than 20 percent in 
value of the outstanding stock of the corporation, the shareholder must 
satisfy the specific shareholder test of paragraph (c)(3)(i) of this 
section, and
    (b) At all times within such 12-month period while such shareholder 
is considered to own more than 20 percent in value of the outstanding 
stock of the corporation, the shareholder must satisfy the specific 
shareholder test of paragraph (c)(3)(ii) of this section.
    (2) Illustration. For an illustration of this paragraph, see Example 
(4) in paragraph (o) of this section.
    (f) Recognition of gain in certain liquidations under section 333. 
Section 341(e)(3) provides that, for purposes of section 333 (relating 
to elections as to recognition of gain in certain complete liquidations 
occurring within one calendar month), a corporation is considered not to 
be a collapsible corporation if, at all times after the adoption of the 
plan of complete liquidation, the net unrealized appreciation in 
subsection (e) assets of the corporation does not exceed an amount equal 
to 15 percent of the net worth of the corporation. For purposes of the 
preceding sentence, the determination of subsection (e) assets shall be 
made in accordance with paragraph (b) of this section except that 
subparagraph (2)(i) and (iii) of such paragraph (b) shall apply in 
respect of any actual or constructive shareholder who is considered to 
own more than 5 percent in value of the outstanding stock (in lieu of 
any actual or constructive shareholder who is considered to own more 
than 20 percent in value of such stock). Thus, no shareholder of the 
corporation can qualify under paragraph (3) of section 341(e) for use of 
section 333 if, because of any actual or constructive shareholder who is 
considered to own more than 5 percent in value of the stock, this 
modified

[[Page 167]]

general corporate test is not satisfied. On the other hand, once this 
modified general corporate test is satisfied, all the shareholders can 
use section 333 (assuming that the requirements of that section are 
satisfied) since there is no specific shareholder test. For an 
illustration of this paragraph, see Example (3) in paragraph (o) of this 
section.
    (g) Gain or loss on sales or exchanges in connection with certain 
liquidations, pursuant to section 337--(1) General. Section 341(e)(4) 
provides that solely for purposes of section 337, a corporation is 
considered not to be a collapsible corporation if (i) at all times 
within the 12-month period beginning on the date of the adoption of a 
plan of complete liquidation, the net unrealized appreciation in 
subsection (e) assets of the corporation does not exceed an amount equal 
to 15 percent of the net worth of the corporation; (ii) within the 12-
month period beginning on the date of the adoption of such plan, the 
corporation sells substantially all of the properties held by it on such 
date; and (iii) following the adoption of such plan, no distribution is 
made of any property which in the hands of the corporation or in the 
hands of the distributee is property in respect of which a deduction for 
exhaustion, wear and tear, obsolescence, amortization, or depletion is 
allowable. Thus, if at the time of the adoption of the plan of 
liquidation the corporation is a collapsible corporation within the 
meaning of section 341(b) and if the preceding requirements are 
satisfied, then except as provided in subparagraph (2) of this paragraph 
section 337(a) will apply to such corporation but the corporation will 
continue to be a collapsible corporation within the meaning of section 
341(b) (including for purposes of section 341(e)(2)) with the result 
that each shareholder must still satisfy all the tests in paragraph (e) 
of this section before he can utilize the benefits of section 341(e)(2).
    (2) Exception to section 337 treatment. Section 341(e)(4) shall not 
apply with respect to any sale or exchange of property by the 
corporation to any actual or constructive shareholder who is considered 
to own more than 20 percent in value of the outstanding stock of the 
corporation or to any person related (within the meaning of paragraph 
(k) of this section) to such actual or constructive shareholder if such 
property in the hands of the corporation, or in the hands of such 
shareholder or such related person, is property in respect of which a 
deduction for exhaustion, wear and tear, obsolescence, amortization, or 
depletion is allowable. Thus, gain or loss will be recognized on such 
sales or exchanges.
    (3) Cross references. For effective date of section 341(e)(4) and 
this paragraph, see paragraph (a)(2) of this section. For an 
illustration of this paragraph, see Example (4) in paragraph (o) of this 
section.
    (h) Net unrealized appreciation and depreciation defined--(1) Net 
unrealized appreciation. For purposes of this section, the term net 
unrealized appreciation means, with respect to the assets of a 
corporation, the amount by which--
    (i) The unrealized appreciation in such assets on which there is 
unrealized appreciation, exceeds
    (ii) The unrealized depreciation in such assets on which there is 
unrealized depreciation.
    (2) Net unrealized depreciation. For purposes of paragraph 
(b)(2)(ii) of this section, there is net unrealized depreciation on all 
property of a corporation which in its hands is property described in 
section 1231(b) (without regard to any holding period prescribed 
therein) if--
    (i) The unrealized depreciation in such property on which there is 
unrealized depreciation, exceeds
    (ii) The unrealized appreciation in such property on which there is 
unrealized appreciation.
    (3) Unrealized appreciation or depreciation. For purposes of this 
paragraph--
    (i) The term unrealized appreciation means (except as provided in 
subparagraph (4) of this paragraph), with respect to any asset, the 
amount by which (a) the fair market value of such asset, exceeds (b) the 
adjusted basis for determining gain from the sale or other disposition 
of such asset; and
    (ii) The term unrealized depreciation means, with respect to any 
asset, the amount by which (a) the adjusted basis for determining gain 
from the sale or other disposition of such asset, exceeds (b) the fair 
market value of such asset.

[[Page 168]]

    (4) Special rule. For purposes of determining whether the net 
unrealized appreciation in subsection (e) assets of a corporation 
exceeds an amount equal to 15 percent of the corporation's net worth 
under the tests of section 341(e)(1), (2), (3), and (4), in the case of 
any asset on the sale or exchange of which only a portion of the gain 
would under any provision of chapter 1 of the Code (other than section 
617(d), 1245, 1250, 1251, 1252, or 1254) be considered as gain from the 
sale or exchange of property which is neither a capital asset nor 
property described in section 1231(b), there shall be taken into account 
only an amount equal to the unrealized appreciation in such asset which 
is equal to such portion of the gain. This subparagraph shall have no 
effect on whether paragraph (b)(2)(ii) or (iii) of this section applies 
for purposes of identifying the subsection (e) assets of the 
corporation.
    (i) [Reserved]
    (j) Net worth defined. For purposes of this section, the net worth 
of a corporation, as of any day, is the amount by which--
    (1) The fair market value of all its assets at the close of such 
day, plus the amount of any distribution (taken into account at fair 
market value on the date of such distribution) in complete liquidation 
made by it on or before such day, exceeds
    (2) All its liabilities at the close of such day.

In computing the fair market value of all the assets of a corporation at 
the close of such day, there shall be excluded any amount attributable 
to money or property received by it during the one-year period ending on 
such day for stock, or as a contribution to capital or as paid-in 
surplus, if it appears that there was not a bona fide business purpose 
for the transaction in respect of which such money or property was 
received.
    (k) Related person defined--(1) General. For purposes of paragraphs 
(c)(5) and (g)(2) of this section, the following persons are considered 
to be related to a shareholder:
    (i) If the shareholder is an individual--
    (a) His spouse, ancestors, and lineal descendants, and
    (b) Any corporation which is controlled by him.
    (ii) If the shareholder is a corporation--
    (a) A corporation which controls, or is controlled by, such 
shareholder, and
    (b) If more than 50 percent in value of the outstanding stock of 
such shareholder is owned by any person, any corporation more than 50 
percent in value of the outstanding stock of which is owned by the same 
person.
    (2) Control. For purposes of this paragraph, control means the 
ownership of stock possessing at least 50 percent of the total combined 
voting power of all classes of stock entitled to vote or at least 50 
percent of the total value of shares of all classes of stock of the 
corporation.
    (3) Constructive ownership rules. In determining the ownership of 
stock for purposes of this paragraph, the constructive ownership rules 
of section 267(c) shall apply, except that the family of an individual 
shall include only his spouse, ancestors, and lineal descendants.
    (l) [Reserved]
    (m) Corporations and shareholders not meeting requirements. In 
determining whether the provisions of section 341 (a) through (d) apply 
with respect to any corporation, the fact that such corporation, or such 
corporation with respect to any of its shareholders, does not meet the 
requirements of section 341(e)(1), (2), (3), or (4) shall not be taken 
into account, and such determination shall be made as if section 341(e) 
had not been enacted.
    (n) Determinations without regard to sections 617(d), 1245, 1250, 
1251, 1252, and 1254. For purposes of this section, the determination of 
whether gain from the sale or exchange of property would under any 
provision of chapter 1 of the Code be considered as gain from the sale 
or exchange of property which is neither a capital asset nor property 
described in section 1231(b) shall be made without regard to the 
application of sections 617(d)(1) (relating to gain from dispositions of 
certain mining property), 1245(a) and 1250(a) (relating to gain from 
dispositions of certain depreciable property), 1251(c) (relating to gain 
from the disposition of farm property where farm losses offset nonfarm

[[Page 169]]

income), 1252(a) (relating to gain from disposition of farm land), and 
1254(a) (relating to gain from disposition of interest in natural 
resource recapture property).
    (o) Illustrations. The operation of section 341(e) may be 
illustrated by the following examples:

    Example (1). (i) The outstanding stock of X Corporation is actually 
owned, on the basis of value, 75 percent by A, 15 percent by B, and 10 
percent by C. None of the stock actually owned by one is attributed to 
another under the constructive ownership rules of paragraph (a)(3) of 
this section. The corporation owns no property which, in its hands, is 
property gain from the sale or exchange of which would be considered 
(without regard to section 617(d), 1245 or 1250, 1251, or 1252) as gain 
from the sale or exchange of property which is neither a capital asset 
nor property described in section 1231(b). The corporation owns no 
property described in section 1231(b) except an apartment house on which 
the unrealized appreciation is $20,000 and which in the hands of A would 
be property held primarily for sale to customers in the ordinary course 
of trade or business. The corporation owns no property of the type 
described in clause (iv) of section 341(e)(5)(A). The net worth of the 
corporation is $100,000.
    (ii) Although the apartment house in the hands of the corporation is 
section 1231(b) property, in the hands of A, a more-than-20-percent 
shareholder, the apartment house would be ordinary-income type property. 
Therefore, the apartment house is a subsection (e) asset under clause 
(iii) of section 341(e)(5)(A). Accordingly, since the net unrealized 
appreciation in subsection (e) assets ($20,000) exceeds 15 percent of 
net worth ($15,000), the general corporate test is not satisfied and 
section 341(e) is unavailable to the corporation or its shareholders.
    Example (2). (i) Assume the same facts as in Example (1), except 
that in the hands of B, but not in the hands of A or C, the apartment 
house would be property held primarily for sale to customers in the 
ordinary course of trade or business.
    (ii) Since B does not own more than 20 percent in value of the 
outstanding stock, the fact that the apartment house owned by the 
corporation would, in his hands, be property held primarily for sale to 
customers in the ordinary course of trade or business does not make the 
apartment house owned by the corporation a subsection (e) asset. 
Therefore, since the net unrealized appreciation in subsection (e) 
assets (zero) does not exceed 15 percent of net worth, the general 
corporate test is satisfied. C may sell his stock to anyone (other than 
X Corporation) and will qualify under section 341(e)(1). However, a sale 
by A of his stock to persons related to A within the meaning of 
paragraph (k) of this section will not so qualify.
    (iii) B, however, since he owns more than 5 percent but not more 
than 20 percent in value of the outstanding stock, must take into 
account not only the net unrealized appreciation in subsection (e) 
assets but also the net unrealized appreciation in any other assets of 
the corporation which would be subsection (e) assets under section 
341(e)(5)(A) if he owned more than 20 percent in value of the 
outstanding stock. Therefore, since the apartment house owned by the 
corporation would be, in B's hands, property held primarily for sale to 
customers in the ordinary course of trade or business, and since the net 
unrealized appreciation in such property ($20,000) exceeds 15 percent of 
net worth ($15,000), B does not satisfy the specific shareholder test 
and therefore cannot avail himself of section 341(e)(1).
    Example (3). (i) Assume the same facts as in Example (1), except 
that in the hands of B, but not in the hands of A or C, the apartment 
house of the corporation would be property held primarily for sale to 
customers in the ordinary course of trade or business. Assume further 
that the shareholders of X Corporation wish to avail themselves of 
section 333.
    (ii) For purposes of section 341(e)(3), section 341(e)(5)(A)(iii) 
applies in respect of any shareholder who owns more than 5 percent 
(instead of more than 20 percent) in value of the outstanding stock. 
Since in the hands of B, a more-than-5-percent shareholder, the 
apartment house would be held primarily for sale to customers in the 
ordinary course of trade or business, the corporation's apartment house 
is a subsection (e) asset. Therefore, since the net unrealized 
appreciation in subsection (e) assets ($20,000) exceeds 15 percent of 
net worth ($15,000), no shareholder of the corporation may qualify under 
section 341(e)(3) for use of section 333. However, if B were not a more-
than-5-percent shareholder of the corporation, or if, in his hands, the 
apartment house would not be held primarily for sale to customers in the 
ordinary course of trade or business, then all shareholders of the 
corporation could qualify under section 341(e)(3) for use of section 333 
since the apartment house would not be a subsection (e) asset.
    Example (4). (i) Assume the same facts as in Example (1), except 
that in the hands of no shareholder of the corporation would the 
apartment house be deemed property held primarily for sale to customers 
in the ordinary course of trade or business (such determination, 
however, having been made without regard to A's ownership of stock of 
related corporations). Assume further that (a) X Corporation adopts a 
plan of complete liquidation, (b) within the 12-month period beginning 
on the date of such adoption X Corporation sells substantially all the 
property

[[Page 170]]

held by it on such date and distributes all its assets in complete 
liquidation, (c) following the adoption of such plan, no distribution is 
made of any property which in the hands of the corporation or in the 
hands of the distributee is property in respect of which a deduction for 
exhaustion, wear and tear, obsolescence, amortization, or depletion is 
allowable, and (d) following the adoption of such plan no property is 
sold or exchanged to A, to a constructive owner of A's stock, or to a 
person ``related'' (within the meaning of paragraph (k) of this section) 
to A or such constructive owner.
    (ii) Since, under the above-stated facts, the requirements of 
section 341(e)(4) are satisfied, section 337(a) will apply to sales or 
exchanges of property by the corporation within the 12-month period 
beginning on the date of the adoption of the plan of liquidation.
    (iii) Any distribution in complete liquidation to B and C, who own 
15 and 10 percent, respectively, in value of the outstanding stock, will 
qualify under section 341(e)(2) because (a) by reason of the application 
of section 341(e)(4), section 337(a) applies to sales or exchanges of 
property by the corporation, and (b) at all times within the 12-month 
period beginning on the date of the adoption of the plan of complete 
liquidation the general corporate test is satisfied and B and C each 
satisfy the specific shareholder test of paragraph (e)(1)(iii)(a) of 
this section.
    (iv) Any distribution in complete liquidation to A, who owns 75 
percent in value of the outstanding stock, will qualify under section 
341(e)(2) if, at all times within the 12-month period beginning on the 
date of the adoption of the plan of complete liquidation, and after 
taking into account A's ownership of stock in related corporations in 
the manner prescribed in paragraph (d) of this section, A satisfies the 
specific shareholder test of paragraph (e)(1)(iii)(b) of this section.

[T.D. 6806, 30 FR 2845, Mar. 5, 1965, as amended by T.D. 7369, 40 FR 
29840, July 16, 1975; T.D. 7418, 41 FR 18811, May 7, 1976; T.D. 7728, 45 
FR 72650, Nov. 3, 1980; T.D. 8586, 60 FR 2500, Jan. 10, 1995]



Sec. 1.341-7  Certain sales of stock of consenting corporations.

    (a) In general. (1) Under section 341(f)(1), if a corporation 
consents (in the manner provided in paragraph (b) of this section) to 
the application of section 341(f)(2) with respect to dispositions by it 
of its subsection (f) assets (as defined in paragraph (g) of this 
section), then section 341(a)(1) does not apply to any sales of stock of 
such consenting corporation (other than sale to such corporation) made 
by any of its shareholders within the 6-month period beginning on the 
date on which such consent is filed.
    (2) For purposes of section 341(f)(1) and (5)--(i) The term sale 
means a sale of exchange of stock at a gain, but only if such gain would 
be recognized as long-term capital gain were section 341 not a part of 
the Code. Thus, a sale or exchange of stock is not a ``sale'' within the 
meaning of section 341(f)(1) and (5) if there is no gain on the 
transaction, or if the sale or exchange gives rise to ordinary income 
under a provision of the Code other than section 341, or if gain on the 
transaction is not recognized under any provisions of subtitle A of the 
Code.
    (ii) A sale of stock in a corporation does not include any 
disposition of such stock by a shareholder, if, by reason of section 
341(d)(1), section 341(a) could not have applied to that disposition. 
(Under section 341(d)(1), section 341(a) does not apply except to more-
than-5-percent shareholders.) Except as otherwise provided in paragraph 
(a)(2)(i) of this section, the term ``sale'' included a disposition of 
stock in a corporation by a more-than-5-percent shareholders described 
in section 341(d)(1), even though section 341(a) did not apply to the 
disposition because the corporation was not collapsible or by reason of 
the application of section 341(d)(2), (3), or (e).
    (3) A corporation which consents to the application of section 
341(f)(2) does not thereby become noncollapsible, and the fact that a 
corporation consents to the application of section 341(f)(2) does not 
affect the determination as to whether it is a collapsible corporation.
    (4) For limitation on the application of section 341(f)(1) see 
section 341(f)(5) and (6) and paragraphs (h) and (j) of this section.
    (b) Statement of consent. (1) The consent of a corporation referred 
to in paragraph (a)(1) or (j)(1) of this section shall be given by means 
of a statement, signed by any officer who is duly authorized to act on 
behalf of the consenting corporation stating that the corporation 
consents to have the provisions of section 341(f)(2) apply to any 
disposition by it of its subsection (f) assets. The statement shall be 
filed with the district director having jurisdiction over the income tax 
return of the

[[Page 171]]

consenting corporation for the taxable year during which the statement 
is filed.
    (2)(i) The statement shall contain the name, address, and employer 
identification number of any corporation 5 percent or more in value of 
the outstanding stock of which is owned directly by the consenting 
corporation, and of any other corporation connected to the consenting 
corporation through a chain of stock ownership described in paragraph 
(j)(4) of this section. The statement shall also indicate where such 5-
percent-or-more corporation (or such ``connected'' corporation) has 
consented within the 6-month period ending on the date on which the 
statement filed to the application of section 341 (f)(2) with respect to 
any dispositions of its subsection (f) assets (see paragraph (j) of this 
section), and, if so, the district director with whom such consent was 
filed and the date on which such consent was filed.
    (ii) If, during the 6-month period beginning on the date on which 
the statement is filed, the consenting corporation becomes the owner of 
5 percent or more in value of the outstanding stock of another 
corporation or becomes connected to another corporation through a chain 
of stock ownership described in paragraph (j)(4) of this section, then 
the consenting corporation shall, within 5 days after such occurrence, 
notify the district director with whom it filed the statement of the 
name, address and employer identification number of such corporation.
    (3) A consent under section 341(f)(1) may be filed at any time and 
there is no limit as to the number of such consents that may be filed. 
If a consent is filed by a corporation under section 341(f)(1) and if a 
shareholder sells stock (i) in such corporation, or (ii) in another 
corporation a sale of whose stock is treated under section 341(f)(6) as 
a sale of stock in such corporation, at any time during the applicable 
6-month period, then the consent cannot thereafter be revoked or 
withdrawn by the corporation. However, a consent may be revoked or 
withdrawn at any time prior to a sale during the applicable 6-month 
period. If no sale is made during such period, the consent will have no 
effect on the corporation. See paragraph (g) of this section.
    (c) Consenting corporation. (1) A consenting corporation at the time 
that is filed a consent under section 341(f)(10) shall notify its 
shareholders that such consent is being filed. In addition, the 
consenting corporation shall, at the request of any shareholder, 
promptly supply the shareholder with a copy of the consent.
    (2) A consenting corporation shall maintain records adequate to 
permit identification of its subsection (F) assets.
    (d) Shareholders of consenting corporation. (1) A shareholder who 
sells stock in a consenting corporation within the 6-month period 
beginning on the date on which the consent is filed shall--
    (i) Notify the corporation, within 5 days after such sale, of the 
date on which such sale is made, and
    (ii) Attach a copy of the corporation's consent to the shareholder's 
income tax return for the taxable year in which the sale is made.
    (2) If the sale of stock in a consenting corporation is treated 
under section 341(f)(6) as the sale of stock in any other corporation, 
the consenting corporation shall notify such other corporation, within 5 
days after receiving notification of a sale of its stock, of the date on 
which such sale was made.
    (e) Recognition of gain under section 341(f)(2). (1) Under section 
341(f)(2), if a subsection (f) asset (as defined in paragraph (g) of 
this section) is disposed of any time by a consenting corporation, then, 
except as provided in section 341(f)(3) and paragraph (f) of this 
section, the amount by which--
    (i) The amount realized (in the case of a sale, exchange, or 
involuntary conversion), or
    (ii) The fair market value of such asset (in the case of any other 
disposition), exceeds the adjusted base of such asset is treated as gain 
from the sale of exchange of such asset. Such gain is recognized 
notwithstanding any contrary non-recognition provisions of subtitle A of 
the Code, but only to the extent such gain is not recognized under any 
other provisions of subtitle A of the Code (for example, section 1245 
(a)(1) or 1250(a)). Gain recognized under

[[Page 172]]

section 341(f)(2) with respect to a disposition of a subsection (f) 
asset has the same character (i.e., ordinary income or capital gain) 
that such gain would have if it arose from a sale of such asset.
    (2) The nonrecognition provisions of subtitle A of the Code which 
section 341(f)(2) override include, but are not limited to, sections 
311(a), 332(c), 336, 337, 351, 361, 371(a), 374(a), 721, 1031, 1033, 
1071, and 1081.
    (3) In the case of a foreign corporation which files a statement of 
consent pursuant to paragraph (b) of this section, such statement, in 
addition to the information required in paragraph (b) of this section, 
shall also contain a declaration that the corporation consents that any 
gain upon the disposition of a subsection (f) asset which would 
otherwise be recognized under section 341(f)(2) will, for purposes of 
section 882(a)(2), be considered as gross income which is effectively 
connected with the conduct of a trade or business which is conducted 
through a permanent establishment within the United States.
    (4) The provisions of subparagraphs (1) and (2) of this paragraph 
may be illustrated by the following examples:

    Example (1). Corporation X, a consenting corporation, distributes a 
subsection (f) asset to its shareholders in complete or partial 
liquidation of the corporation. The asset, at the line of the 
distribution, is held by the corporation primarily for sale to customers 
in the ordinary course of business and has an adjusted basis of $1,000 
and a fair market value of $2,000. Under section 341(f)(2), the excess 
of the fair market value of the asset over its adjusted basis, or $1,000 
is treated as ordinary income. Assuming the gain is not recognized by 
corporation X under another provision of the Code, corporation X 
recognizes the $1,000 gain as ordinary income under section 341(f)(2) 
even though, in the absence of section 341(f)(2), section 336 would 
preclude the recognition of such gain.
    Example (2). Corporation Y, a consenting corporation, distributes a 
subsection (f) asset to its shareholders as a dividend. The asset at the 
time of the distribution is properly described in section 1231 and has 
an adjusted basis of $6,000 and a fair market value of $8,000. Assuming 
that no other section of the Code would require recognition of gain, 
under section 341(f)(2) the excess of the fair market value of the asset 
over its adjusted basis, or $2,000, is recognized by corporation Y as 
gain from the sale or exchange of property described in section 1231 
even though, in the absence of section 341(f)(2), section 311(a) would 
preclude the recognition of such gain.
    Example (3). Assume the same facts as in Example (2) except that the 
subsection (f) asset is section 1245 property having a ``recomputed 
basis'' (as defined in section 1245(a)(2)) or $7,200. Since the 
recomputed basis of the asset is lower than its fair market value, the 
excess of the recomputed basis over the adjusted basis, or $1,200, is 
recognized as ordinary income under section 1245(a)(1). The remaining 
amount, or $800, is recognized under section 341(f)(2) as gain from the 
sale or exchange or property described in section 1231.

    (5) The provisions of section 341(f)(2) apply whether or not (i) on 
the date on which a consent is filed or at any time thereafter, the 
consenting corporation was in fact a collapsible corporation within the 
meaning of section 341(b), or (ii) on the date of any sale of stock of 
the consenting corporation, the purchaser of such stock was aware that a 
consent had been filed under section 341(f)(1) within the 6-month period 
ending on the date of such sale.
    (6) Section 341(f)(2) does not apply to losses. Thus, section 
341(f)(2) does not apply if a loss is realized upon a sale, exahnger or 
involuntary conversion of a subsection (f) asset nor does the section 
appy to a disposition other than by way of sale, exchange, or 
involuntary conversion if at the time of the disposition the fair market 
value of such property is not greater than its adjusted basis.
    (7) For purposes of this paragraph, the term ``disposition'' 
includes an abandonment or retirement, a gift, a sale in a sale-and-
leasback transaction, and a transfer upon the foreclosure of a security 
interest. Such term, however, does not include a mere transfer of title 
to a creditor upon creation of a security interest or to a debtor upon 
termination of a security interest. Thus, for example, a disposition 
occurs upon a sale of property prusuant to a conditional sales contract 
even though the seller retains legal title to the propoerty for purposes 
of security, but a disposition does not occur when the seller ultimately 
gives up his security interest following payment by the purchaser.
    (8) The amount of gain required to be recognized by section 
341(f)(2) shall be

[[Page 173]]

determined separately for each subsection (f) asset disposed of by the 
corporation. For purposes of applying section 341(f)(2), the facts and 
circumstances of each disposition shall be considered in determining 
whether the transactions involves more than one subsection (f) asset or 
involves both subsection (f) and nonsubsection (f) assets. In 
appropriate cases, several subsection (f) assets may be treated as a 
single asset as long as it is reasonably clear, from the best estimates 
obtainable on the basis of all the facts and circumstances, that the 
amount of gain required to be recognized by section 341(f)(2) is not 
less than the total gain under section 341(f)(2) whish would be computed 
separately for each subsection (f) asset.
    (9) In the case of a sale, exchange, or involuntary conversion of a 
subsection (f) asset and a nonsubsection (f) asset in one transaction, 
the total amount realized upon the disposition shall be allocated 
between the subsection (f) asset any arm's length agreement between the 
buyer and the seller will establish the allocation. In the absence of 
such an agreement, the allocation shall be made by taking into account 
the appropriate facts and circumstances. Some of the facts and 
circumstances which shall be taken into account to the extent 
appropriate included, but are not limited to, a comparision between the 
subsection (f) asset and all property disposed of in such transaction of 
(i) the original costs and reproduction costs of construction, erection, 
or production, (ii) the remaining economic useful life, (ii) state of 
obsolencence, and (iv) anticipated expenditures to maintain, renovate, 
or modernize.
    (10) See Sec. 1.1502-13 for the treatment of gain recognized upon a 
distribution other than in complete liquidation made by one member of a 
group which files a consolidated return to another such members.
    (f) Exception for certain tax-free transactions. (1) Under section 
341(f)(3), no gain is taken into account under section 341(f)(2) by a 
transferor corporation on the transfer of a subsection (f) asset to 
another corporation (other than a corporation exempt from tax imposed by 
chapter 1 of the Code) if--
    (i) The basis of such asset in the hands of the transferee 
corporation is determined by reference to its basis in the hands of the 
transferor by reason of the application of section 332 (relating to 
distributions in liquidation of an 80-percent-or-more controlled 
subsidairy corporation), section 351 (relating to transfers to a 
corporation controlled by the transferor), section 361 (relating to 
exchanges pursuant to certain reorganizations), section 371(a) (relating 
to exchanges pursuant to certain receivership and bankruptcy 
proceedings), or section 374 (a) (relating to exchanges pursuant to 
certain railroad reorganizations), and
    (ii) The transferee corporation agrees (as provided in subparagraph 
(3) of this paragraph) to have the provisiions of section 341(f)(2) 
apply to any disposition by it of such asset.
    (2) The provisions of subparagraph (1) of this paragraph may be 
illustrated by the following examples:

    Example (1). Corporation M. in exchange for its voting stock worth 
$20,000 and $1,000 in cash, acquires the entire property of corporation 
N (an unencumbered apartment building) in a transaction which is 
described in section 368(a)(2)(B) and which, therefore, qualifies as a 
reorganization under section 368(a)(1)(C). The apartment building, which 
in the hands of corporation N. a consenting corporation, is a subsection 
(f) asset, has an adjusted basis of $15,000 and a fair market value of 
$21,000. The basis of the apartment house in the hands of corporation M 
is determined by reference to its basis in the hands of corporation N by 
reason of the application of section 361. Thus, under section 341(f)(3), 
if corporation M agrees to have the provisions of section 341(f)(2) 
apply to any disposition by it of the apartment house, then corporation 
N will recognize no gain under section 341(f)(2) but will recognize 
$1,000 gain under section 361(b) (assuming the cash it receives is not 
distributed in pursuance of the plan of reorganization). However, if 
corporation M does not so agree, the gain recognized by corporation N 
will be $6,000, that is, the gain of $1,000 recognized under section 
361(b) plus $5,000 gain recognized under section 341(f)(2). In either 
case, if section 1245, 1250, or 1251 applies, some or all of the gain 
may be recognized under sections in lieu of sections 341(f)(2) and 
361(b).
    Example (2). Corporation Y, a consenting corporation, is a wholly 
owned subsidiary of corporation X. In the complete liquidation of Y it 
distributes to X a subsection (f) asset which is section 1245 property. 
The asset at the time of the distribution has an adjusted

[[Page 174]]

basis of $10,000, a recomputed basis of $14,000, and a fair market value 
of $10,000. The basis of the asset in the hands of X is determined by 
reference to its basis in the hands of corporation Y by reason of the 
application of section 332. Thus, under section 341(f)(3), if 
corporation X agrees to have the provisions of section 341(f)(2) apply 
to any disposition by it of the subsection (f) asset, then Y will 
recognize no gain under section 341(f)(2) and will recognize no gain 
under section 1245(a)(1) by reason of the application of section 
1245(b)(3). Under section 334(b)(1), the basis of the subsection (f) 
asset to corporation X will be the same as it would be in the hands of 
Y, or $10,000. However, if corporation X does not so agree, then under 
section 341(f)(2) $6,000 (the excess of the fair market value of the 
asset over its adjusted basis) will be treated as gain from the sale or 
exchange of the asset. Moreover, under section 1245(a)(1) $4,000 (the 
excess of the recomputed basis over the adjusted basis) of the $6,000 
will be recognized as ordinary income. The basis of the asset to 
corporation X is $16,000, i.e., the same as it would be in the hands of 
Y ($10,000) increased in the amount of gain recognized by Y on the 
distribution ($6,000).

    (3) The agreement of a transferee corporation referred to in 
subparagraph (1) of this paragraph shall be filed, on or before the date 
on which the subsection (f) assets are transferred, with the district 
director having jurisdiction over its income tax return for the taxable 
year during which the transfer is to be made. The agreement shall be 
signed by any officer who is duly authorized to act on behalf of the 
transferee corporation (if the transaxtion is one to which section 
371(a) or 374(a) applies, the fiduciary for the transferee corporation, 
in appropriate cases, may sign the agreement) and shall apply to all the 
subsection (f) assets to be transferred pursuant to the applicable 
transaction described in section 341(f)(3). The agreement shall identify 
the transaction by which the subsection (f) assets will be acquired, 
including the names, addresses, and employer identification numbers of 
the transferor and transferee corporations, and shall contain a schedule 
of the subsection (f) assets to be acquired. The agreement shall also 
state that the transferee corporation (i) agrees to have the provisions 
of section 341(f)(2) apply to any disposition by it of the subsection 
(f) assets acquired, and (ii) agrees to maintain records adequate to 
permit identification of such subsection (f) assets.
    (4) The transferor corporation shall attach a copy of the agreement 
to its income tax return for the taxable year in which the subsection 
(f) assets are transferred.
    (g) Subsection (f) asset defined. (1) Under section 341(f)(4), a 
subsection (f) asset is any property which, as of the date of any sale 
of stock to which paragraph (a) or (j)(3) of this section applies, is 
not a capital asset and is property owned by, or subject to a binding 
contract or an option to acquire held by, the consenting corporation. 
Land or any interest in real property (other than a security interest) 
is treated as property which is not a capital asset. Also, unrealized 
receivables or fees (as defined in section 341(b)(4)) are treated as 
property which are not capital assets.
    (2) If, with respect to any property described in subparagraph (1) 
of this paragraph, manufacture, construction, or production has been 
commenced by either the consenting corporation or another person before 
any date of sale of stock described in subparagraph (1) of this 
paragraph, a consenting corporation's subsection (f) assets include any 
property resulting from such manufacture, construction, or production. 
Thus, for example, if, on the date of any sale of stock within the 6-
month period, manufacture, construction, or production has been 
commended on a tract of land to be used for residential housing or on a 
television series, the term ``subsection (f) asset'' includes the 
residential homes of the television tapes resulting from such 
manufacture, construction, or production by the consenting corporation 
(or by a transferee corporation which has agreed to the application of 
section 341(f)(2)). If land or any interest in real property (other than 
a security interest) is owned or held under an option by the consenting 
corporation on the date of any sale of stock described in subparagraph 
(1) of this paragraph, the term ``subsection (f) asset'' includes any 
improvements resulting from construction with respect to such property 
(by the consenting corporation or by a transferee corporation which has 
agreed to the application of section 341(f)(2)) if such

[[Page 175]]

construction is commenced within 2 years after the date of any such 
sale. The property or improvements resulting from any manufacture, 
construction, or production is a question to be determined on the basis 
of the particular facts and circumstances of each individual case. Thus, 
for example, a building which is a part of an integrated project is a 
subsection (f) asset if construction of the project commenced before the 
date of sale or within 2 years thereafter even if construction of the 
building commenced more than 2 years thereafter. Similarly a television 
tape which is part of a series is a subsection (i) asset if production 
of the series was commenced on the date of sale even if production of 
the tape commenced after the sale.
    (3) The provisions of subparagraphs (1) and (2) of this paragraph 
may be illustrated by the following examples:

    Example (1). Corporation X files a consent to the application of 
section 341(f)(2) on January 1, 1985. Shareholder A owns 100 percent of 
the outstanding stock of the consenting corporation on January 1, 1965, 
and sells 5 percent of the stock on January 2, 1965, 10 percent on 
February 10, 1963, and 1 percent on May 1, 1965. No other sales of X 
stock were made during the 6-month period beginning on January 1, 1965. 
On such date X owns an apartment building and on March 1 X purchases an 
office building. X's subsection (f) assets include the apartment 
building owned on January 1 and the office building purchased on March 
1.
    Example (2). Assume the same facts as in Example (1) except that on 
January 1, 1965, X also owns a tract of raw land. On April 1, 1965, 
construction of a residential housing project is commenced on the tract 
of land. Corporation X's subsection (i) assets will include the tract of 
land plus the resulting improvements to the land. This result would not 
be changed if construction of the residential housing project were not 
commenced until July 1, 1966, since the construction would have been 
commenced within 2 years after May 1, 1965.
    Example (3). Corporation X files a consent to the application of 
section 341(f)(2) on January 1, 1965. Shareholder B owns 100 percent of 
the outstanding stock of the consenting corporation on January 1, 1965, 
and sells 10 percent of the stock on June 1, 1965. On April 1, 1965, Y 
acquires an option to purchase a motion picture when completed. On May 
1, 1965, production is started on the motion picture. On February 1, 
1967, production is completed, and Y exercises its option. Y holds the 
option and the motion picture for use in its trade or business. Y's 
subsection (f) assets initially include the option and ultimately 
include the motion picture. However the exercise of the option is not a 
disposition of the option within the meaning of section 341(f)(2).

    (h) Five-year limitation as to shareholder. Under section 341(f)(5), 
section 341(f)(1) does not apply to the sale of stock of a consenting 
corporation if, during the 5-year period ending on the date of such 
sale, such shareholder (or any person related to such shareholder within 
the meaning of section 341(e)(8)(A)) made a sale (as defined in 
paragraph (a)(2) of this section) of any stock of another consenting 
corporation within any 6-month period beginning on a date on which a 
consent was filed under section 341(f)(1) by such other corporation. 
Section 341(f)(5) does not prevent a shareholder of a consenting 
corporation from receiving the benefit of section 341(f)(1) on the sale 
of additional shares of the stock of the same consenting corporation.
    (i) [Reserved]
    (j) Special rule for stock ownership in other corporations--(1) 
Section 341(f)(6) provides a special rule applicable to a consenting 
corporation which owns 5 percent or more in value of the outstanding 
stock of another corporation. In such a case, a consent filed by the 
consenting corporation shall not be valid with respect to a sale of its 
stock during the applicable 6-month period unless each corporation, 5 
percent or more in value of the outstanding stock of which is owned by 
the consenting corporation on the date of such sale, file (within the 6-
month period ending on the date of such sale) a valid consent under 
section 341(f)(1) with respect to sales of its own stock.
    (2) The provisions of subparagraph (1) of this paragraph may be 
illustrated by the following example:

    Example: Corporation X files a consent under section 341(f)(1) on 
November 1, 1965. On January 1, 1966, the date on which a shareholder of 
corporation X sells stock of X. X owns 80 percent in value of the 
outstanding stock of corporation Y. In order for the consent filed by 
corporation X to be valid with respect to the sale of its stock on 
January 1, 1966, corporation Y must have filed, during the 6-month 
period ending on January 1, 1966, a valid consent under section 
341(f)(1) with respect to sales of its stock.


[[Page 176]]


    (3) For purposes of applying section 341(f)(4) (relating to the 
definition of a subsection (f) asset) to a corporation 5 percent or more 
in value of the outstanding stock of which is owned by the consenting 
corporation, a sale of stock of the consenting corporation to which 
section 341(f)(1) applies shall be treated as a sale of stock of such 
other corporation. Thus, in the example in subparagraph (2) of this 
paragraph, the subsection (f) assets of corporation Y would include 
property described in section 341(f)(4) owned by or held under an option 
by corporation Y on January 1, 1966.
    (4) In the case of a chain of corporations connected by the 5-
percent ownership requirement described in subparagraph (1) of this 
paragraph, rules similar to the rules described in subparagraphs (2) and 
(3) of this paragraph shall apply. Thus, in the example in subparagraph 
(2) of this paragraph, if corporation Y owned 5 percent or more of the 
stock of corporation Z on January 1, 1966, then Z must have filed a 
valid consent during the 6-month period ending January 1, 1966, in order 
for the consent filed by X to be valid with respect to the sale of its 
stock on January 1, 1966. In such case any of stock of either X or Y is 
treated as a sale of stock of Z for purposes of applying section 
341(f)(4) to Z.
    (5) If a corporation is a member of an affiliated group (as defined 
in section 1504(a)) that files a consolidated return, a corporation will 
be considered to have filed a consent if a consent is filed on its 
behalf by the common parent under Sec. 1.1502-77(a).
    (k) Effective date. Paragraphs (b), (c), (e)(3), and (f)(3) of this 
section apply only with respect to statements and notifications filed 
more than 30 days after July 6, 1977. Paragraph (d) applies only with 
respect to sales of stock made more than 30 days after July 6, 1977. All 
other provisions of this section appy with respect to transactions after 
August 22, 1964.

[T.D. 7655, 44 FR 68460, Nov. 29, 1979; 45 FR 17982, Mar. 20, 1980; 45 
FR 20464, Mar. 28, 1980; T.D. 8597, 60 FR 36679, July 18, 1995]



Sec. 1.342-1  General.

    The determination of whether a foreign corporation was a foreign 
personal holding company with respect to a taxable year beginning on or 
before, and ending after August 26, 1937, shall be made under section 
331 of the Revenue Act of 1936 (50 Stat. 818) and the regulations 
thereunder. For the purpose of section 342(a), a liquidation may be 
completed before the actual dissolution of the liquidating corporation. 
However, no liquidation shall be considered as completed until the 
liquidating corporation and the receiver (or trustees in liquidation) 
are finally divested of all the property, whether tangible or 
intangible.

                               definition



Sec. 1.346-1  Partial liquidation.

    (a) General. This section defines a partial liquidation. If amounts 
are distributed in partial liquidation such amounts are treated under 
section 331(a)(2) as received in part or full payment in exchange for 
the stock. A distribution is treated as in partial liquidation of a 
corporation if:
    (1) The distribution is one of a series of distributions in 
redemption of all of the stock of the corporation pursuant to a plan of 
complete liquidation, or
    (2) The distribution:
    (i) Is not essentially equivalent to a dividend,
    (ii) Is in redemption of a part of the stock of the corporation 
pursuant to a plan, and
    (iii) Occurs within the taxable year in which the plan is adopted or 
within the succeeding taxable year.

An example of a distribution which will qualify as a partial liquidation 
under subparagraph (2) of this paragraph and section 346(a) is a 
distribution resulting from a genuine contraction of the corporate 
business such as the distribution of unused insurance proceeds recovered 
as a result of a fire which destroyed part of the business causing a 
cessation of a part of its activities. On the other hand, the 
distribution of funds attributable to a reserve for an expansion program 
which has been abandoned does not qualify as a partial liquidation 
within the meaning of section 346(a). A distribution to which section 
355 applies (or so much of section 356 as relates to section 355) is not 
a

[[Page 177]]

distribution in partial liquidation within the meaning of section 
346(a).
    (b) Special requirements on termination of business. A distribution 
which occurs within the taxable year in which the plan is adopted or 
within the succeeding taxable year and which meets the requirements of 
subsection (b) of section 346 falls within paragraph (a)(2) of this 
section and within section 346(a)(2). The requirements which a 
distribution must meet to fall within subsection (b) of section 346 are:
    (1) Such distribution is attributable to the corporation's ceasing 
to conduct, or consists of assets of, a trade or business which has been 
actively conducted throughout the five-year period immediately before 
the distribution, which trade or business was not acquired by the 
corporation within such period in a transaction in which gain or loss 
was recognized in whole or in part, and
    (2) Immediately after such distribution by the corporation it is 
actively engaged in the conduct of a trade or business, which trade or 
business was actively conducted throughout the five-year period ending 
on the date of such distribution and was not acquired by the corporation 
within such period in a transaction in which gain or loss was recognized 
in whole or in part.

A distribution shall be treated as having been made in partial 
liquidation pursuant to section 346(b) if it consists of the proceeds of 
the sale of the assets of a trade or business which has been actively 
conducted for the five-year period and has been terminated, or if it is 
a distribution in kind of the assets of such a business, or if it is a 
distribution in kind of some of the assets of such a business and of the 
proceeds of the sale of the remainder of the assets of such a business. 
In general, a distribution which will qualify under section 346(b) may 
consist of, but is not limited to:
    (i) Assets (other than inventory or property described in 
subdivision (ii) of this subparagraph) used in the trade or business 
throughout the five-year period immediately before the distribution (for 
this purpose an asset shall be considered used in the trade or business 
during the period of time the asset which it replaced was so used), or
    (ii) Proceeds from the sale of assets described in subdivision (i) 
of this subparagraph, and, in addition,
    (iii) The inventory of such trade or business or property held 
primarily for sale to customers in the ordinary course of business, if:
    (a) The items constituting such inventory or such property were 
substantially similar to the items constituting such inventory or 
property during the five-year period immediately before the 
distribution, and
    (b) The quantity of such items on the date of distribution was not 
substantially in excess of the quantity of similar items regularly on 
hand in the conduct of such business during such five-year period, or
    (iv) Proceeds from the sale of inventory or property described in 
subdivision (iii) of this subparagraph, if such inventory or property is 
sold in bulk in the course of termination of such trade or business and 
if with respect to such inventory the conditions of subdivision (iii)(a) 
and (b) of this subparagraph would have been met had such inventory or 
property been distributed on the date of such sale.
    (c) Active conduct of a trade or business. For the purpose of 
section 346(b)(1), a corporation shall be deemed to have actively 
conducted a trade or business immediately before the distribution, if:
    (1) In the case of a business the assets of which have been 
distributed in kind, the business was operated by such corporation until 
the date of distribution, or
    (2) In the case of a business the proceeds of the sale of the assets 
of which are distributed, such business was actively conducted until the 
date of sale and the proceeds of such sale were distributed as soon 
thereafter as reasonably possible.

The term active conduct of a trade or business shall have the same 
meaning in this section as in paragraph (c) of Sec. 1.355-1.



Sec. 1.346-2  Treatment of certain redemptions.

    If a distribution in a redemption of stock qualifies as a 
distribution in part or full payment in exchange for the stock under 
both section 302(a) and this

[[Page 178]]

section, then only this section shall be applicable. None of the 
limitations of section 302 shall be applicable to such redemption.



Sec. 1.346-3  Effect of certain sales.

    The determination of whether assets sold in connection with a 
partial liquidation are sold by the distributing corporation or by the 
shareholder is a question of fact to be determined under the facts and 
circumstances of each case.

               Corporate Organizations and Reorganizations

                         corporate organizations



Sec. 1.351-1  Transfer to corporation controlled by transferor.

    (a)(1) Section 351(a) provides, in general, for the nonrecognition 
of gain or loss upon the transfer by one or more persons of property to 
a corporation solely in exchange for stock or securities in such 
corporation, if immediately after the exchange, such person or persons 
are in control of the corporation to which the property was transferred. 
As used in section 351, the phrase ``one or more persons'' includes 
individuals, trusts, estates, partnerships, associations, companies, or 
corporations (see section 7701(a)(1)). To be in control of the 
transferee corporation, such person or persons must own immediately 
after the transfer stock possessing at least 80 percent of the total 
combined voting power of all classes of stock entitled to vote and at 
least 80 percent of the total number of shares of all other classes of 
stock of such corporation (see section 368(c)). In determining control 
under this section, the fact that any corporate transferor distributes 
part or all of the stock which it receives in the exchange to its 
shareholders shall not be taken into account. The phrase ``immediately 
after the exchange'' does not necessarily require simultaneous exchanges 
by two or more persons, but comprehends a situation where the rights of 
the parties have been previously defined and the execution of the 
agreement proceeds with an expedition consistent with orderly procedure. 
For purposes of this section--
    (i) Stock or securities issued for services rendered or to be 
rendered to or for the benefit of the issuing corporation will not be 
treated as having been issued in return for property, and
    (ii) Stock or securities issued for property which is of relatively 
small value in comparison to the value of the stock and securities 
already owned (or to be received for services) by the person who 
transferred such property, shall not be treated as having been issued in 
return for property if the primary purpose of the transfer is to qualify 
under this section the exchanges of property by other persons 
transferring property.

For the purpose of section 351, stock rights or stock warrants are not 
included in the term ``stock or securities.''
    (2) The application of section 351(a) is illustrated by the 
following examples:

    Example (1). C owns a patent right worth $25,000 and D owns a 
manufacturing plant worth $75,000. C and D organize the R Corporation 
with an authorized capital stock of $100,000. C transfers his patent 
right to the R Corporation for $25,000 of its stock and D transfers his 
plant to the new corporation for $75,000 of its stock. No gain or loss 
to C or D is recognized.
    Example (2). B owns certain real estate which cost him $50,000 in 
1930, but which has a fair market value of $200,000 in 1955. He 
transfers the property to the N Corporation in 1955 for 78 percent of 
each class of stock of the corporation having a fair market value of 
$200,000, the remaining 22 percent of the stock of the corporation 
having been issued by the corporation in 1940 to other persons for cash. 
B realized a taxable gain of $150,000 on this transaction.
    Example (3). E, an individual, owns property with a basis of $10,000 
but which has a fair market value of $18,000. E also had rendered 
services valued at $2,000 to Corporation F. Corporation F has 
outstanding 100 shares of common stock all of which are held by G. 
Corporation F issues 400 shares of its common stock (having a fair 
market value of $20,000) to E in exchange for his property worth $18,000 
and in compensation for the services he has rendered worth $2,000. Since 
immediately after the transaction, E owns 80 percent of the outstanding 
stock of Corporation F, no gain is recognized upon the exchange of the 
property for the stock. However, E realized $2,000 of ordinary income as 
compensation for services rendered to Corporation F.


[[Page 179]]


    (3) Underwritings of stock--(i) In general. For the purpose of 
section 351, if a person acquires stock of a corporation from an 
underwriter in exchange for cash in a qualified underwriting 
transaction, the person who acquires stock from the underwriter is 
treated as transferring cash directly to the corporation in exchange for 
stock of the corporation and the underwriter is disregarded. A qualified 
underwriting transaction is a transaction in which a corporation issues 
stock for cash in an underwriting in which either the underwriter is an 
agent of the corporation or the underwriter's ownership of the stock is 
transitory.
    (ii) Effective date. This paragraph (a)(3) is effective for 
qualified underwriting transactions occurring on or after May 1, 1996.

    (b)(1) Where property is transferred to a corporation by two or more 
persons in exchange for stock or securities, as described in paragraph 
(a) of this section, it is not required that the stock and securities 
received by each be substantially in proportion to his interest in the 
property immediately prior to the transfer. However, where the stock and 
securities received are received in disproportion to such interest, the 
entire transaction will be given tax effect in accordance with its true 
nature, and in appropriate cases the transaction may be treated as if 
the stock and securities had first been received in proportion and then 
some of such stock and securities had been used to make gifts (section 
2501 and following), to pay compensation (section 61(a)(1)), or to 
satisfy obligations of the transferor of any kind.
    (2) The application of paragraph (b)(1) of this section may be 
illustrated as follows:

    Example (1). Individuals A and B, father and son, organize a 
corporation with 100 shares of common stock to which A transfers 
property worth $8,000 in exchange for 20 shares of stock, and B 
transfers property worth $2,000 in exchange for 80 shares of stock. No 
gain or loss will be recognized under section 351. However, if it is 
determined that A in fact made a gift to B, such gift will be subject to 
tax under section 2501 and following. Similarly, if B had rendered 
services to A (such services having no relation to the assets 
transferred or to the business of the corporation) and the disproportion 
in the amount of stock received constituted the payment of compensation 
by A to B, B will be taxable upon the fair market value of the 60 shares 
of stock received as compensation for services rendered, and A will 
realize gain or loss upon the difference between the basis to him of the 
60 shares and their fair market value at the time of the exchange.
    Example (2). Individuals C and D each transferred, to a newly 
organized corporation, property having a fair market value of $4,500 in 
exchange for the issuance by the corporation of 45 shares of its capital 
stock to each transferor. At the same time, the corporation issued to E, 
an individual, 10 shares of its capital stock in payment for 
organizational and promotional services rendered by E for the benefit of 
the corporation. E transferred no property to the corporation. C and D 
were under no obligation to pay for E's services. No gain or loss is 
recognized to C or D. E received compensation taxable as ordinary income 
to the extent of the fair market value of the 10 shares of stock 
received by him.

    (c)(1) The general rule of section 351 does not apply, and 
consequently gain or loss will be recognized, where property is 
transferred to an investment company after June 30, 1967. A transfer of 
property after June 30, 1967, will be considered to be a transfer to an 
investment company if--
    (i) The transfer results, directly or indirectly, in diversification 
of the transferors' interests, and
    (ii) The transferee is (a) a regulated investment company, (b) a 
real estate investment trust, or (c) a corporation more than 80 percent 
of the value of whose assets (excluding cash and nonconvertible debt 
obligations from consideration) are held for investment and are readily 
marketable stocks or securities, or interests in regulated investment 
companies or real estate investment trusts.
    (2) The determination of whether a corporation is an investment 
company shall ordinarily be made by reference to the circumstances in 
existence immediately after the transfer in question. However, where 
circumstances change thereafter pursuant to a plan in existence at the 
time of the transfer, this determination shall be made by reference to 
the later circumstances.
    (3) Stocks and securities will be considered readily marketable if 
(and only if) they are part of a class of stock or

[[Page 180]]

securities which is traded on a securities exchange or traded or quoted 
regularly in the over-the-counter market. For purposes of subparagraph 
(1)(ii)(c) of this paragraph, the term ``readily marketable stocks or 
securities'' includes convertible debentures, convertible preferred 
stock, warrants, and other stock rights if the stock for which they may 
be converted or exchanged is readily marketable. Stocks and securities 
will be considered to be held for investment unless they are (i) held 
primarily for sale to customers in the ordinary course of business, or 
(ii) used in the trade or business of banking, insurance, brokerage, or 
a similar trade or business.
    (4) In making the determination required under subparagraph 
(1)(ii)(c) of this paragraph, stock and securities in subsidiary 
corporations shall be disregarded and the parent corporation shall be 
deemed to own its ratable share of its subsidiaries' assets. A 
corporation shall be considered a subsidiary if the parent owns 50 
percent or more of (i) the combined voting power of all classes of stock 
entitled to vote, or (ii) the total value of shares of all classes of 
stock outstanding.
    (5) A transfer ordinarily results in the diversification of the 
transferors' interests if two or more persons transfer nonidentical 
assets to a corporation in the exchange. For this purpose, if any 
transaction involves one or more transfers of nonidentical assets which, 
taken in the aggregate, constitute an insignificant portion of the total 
value of assets transfered, such transfers shall be disregarded in 
determining whether diversification has occurred. If there is only one 
transferor (or two or more transferors of identical assets) to a newly 
organized corporation, the transfer will generally be treated as not 
resulting in diversification. If a transfer is part of a plan to achieve 
diversification without recognition of gain, such as a plan which 
contemplates a subsequent transfer, however delayed, of the corporate 
assets (or of the stock or securities received in the earlier exchange) 
to an investment company in a transaction purporting to qualify for 
nonrecognition treatment, the original transfer will be treated as 
resulting in diversification.
    (6)(i) For purposes of paragraph (c)(5) of this section, a transfer 
of stocks and securities will not be treated as resulting in a 
diversification of the transferors' interests if each transferor 
transfers a diversified portfolio of stocks and securities. For purposes 
of this paragraph(c)(6), a portfolio of stocks and securities is 
diversified if it satisfies the 25 and 50-percent tests of section 
368(a)(2)(F)(ii), applying the relevant provisions of section 
368(a)(2)(F). However, Government securities are included in total 
assets for purposes of the denominator of the 25 and 50-percent tests 
(unless the Government securities are acquired to meet the 25 and 50-
percent tests), but are not treated as securities of an issuer for 
purposes of the numerator of the 25 and 50-percent tests.
    (ii) Paragraph (c)(6)(i) of this section is effective for transfers 
completed on or after May 2, 1996. Transfers of diversified (within the 
meaning of paragraph (c)(6)(i) of this section), but nonidentical, 
portfolios of stocks and securities completed before May 2, 1996, may be 
treated either--
    (A) Consistent with paragraph (c)(6)(i) of this section; or
    (B) As resulting in diversification of the transferors' interests.
    (7) The application of subparagraph (5) of this paragraph may be 
illustrated as follows:

    Example (1). Individuals A, B, and C organize a corporation with 101 
shares of common stock. A and B each transfers to it $10,000 worth of 
the only class of stock of corporation X, listed on the New York Stock 
Exchange, in exchange for 50 shares of stock. C transfers $200 worth of 
readily marketable securities in corporation Y for one share of stock. 
In determining whether or not diversification has occurred, C's 
participation in the transaction will be disregarded. There is, 
therefore, no diversification, and gain or loss will not be recognized.
    Example (2). A, together with 50 other transferors, organizes a 
corporation with 100 shares of stock. A transfers $10,000 worth of stock 
in corporation X, listed on the New York Stock Exchange, in exchange for 
50 shares of stock. Each of the other 50 transferors transfers $200 
worth of readily marketable securities in corporations other than X

[[Page 181]]

in exchange for one share of stock. In determining whether or not 
diversification has occurred, all transfers will be taken into account. 
Therefore, diversification is present, and gain or loss will be 
recognized.

[T.D. 6500, 25 FR 11607, Nov. 26, 1960, as amended by T.D. 6942, 32 FR 
20977, Dec. 29, 1967; T.D. 8665, 61 FR 19189, May 1, 1996; T.D. 8663, 61 
FR 19545, May 2, 1996]



Sec. 1.351-2  Receipt of property.

    (a) If an exchange would be within the provisions of section 351(a) 
if it were not for the fact that the property received in exchange 
consists not only of property permitted by such subsection to be 
received without the recognition of gain, but also of other property or 
money, then the gain, if any, to the recipient shall be recognized, but 
in an amount not in excess of the sum of such money and the fair market 
value of such other property. No loss to the recipient shall be 
recognized.
    (b) See section 357 and the regulations pertaining to that section 
for applicable rules as to the treatment of liabilities as ``other 
property'' in cases subject to section 351, where another party to the 
exchange assumes a liability, or acquires property subject to a 
liability.
    (c) See sections 358 and 362 and the regulations pertaining to those 
sections for applicable rules with respect to the determination of the 
basis of stock, securities, or other property received in exchanges 
subject to section 351.
    (d) See part I (section 301 and following), subchapter C, chapter 1 
of the Code, and the regulations thereunder for applicable rules with 
respect to the taxation of dividends where a distribution by a 
corporation of its stock or securities in connection with an exchange 
subject to section 351(a) has the effect of the distribution of a 
taxable dividend.
    (e) See Sec. 1.356-7(a) for the applicability of the definition of 
nonqualified preferred stock in section 351(g)(2) for stock issued prior 
to June 9, 1997, and for stock issued in transactions occurring after 
June 8, 1997, that are described in section 1014(f)(2) of the Taxpayer 
Relief Act of 1997, Public Law 105-34 (111 Stat. 788, 921). See Sec. 
1.356-7(c) for the treatment of preferred stock received in certain 
exchanges for common or preferred stock described in section 
351(g)(2)(C)(i)(II).

[T.D. 6500, 25 FR 11607, Nov. 26, 1960; 25 FR 14021, Dec. 31, 1960, as 
amended by T.D. 8904, 65 FR 58650, Oct. 2, 2000]



Sec. 1.351-3  Records to be kept and information to be filed.

    (a) Every person who received the stock or securities of a 
controlled corporation, or other property as part of the consideration, 
in exchange for property under section 351, shall file with his income 
tax return for the taxable year in which the exchange is consummated a 
complete statement of all facts pertinent to such exchange, including--
    (1) A description of the property transferred, or of his interest in 
such property, together with a statement of the cost or other basis 
thereof, adjusted to the date of transfer.
    (2) With respect to stock of the controlled corporation received in 
the exchange, a statement of--
    (i) The kind of stock and preferences, if any;
    (ii) The number of shares of each class received; and
    (iii) The fair market value per share of each class at the date of 
the exchange.
    (3) With respect to securities of the controlled corporation 
received in the exchange, a statement of--
    (i) The principal amount and terms; and
    (ii) The fair market value at the date of exchange.
    (4) The amount of money received, if any.
    (5) With respect to other property received--
    (i) A complete description of each separate item;
    (ii) The fair market value of each separate item at the date of 
exchanges; and
    (iii) In the case of a corporate shareholder, the adjusted basis of 
the other property in the hands of the controlled corporation 
immediately before the distribution of such other property to the 
corporate shareholder in connection with the exchange.
    (6) With respect to liabilities of the transferors assumed by the 
controlled corporation, a statement of--

[[Page 182]]

    (i) The nature of the liabilities;
    (ii) When and under what circumstances created;
    (iii) The corporate business reason for assumption by the controlled 
corporation; and
    (iv) Whether such assumption eliminates the transferor's primary 
liability.
    (b) Every such controlled corporation shall file with its income tax 
return for the taxable year in which the exchange is consummated--
    (1) A complete description of all the property received from the 
transferors.
    (2) A statement of the cost or other basis thereof in the hands of 
the transferors adjusted to the date of transfer.
    (3) The following information with respect to the capital stock of 
the controlled corporation--
    (i) The total issued and outstanding capital stock immediately prior 
to and immediately after the exchange, with a complete description of 
each class of stock;
    (ii) The classes of stock and number of shares issued to each 
transferor in the exchange, and the number of shares of each class of 
stock owned by each transferor immediately prior to and immediately 
after the exchange, and
    (iii) The fair market value of the capital stock as of the date of 
exchange which was issued to each transferor.
    (4) The following information with respect to securities of the 
controlled corporation--
    (i) The principal amount and terms of all securities outstanding 
immediately prior to and immediately after the exchange,
    (ii) The principal amount and terms of securities issued to each 
transferor in the exchange, with a statement showing each transferor's 
holdings of securities of the controlled corporation immediately prior 
to and immediately after the exchange,
    (iii) The fair market value of the securities issued to the 
transferors on the date of the exchange, and
    (iv) A statement as to whether the securities issued in the exchange 
are subordinated in any way to other claims against the controlled 
corporation.
    (5) The amount of money, if any, which passed to each of the 
transferors in connection with the transaction.
    (6) With respect to other property which passed to each transferor--
    (i) A complete description of each separate item;
    (ii) The fair market value of each separate item at the date of 
exchange, and
    (iii) In the case of a corporate transferor, the adjusted basis of 
each separate item in the hands of the controlled corporation 
immediately before the distribution of such other property to the 
corporate transferor in connection with the exchange.
    (7) The following information as to the transferor's liabilities 
assumed by the controlled corporation in the exchange--
    (i) The amount and a description thereof,
    (ii) When and under what circumstances created, and
    (iii) The corporate business reason or reasons for assumption by the 
controlled corporation.
    (c) Permanent records in substantial form shall be kept by every 
taxpayer who participates in the type of exchange described in section 
351, showing the information listed above, in order to facilitate the 
determination of gain or loss from a subsequent disposition of stock or 
securities and other property, if any, received in the exchange.

              effects on shareholders and security holders



Sec. 1.354-1  Exchanges of stock and securities in certain 
reorganizations.

    (a) Section 354 provides that under certain circumstances no gain or 
loss is recognized to a shareholder who surrenders his stock in exchange 
for other stock or to a security holder who surrenders his securities in 
exchange for stock. Section 354 also provides that under certain 
circumstances a security holder may surrender securities and receive 
securities in the same principal amount or in a lesser principal amount 
without the recognition of gain or loss to him. The exchanges to which 
section 354 applies must be pursuant to a plan of reorganization as 
provided in section

[[Page 183]]

368(a) and the stock and securities surrendered as well as the stock and 
securities received must be those of a corporation which is a party to 
the reorganization. Section 354 does not apply to exchanges pursuant to 
a reorganization described in section 368(a)(1)(D) unless the transferor 
corporation--
    (1) Transfers all or substantially all of its assets to a single 
corporation, and
    (2) Distributes all of its remaining properties (if any) and the 
stock, securities and other properties received in the exchange to its 
shareholders or security holders in pursuance of the plan of 
reorganization. The fact that properties retained by the transferor 
corporation, or received in exchange for the properties transferred in 
the reorganization, are used to satisfy existing liabilities not 
represented by securities and which were incurred in the ordinary course 
of business before the reorganization does not prevent the application 
of section 354 to an exchange pursuant to a plan of reorganization 
defined in section 368(a)(1)(D).
    (b) Except as provided in section 354 (c) and (d), section 354 is 
not applicable to an exchange of stock or securities if a greater 
principal amount of securities is received than the principal amount of 
securities the recipient surrenders, or if securities are received and 
the recipient surrenders no securities. See, however, section 356 and 
regulations pertaining to such section. See also section 306 with 
respect to the receipt of preferred stock in a transaction to which 
section 354 is applicable.
    (c) An exchange of stock or securities shall be subject to section 
354(a)(1) even though--
    (1) Such exchange is not pursuant to a plan of reorganization 
described in section 368(a), and
    (2) The principal amount of the securities received exceeds the 
principal amount of the securities surrendered or if securities are 
received and no securities are surrendered--

if such exchange is pursuant to a plan of reorganization for a railroad 
corporation as defined in section 77(m) of the Bankruptcy Act (11 U.S.C. 
205(m)) and is approved by the Interstate Commerce Commission under 
section 77 of such act or under section 20b of the Interstate Commerce 
Act (49 U.S.C. 20b) as being in the public interest. Section 354 is not 
applicable to such exchanges if there is received property other than 
stock or securities. See, however, section 356 and regulations 
pertaining to such section.
    (d) The rules of section 354 may be illustrated by the following 
examples:

    Example 1. Pursuant to a reorganization under section 368(a) to 
which Corporations T and W are parties, A, a shareholder in Corporation 
T, surrenders all his common stock in Corporation T in exchange for 
common stock of Corporation W. No gain or loss is recognized to A.
    Example 2. Pursuant to a reorganization under section 368(a) to 
which Corporations X and Y (which are not railroad corporations) are 
parties, B, a shareholder in Corporation X, surrenders all his stock in 
X for stock and securities in Y. Section 354 does not apply to this 
exchange. See, however, section 356.
    Example 3. C, a shareholder in Corporation Z (which is not a 
railroad corporation), surrenders all his stock in Corporation Z in 
exchange for securities in Corporation Z. Whether or not this exchange 
is in connection with a recapitalization under section 368(a)(1)(E), 
section 354 does not apply. See, however, section 302.
    Example 4. The facts are the same as in Example 3 of this paragraph 
(d), except that C receivies solely rights to acquire stock in 
Corporation Z. Section 354 does not apply.

    (e) Except as provided in Sec. 1.356-6, for purposes of section 
354, the term securities includes rights issued by a party to the 
reorganization to acquire its stock. For purposes of this section and 
section 356(d)(2)(B), a right to acquire stock has no principal amount. 
For this purpose, rights to acquire stock has the same meaning as it 
does under sections 305 and 317(a). Other Internal Revenue Code 
provisions governing the treatment of rights to acquire stock may also 
apply to certain exchanges occurring in connection with a 
reorganization. See, for example, sections 83 and 421 through 424 and 
the regulations thereunder. This paragraph (e) applies to exchanges 
occurring on or after March 9, 1998.
    (f) See Sec. 1.356-7(a) and (b) for the treatment of nonqualified 
preferred stock (as defined in section 351(g)(2)) received in certain 
exchanges for nonqualified preferred stock or preferred stock. See Sec. 
1.356-7(c) for the treatment

[[Page 184]]

of preferred stock received in certain exchanges for common or preferred 
stock described in section 351(g)(2)(C)(i)(II).

[T.D. 6500, 25 FR 11607, Nov. 26, 1960, as amended by T.D. 7616, 44 FR 
26869, May 8, 1979; T.D. 8752, 63 FR 410, Jan. 6, 1998; T.D. 8882, 65 FR 
31078, May 16, 2000; T.D. 8904, 65 FR 58651, Oct. 2, 2000]



Sec. 1.355-0  Outline of sections.

    In order to facilitate the use of Sec. Sec. 1.355-1 through 1.355-
7, this section lists the major paragraphs in those sections as follows:

   Sec. 1.355-1 Distribution of stock and securities of a controlled 
                              corporation.

    (a) Effective date of certain sections.
    (b) Application of section.

                       Sec. 1.355-2 Limitations.

    (a) Property distributed.
    (b) Independent business purpose.
    (1) Independent business purpose requirement.
    (2) Corporate business purpose.
    (3) Business purpose for distribution.
    (4) Business purpose as evidence of nondevice.
    (5) Examples.
    (c) Continuity of interest requirement.
    (1) Requirement.
    (2) Examples.
    (d) Device for distribution of earnings and profits.
    (1) In general.
    (2) Device factors.
    (i) In general.
    (ii) Pro rata distribution.
    (iii) Subsequent sale or exchange of stock.
    (A) In general.
    (B) Sale or exchange negotiated or agreed upon before the 
distribution.
    (C) Sale or exchange not negotiated or agreed upon before the 
distribution.
    (D) Negotiated or agreed upon before the distribution.
    (E) Exchange in pursuance of a plan of reorganization.
    (iv) Nature and use of assets.
    (A) In general.
    (B) Assets not used in a trade or business meeting the requirement 
of section 355(b).
    (C) Related function.
    (3) Nondevice factors.
    (i) In general.
    (ii) Corporate business purpose.
    (iii) Distributing corporation publicly traded and widely held.
    (iv) Distribution to domestic corporate shareholders.
    (4) Examples.
    (5) Transactions ordinarily not considered as a device.
    (i) In general.
    (ii) Absence of earnings and profits.
    (iii) Section 303(a) transactions.
    (iv) Section 302(a) transactions.
    (v) Examples.
    (e) Stock and securities distributed.
    (1) In general.
    (2) Additional rules.
    (f) Principal amount of securities.
    (1) Securities received.
    (2) Only stock received.
    (g) Period of ownership.
    (1) Other property.
    (2) Example.
    (h) Active conduct of a trade or business.

          Sec. 1.355-3 Active conduct of a trade or business.

    (a) General requirements.
    (1) Application of section 355.
    (2) Examples.
    (b) Active conduct of a trade or business defined.
    (1) In general.
    (2) Active conduct or a trade or business immediately after 
distribution.
    (i) In general.
    (ii) Trade or business.
    (iii) Active conduct.
    (iv) Limitations.
    (3) Active conduct for five-year period preceding distribution.
    (4) Special rules for acquisition of a trade or business (Prior to 
the Revenue Act of 1987 and Technical and Miscellaneous Revenue Act of 
1988).
    (i) In general.
    (ii) Example.
    (iii) Gain or loss recognized in certain transactions.
    (iv) Affiliated group.
    (5) Special rules for acquisition of a trade or business (After the 
Revenue Act of 1987 and Technical and Miscellaneous Revenue Act of 
1988).
    (c) Examples.

             Sec. 1.355-4 Non pro rata distributions, etc.

      Sec. 1.355-5 Records to be kept and information to be filed.

 Sec. 1.355-6 Recognition of gain on certain distributions of stock or 
                  securities in controlled corporation.

    (a) Conventions.
    (1) Examples.
    (2) Five-year period.
    (3) Distributing securities.
    (4) Marketable securities.
    (b) General rules and purposes of section 355(d).
    (1) Disqualified distributions in general.
    (2) Disqualified stock.
    (i) In general.
    (ii) Purchase.
    (iii) Exceptions.

[[Page 185]]

    (A) Purchase eliminated.
    (B) Deemed purchase eliminated.
    (C) Elimination of basis.
    (1) General rule.
    (2) Special rule for transferred and exchanged basis property.
    (3) Special rule for Split-offs and Split-ups.
    (D) Special rule if basis allocated between two corporations.
    (3) Certain distributions not disqualified distributions because 
purposes of section 355(d) not violated.
    (i) In general.
    (ii) Disqualified person.
    (iii) Purchased basis.
    (iv) Increase in interest because payment of cash in lieu of 
fractional shares.
    (v) Other exceptions.
    (vi) Examples.
    (4) Anti-avoidance rule.
    (i) In general.
    (ii) Example.
    (c) Whether a person holds a 50 percent or greater interest.
    (1) In general.
    (2) Valuation.
    (3) Effect of options, warrants, convertible obligations, and other 
similar interests.
    (i) Application.
    (ii) General rule.
    (iii) Options deemed newly issued and substituted options.
    (A) Exchange, adjustment, or alteration of existing option.
    (B) Certain compensatory options.
    (C) Substituted options.
    (iv) Effect of treating an option as exercised.
    (A) In general.
    (B) Stock purchase agreement or similar arrangement.
    (v) Instruments treated as options.
    (vi) Instruments generally not treated as options.
    (A) Escrow, pledge, or other security agreements.
    (B) Compensatory options.
    (1) General rule.
    (2) Exception.
    (C) Certain stock conversion features.
    (D) Options exercisable only upon death, disability, mental 
imcompetency, or separation from service.
    (E) Rights of first refusal.
    (F) Other enumerated instruments.
    (vii) Reasonably certain that the option will be exercised.
    (A) In general.
    (B) Stock purchase agreement or similar arrangement.
    (viii) Examples.
    (4) Plan or arrangement.
    (i) In general.
    (ii) Understanding.
    (iii) Examples.
    (iv) Exception.
    (A) Subsequent disposition.
    (B) Example.
    (d) Purchase.
    (1) In general.
    (i) Definition of purchase under section 355(d)(5)(A).
    (ii) Section 355 distributions.
    (iii) Example.
    (2) Exceptions to definition of purchase under section 355(d)(5)(A).
    (i) Acquisition of stock in a transaction which includes other 
property or money.
    (A) Transferors and shareholders of transferor or distributing 
corporations.
    (1) In general.
    (2) Exception.
    (B) Transferee corporations.
    (1) In general.
    (2) Exception.
    (C) Examples.
    (ii) Acquisition of stock in a distribution to which section 305(a) 
applies.
    (iii) Section 1036(a) exchange.
    (iv) Section 338 elections.
    (A) In general.
    (B) Example.
    (v) Partnership distributions.
    (A) Section 732(b).
    (B) Section 734(b).
    (3) Certain section 351 exchanges treated as purchases.
    (i) In general.
    (A) Treatment of stock received by transferor.
    (B) Multiple classes of stock.
    (ii) Cash item, marketable stock.
    (iii) Exception for certain acquisitions.
    (A) In general.
    (B) Example.
    (iv) Exception for assets transferred as part of an active trade or 
business.
    (A) In general.
    (B) Active conduct of a trade or business.
    (C) Reasonable needs of the trade or business.
    (D) Consideration of all facts and circumstances.
    (E) Successive transfers.
    (v) Exception for transfer between members of the same affiliated 
group.
    (A) In general.
    (B) Examples.
    (4) Triangular asset reorganizations.
    (i) Definition.
    (ii) Treatment.
    (iii) Example.
    (5) Reverse triangular reorganizations other than triangular asset 
reorganizations.
    (i) In general.
    (ii) Letter ruling and closing agreement.
    (iii) Example.
    (6) Treatment of group structure changes.
    (i) In general.
    (ii) Adjustments to basis of higher-tier members.
    (iii) Example.

[[Page 186]]

    (7) Special rules for triangular asset reorganizations, other 
reverse triangular reorganizations, and group structure changes.
    (e) Deemed purchase and timing rules.
    (1) Attribution and aggregation.
    (i) In general.
    (ii) Purchase of additional interest.
    (iii) Purchase between persons treated as one person.
    (iv) Purchase by a person already treated as holding stock under 
section 355(d)(8)(A).
    (v) Examples.
    (2) Transferred basis rule.
    (3) Exchanged basis rule.
    (i) In general.
    (ii) Example.
    (4) Certain section 355 or section 305 distributions.
    (i) Section 355.
    (ii) Section 305.
    (5) Substantial diminution of risk.
    (i) In general.
    (ii) Property to which suspension applies.
    (iii) Risk of loss substantially diminished.
    (iv) Special class of stock.
    (f) Duty to determine stockholders.
    (1) In general.
    (2) Deemed knowledge of contents of securities filings.
    (3) Presumptions as to securities filings.
    (4) Presumption as to less-than-five-percent shareholders.
    (5) Examples.
    (g) Effective date.

 Sec. 1.355-7 Recognition of gain on certain distributions of stock or 
              securities in connection with an acquisition.

    (a) In general.
    (b) Plan.
    (1) In general.
    (2) Certain post-distribution acquisitions.
    (3) Plan factors.
    (4) Non-plan factors.
    (c) Operating rules.
    (1) Internal discussions and discussions with outside advisors 
evidence of business purpose.
    (2) Takeover defense.
    (3) Effect of distribution on trading in stock.
    (4) Consequences of section 355(e) disregarded for certain purposes.
    (5) Multiple acquisitions.
    (d) Safe harbors.
    (1) Safe Harbor I.
    (2) Safe Harbor II.
    (i) In general.
    (ii) Special rule.
    (3) Safe Harbor III.
    (4) Safe Harbor IV.
    (i) In general.
    (ii) Special rules.
    (5) Safe Harbor V.
    (i) In general.
    (ii) Special rules.
    (6) Safe Harbor VI.
    (7) Safe Harbor VII.
    (i) In general.
    (ii) Special rules.
    (8) Safe Harbor VIII.
    (i) In general.
    (ii) Special rule.
    (9) Safe Harbor IX.
    (i) In general.
    (ii) Special rule.
    (e) Options, warrants, convertible obligations, and other similar 
interests.
    (1) Treatment of options.
    (i) General rule.
    (ii) Agreement, understanding, or arrangement to write, transfer, or 
modify an option.
    (iii) Substantial negotiations related to options.
    (2) Stock acquired pursuant to options.
    (3) Instruments treated as options.
    (4) Instruments generally not treated as options.
    (i) Escrow, pledge, or other security agreements.
    (ii) Options exercisable only upon death, disability, mental 
incompetency, or separation from service.
    (iii) Rights of first refusal.
    (iv) Other enumerated instruments.
    (f) Multiple controlled corporations.
    (g) Valuation.
    (h) Definitions.
    (1) Agreement, understanding, arrangement, or substantial 
negotiations.
    (2) Controlled corporation.
    (3) Controlling shareholder.
    (4) Coordinating group.
    (5) Disclosure event.
    (6) Discussions.
    (7) Established market.
    (8) Five-percent shareholder.
    (9) Implicit permission.
    (10) Public announcement.
    (11) Public offering.
    (12) Similar acquisition (not involving a public offering).
    (13) Similar acquisition involving a public offering.
    (i) One public offering.
    (ii) More than one public offering.
    (iii) Potential acquisition involving a public offering.
    (14) Ten-percent shareholder.
    (i) [Reserved]
    (j) Examples.
    (k) Effective dates.

[T.D. 8238, 54 FR 289, Jan. 5, 1989, as amended by T.D. 8913, 65 FR 
79722, Dec. 20, 2000; T.D. 8960, 66 FR 40591, Aug. 3, 2001; T.D. 8988, 
67 FR 20636, Apr. 26, 2002; 67 FR 38200, June 3, 2002; T.D. 9198, 70 FR 
20283, Apr. 19, 2005]



Sec. 1.355-1  Distribution of stock and securities of a controlled 
corporation.

    (a) Effective date of certain sections. Sections 1.355-1 through 
1.355-4 apply

[[Page 187]]

to transactions occurring after February 6, 1989. For transactions 
occurring on or before that date, see 26 CFR 1.355-1 through 1.355-4 
(revised as of April 1, 1987). Sections 1.355-1 through 1.355-4 do not 
reflect the amendments to section 355 made by the Revenue Act of 1987 
and the Technical and Miscellaneous Revenue Act of 1988.
    (b) Application of section. Section 355 provides for the separation, 
without recognition of gain or loss to (or the inclusion in income of) 
the shareholders and security holders, of one or more existing 
businesses formerly operated, directly or indirectly, by a single 
corporation (the ``distributing corporation''). It applies only to the 
separation of existing businesses that have been in active operation for 
at least five years (or a business that has been in active operation for 
at least five years into separate businesses), and which, in general, 
have been owned, directly or indirectly, for at least five years by the 
distributing corporation. A separation is achieved through the 
distribution by the distributing corporation of stock, or stock and 
securities, of one or more subsidiaries (the ``controlled 
corporations'') to its shareholders with respect to its stock or to its 
security holders in exchange for its securities. The controlled 
corporations may be preexisting or newly created subsidiaries. 
Throughout the regulations under section 355, the term distribution 
refers to a distribution by the distributing corporation of stock, or 
stock and securities, of one or more controlled corporations, unless the 
context indicates otherwise. Section 355 contemplates the continued 
operation of the business or businesses existing prior to the 
separation. See Sec. 1.355-4 for types of distributions that may 
qualify under section 355, including pro rata distributions and non pro 
rata distributions.
    (c) Stock rights. Except as provided in Sec. 1.356-6, for purposes 
of section 355, the term securities includes rights issued by the 
distributing corporation or the controlled corporation to acquire the 
stock of that corporation. For purposes of this section and section 
356(d)(2)(B), a right to acquire stock has no principal amount. For this 
purpose, rights to acquire stock has the same meaning as it does under 
sections 305 and 317(a). Other Internal Revenue Code provisions 
governing the treatment of rights to acquire stock may also apply to 
certain distributions occurring in connection with a transaction 
described in section 355. See, for example, sections 83 and 421 through 
424 and the regulations thereunder. This paragraph (c) applies to 
distributions occurring on or after March 9, 1998.
    (d) Nonqualified preferred stock. See Sec. 1.356-7(a) and (b) for 
the treatment of nonqualified preferred stock (as defined in section 
351(g)(2)) received in certain exchanges for (or in certain 
distributions with respect to) nonqualified preferred stock or preferred 
stock. See Sec. 1.356-7(c) for the treatment of the receipt of 
preferred stock in certain exchanges for (or in certain distributions 
with respect to) common or preferred stock described in section 
351(g)(2)(C)(i)(II).

[T.D. 8238, 54 FR 289, Jan. 5, 1989, as amended by T.D. 8752, 63 FR 410, 
Jan. 6, 1998; T.D. 8882, 65 FR 31078, May 16, 2000; T.D. 8904, 65 FR 
58651, Oct. 2, 2000]



Sec. 1.355-2  Limitations.

    (a) Property distributed. Section 355 applies to a distribution only 
if the property distributed consists solely of stock, or stock and 
securities, of a controlled corporation. If additional property 
(including an excess principal amount of securities received over 
securities surrendered) is received, see section 356.
    (b) Independent business purpose--(1) Independent business purpose 
requirement. Section 355 applies to a transaction only if it is carried 
out for one or more corporate business purposes. A transaction is 
carried out for a corporate business purpose if it is motivated, in 
whole or substantial part, by one or more corporate business purposes. 
The potential for the avoidance of Federal taxes by the distributing or 
controlled corporations (or a corporation controlled by either) is 
relevant in determining the extent to which an existing corporate 
business purpose motivated the distribution. The principal reason for 
this business purpose requirement is to provide nonrecognition treatment 
only to distributions that are incident to readjustments of corporate 
structures required by business

[[Page 188]]

exigencies and that effect only readjustments of continuing interests in 
property under modified corporate forms. This business purpose 
requirement is independent of the other requirements under section 355.
    (2) Corporate business purpose. A corporate business purpose is a 
real and substantial non Federal tax purpose germane to the business of 
the distributing corporation, the controlled corporation, or the 
affiliated group (as defined in Sec. 1.355-3(b)(4)(iv)) to which the 
distributing corporation belongs. A purpose of reducing non Federal 
taxes is not a corporate business purpose if (i) the transaction will 
effect a reduction in both Federal and non Federal taxes because of 
similarities between Federal tax law and the tax law of the other 
jurisdiction and (ii) the reduction of Federal taxes is greater than or 
substantially coextensive with the reduction of non Federal taxes. See 
Examples (7) and (8) of paragraph (b)(5) of this section. A shareholder 
purpose (for example, the personal planning purposes of a shareholder) 
is not a corporate business purpose. Depending upon the facts of a 
particular case, however, a shareholder purpose for a transaction may be 
so nearly coextensive with a corporate business purpose as to preclude 
any distinction between them. In such a case, the transaction is carried 
out for one or more corporate business purposes. See Example (2) of 
paragraph (b)(5) of this section.
    (3) Business purpose for distribution. The distribution must be 
carried out for one or more corporate business purposes. See Example (3) 
of paragraph (b)(5) of this section. If a corporate business purpose can 
be achieved through a nontaxable transaction that does not involve the 
distribution of stock of a controlled corporation and which is neither 
impractical nor unduly expensive, then, for purposes of paragraph (b)(1) 
of this section, the separation is not carried out for that corporate 
business purpose. See Examples (3) and (4) of paragraph (b)(5) of this 
section. For rules with respect to the requirement of a business purpose 
for a transfer of assets to a controlled corporation in connection with 
a reorganization described in section 368(a)(1)(D), See Sec. 1.368-
1(b).
    (4) Business purpose as evidence of nondevice. The corporate 
business purpose or purposes for a transaction are evidence that the 
transaction was not used principally as a device for the distribution of 
earnings and profits within the meaning of section 355(a)(1)(B). See 
paragraph (d)(3)(ii) of this section.
    (5) Examples. The provisions of this paragraph (b) may be 
illustrated by the following examples:

    Example (1). Corporation X is engaged in the production, 
transportation, and refining of petroleum products. In 1985, X acquires 
all of the properties of corporation Z, which is also engaged in the 
production, transportation, and refining of petroleum products. In 1991, 
as a result of antitrust litigation, X is ordered to divest itself of 
all of the properties acquired from Z. X transfers those properties to 
new corporation Y and distributes the stock of Y pro rata to X's 
shareholders. In view of the divestiture order, the distribution is 
carried out for a corporate business purpose. See paragraph (b)(1) of 
this section.
    Example (2). Corporation X is engaged in two businesses: The 
manufacture and sale of furniture and the sale of jewelry. The 
businesses are of equal value. The outstanding stock of X is owned 
equally by unrelated individuals A and B. A is more interested in the 
furniture business, while B is more interested in the jewelry business. 
A and B decide to split up the businesses and go their separate ways. A 
and B anticipate that the operations of each business will be enhanced 
by the separation because each shareholder will be able to devote his 
undivided attention to the business in which he is more interested and 
more proficient. Accordingly, X transfers the jewelry business to new 
corporation Y and distributes the stock of Y to B in exchange for all of 
B's stock in X. The distribution is carried out for a corporate business 
purpose, notwithstanding that it is also carried out in part for 
shareholder purposes. See paragraph (b)(2) of this section.
    Example (3). Corporation X is engaged in the manufacture and sale of 
toys and the manufacture and sale of candy. The shareholders of X wish 
to protect the candy business from the risks and vicissitudes of the toy 
business. Accordingly, X transfers the toy business to new corporation Y 
and distributes the stock of Y to X's shareholders. Under applicable 
law, the purpose of protecting the candy business from the risks and 
vicissitudes of the toy business is achieved as soon as X transfers the 
toy business to Y. Therefore, the distribution is not carried out for a 
corporate business purpose. See paragraph (b)(3) of this section.
    Example (4). Corporation X is engaged in a regulated business in 
State T. X owns all of

[[Page 189]]

the stock of corporation Y, a profitable corporation that is not engaged 
in a regulated business. Commission C sets the rates that X may charge 
its customers, based on its total income. C has recently adopted rules 
according to which the total income of a corporation includes the income 
of a business if, and only if, the business is operated, directly or 
indirectly, by the corporation. Total income, for this purpose, includes 
the income of a wholly owned subsidiary corporation but does not include 
the income of a parent or ``brother/sister'' corporation. Under C's new 
rule, X's total income includes the income of Y, with the result that X 
has suffered a reduction of the rates that it may charge its customers. 
It would not be impractical or unduly expensive to create in a 
nontaxable transaction (such as a transaction qualifying under section 
351) a holding company to hold the stock of X and Y. X distributes the 
stock of Y to X's shareholders. The distribution is not carried out for 
the purpose of increasing the rates that X may charge its customers 
because that purpose could be achieved through a nontaxable transaction, 
the creation of a holding company, that does not involve the 
distribution of stock of a controlled corporation and which is neither 
impractical nor unduly expensive. See paragraph (b)(3) of this section.
    Example (5). The facts are the same as in Example (4), except that C 
has recently adopted rules according to which the total income of a 
corporation includes not only the income included in Example (3), but 
also the income of any member of the affiliated group to which the 
corporation belongs. In order to avoid a reduction in the rates that it 
may charge its customers, X distributes the stock of Y to X's 
shareholders. The distribution is carried out for a corporate business 
purpose. See paragraph (b)(3) of this section.
    Example (6). (i) Corporation X owns all of the one class of stock of 
corporation Y. X distributes the stock of Y pro rata to its five 
shareholders, all of whom are individuals, for the sole purpose of 
enabling X and/or Y to elect to become an S corporation. The 
distribution does not meet the corporate business purpose requirement. 
See paragraph (b)(1) and (2) of this section.
    (ii) The facts are the same as in Example 6(i), except that the 
business of Y is operated as a division of X. X transfers this division 
to new corporation Y and distributes the stock of Y pro rata to its 
shareholders, all of whom are individuals, for the sole purpose of 
enabling X and/or Y to elect to become an S corporation. The 
distribution does not meet the corporate business purpose requirement. 
See paragraph (b)(1) and (2) of this section.
    Example (7). The facts are the same as in Example (6)(i), except 
that the distribution is made to enable X to elect to become an S 
corporation both for Federal tax purposes and for purposes of the income 
tax imposed by State M. State M has tax law provisions similar to 
subchapter S of the Internal Revenue Code of 1986. An election to be an 
S corporation for Federal tax purposes will effect a substantial 
reduction in Federal taxes that is greater than the reduction of State M 
taxes pursuant to an election to be an S corporation for State M 
purposes. The purpose of reducing State M taxes is not a corporate 
business purpose. The distribution does not meet the corporate business 
purpose requirements. See paragraph (b)(1) and (2) of this section.
    Example (8). The facts are the same as Example (7), except that the 
distribution also is made to enable A, a key employee of Y, to acquire 
stock of Y without investing in X. A is considered to be critical to the 
success of Y and he has indicated that he will seriously consider 
leaving the company if he is not given the opportunity to purchase a 
significant amount of stock of Y. As a matter of state law, Y could not 
issue stock to the employee while it was a subsidiary of X. As in 
Example (7), the purpose of reducing State M taxes is not a corporate 
business purpose. In order to determine whether the issuance of stock to 
the key employee, in fact, motivated the distribution of the Y stock, 
the potential avoidance of Federal taxes is a relevant factor to take 
into account. If the facts and circumstances establish that the 
distribution was substantially motivated by the need to issue stock to 
the employee, the distribution will meet the corporate business purpose 
requirement.

    (c) Continuity of interest requirement--(1) Requirement. Section 355 
applies to a separation that effects only a readjustment of continuing 
interests in the property of the distributing and controlled 
corporations. In this regard section 355 requires that one or more 
persons who, directly or indirectly, were the owners of the enterprise 
prior to the distribution or exchange own, in the aggregate, an amount 
of stock establishing a continuity of interest in each of the modified 
corporate forms in which the enterprise is conducted after the 
separation. This continuity of interest requirement is independent of 
the other requirements under section 355.
    (2) Examples.

    Example (1). For more than five years, corporation X has been 
engaged directly in one business, and indirectly in a different business 
through its wholly owned subsidiary, S. The businesses are equal in 
value. At all times, the outstanding stock of X has been owned equally 
by unrelated individuals A

[[Page 190]]

and B. For valid business reasons, A and B cause X to distribute all of 
the stock of S to B in exchange for all of B's stock in X. After the 
transaction, A owns all the stock of X and B owns all the stock of S. 
The continuity of interest requirement is met because one or more 
persons who were the owners of X prior to the distribution (A and B) 
own, in the aggregate, an amount of stock establishing a continuity of 
interest in each of X and S after the distribution.
    Example (2). Assume the same facts as in Example (1), except that 
pursuant to a plan to acquire a stock interest in X without acquiring, 
directly or indirectly, an interest in S, C purchased one-half of the X 
stock owned by A and immediately thereafter X distributed all of the S 
stock to B in exchange for all of B's stock in X. After the 
transactions, A owns 50 percent of X and B owns 100 percent of S. The 
distribution by X of all of the stock of S to B in exchange for all of 
B's stock in X will satisfy the continuity of interest requirement for 
section 355 because one or more persons who were the owners of X prior 
to the distribution (A and B) own, in the aggregate, an amount of stock 
establishing a continuity of interest in each of X and S after the 
distribution.
    Example (3). Assume the same facts as in Examples (1) and (2), 
except that C purchased all of the X stock owned by A. After the 
transactions, neither A nor B own any of the stock of X, and B owns all 
the stock of S. The continuity of interest requirement is not met 
because the owners of X prior to the distribution (A and B) do not, in 
the aggregate, own an amount of stock establishing a continuity of 
interest in each of X and S after the distribution, i.e., although A and 
B collectively have retained 50 percent of their equity interest in the 
former combined enterprise, they have failed to continue to own the 
minimum stock interest in the distributing corporation, X, that would be 
required in order to meet the continuity of interest requirement.
    Example (4). Assume the same facts as in Examples (1) and (2), 
except that C purchased 80 percent of the X stock owned by A. After the 
transactions, A owns 20 percent of the stock of X, B owns no X stock, 
and B owns 100 percent of the S stock. The continuity of interest 
requirement is not met because the owners of X prior to the distribution 
(A and B) do not, in the aggregate, have a continuity of interest in 
each of X and S after the distribution, i.e., although A and B 
collectively have retained 60 percent of their equity interest in the 
former combined enterprise, the 20 percent interest of A in X is less 
than the minimum equity interest in the distributing corporation, X, 
that would be required in order to meet the continuity of interest 
requirement.

    (d) Device for distribution of earnings and profits--(1) In general. 
Section 355 does not apply to a transaction used principally as a device 
for the distribution of the earnings and profits of the distributing 
corporation, the controlled corporation, or both (a ``device''). Section 
355 recognizes that a tax-free distribution of the stock of a controlled 
corporation presents a potential for tax avoidance by facilitating the 
avoidance of the dividend provisions of the Code through the subsequent 
sale or exchange of stock of one corporation and the retention of the 
stock of another corporation. A device can include a transaction that 
effects a recovery of basis. In this paragraph (d), ``exchange'' 
includes transactions, such as redemptions, treated as exchanges under 
the Code. Generally, the determination of whether a transaction was used 
principally as a device will be made from all of the facts and 
circumstances, including, but not limited to, the presence of the device 
factors specified in paragraph (d)(2) of this section (``evidence of 
device''), and the presence of the nondevice factors specified in 
paragraph (d)(3) of this section (``evidence of nondevice''). However, 
if a transaction is specified in paragraph (d)(5) of this section, then 
it is ordinarily considered not to have been used principally as a 
device.
    (2) Device factors--(i) In general. The presence of any of the 
device factors specified in this subparagraph (2) is evidence of device. 
The strength of this evidence depends on the facts and circumstances.
    (ii) Pro rata distribution. A distribution that is pro rata or 
substantially pro rata among the shareholders of the distributing 
corporation presents the greatest potential for the avoidance of the 
dividend provisions of the Code and, in contrast to other types of 
distributions, is more likely to be used principally as a device. 
Accordingly, the fact that a distribution is pro rata or substantially 
pro rata is evidence of device.
    (iii) Subsequent sale or exchange of stock--(A) In general. A sale 
or exchange of stock of the distributing or the controlled corporation 
after the

[[Page 191]]

distribution (a ``subsequent sale or exchange'') is evidence of device. 
Generally, the greater the percentage of the stock sold or exchanged 
after the distribution, the stronger the evidence of device. In 
addition, the shorter the period of time between the distribution and 
the sale or exchange, the stronger the evidence of device.
    (B) Sale or exchange negotiated or agreed upon before the 
distribution. A subsequent sale or exchange pursuant to an arrangement 
negotiated or agreed upon before the distribution is substantial 
evidence of device.
    (C) Sale or exchange not negotiated or agreed upon before the 
distribution. A subsequent sale or exchange not pursuant to an 
arrangement negotiated or agreed upon before the distribution is 
evidence of device.
    (D) Negotiated or agreed upon before the distribution. For purposes 
of this subparagraph (2), a sale or exchange is always pursuant to an 
arrangement negotiated or agreed upon before the distribution if 
enforceable rights to buy or sell existed before the distribution. If a 
sale or exchange was discussed by the buyer and the seller before the 
distribution and was reasonably to be anticipated by both parties, then 
the sale or exchange will ordinarily be considered to be pursuant to an 
arrangement negotiated or agreed upon before the distribution.
    (E) Exchange in pursuance of a plan of reorganization. For purposes 
of this subparagraph (2), if stock is exchanged for stock in pursuance 
of a plan of reorganization, and either no gain or loss or only an 
insubstantial amount of gain is recognized on the exchange, then the 
exchange is not treated as a subsequent sale or exchange, but the stock 
received in the exchange is treated as the stock surrendered in the 
exchange. For this purpose, gain treated as a dividend pursuant to 
sections 356(a)(2) and 316 shall be disregarded.
    (iv) Nature and use of assets--(A) In general. The determination of 
whether a transaction was used principally as a device will take into 
account the nature, kind, amount, and use of the assets of the 
distributing and the controlled corporations (and corporations 
controlled by them) immediately after the transaction.
    (B) Assets not used in a trade or business meeting the requirement 
of section 355(b). The existence of assets that are not used in a trade 
or business that satisfies the requirements of section 355(b) is 
evidence of device. For this purpose, assets that are not used in a 
trade or business that satisfies the requirements of section 355(b) 
include, but are not limited to, cash and other liquid assets that are 
not related to the reasonable needs of a business satisfying such 
section. The strength of the evidence of device depends on all the facts 
and circumstances, including, but not limited to, the ratio for each 
corporation of the value of assets not used in a trade or business that 
satisfies the requirements of section 355(b) to the value of its 
business that satisfies such requirements. A difference in the ratio 
described in the preceding sentence for the distributing and controlled 
corporation is ordinarily not evidence of device if the distribution is 
not pro rata among the shareholders of the distributing corporation and 
such difference is attributable to a need to equalize the value of the 
stock distributed and the value of the stock or securities exchanged by 
the distributees.
    (C) Related function. There is evidence of device if a business of 
either the distributing or controlled corporation (or a corporation 
controlled by it) is (1) a ``secondary business'' that continues as a 
secondary business for a significant period after the separation, and 
(2) can be sold without adversely affecting the business of the other 
corporation (or a corporation controlled by it). A secondary business is 
a business of either the distributing or controlled corporation, if its 
principal function is to serve the business of the other corporation (or 
a corporation controlled by it). A secondary business can include a 
business transferred to a newly-created subsidiary or a business which 
serves a business transferred to a newly-created subsidiary. The 
activities of the secondary business may consist of providing property 
or performing services. Thus, in Example (11) of Sec. 1.355-3(c), 
evidence of device would be presented if the principal function of the 
coal mine (satisfying the requirements of the steel business) continued 
after the separation and the coal mine could be sold

[[Page 192]]

without adversely affecting the steel business. Similarly, in Example 
(10) of Sec. 1.355-3(c), evidence of device would be presented if the 
principal function of the sales operation after the separation is to 
sell the output from the manufacturing operation and the sales operation 
could be sold without adversely affecting the manufacturing operation.
    (3) Nondevice factors--(i) In general. The presence of any of the 
nondevice factors specified in this subparagraph (3) is evidence of 
nondevice. The strength of this evidence depends on all of the facts and 
circumstances.
    (ii) Corporate business purpose. The corporate business purpose for 
the transaction is evidence of nondevice. The stronger the evidence of 
device (such as the presence of the device factors specified in 
paragraph (d)(2) of this section), the stronger the corporate business 
purpose required to prevent the determination that the transaction was 
used principally as a device. Evidence of device presented by the 
transfer or retention of assets not used in a trade or business that 
satisfies the requirements of section 355(b) can be outweighed by the 
existence of a corporate business purpose for those transfers or 
retentions. The assessment of the strength of a corporate business 
purpose will be based on all of the facts and circumstances, including, 
but not limited to, the following factors:
    (A) The importance of achieving the purpose to the success of the 
business;
    (B) The extent to which the transaction is prompted by a person not 
having a proprietary interest in either corporation, or by other outside 
factors beyond the control of the distributing corporation; and
    (C) The immediacy of the conditions prompting the transaction.
    (iii) Distributing corporation publicly traded and widely held. The 
fact that the distributing corporation is publicly traded and has no 
shareholder who is directly or indirectly the beneficial owner of more 
than five percent of any class of stock is evidence of nondevice.
    (iv) Distribution to domestic corporate shareholders. The fact that 
the stock of the controlled corporation is distributed to one or more 
domestic corporations that, if section 355 did not apply, would be 
entitled to a deduction under section 243(a)(1) available to 
corporations meeting the stock ownership requirements of section 243(c), 
or a deduction under section 243(a)(2) or (3) or 245(b) is evidence of 
nondevice.
    (4) Examples. The provisions of paragraph (d)(1) through (3) of this 
section may be illustrated by the following examples:

    Example (1). Individual A owns all of the stock of corporation X, 
which is engaged in the warehousing business. X owns all of the stock of 
corporation Y, which is engaged in the transportation business. X 
employs individual B, who is extremely knowledgeable of the warehousing 
business in general and the operations of X in particular. B has 
informed A that he will seriously consider leaving the company if he is 
not given the opportunity to purchase a significant amount of stock of 
X. Because of his knowledge and experience, the loss of B would 
seriously damage the business of X. B cannot afford to purchase any 
significant amount of stock of X as long as X owns Y. Accordingly, X 
distributes the stock of Y to A and A subsequently sells a portion of 
his X stock to B. However, X could have issued additional shares to B 
sufficient to give B an equivalent ownership interest in X. There is no 
other evidence of device or evidence of nondevice. In light of the fact 
that X could have issued additional shares to B, the sale of X stock by 
A is substantial evidence of device. The transaction is considered to 
have been used principally as a device. See paragraph (d)(1), (2)(ii), 
(iii)(A), (B) and (D), and (3)(i) and (ii) of this section.
    Example (2). Corporation X owns and operates a fast food restaurant 
in State M and owns all of the stock of corporation Y, which owns and 
operates a fast food restaurant in State N. X and Y operate their 
businesses under franchises granted by D and E, respectively. X owns 
cash and marketable securities that exceed the reasonable needs of its 
business but whose value is small relative to the value of its business. 
E has recently changed its franchise policy and will no longer grant or 
renew franchises to subsidiaries (or other members of the same 
affiliated group) of corporations operating businesses under franchises 
granted by its competitors. Thus, Y will lose its franchise if it 
remains a subsidiary of X. The franchise is about to expire. 
Accordingly, X distributes the stock of Y pro rata among X's 
shareholders. X retains its business and transfers cash and marketable 
securities to Y in an amount proportional to the value of Y's business. 
There is no other evidence of device or evidence of nondevice. The 
transfer by X to Y and the retention by X of cash and marketable 
securities is relatively weak evidence of device because after the 
transfer X and Y hold cash and marketable securities in

[[Page 193]]

amounts proportional to the values of their businesses. The fact that 
the distribution is pro rata is evidence of device. A strong corporate 
business purpose is relatively strong evidence of nondevice. 
Accordingly, the transaction is considered not to have been used 
principally as a device. See paragraph (d)(1), (2)(ii), (iv)(A), and (B) 
and (3)(i) and (ii)(A), (B) and (C) of this section.
    Example (3). Corporation X is engaged in a regulated business in 
State M and owns all of the stock of corporation Y, which is not engaged 
in a regulated business in State M. State M has recently amended its 
laws to provide that affiliated corporations operating in M may not 
conduct both regulated and unregulated businesses. X transfers cash not 
related to the reasonable needs of the business of X or Y to Y and then 
distributes the stock of Y pro rata among X's shareholders. As a result 
of the transfer of cash, the ratio of the value of its assets not used 
in a trade or business that satisfies the requirements of section 355(b) 
to the value of its business is substantially greater for Y than for X. 
There is no other evidence of device or evidence of nondevice. The 
transfer of cash by X to Y is relatively strong evidence of device 
because after the transfer Y holds disproportionately many assets that 
are not used in a trade or business that satisfies the requirements of 
section 355(b). The fact that the distribution is pro rata is evidence 
of device. The strong business purpose is relatively strong evidence of 
nondevice, but it does not pertain to the transfer. Accordingly, the 
transaction is considered to have been used principally as a device. See 
paragraph (d)(1), (2)(ii), (iv)(A) and (B), and (3) and (i) and (ii) of 
this section.
    Example (4). The facts are the same as in Example (3), except that, 
instead of transferring cash to Y, X purchases operating assets 
unrelated to the business of Y and transfers them to Y prior to the 
distribution. There is no other evidence of device or evidence of 
nondevice. The transaction is considered to have been used principally 
as a device. See paragraph (d)(1), (2)(ii), (iv)(A) and (B), and (3)(i) 
and (ii) of this section.

    (5) Transactions ordinarily not considered as a device--(i) In 
general. This subparagraph (5) specifies three distributions that 
ordinarily do not present the potential for tax avoidance described in 
paragraph (d)(1) of this section. Accordingly, such distributions are 
ordinarily considered not to have been used principally as a device, 
notwithstanding the presence of any of the device factors described in 
paragraph (d)(2) of this section. A transaction described in paragraph 
(d)(5)(iii) or (iv) of this section is not protected by this 
subparagraph (5) from a determination that it was used principally as a 
device if it involves the distribution of the stock of more than one 
controlled corporation and facilitates the avoidance of the dividend 
provisions of the Code through the subsequent sale or exchange of stock 
of one corporation and the retention of the stock of another 
corporation.
    (ii) Absence of earnings and profits. A distribution is ordinarily 
considered not to have been used principally as a device if--
    (A) The distributing and controlled corporations have no accumulated 
earnings and profits at the beginning of their respective taxable years,
    (B) The distributing and controlled corporations have no current 
earnings and profits as of the date of the distribution, and
    (C) No distribution of property by the distributing corporation 
immediately before the separation would require recognition of gain 
resulting in current earnings and profits for the taxable year of the 
distribution.
    (iii) Section 303(a) transactions. A distribution is ordinarily 
considered not to have been used principally as a device if, in the 
absence of section 355, with respect to each shareholder distributee, 
the distribution would be a redemption to which section 303(a) applied.
    (iv) Section 302(a) transactions. A distribution is ordinarily 
considered not to have been used principally as a device if, in the 
absence of section 355, with respect to each shareholder distributee, 
the distribution would be a redemption to which section 302(a) applied. 
For purposes of the preceding sentence, section 302(c)(2)(A)(ii) and 
(iii) shall not apply.
    (v) Examples. The provisions of this subparagraph (5) may be 
illustrated by the following examples:

    Example (1). The facts are the same as in Example (3) of paragraph 
(d)(4) of this section, except that X and Y had no accumulated earnings 
and profits at the beginning of its taxable year, X and Y have no 
current earnings and profits as of the date of the distribution, and no 
distribution of property by X immediately before the separation would 
require recognition of gain that would result in earnings and profits 
for the taxable year

[[Page 194]]

of the distribution. The transaction is considered not to have been used 
principally as a device. See paragraph (d)(5)(i) and (ii) of this 
section.
    Example (2). Corporation X is engaged in three businesses: a hotel 
business, a restaurant business, and a rental real estate business. 
Individuals A, B, and C own all of the stock of X. X transfers the 
restaurant business to new corporation Y and transfers the rental real 
estate business to new corporation Z. X then distributes the stock of Y 
and Z pro rata between B and C in exchange for all of their stock in X. 
In the absence of section 355, the distribution would be a redemption to 
which section 302(a) applied. Since this distribution involves the stock 
of more than one controlled corporation and facilitates the avoidance of 
the dividend provisions of the Code through the subsequent sale or 
exchange of stock in one corporation and the retention of the stock of 
another corporation, it is not protected by paragraph (d)(5)(i) and (iv) 
of this section from a determination that it was used principally as a 
device. Thus, the determination of whether the transaction was used 
principally as a device must be made from all the facts and 
circumstances, including the presence of the device factors and 
nondevice factors specified in paragraph (d)(2) and (3) of this section.

    (e) Stock and securities distributed--(1) In general. Section 355 
applies to a distribution only if the distributing corporation 
distributes--
    (i) All of the stock and securities of the controlled corporation 
that it owns, or
    (ii) At least an amount of the stock of the controlled corporation 
that constitutes control as defined in section 368(c). In such a case, 
all, or any part, of the securities of the controlled corporation may be 
distributed, and paragraph (e)(2) of this section shall apply.
    (2) Additional rules. Where a part of either the stock or the 
securities of the controlled corporation is retained under paragraph 
(e)(1)(ii) of this section, it must be established to the satisfaction 
of the Commissioner that the retention by the distributing corporation 
was not in pursuance of a plan having as one of its principal purposes 
the avoidance of Federal income tax. Ordinarily, the corporate business 
purpose or purposes for the distribution will require the distribution 
of all of the stock and securities of the controlled corporation. If the 
distribution of all of the stock and securities of a controlled 
corporation would be treated to any extent as a distribution of ``other 
property'' under section 356, this fact tends to establish that the 
retention of stock or securities is in pursuance of a plan having as one 
of its principal purposes the avoidance of Federal income tax.
    (f) Principal amount of securities--(1) Securities received. Section 
355 does not apply to a distribution if, with respect to any shareholder 
or security holder, the principal amount of securities received exceeds 
the principal amount of securities surrendered, or securities are 
received but no securities are surrendered. In such cases, see section 
356.
    (2) Only stock received. If only stock is received in a distribution 
to which section 355(a)(1)(A) applies, the principal amount of the 
securities surrendered, if any, and the par value or stated value of the 
stock surrendered, if any, are not relevant to the application of that 
section.
    (g) Period of ownership--(1) Other property. For purposes of section 
355(a)(1)(A), stock of a controlled corporation acquired in a 
transaction in which gain or loss was recognized in whole or in part 
(other than a transaction described in Sec. 1.355-3(b)(4)(iii)) within 
the five-year period ending on the date of the distribution shall not be 
treated as stock of the controlled corporation but shall be treated as 
``other property.'' See section 356. However, for purposes of section 
355(a)(1)(D), the stock so acquired is stock of the controlled 
corporation.
    (2) Example. Paragraph (g)(1) of this section may be illustrated by 
the following example:

    Example. Corporation X has held 85 of the 100 outstanding shares of 
the stock of corporation Y for more than five years on the date of the 
distribution. Six months before that date, X purchased ten more shares. 
If X distributes all of its 95 shares of the stock of Y, so much of 
section 356 as relates to section 355 may apply to the transaction and 
the ten newly acquired shares are treated as other property. On the 
other hand, if X retains ten of the shares of the stock of Y then the 
application of paragraph (e) of this section must take into account all 
of the stock of Y, including the ten shares newly acquired by X and the 
five shares owned by others. Similarly, if, by the use of any agency, X 
acquired any of the stock of Y within the five-

[[Page 195]]

year period ending on the date of the distribution in a transaction in 
which gain or loss was recognized in whole or in part (for example, 
where another subsidiary of X purchased stock of Y), then that stock is 
treated as other property. If X had held only 75 of the 100 outstanding 
shares of the stock of Y for more than five years on the date of the 
distribution and had purchased the remaining 25 shares six months before 
that date, then neither section 355 nor section 356 would apply to the 
distribution.

    (h) Active conduct of a trade or business. Section 355 applies to a 
distribution only if the requirements of Sec. 1.355-3 (relating to the 
active conduct of a trade or business) are satisfied.

[T.D. 8238, 54 FR 290, Jan. 5, 1989; 54 FR 5577, Feb. 3, 1989; 57 FR 
28463, June 25, 1992]



Sec. 1.355-3  Active conduct of a trade or business.

    (a) General requirements--(1) Application of section 355. Under 
section 355(b)(1), a distribution of stock, or stock and securities, of 
a controlled corporation qualifies under section 355 only if--
    (i) The distributing and the controlled corporations are each 
engaged in the active conduct of a trade or business immediately after 
the distribution (section 355(b)(1)(A)), or
    (ii) Immediately before the distribution, the distributing 
corporation had no assets other than stock or securities of the 
controlled corporations, and each of the controlled corporations is 
engaged in the active conduct of a trade or business immediately after 
the distribution (section 355(b)(1)(B)). A de minimis amount of assets 
held by the distributing corporation shall be disregarded for purposes 
of this paragraph (a)(1)(ii).
    (2) Examples. Paragraph (a)(1) of this section may be illustrated by 
the following examples:

    Example (1). Prior to the distribution, corporation X is engaged in 
the active conduct of a trade or business and owns all of the stock of 
corporation Y, which also is engaged in the active conduct of a trade or 
business. X distributes all of the stock of Y to X's shareholders, and 
each corporation continues the active conduct of its trade or business. 
The active business requirement of section 355(b)(1)(A) is satisfied.
    Example (2). The facts are the same as in Example (1), except that X 
transfers all of its assets other than the stock of Y to a new 
corporation in exchange for all of the stock of the new corporation and 
then distributes the stock of both controlled corporations to X's 
shareholders. The active business requirement of section 355(b)(1)(B) is 
satisfied.

    (b) Active conduct of a trade or business defined--(1) In general. 
Section 355(b)(2) provides rules for determining whether a corporation 
is treated as engaged in the active conduct of a trade or business for 
purposes of section 355(b)(1). Under section 355(b)(2)(A), a corporation 
is treated as engaged in the active conduct of a trade or business if it 
is itself engaged in the active conduct of a trade or business or if 
substantially all of its assets consist of the stock, or stock and 
securities, of a corporation or corporations controlled by it 
(immediately after the distribution) each of which is engaged in the 
active conduct of a trade or business.
    (2) Active conduct of a trade or business immediately after 
distribution--(i) In general. For purposes of section 355(b), a 
corporation shall be treated as engaged in the ``active conduct of a 
trade or business'' immediately after the distribution if the assets and 
activities of the corporation satisfy the requirements and limitations 
described in paragraph (b)(2)(ii), (iii), and (iv) of this section.
    (ii) Trade or business. A corporation shall be treated as engaged in 
a trade or business immediately after the distribution if a specific 
group of activities are being carried on by the corporation for the 
purpose of earning income or profit, and the activities included in such 
group include every operation that forms a part of, or a step in, the 
process of earning income or profit. Such group of activities ordinarily 
must include the collection of income and the payment of expenses.
    (iii) Active conduct. For purposes of section 355(b), the 
determination whether a trade or business is actively conducted will be 
made from all of the facts and circumstances. Generally, the corporation 
is required itself to perform active and substantial management and 
operational functions. Generally, activities performed by the 
corporation itself do not include activities performed by persons 
outside the corporation, including independent contractors. A 
corporation may satisfy the

[[Page 196]]

requirements of this subdivision (iii) through the activities that it 
performs itself, even though some of its activities are performed by 
others. Separations of real property all or substantially all of which 
is occupied prior to the distribution by the distributing or the 
controlled corporation (or by any corporation controlled directly or 
indirectly by either of those corporations) will be carefully 
scrutinized with respect to the requirements of section 355(b) and this 
Sec. 1.355-3.
    (iv) Limitations. The active conduct of a trade or business does not 
include--
    (A) The holding for investment purposes of stock, securities, land, 
or other property, or
    (B) The ownership and operation (including leasing) of real or 
personal property used in a trade or business, unless the owner performs 
significant services with respect to the operation and management of the 
property.
    (3) Active conduct for five-year period preceding distribution. 
Under section 355(b)(2)(B), a trade or business that is relied upon to 
meet the requirements of section 355(b) must have been actively 
conducted throughout the five-year period ending on the date of the 
distribution. For purposes of this subparagraph (3)--
    (i) Activities which constitute a trade or business under the tests 
described in paragraph (b)(2) of this section shall be treated as 
meeting the requirement of the preceding sentence if such activities 
were actively conducted throughout the 5-year period ending on the date 
of distribution, and
    (ii) The fact that a trade or business underwent change during the 
five-year period preceding the distribution (for example, by the 
addition of new or the dropping of old products, changes in production 
capacity, and the like) shall be disregarded, provided that the changes 
are not of such a character as to constitute the acquisition of a new or 
different business. In particular, if a corporation engaged in the 
active conduct of one trade or business during that five-year period 
purchased, created, or otherwise acquired another trade or business in 
the same line of business, then the acquisition of that other business 
is ordinarily treated as an expansion of the original business, all of 
which is treated as having been actively conducted during that five-year 
period, unless that purchase, creation, or other acquisition effects a 
change of such a character as to constitute the acquisition of a new or 
different business.
    (4) Special rules for acquisition of a trade or business (Prior to 
the Revenue Act of 1987 and Technical and Miscellaneous Revenue Act of 
1988)--(i) In general. Under section 355(b)(2)(C), a trade or business 
relied upon to meet the requirements of section 355(b) must not have 
been acquired by the distributing corporation, the controlled 
corporation, or another member of the affiliated group during the five-
year period ending on the date of the distribution unless it was 
acquired in a transaction in which no gain or loss was recognized. 
Similarly, under section 355(b)(2)(D), the trade or business must not 
have been indirectly acquired by any of those corporations (or a 
predecessor in interest of any of those corporations) during that five-
year period in a transaction in which gain or loss was recognized in 
whole or in part and which consisted of the acquisition of control of 
the corporation directly engaged in the trade or business, or the 
indirect acquisition of control of that corporation through the direct 
or indirect acquisition of control of one or more other corporations. A 
trade or business acquired, directly or indirectly, within the five-year 
period ending on the date of the distribution in a transaction in which 
the basis of the assets acquired was not determined in whole or in part 
by reference to the transferor's basis does not qualify under section 
355(b)(2), even though no gain or loss was recognized by the 
transferror.
    (ii) Example. Paragraph (b)(4)(i) of this section may be illustrated 
by the following example:

    Example. In 1985, corporation X, which operates a business and has 
cash and other liquid assets, purchases all of the stock of corporation 
Y, which is engaged in the active conduct of a trade or business. Later 
in the same year, X merges into Y in a ``downstream'' statutory merger. 
In 1986, Y transfers the business assets formerly owned by X to a new 
subsidiary, corporation Z, and then distributes the stock of Z to Y's 
shareholders. Section 355 does not apply to the

[[Page 197]]

distribution of the stock of Z because the trade or business of Y was 
indirectly acquired by X, a predecessor in interest of Y, during the 
five-year period preceding the distribution.

    (iii) Gain or loss recognized in certain transactions. The 
requirements of section 355(b)(2)(C) and (D) are intended to prevent the 
direct or indirect acquisition of a trade or business by a corporation 
in anticipation of a distribution by the corporation of that trade of 
business in a distribution to which section 355 would otherwise apply. A 
direct or indirect acquisition of a trade or business by one member of 
an affiliated group from another member of the group is not the type of 
transaction to which section 355(b)(2)(C) and (D) is intended to apply. 
Therefore, in applying section 355(b)(2)(C) or (D), such an acquisition, 
even though taxable, shall be disregarded.
    (iv) Affiliated group. For purposes of this subparagraph (4), the 
term affiliated group means an affiliated group as defined in section 
1504(a) (without regard to section 1504(b)), except that the term stock 
includes nonvoting stock described in section 1504(a)(4).
    (5) Special rules for acquisition of a trade or business (After the 
Revenue Act of 1987 and Technical and Miscellaneous Revenue Act of 
1988). [Reserved]
    (c) Examples. The following examples illustrate section 355(b)(2)(A) 
and (B) and paragraph (b)(1), (2), and (3) of this section. However, a 
transaction that satisfies these active business requirements will 
qualify under section 355 only if it satisfies the other requirements of 
section 355 (a) and (b).

    Example (1). Corporation X is engaged in the manufacture and sale of 
soap and detergents and also owns investment securities. X transfers the 
investment securities to new subsidiary Y and distributes the stocks of 
Y to X's shareholders. Y does not satisfy the requirements of section 
355(b) because the holding of investment securities does not constitute 
the active conduct of a trade or business. See paragraph (b)(2)(iv)(A) 
of this section.
    Example (2). Corporation X owns, manages, and derives rental income 
from an office building and also owns vacant land. X transfers the land 
to new subsidiary Y and distributes the stock of Y to X's shareholders. 
Y will subdivide the land, install streets and utilities, and sell the 
developed lots to various homebuilders. Y does not satisfy the 
requirements of section 355(b) because no significant development 
activities were conducted with respect to the land during the five-year 
period ending on the date of the distribution. See paragraph (b)(3) of 
this section.
    Example (3). Corporation X owns land on which it conducts a ranching 
business. Oil has been discovered in the area, and it is apparent that 
oil may be found under the land on which the ranching business is 
conducted. X has engaged in no significant activities in connection with 
its mineral rights. X transfers its mineral rights to new subsidiary Y 
and distributes the stock of Y to X's shareholders. Y will actively 
pursue the development of the oil producing potential of the property. Y 
does not satisfy the requirements of section 355(b) because X engaged in 
no significant exploitation activities with respect to the mineral 
rights during the five-year period ending on the date of the 
distribution. See paragraph (b)(3) of this section.
    Example (4). For more than five years, corporation X has conducted a 
single business of constructing sewage disposal plants and other 
facilities. X transfers one-half of its assets to new subsidiary Y. 
These assets include a contract for the construction of a sewage 
disposal plant in State M, construction equipment, cash, and other 
tangible assets. X retains a contract for the construction of a sewage 
disposal plant in State N, construction equipment, cash, and other 
intangible assets. X then distributes the stock of Y to one of X's 
shareholders in exchange for all of his stock of X. X and Y both satisfy 
the requirements of section 355(b). See paragraph (b)(3)(i) of this 
section.
    Example (5). For the past six years, corporation X has owned and 
operated two factories devoted to the production of edible pork skins. 
The entire output of one factory is sold to one customer, C, while the 
output of the second factory is sold to C and a number of other 
customers. To eliminate errors in packaging, X opens a new factory. 
Thereafter, orders from C are processed and packaged at the two original 
factories, while the new factory handles only orders from other 
customers. Eight months after opening the new factory, X transfers it 
and related business assets to new subsidiary Y and distributes the 
stock of Y to X's shareholders. X and Y both satisfy the requirements of 
section 355(b). See paragraph (b)(3)(i) and (ii) of this section.
    Example (6). Corporation X has owned and operated a men's retail 
clothing store in the downtown area of the City of G for nine years and 
has owned and operated another men's retail clothing store in a suburban 
area of G for seven years. X transfers the store building, fixtures, 
inventory, and other

[[Page 198]]

assets related to the operations of the suburban store to new subsidiary 
Y. X also transfers to Y the delivery trucks and delivery personnel that 
formerly served both stores. Henceforth, X will contract with a local 
public delivery service to make its deliveries. X retains the warehouses 
that formerly served both stores. Henceforth, Y will lease warehouse 
space from an unrelated public warehouse company. X then distributes the 
stock of Y to X's shareholders. X and Y both satisfy the requirements of 
section 355(b). See paragraph (b)(3)(i) of this section.
    Example (7). For the past nine years, corporation X has owned and 
operated a department store in the downtown area of the City of G. Three 
years ago, X acquired a parcel of land in a suburban area of G and 
constructed a new department store on it. X transfers the suburban store 
and related business assets to new subsidiary Y and distributes the 
stock of Y to X's shareholders. After the distribution, each store has 
its own manager and is operated independently of the other store. X and 
Y both satisfy the requirements of section 355(b). See paragraph 
(b)(3)(i) and (ii) of this section.
    Example (8). For the past six years, corporation X has owned and 
operated hardware stores in several states. Two years ago, X purchased 
all of the assets of a hardware store in State M, where X had not 
previously conducted business. X transfers the State M store and related 
business assets to new subsidiary Y and distributes the stock of Y to 
X's shareholders. After the distribution, the State M store has its own 
manager and is operated independently of the other stores. X and Y both 
satisfy the requirements of section 355(b). See paragraph (b)(3)(i) and 
(ii) of this section.
    Example (9). For the past eight years, corporation X has engaged in 
the manufacture and sale of household products. Throughout this period, 
X has maintained a research department for use in connection with its 
manufacturing activities. The research department has 30 employees 
actively engaged in the development of new products. X transfers the 
research department to new subsidiary Y and distributes the stock of Y 
to X's shareholders. After the distribution, Y continues its research 
operations on a contractual basis with several corporations, including 
X. X and Y both satisfy the requirements of section 355(b). See 
paragraph (b)(3)(i) of this section. The result in this example is the 
same if, after the distribution, Y continues its research operations but 
furnishes its services only to X. See paragraph (b)(3)(i) of this 
section. However, see Sec. 1.355-2 (d)(2)(iv)(C) (related function 
device factor) for possible evidence of device.
    Example (10). For the past six years, corporation X has processed 
and sold meat products. X derives income from no other source. X 
separates the sales function from the processing function by 
transferring the business assets related to the sales function and cash 
for working capital to new subsidiary Y. X then distributes the stock of 
Y to X's shareholders. After the distribution, Y purchases for resale 
the meat products processed by X. X and Y both satisfy the requirements 
of section 355(b). See paragraph (b)(3)(i) of this section. However, see 
Sec. 1.355-2(d)(2)(iv)(C) (related function device factor) for possible 
evidence of device.
    Example (11). For the past eight years, corporation X has been 
engaged in the manufacture and sale of steel and steel products. X owns 
all of the stock of corporation Y, which, for the past six years, has 
owned and operated a coal mine for the sole purpose of supplying X's 
coal requirements in the manufacture of steel. X distributes the stock 
of Y to X's shareholders. X and Y both satisfy the requirements of 
section 355 (b). See paragraph (b)(3)(i) of this section. However, see 
Sec. 1.355-2 (d)(2)(iv)(C) (related function device factor) for 
possible evidence of device.
    Example (12). For the past seven years, corporation X, a bank, has 
owned an eleven-story office building, the ground floor of which X has 
occupied in the conduct of its banking business. The remaining ten 
floors are rented to various tenants. Throughout this seven-year period, 
the building has been managed and maintained by employees of the bank. X 
transfers the building to new subsidiary Y and distributes the stock of 
Y to X's shareholders. Henceforth, Y will manage the building, negotiate 
leases, seek new tenants, and repair and maintain the building. X and Y 
both satisfy the requirements of section 355 (b). See paragraph (b)(3) 
of this section.
    Example (13). For the past nine years, corporation X, a bank, has 
owned a two-story building, the ground floor and one half of the second 
floor of which X has occupied in the conduct of its banking business. 
The other half of the second floor has been rented as storage space to a 
neighboring retail merchant. X transfers the building to new subsidiary 
Y and distributes the stock of Y to X's shareholders. After the 
distribution, X leases from Y the space in the building that it formerly 
occupied. Under the lease, X will repair and maintain its portion of the 
building and pay property taxes and insurance. Y does not satisfy the 
requirements of section 355 (b) because it is not engaged in the active 
conduct of a trade or business immediately after the distribution. See 
paragraph (b)(2)(iv)(A) of this section. This example does not address 
the question of whether the activities of X with respect to the building 
prior to the separation would constitute the active conduct of a trade 
or business.

[T.D. 8238, 54 FR 294, Jan. 5, 1989]

[[Page 199]]



Sec. 1.355-4  Non pro rata distributions, etc.

    Section 355 provides for nonrecognition of gain or loss with respect 
to a distribution whether or not (a) the distribution is pro rata with 
respect to all of the shareholders of the distributing corporation, (b) 
the distribution is pursuant to a plan of reorganization within the 
meaning of section 368 (a) (1)(D), or (c) the shareholder surrenders 
stock in the distributing corporation. Under section 355, the stock of a 
controlled corporation may consist of common stock or preferred stock. 
(See, however, section 306 and the regulations thereunder.) Section 355 
does not apply, however, if the substance of a transaction is merely an 
exchange between shareholders or security holders of stock or securities 
in one corporation for stock or securities in another corporation. For 
example, if two individuals, A and B, each own directly 50 percent of 
the stock of corporation X and 50 percent of the stock of corporation Y, 
section 355 would not apply to a transaction in which A and B transfer 
all of their stock of X and Y to a new corporation Z, for all of the 
stock of Z, and Z then distributes the stock of X to A and the stock of 
Y to B.

[T.D. 8238, 54 FR 296, Jan. 5, 1989]



Sec. 1.355-5  Records to be kept and information to be filed.

    (a) Every corporation that makes a distribution of stock or 
securities of a controlled corporation, as described in section 355, 
shall attach to its return for the year of the distribution a detailed 
statement setting forth such data as may be appropriate in order to show 
compliance with the provisions of such section.
    (b) Every taxpayer who receives a distribution of stock or 
securities of a corporation that was controlled by a corporation in 
which he holds stock or securities shall attach to his return for the 
year in which such distribution is received a detailed statement setting 
forth such data as may be appropriate in order to show the applicability 
of section 355. Such statement shall include, but shall not be limited 
to, a description of the stock and securities surrendered (if any) and 
received, and the names and addresses of all of the corporations 
involved in the transaction.



Sec. 1.355-6  Recognition of gain on certain distributions of stock or 
securities in controlled corporation.

    (a) Conventions--(1) Examples. For purposes of the examples in this 
section, unless otherwise stated, assume that P, S, T, X, Y, N, HC, D, 
D1, D2, D3, and C are corporations, A and B are individuals, 
shareholders are not treated as one person under section 355(d)(7), 
stock has been owned for more than five years and section 355(d)(6) and 
paragraph (e)(4) of this section do not apply, no election under section 
338 (if available) is made, and all transactions described are respected 
under general tax principles, including the step transaction doctrine. 
No inference should be drawn from any example as to whether any 
requirements of section 355 other than those of section 355(d), as 
specified, are satisfied.
    (2) Five-year period. For purposes of this section, the term five-
year period means the five-year period (determined after applying 
section 355(d)(6) and paragraph (e)(4) of this section) ending on the 
date of the distribution, but in no event beginning earlier than October 
10, 1990.
    (3) Distributing securities. For purposes of determining if stock of 
any controlled corporation received in the distribution is disqualified 
stock described in section 355(d)(3)(B)(ii)(II) (relating to a 
distribution of controlled corporation stock on any securities in the 
distributing corporation acquired by purchase during the five-year 
period), references in this section to stock of a corporation that is or 
becomes a distributing corporation includes securities of the 
corporation. Similarly, a reference to stock in paragraph (c)(4) of this 
section (relating to a plan or arrangement) includes securities.
    (4) Marketable securities. Unless otherwise stated, any reference in 
this section to marketable stock includes marketable securities.
    (b) General rules and purposes of section 355(d)--(1) Disqualified 
distributions in general. In the case of a disqualified distribution, 
any stock or securities in

[[Page 200]]

the controlled corporation shall not be treated as qualified property 
for purposes of section 355(c)(2) or 361(c)(2). In general, a 
disqualified distribution is any distribution to which section 355 (or 
so much of section 356 as relates thereto) applies if, immediately after 
the distribution--
    (i) Any person holds disqualified stock in the distributing 
corporation that constitutes a 50 percent or greater interest in such 
corporation; or
    (ii) Any person holds disqualified stock in the controlled 
corporation (or, if stock of more than one controlled corporation is 
distributed, in any controlled corporation) that constitutes a 50 
percent or greater interest in such corporation.
    (2) Disqualified stock--(i) In general. Disqualified stock is--
    (A) Any stock in the distributing corporation acquired by purchase 
during the five-year period; and
    (B) Any stock in any controlled corporation--
    (1) Acquired by purchase during the five-year period; or
    (2) Received in the distribution to the extent attributable to 
distributions on any stock in the distributing corporation acquired by 
purchase during the five-year period.
    (ii) Purchase. For the definition of a purchase for purposes of 
section 355(d) and this section, see section 355(d)(5) and paragraph (d) 
of this section.
    (iii) Exceptions--(A) Purchase eliminated. Stock (or an interest in 
another entity) that is acquired by purchase (including stock (or 
another interest) that is treated as acquired by purchase under 
paragraph (e)(2), (3), or (4) of this section) ceases to be acquired by 
that purchase if (and when) the basis resulting from the purchase is 
eliminated. For purposes of this paragraph (b)(2)(iii), basis resulting 
from the purchase is basis in the stock (or in an interest in another 
entity) that is directly purchased during the five-year period or that 
is treated as acquired by purchase during such period under paragraph 
(e)(2), (3), or (4) of this section.
    (B) Deemed purchase eliminated. Stock (or an interest in another 
entity) that is deemed purchased under section 355(d)(8) or paragraph 
(e)(1) of this section shall cease to be treated as purchased if (and 
when) the basis resulting from the purchase that effects the deemed 
purchase is eliminated.
    (C) Elimination of basis--(1) General rule. Basis in the stock of a 
corporation (or in an interest in another entity) is eliminated if (and 
when) it would no longer be taken into account by any person in 
determining gain or loss on a sale or exchange of any stock of such 
corporation (or an interest in the other entity). Basis is not 
eliminated, however, if it is allocated between stock of two 
corporations under Sec. 1.358-2(a).
    (2) Special rule for transferred and exchanged basis property. Basis 
of stock (or an interest in another entity) resulting from a purchase 
(the first purchase) is eliminated if (and when) such stock (or other 
interest) is subsequently transferred to another person in an exchange 
or other transfer to which paragraph (e)(2) or (3) of this section 
applies (the second purchase). The elimination of basis in stock (or in 
another interest) resulting from the first purchase, however, does not 
eliminate the basis resulting from the second purchase in the stock (or 
other interest) that is treated as acquired by purchase by the acquirer 
in a transaction to which paragraph (e)(2) of this section applies or by 
the person making the exchange in a transaction to which paragraph 
(e)(3) of this section applies.
    (3) Special rule for Split-offs and Split-ups. Under section 
355(d)(3)(B)(ii) and paragraph (b)(2)(i)(B)(2) of this section, 
disqualified stock includes controlled corporation stock received in 
exchange for distributing corporation stock acquired by purchase. Solely 
for purposes of determining whether controlled corporation stock 
received in a distribution in exchange for distributing corporation 
stock is disqualified stock described in that section and paragraph 
immediately after the distribution, paragraph (b)(2)(iii)(C)(2) of this 
section does not apply to the exchange to eliminate basis resulting from 
a purchase of that distributing corporation stock (notwithstanding that 
paragraph (e)(3) of this section applies to the exchange).
    (D) Special rule if basis allocated between two corporations. If the 
shareholder of a distributing corporation,

[[Page 201]]

pursuant to Sec. 1.358-2, allocates basis resulting from a purchase 
between the stock of two or more corporations then, following such 
allocation, the determination of whether such basis has been eliminated 
shall be made separately with respect to the stock of each such 
corporation.
    (3) Certain distributions not disqualified distributions because 
purposes of section 355(d) not violated--(i) In general. Notwithstanding 
the provisions of section 355(d)(2) and this paragraph (b), a 
distribution is not a disqualified distribution if the distribution does 
not violate the purposes of section 355(d) as provided in this paragraph 
(b)(3). A distribution does not violate the purposes of section 355(d) 
if the effect of the distribution is neither--
    (A) To increase ownership (combined direct and indirect) in the 
distributing corporation or any controlled corporation by a disqualified 
person; nor
    (B) To provide a disqualified person with a purchased basis in the 
stock of any controlled corporation.
    (ii) Disqualified person. A disqualified person is any person 
(taking into account section 355(d)(7) and paragraph (c)(4) of this 
section) that, immediately after a distribution, holds (directly or 
indirectly under section 355(d)(8) and paragraph (e)(1) of this section) 
disqualified stock in the distributing corporation or controlled 
corporation that--
    (A) The person--
    (1) Acquired by purchase under section 355(d)(5) or (8) and 
paragraphs (d) and (e) of this section during the five-year period, or
    (2) Received in the distribution to the extent attributable to 
distributions on any stock in the distributing corporation acquired by 
purchase under section 355(d)(5) or (8) and paragraphs (d) and (e) of 
this section by that person during the five-year period; and
    (B) Constitutes a 50 percent or greater interest in such corporation 
(under section 355(d)(4) and paragraph (c) of this section).
    (iii) Purchased basis. In general, a purchased basis is basis in 
controlled corporation stock that is disqualified stock. However, basis 
in controlled corporation stock that is disqualified stock will not be 
treated as purchased basis if the controlled corporation stock and any 
distributing corporation stock with respect to which the controlled 
corporation stock is distributed are treated as acquired by purchase 
solely under the attribution rules of section 355(d)(8) and paragraph 
(e)(1) of this section. The prior sentence will not apply, however, if 
the distributing corporation stock is treated as acquired by purchase 
under the attribution rules as a result of the acquisition of an 
interest in a partnership (the purchased partnership), and following the 
distribution, the controlled corporation stock is directly held by the 
purchased partnership (or a chain of partnerships that includes the 
purchased partnership).
    (iv) Increase in interest because of payment of cash in lieu of 
fractional shares. Any increase in direct or indirect ownership in the 
distributing corporation or any controlled corporation by a disqualified 
person because of a payment of cash in lieu of issuing fractional shares 
will be disregarded for purposes of paragraph (b)(3)(i)(A) of this 
section if the payment of the cash is solely to avoid the expense and 
inconvenience of issuing fractional share interests, and does not 
represent separately bargained for consideration.
    (v) Other exceptions. The Commissioner may provide by guidance 
published in the Internal Revenue Bulletin that other distributions are 
not disqualified distributions because they do not violate the purposes 
of section 355(d).
    (vi) Examples. The following examples illustrate this paragraph 
(b)(3):

    Example 1. Stock distributed in spin-off; no purchased basis. D owns 
all of the stock of D1, and D1 owns all the stock of C. A purchases 60 
percent of the D stock for cash. Within five years of A's purchase, D1 
distributes the C stock to D. A is treated as having purchased 60 
percent of the stock of both D1 and C on the date A purchases 60 percent 
of the D stock under the attribution rules of section 355(d)(8) and 
paragraph (e)(1) of this section. The C stock received by D is 
attributable to a distribution on purchased D1 stock under section 
355(d)(3)(B)(ii). Accordingly, the D1 and C stock each is disqualified 
stock under section 355(d)(3) and paragraph (b)(2) of this section, and 
A is a disqualified person under paragraph (b)(3)(ii) of this section. 
However, the purposes of section 355(d) under paragraph (b)(3)(i) of 
this section are

[[Page 202]]

not violated. A did not increase direct or indirect ownership in D1 or 
C. In addition, D's basis in the C stock is not a purchased basis under 
paragraph (b)(3)(iii) of this section because both the D1 and the C 
stock are treated as acquired by purchase solely under the attribution 
rules of section 355(d)(8) and paragraph (e)(1) of this section. 
Accordingly, D1's distribution of the C stock to D is not a disqualified 
distribution under section 355(d)(2) and paragraph (b)(1) of this 
section.
    Example 2. Stock distributed in spin-off; purchased basis. The facts 
are the same as Example 1, except that D immediately further distributes 
the C stock to its shareholders (including A) pro rata. The D and C 
stock each is disqualified stock under section 355(d)(3) and paragraph 
(b)(2) of this section, and A is a disqualified person under paragraph 
(b)(3)(ii) of this section. The purposes of section 355(d) under 
paragraph (b)(3)(i) of this section are violated. A did not increase 
direct or indirect ownership in D or C. However, A's basis in the C 
stock is a purchased basis under paragraph (b)(3)(iii) of this section 
because the D stock is not treated as acquired by purchase solely under 
the attribution rules of section 355(d)(8) and paragraph (e)(1) of this 
section. Accordingly, the further distribution is a disqualified 
distribution under section 355(d)(2) and paragraph (b)(1) of this 
section.
    Example 3. Stock distributed in split-off with ownership increase; 
purchased basis. The facts are the same as Example 1, except that D 
immediately further distributes the C stock to A in exchange for A's 
purchased stock in D. The C stock received by A is attributable to a 
distribution on purchased D stock under section 355(d)(3)(B)(ii), and 
A's basis in the C stock is determined by reference to the adjusted 
basis of A's purchased D stock under paragraph (e)(3) of this section. 
(Under paragraph (b)(2)(iii)(B)(3) of this section, the basis resulting 
from A's purchase of D stock is not eliminated solely for purposes of 
determining if the C stock acquired by A is disqualified stock 
immediately after the distribution, notwithstanding that paragraph 
(e)(3) of this section applies to the exchange.) Accordingly, the D 
stock and the C stock each is disqualified stock under section 355(d)(3) 
and paragraph (b)(2) of this section, and A is a disqualified person 
under paragraph (b)(3)(ii) of this section. The purposes of section 
355(d) under paragraph (b)(3)(i) of this section are violated because A 
increased its ownership in C from a 60 percent indirect interest to a 
100 percent direct interest, and because A's basis in the C stock is a 
purchased basis under paragraph (b)(3)(iii) of this section. 
Accordingly, the further distribution is a disqualified distribution 
under section 355(d)(2) and paragraph (b)(1) of this section.
    Example 4. Stock distributed in spin-off; purchased basis. D1 owns 
all the stock of C. D purchases all of the stock of D1 for cash. Within 
five years of D's purchase of D1, P acquires all of the stock of D1 from 
D in a section 368(a)(1)(B) reorganization that is not a reorganization 
under section 368(a)(1)(A) by reason of section 368(a)(2)(E), and D1 
distributes all of its C stock to P. P is treated as having acquired the 
D1 stock by purchase on the date D acquired it under the transferred 
basis rule of section 355(d)(5)(C) and paragraph (e)(2) of this section. 
P is treated as having purchased all of the C stock on the date D 
purchased the D1 stock under the attribution rules of section 355(d)(8) 
and paragraph (e)(1) of this section, and the C stock received by P is 
attributable to a distribution on purchased D1 stock under section 
355(d)(3)(B)(ii). Accordingly, the D1 and C stock each is disqualified 
stock under section 355(d)(3) and paragraph (b)(2) of this section, and 
P is a disqualified person under paragraph (b)(3)(ii) of this section. 
The purposes of section 355(d) under paragraph (b)(3)(i) of this section 
are violated. P did not increase direct or indirect ownership in D1 or 
C. However, P's basis in the C stock is a purchased basis under 
paragraph (b)(3)(iii) of this section because the D1 stock is not 
treated as acquired by purchase solely under the attribution rules of 
section 355(d)(8) and paragraph (e)(1) of this section. Accordingly, 
D1's distribution of the C stock to P is a disqualified distribution 
under section 355(d)(2) and paragraph (b)(1) of this section.
    Example 5. Stock distributed in split-off with ownership increase; 
no purchased basis. P owns 50 percent of the stock of D, the remaining D 
stock is owned by unrelated persons, D owns all the stock of C, and A 
purchases all of the P stock from the P shareholders. Within five years 
of A's purchase, D distributes all of the C stock to P in exchange for 
P's D stock. A is treated as having purchased 50 percent of the stock of 
both D and C on the date A purchases the P stock under the attribution 
rules of section 355(d)(8) and paragraph (e)(1) of this section. The C 
stock received by P is attributable to a distribution on purchased D 
stock under section 355(d)(3)(B)(ii). Accordingly, the D stock and the C 
stock each is disqualified stock under section 355(d)(3) and paragraph 
(b)(2) of this section, and A is a disqualified person under paragraph 
(b)(3)(ii) of this section. The purposes of section 355(d) under 
paragraph (b)(3)(i) of this section are violated because, even though 
P's basis in the C stock is not a purchased basis under paragraph 
(b)(3)(iii) of this section, A increased its direct or indirect 
ownership in C from a 50 percent indirect interest to a 100 percent 
indirect interest. Accordingly, D's distribution of the C stock to P is 
a disqualified distribution under section 355(d)(2) and paragraph (b)(1) 
of this section.
    Example 6. Stock distributed in split-off with no ownership 
increase; no purchased basis. A purchases all of the stock of T. T later

[[Page 203]]

merges into D in a section 368(a)(1)(A) reorganization and A exchanges 
its purchased T stock for 60 percent of the stock of D. D owns all of 
the stock of D1 and D2, D1 and D2 each owns 50 percent of the stock of 
D3, and D3 owns all of the stock of C. Within five years of A's purchase 
of the T stock, D3 distributes the C stock to D1 in exchange for all of 
D1's D3 stock. A is treated as having acquired 60 percent of the D stock 
by purchase on the date A purchases the T stock under paragraph (e)(3) 
of this section. A is treated as having purchased 60 percent of the 
stock of D1, D2, D3, and C on the date A purchases the T stock under the 
attribution rules of section 355(d)(8) and paragraph (e)(1) of this 
section. The C stock received by D1 is attributable to a distribution on 
purchased D3 stock under section 355(d)(3)(B)(ii). Accordingly, the D3 
stock and the C stock each is disqualified stock under section 355(d)(3) 
and paragraph (b)(2) of this section, and A is a disqualified person 
under paragraph (b)(3)(ii) of this section. However, the purposes of 
section 355(d) under paragraph (b)(3)(i) of this section are not 
violated. A did not increase direct or indirect ownership in D3 or C, 
and D1's basis in the C stock is not a purchased basis under paragraph 
(b)(3)(iii) of this section because the D3 stock is treated as acquired 
by purchase solely under the attribution rules of section 355(d)(8) and 
paragraph (e)(1) of this section. Accordingly, D3's distribution of the 
C stock to D1 is not a disqualified distribution under section 355(d)(2) 
and paragraph (b)(1) of this section.
    Example 7. Purchased basis eliminated by liquidation; stock 
distributed in spin-off. P owns 30 percent of the stock of D, D owns all 
of the stock of D1, and D1 owns all of the stock of C. P purchases the 
remaining 70 percent of the D stock for cash. Within five years of P's 
purchase, P liquidates D in a transaction qualifying under sections 332 
and 337(a), and D1 then distributes the stock of C to P. Prior to the 
liquidation, P is treated as having purchased 70 percent of the stock of 
D1 and C on the date P purchases the D stock under the attribution rules 
of section 355(d)(8)(B) and paragraph (e)(1) of this section. After the 
liquidation, however, under paragraph (b)(2)(iii) of this section, P is 
not treated as having acquired by purchase the D1 or the C stock under 
section 355(d)(8)(B) and paragraph (e)(1) of this section because P's 
basis in the D stock is eliminated in the liquidation of D. Under 
section 334(b)(1), P's basis in the D1 stock is determined by reference 
to D's basis in the D1 stock and not by reference to P's basis in D. 
Paragraph (d)(2)(i)(B) of this section does not treat the D1 stock as 
newly purchased in P's hands because no gain or loss was recognized by D 
in the liquidation. Accordingly, neither the D1 stock nor the C stock is 
disqualified stock under section 355(d)(3) and paragraph (b)(2) of this 
section in P's hands, and the distribution is not a disqualified 
distribution under section 355(d)(2) and paragraph (b)(1) of this 
section.
    Example 8. Purchased basis eliminated by upstream merger; stock 
distributed in spin-off. D owns all of the stock of D1, and D1 owns all 
of the stock of C. P purchases 60 percent of the D stock for cash. 
Within five years of P's purchase, D merges into P in a section 
368(a)(1)(A) reorganization, with the D shareholders other than P 
receiving solely P stock in exchange for their D stock, and D1 then 
distributes the stock of C to P. Prior to the merger, P is treated as 
having purchased 60 percent of the stock of D1 and C on the date P 
purchases the D stock under the attribution rules of section 355(d)(8) 
and paragraph (e)(1) of this section. After the merger, however, under 
paragraph (b)(2)(iii) of this section, P is not treated as having 
acquired by purchase the D1 or the C stock under section 355(d)(8)(B) 
and paragraph (e)(1) of this section because P's basis in the D stock is 
eliminated in the merger. Under section 362(b), P's basis in the D1 
stock is determined by reference to D's basis in the D1 stock and not by 
reference to P's basis in D. Paragraph (d)(2)(i)(B) of this section does 
not treat the D1 stock as newly purchased in P's hands because no gain 
or loss was recognized by D in the merger. Accordingly, neither the D1 
stock nor the C stock is disqualified stock under section 355(d)(3) and 
paragraph (b)(2) of this section in P's hands, and the distribution is 
not a disqualified distribution under section 355(d)(2) and paragraph 
(b)(1) of this section.
    Example 9. Purchased basis eliminated by distribution; stock 
distributed in spin-off. A purchases all the stock of C for cash on Date 
1. D acquires all of the stock of C from A in a section 368(a)(1)(B) 
reorganization that is not a reorganization under section 368(a)(1)(A) 
by reason of section 368(A)(1)(E). A receives ten percent of the D stock 
in the transaction. The remaining D stock is owned by B. Within five 
years of A's purchase of the C stock, D distributes all the stock of C 
pro rata to A and B. Under the transferred basis rule of paragraph 
(e)(2) of this section, D is treated as having purchased all of the C 
stock on the date A acquired it. Under the exchanged basis rule of 
paragraph (e)(3) of this section, A is treated as having purchased its D 
stock on Date 1 and A is treated as having purchased ten percent of the 
C stock on Date 1 under the attribution rules of section 355(d)(8) and 
paragraph (e)(3) of this section. Moreover, under paragraph 
(b)(2)(iii)(C) of this section, A's basis in the C stock resulting from 
A's Date 1 purchase of C stock is eliminated. After the distribution, 
A's and B's bases in their C stock are determined by reference to the 
bases of their D stock under Sec. 1.358-2(a)(2) (and not by reference 
to D's basis in the C stock). D's basis in the stock of C resulting from 
its deemed purchase of

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that stock under paragraph (e)(2) of this section is eliminated by the 
distribution of the C stock because it would no longer be taken into 
account by any person in determining gain or loss on the sale of C 
stock. Therefore, the C stock distributed to A and B is not disqualified 
stock as a result of D's purchase of C. However, A's basis in its D 
stock resulting from its deemed purchase of that stock under paragraph 
(e)(3) of this section is not eliminated. Therefore, A's ten percent 
interest in the stock of D is disqualified stock. Furthermore, A's ten 
percent interest in the stock of C is disqualified stock because the 
distribution of the C stock is attributable to A's D stock that was 
acquired by purchase. However, there has not been a disqualified 
distribution because no person, immediately after the distribution, 
holds disqualified stock in either D or C that constitutes a 50 percent 
or greater interest in such corporation.
    Example 10. Allocation of purchased basis analyzed separately. --(i) 
P owns all the stock of D. D purchases all the stock of D1 for cash on 
Date 1. D1 owns all the stock of C (which owns all the stock of C1) and 
S. Within five years of Date 1, D1 distributes all the stock of C to D. 
The D1 and C stock each is disqualified stock under section 355(d)(3) 
and paragraph (b)(2) of this section, and D is a disqualified person 
under paragraph (b)(3)(ii) of this section. The purposes of section 
355(d) under paragraph (b)(3)(i) of this section are violated. D did not 
increase direct or indirect ownership in D1 or C. However, D's basis in 
the C stock is a purchased basis under paragraph (b)(3)(iii) of this 
section because the D1 stock is not treated as acquired by purchase 
solely under the attribution rules of section 355(d)(8) and paragraph 
(e)(1) of this section. Accordingly, the distribution is a disqualified 
distribution under section 355(d) and paragraph (b)(1) of this section. 
D's basis in the D1 stock is allocated pursuant to Sec. 1.358-2 between 
the D1 stock and the C stock. Therefore, under paragraph (e)(4) of this 
section, the C stock is deemed to be acquired by purchase on Date 1, the 
date D purchased all the stock of D1. If thereafter, and within five 
years of Date 1, C were to distribute all the stock of C1 to D, that 
distribution would also be a disqualified distribution because of D's 
deemed purchase of the stock of C.
    (ii) Following the distribution of the stock of C by D1, and within 
five years of Date 1, D distributes all the stock of D1 to P. Under 
paragraph (b)(2)(iii)(D) of this section, the determination of whether 
D's basis in D1 has been eliminated shall be made without regard to D's 
allocated basis in C. After the distribution, P's basis in the D1 stock 
is determined by reference to its basis in its D stock under Sec. 
1.358-2(a)(2) (and not by reference to D's basis in the D1 stock). D's 
basis in the D1 stock resulting from the purchase of that stock is 
eliminated by the distribution of the D1 stock because it would no 
longer be taken into account by any person in determining gain or loss 
on the sale of D1 stock. Therefore, the D1 stock distributed to P is not 
disqualified stock as a result of D's purchase of D1. Moreover, a 
subsequent distribution of the S stock by D1 to P would not be a 
disqualified distribution because both the D1 and S stock would cease to 
be treated as purchased when D's basis in D1 has been eliminated.

    (4) Anti-avoidance rule--(i) In general. Notwithstanding any 
provision of section 355(d) or this section, the Commissioner may treat 
any distribution as a disqualified distribution under section 355(d)(2) 
and paragraph (b)(1) of this section if the distribution or another 
transaction or transactions are engaged in or structured with a 
principal purpose to avoid the purposes of section 355(d) or this 
section with respect to the distribution. Without limiting the preceding 
sentence, the Commissioner may determine that the existence of a related 
person, intermediary, pass-through entity, or similar person (an 
intermediary) should be disregarded, in whole or in part, if the 
intermediary is formed or availed of with a principal purpose to avoid 
the purposes of section 355(d) or this section.
    (ii) Example. The following example illustrates this paragraph 
(b)(4):

    Example. Post-distribution redemption. B wholly owns D, which wholly 
owns C. With a principal purpose to avoid the purposes of section 
355(d), A, B, D, and C engage in the following transactions. A purchases 
45 of 100 shares of the only class of D stock. Within five years after 
A's purchase, D distributes all of its 100 shares in C to A and B pro 
rata. D then redeems 20 shares of B's D stock, and C redeems 20 shares 
of B's C stock. After the redemption, A owns 45 shares and B owns 35 
shares in each of D and C. Under paragraph (b)(4)(i) of this section, 
the Commissioner may treat A as owning disqualified stock in D and C 
that constitutes a 50 percent or greater interest in D and C immediately 
after the distribution. Under that treatment, the distribution is a 
disqualified distribution under section 355(d)(2) and paragraph (b)(1) 
of this section.

    (c) Whether a person holds a 50 percent or greater interest--(1) In 
general. Under section 355(d)(4), 50 percent or greater interest means 
stock possessing at least 50 percent of the total combined

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voting power of all classes of stock entitled to vote or at least 50 
percent of the total value of shares of all classes of stock.
    (2) Valuation. For purposes of section 355(d)(4) and this section, 
all shares of stock within a single class are considered to have the 
same value. But see paragraph (c)(3)(vii)(A) of this section 
(determination of whether it is reasonably certain that an option will 
be exercised).
    (3) Effect of options, warrants, convertible obligations, and other 
similar interests--(i) Application. This paragraph (c)(3) provides rules 
to determine when an option is treated as exercised for purposes of 
section 355(d) (other than section 355(d)(6)). Except as provided in 
this paragraph (c)(3), an option is not treated as exercised for 
purposes of section 355(d). This paragraph (c)(3) does not affect the 
determination of whether an instrument is an option or stock under 
general principles of tax law (such as substance over form).
    (ii) General rule. In determining whether a person has acquired by 
purchase a 50 percent or greater interest under section 355(d)(4), an 
option to acquire stock (as described in paragraphs (c)(3)(v) and (vi) 
of this section) that has not been exercised when a distribution occurs 
is treated as exercised on the date it was issued or most recently 
transferred if--
    (A) Its exercise (whether by itself or in conjunction with the 
deemed exercise of one or more other options) would cause a person to 
become a disqualified person; and
    (B) Immediately after the distribution, it is reasonably certain (as 
described in paragraph (c)(3)(vii) of this section) that the option will 
be exercised.
    (iii) Options deemed newly issued and substituted options--(A) 
Exchange, adjustment, or alteration of existing option. For purposes of 
this paragraph (c)(3), each of the following is treated as a new 
issuance or transfer of an existing option only if it materially 
increases the likelihood that an option will be exercised--
    (1) An exchange of an option for another option or options;
    (2) An adjustment to the terms of an option (including an adjustment 
pursuant to the terms of the option);
    (3) An adjustment to the terms of the underlying stock (including an 
adjustment pursuant to the terms of the stock);
    (4) A change to the capital structure of the issuing corporation; 
and
    (5) An alteration to the fair market value of issuing corporation 
stock through an asset transfer (other than regular, ordinary dividends) 
or through any other means.
    (B) Certain compensatory options. An option described in paragraph 
(c)(3)(vi)(B)(2) of this section is treated as issued on the date it 
becomes transferable.
    (C) Substituted options. If an option (existing option) is exchanged 
for another option or options (substituted option or options) and 
paragraph (c)(3)(iii)(A) of this section does not apply to treat such 
exchange as a new issuance or transfer of the existing option, the 
substituted option or options will be treated as issued or most recently 
transferred on the date that the existing option was issued or most 
recently transferred.
    (iv) Effect of treating an option as exercised--(A) In general. For 
purposes of section 355(d), an option that is treated as exercised under 
this paragraph (c)(3) is treated as exercised both for purposes of 
determining the percentage of the voting power of stock owned by the 
holder and for purposes of determining the percentage of the value of 
stock owned by the holder.
    (B) Stock purchase agreement or similar arrangement. If a stock 
purchase agreement or similar arrangement is deemed exercised, the 
purchaser is treated as having purchased the stock under the terms of 
the agreement or arrangement as though all covenants had been satisfied 
and all contingencies met. The agreement or arrangement is deemed to 
have been exercised as of the date it is entered into or most recently 
assigned.
    (v) Instruments treated as options. For purposes of this paragraph 
(c)(3), except to the extent provided in paragraph (c)(3)(vi) of this 
section, the following are treated as options: A call

[[Page 206]]

option, warrant, convertible obligation, the conversion feature of 
convertible stock, put option, redemption agreement (including a right 
to cause the redemption of stock), notional principal contract (as 
defined in Sec. 1.446-3(c)) that provides for the payment of amounts in 
stock, stock purchase agreement or similar arrangement, or any other 
instrument that provides for the right to purchase, issue, redeem, or 
transfer stock (including an option on an option).
    (vi) Instruments generally not treated as options. For purposes of 
this paragraph (c)(3), the following are not treated as options, unless 
issued, transferred, or listed with a principal purpose to avoid the 
application of section 355(d) or this section:
    (A) Escrow, pledge, or other security agreements. An option that is 
part of a security arrangement in a typical lending transaction 
(including a purchase money loan), if the arrangement is subject to 
customary commercial conditions. For this purpose, a security 
arrangement includes, for example, an agreement for holding stock in 
escrow or under a pledge or other security agreement, or an option to 
acquire stock contingent upon a default under a loan.
    (B) Compensatory options--(1) General rule. An option to acquire 
stock in a corporation with customary terms and conditions, provided to 
an employee, director, or independent contractor in connection with the 
performance of services for the corporation or a person related to it 
under section 355(d)(7)(A) (and that is not excessive by reference to 
the services performed) and that--
    (i) Is nontransferable within the meaning of Sec. 1.83-3(d); and
    (ii) Does not have a readily ascertainable fair market value as 
defined in Sec. 1.83-7(b).
    (2) Exception. Paragraph (c)(3)(vi)(B)(1) of this section ceases to 
apply to an option that becomes transferable.
    (C) Certain stock conversion features. The conversion feature of 
convertible stock, provided that--
    (1) The stock is not convertible for at least five years after 
issuance or transfer; and
    (2) The terms of the conversion feature do not require the tender of 
any consideration other than the stock being converted.
    (D) Options exercisable only upon death, disability, mental 
incompetency, or separation from service. Any option entered into 
between stockholders of a corporation (or a stockholder and the 
corporation) with respect to the stock of either stockholder that is 
exercisable only upon the death, disability, mental incompetency of the 
stockholder, or, in the case of stock acquired in connection with the 
performance of services for the corporation or a person related to it 
under section 355(d)(7)(A) (and that is not excessive by reference to 
the services performed), the stockholder's separation from service.
    (E) Rights of first refusal. A bona fide right of first refusal 
regarding the corporation's stock with customary terms, entered into 
between stockholders of a corporation (or between the corporation and a 
stockholder).
    (F) Other enumerated instruments. Any other instruments specified in 
regulations, a revenue ruling, or a revenue procedure. See Sec. 
601.601(d)(2) of this chapter.
    (vii) Reasonably certain that the option will be exercised--(A) In 
general. The determination of whether, immediately after the 
distribution, an option is reasonably certain to be exercised is based 
on all the facts and circumstances. In applying the previous sentence, 
the fair market value of stock underlying an option is determined by 
taking into account control premiums and minority and blockage 
discounts.
    (B) Stock purchase agreement or similar arrangement. A stock 
purchase agreement or similar arrangement is treated as reasonably 
certain to be exercised if the parties' obligations to complete the 
transaction are subject only to reasonable closing conditions.
    (viii) Examples. The following examples illustrate this paragraph 
(c)(3):

    Example 1. D owns all of the stock of C. A purchases 40 percent of 
D's only class of stock and an option to purchase D stock from D, that 
if deemed exercised, would result in A owning a total of 60 percent of 
the stock of D. Assume that no control premium or minority or blockage 
discount applies to the D stock underlying the option. The option 
permits A to acquire the D stock at $30

[[Page 207]]

per share, and D's stock has a fair market value of $27 per share on the 
date the option is issued. The option is subject to no contingencies or 
restrictive covenants, may be exercised within five years after its 
issuance, and is not described in paragraph (c)(3)(vi) of this section 
(regarding instruments generally not treated as options). Within five 
years of A's purchase of the D stock and option, D distributes the stock 
of its subsidiary C pro rata and A receives 40 percent of the C stock in 
the distribution. Immediately after the distribution, D's stock has a 
fair market value of $30 per share and C's stock has a fair market value 
of $15 per share. At the time of the distribution, A exchanges A's 
option for an option to purchase 20 percent of the D stock at $20 per 
share and an option to purchase 20 percent of the C stock at $10 per 
share. The exchange of the options in D for options in D and C did not 
materially increase the likelihood that the options would be exercised. 
Nonetheless, based on all the facts and circumstances, it is reasonably 
certain, immediately after the distribution, that A will exercise its 
options. Under paragraph (c)(3)(iii)(C) of this section, the substituted 
options are treated as issued on the date the original option was 
issued. Accordingly, the options are treated as exercised by A on the 
date that A purchased the original option. A is treated as owning 60 
percent of the D stock and 60 percent of the C stock that is 
disqualified stock, and the distribution is a disqualified distribution 
under section 355(d)(2) and paragraph (b)(1) of this section.
    Example 2. D owns all of the stock of C. A purchases 37 percent of 
D's only class of stock. B owns 38 percent of the D stock, and the 
remaining 25 percent is owned by 20 individuals, each of whom owns less 
than five percent of D's stock. A purchases an option to purchase an 
additional 14 percent of the D stock from shareholders other than B for 
$50 per share. The option is subject to no contingencies or restrictive 
covenants, may be exercised within five years after its issuance, and is 
not described in paragraph (c)(3)(vi) of this section. Within five years 
of A's purchase of the option and 37 percent interest in D, D 
distributes the stock of its subsidiary C pro rata and A receives 37 
percent of the C stock in the distribution. At the time of the 
distribution, A exchanges its option for an option to purchase 14 
percent of the D stock at $25 per share and an option to purchase 14 
percent of the C stock at $25 per share. Assume that, although a 
shareholder that owned no D or C stock would pay only $20 per share for 
D or C stock immediately after the distribution, a shareholder in A's 
position would pay $30 per share for 14 percent of the stock of D or C 
because of the control premium which attaches to the shares. The control 
premium is taken into account under paragraph (c)(3)(vii)(A) of this 
section to determine whether A is reasonably certain to exercise the 
options. The exchange of the options in D for options in D and C did not 
materially increase the likelihood that the options would be exercised. 
Nonetheless, based on all the facts and circumstances, it is reasonably 
certain, immediately after the distribution, that A will exercise its 
options. Under paragraph (c)(3)(iii)(C) of this section, the substituted 
options are treated as issued on the date the original option was 
issued. Accordingly, the options are treated as exercised by A on the 
date that A purchased the original option. Under paragraph (c)(2) of 
this section, all shares of D and C are considered to have the same 
value to determine the amount of stock A is treated as purchasing under 
the options. A is treated as owning 51 percent of the D stock and 51 
percent of the C stock that is disqualified stock, and the distribution 
is a disqualified distribution under section 355(d)(2).

    (4) Plan or arrangement--(i) In general. Under section 355(d)(7)(B), 
if two or more persons act pursuant to a plan or arrangement with 
respect to acquisitions of stock in the distributing corporation or 
controlled corporation, those persons are treated as one person for 
purposes of section 355(d).
    (ii) Understanding. For purposes of section 355(d)(7)(B), two or 
more persons who are (or will after an acquisition become) shareholders 
(or are treated as shareholders under paragraph (c)(3)(ii) of this 
section) act pursuant to a plan or arrangement with respect to an 
acquisition of stock only if they have a formal or informal 
understanding among themselves to make a coordinated acquisition of 
stock. A principal element in determining if such an understanding 
exists is whether the investment decision of each person is based on the 
investment decision of one or more other existing or prospective 
shareholders. However, the participation by creditors in formulating a 
plan for an insolvency workout or a reorganization in a title 11 or 
similar case (whether as members of a creditors' committee or otherwise) 
and the receipt of stock by creditors in satisfaction of indebtedness 
pursuant to the workout or reorganization do not cause the creditors to 
be considered as acting pursuant to a plan or arrangement.
    (iii) Examples. The following examples illustrate paragraph 
(c)(4)(ii) of this section:


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    Example 1. D has 1,000 shares of common stock outstanding. A group 
of 20 unrelated individuals who previously owned no D stock (the Group) 
agree among themselves to acquire 50 percent or more of D's stock. The 
Group is not a person under section 7701(a)(1). Subsequently, pursuant 
to their understanding, the members of the Group purchase 600 shares of 
D common stock from the existing D shareholders (a total of 60 percent 
of the D stock), with each member purchasing 30 shares. Under paragraph 
(c)(4)(ii) of this section, the members of the Group have a formal or 
informal understanding among themselves to make a coordinated 
acquisition of stock. Their interests are therefore aggregated under 
section 355(d)(7)(B), and they are treated as one person that purchased 
600 shares of D's stock for purposes of section 355(d).
    Example 2. D has 1,000 shares of outstanding stock owned by 
unrelated individuals. D's management is concerned that D may become 
subject to a takeover bid. In separate meetings, D's management meets 
with potential investors who own no stock and are friendly to management 
to convince them to acquire D's stock based on an understanding that D 
will assemble a group that in the aggregate will acquire more than 50 
percent of D's stock. Subsequently, 15 of these investors each purchases 
four percent of D's outstanding stock. Under paragraph (c)(4)(ii) of 
this section, the 15 investors have a formal or informal understanding 
among themselves to make a coordinated acquisition of stock. Their 
interests are therefore aggregated under section 355(d)(7)(B), and they 
are treated as one person that purchased 600 shares of D stock for 
purposes of section 355(d).
    Example 3. (i) D has 1,000 shares of outstanding stock owned by 
unrelated individuals. An investment advisor advises its clients that it 
believes D's stock is undervalued and recommends that they acquire D 
stock. Acting on the investment advisor's recommendation, 20 unrelated 
individuals each purchases 30 shares of the outstanding D stock. Each 
client's decision was not based on the investment decisions made by one 
or more other clients. Because there is no formal or informal 
understanding among the clients to make a coordinated acquisition of D 
stock, their interests are not aggregated under section 355(d)(7)(B) and 
they are treated as making separate purchases.
    (ii) The facts are the same as in paragraph (i) of this Example 3, 
except that the investment advisor is also the underwriter (without 
regard to whether it is a firm commitment or best efforts underwriting) 
for a primary or secondary offering of D stock. The result is the same.
    (iii) The facts are the same as in paragraph (i) of this Example 3, 
except that, instead of an investment advisor recommending that clients 
purchase D stock, the trustee of several trusts qualified under section 
401(a) sponsored by unrelated corporations causes each trust to purchase 
the D stock. The result is the same, provided that the trustee's 
investment decision made on behalf of each trust was not based on the 
investment decision made on behalf of one or more of the other trusts.

    (iv) Exception--(A) Subsequent disposition. If two or more persons 
do not act pursuant to a plan or arrangement within the meaning of this 
paragraph (c)(4) with respect to an acquisition of stock in a 
corporation (the first corporation), a subsequent acquisition in which 
such persons exchange their stock in the first corporation for stock in 
another corporation (the second corporation) in a transaction in which 
the basis of the second corporation's stock in the hands of such persons 
is determined in whole or in part by reference to the basis of their 
stock in the first corporation, will not result in such persons being 
treated as one person, even if the acquisition of the second 
corporation's stock is pursuant to a plan or arrangement.
    (B) Example. The following example illustrates this paragraph 
(c)(4)(iv):

    Example. In an initial public offering of D stock on Date 1, 100 
investors independently purchase one percent each of the D stock. Two 
years later, D merges into P (in a reorganization described in section 
368(a)(1)(A)) and, pursuant to the plan of reorganization, the D 
shareholders exchange their D stock for 50 percent of the stock of P. 
The D shareholders approve the plan by a two-thirds vote, as required by 
state law. Under section 358(a), each shareholder's basis in its P stock 
is determined by reference to the basis of the D stock it purchased. 
Under paragraph (e)(3) of this section, the former D shareholders are 
treated as purchasing their P stock on Date 1. The investors do not 
become a single person under paragraph (c)(4) of this section with 
respect to the deemed purchase of the P stock on Date 1 by virtue of 
their acquisition of the P stock pursuant to the merger on Date 2.

    (d) Purchase--(1) In general--(i) Definition of purchase under 
section 355(d)(5)(A). Under section 355(d)(5)(A), except as otherwise 
provided in section 355(d)(5)(B) and (C), a purchase means any 
acquisition, but only if--
    (A) The basis of the property acquired in the hands of the acquirer 
is not determined--

[[Page 209]]

    (1) In whole or in part by reference to the adjusted basis of such 
property in the hands of the person from whom acquired; or
    (2) Under section 1014(a); and
    (B) The property is not acquired in an exchange to which section 
351, 354, 355, or 356 applies.
    (ii) Section 355 distributions. Paragraph (d)(1)(i)(B) of this 
section includes all section 355 distributions, whether in exchange (in 
whole or in part) for stock or pro rata.
    (iii) Example. The following example illustrates this paragraph 
(d)(1):

    Example. Section 304(a)(1) acquisition. A, who owns all of the stock 
of P and T, sells the T stock to P for cash. The T stock is not 
marketable stock under section 355(d)(5)(B)(ii) and paragraph (d)(3)(ii) 
of this section. A is treated under section 304(a)(1) as receiving a 
distribution in redemption of the P stock. Under section 302(d), the 
deemed redemption is treated as a section 301 distribution. Assume that 
under sections 304(b)(2) and 301(c)(1), all of the distribution is a 
dividend. A and P are treated in the same manner as if A had transferred 
the T stock to P in exchange for stock of P in a transaction to which 
section 351(a) applies, and P had then redeemed the stock P was treated 
as issuing in the transaction. Under section 362(a), P's basis in the T 
stock is determined by reference to A's adjusted basis in the T stock, 
and there is no basis increase in the T stock because A recognizes no 
gain on the deemed transfer. Accordingly, P's acquisition of the T stock 
from A is not a purchase by P under section 355(d)(5)(A)(i)(I) and 
paragraphs (d)(1)(i)(A)(1) and (d)(2)(i)(B) of this section.

    (2) Exceptions to definition of purchase under section 355(d)(5)(A). 
The following acquisitions are not treated as purchases under section 
355(d)(5)(A):
    (i) Acquisition of stock in a transaction which includes other 
property or money--(A) Transferors and shareholders of transferor or 
distributing corporations--(1) In general. An acquisition of stock 
permitted to be received by a transferor of property without the 
recognition of gain under section 351(a), or permitted to be received 
without the recognition of gain under section 354, 355, or 356 is not a 
purchase to the extent section 358(a)(1) applies to determine the 
recipient's basis in the stock received, whether or not the recipient 
recognizes gain under section 351(b) or 356. But see paragraph (e)(3) of 
this section (interest received in exchange for purchased interest in 
exchanged basis transaction treated as purchased).
    (2) Exception. To the extent there is received in the exchange or 
distribution, in addition to stock described in paragraph 
(d)(2)(i)(A)(1) of this section, stock that is other property under 
section 351(b) or 356(a)(1), the stock is treated as purchased on the 
date of the exchange or distribution for purposes of section 355(d).
    (B) Transferee corporations--(1) In general. An acquisition of stock 
by a corporation is not a purchase to the extent section 334(b) or 
362(a) or (b) applies to determine the corporation's basis in the stock 
received. But see section 355(d)(5)(C) and paragraph (e)(2) of this 
section (purchased property transferred in transferred basis transaction 
is treated as purchased by transferee).
    (2) Exception. If a corporation acquires stock, the stock is treated 
as purchased on the date of the stock acquisition for purposes of 
section 355(d)--
    (i) If the liquidating corporation recognizes gain or loss with 
respect to the transferred stock as described in section 334(b)(1); or
    (ii) To the extent the basis of the transferred stock is increased 
through the recognition of gain by the transferor under section 362(a) 
or (b).
    (C) Examples. The following examples illustrate this paragraph 
(d)(2)(i):

    Example 1. (i) A owns all the stock of T. T merges into D in a 
transaction qualifying under section 368(a)(1)(A), with A exchanging all 
of the T stock for D stock and $100 cash. Under section 356(a)(1), A 
recognizes $100 of the realized gain on the transaction. Under section 
358(a)(1), A's basis in the D stock equals A's basis in the T stock, 
decreased by the $100 received and increased by the gain recognized, 
also $100. Under paragraph (d)(2)(i)(A) of this section, A is not 
treated as having purchased the D stock for purposes of section 
355(d)(5).
    (ii) The facts are the same as in paragraph (i) of this Example 1, 
except that rather than D stock and $100 cash, A receives D stock and 
stock in C, a corporation not a party to the reorganization, with a fair 
market value of $100. Under section 358(a)(2), A's basis in the C stock 
is its fair market value, or $100. Under paragraph (d)(2)(i)(A)(2) of 
this section, A is treated as having purchased the C stock, but not the 
D stock, for purposes of section 355(d)(5).
    Example 2. A purchases all of the stock of D, which is not 
marketable stock, on Date 1

[[Page 210]]

for $90. Within five years of A's purchase, on Date 2, A contributes the 
D stock to P in exchange for P stock worth $90 and $10 cash in a 
transaction qualifying under section 351. A recognizes a gain of $10 as 
a result of the transfer. Under section 362(a), P's basis in D is $100. 
P is treated as having purchased 90 percent ($90 worth) of the D stock 
on Date 1 under section 355(d)(5)(C) and paragraph (e)(2) of this 
section and as having purchased 10 percent ($10 worth) of the D stock on 
Date 2 under paragraph (d)(2)(i)(B)(2)(ii) of this section.

    (ii) Acquisition of stock in a distribution to which section 305(a) 
applies. An acquisition of stock in a distribution qualifying under 
section 305(a) is not a purchase to the extent section 307(a) applies to 
determine the recipient's basis. However, to the extent the distribution 
is of rights to acquire stock, see paragraph (c)(3) of this section for 
rules regarding options, warrants, convertible obligations, and other 
similar interests.
    (iii) Section 1036(a) exchange. An exchange of stock qualifying 
under section 1036(a) is not a purchase by either party to the exchange 
to the extent the basis of the property acquired equals that of the 
property exchanged under section 1031(d).
    (iv) Section 338 elections--(A) In general. Stock acquired in a 
qualified stock purchase with respect to which a section 338 election 
(or a section 338(h)(10) election) is made is not treated as a purchase 
for purposes of section 355(d)(5)(A). However, any stock (or an interest 
in another entity) held by old target that is treated as purchased by 
new target is treated as acquired by purchase for purposes of section 
355(d)(5)(A) unless a section 338 election or section 338(h)(10) 
election also is made for that stock. See Sec. 1.338-2T(c) for the 
definitions of section 338 election, section 338(h)(10) election, old 
target, and new target.
    (B) Example. The following example illustrates this paragraph 
(d)(2)(iv):

    Example. T owns all of the stock of S and no other assets. X 
acquires all of the T stock from the T shareholders for cash and makes 
an election under section 338. Under section 338(a) and (b), T, as Old 
T, is treated as having sold all of its assets at fair market value and 
purchased the assets as a new corporation, New T, as of the beginning of 
the day after the acquisition date. Under paragraph (d)(2)(iv)(A) of 
this section, X is not treated as having purchased the T stock. Absent a 
section 338 election or a section 338(h)(10) election with respect to S, 
New T is treated as having purchased all of the S stock under section 
355(d)(5)(A).

    (v) Partnership distributions--(A) Section 732(b). An acquisition of 
stock (or an interest in another entity) in a liquidation of a partner's 
interest in a partnership in which basis is determined pursuant to 
section 732(b) is a purchase at the time of the liquidation.
    (B) Section 734(b). If the adjusted basis of stock (or an interest 
in another entity) held by a partnership is increased under section 
734(b), a proportionate amount of the stock (or other interest) will be 
treated as purchased at the time of the basis adjustment, determined by 
reference to the amount of the basis adjustment (but not in excess of 
the fair market value of the stock (or other interest) at the time of 
the adjustment) over the fair market value of the stock (or other 
interest) at the time of the adjustment.
    (3) Certain section 351 exchanges treated as purchases--(i) In 
general--(A) Treatment of stock received by transferor. Under section 
355(d)(5)(B), a purchase includes any acquisition of property in an 
exchange to which section 351 applies to the extent the property is 
acquired in exchange for any cash or cash item, any marketable stock, or 
any debt of the transferor. The property treated as acquired by purchase 
is the property received by the transferor in the exchange.
    (B) Multiple classes of stock. If the transferor in a transaction 
described in section 355(d)(5)(B) receives stock or securities of more 
than one class, or receives both stock and securities, then the amount 
of stock or securities purchased is determined in a manner that 
corresponds to the allocation of basis to the stock or securities under 
section 358. See Sec. 1.358-2(b).
    (ii) Cash item, marketable stock. For purposes of section 
355(d)(5)(B) and this paragraph (d)(3), either or both of the terms cash 
item and marketable stock include personal property within the meaning 
of section 1092(d)(1) and Sec. 1.1092(d)-1, without giving effect to 
section 1092(d)(3).
    (iii) Exception for certain acquisitions--(A) In general. Except to 
the extent

[[Page 211]]

provided in paragraph (e)(3) of this section (interest received in 
exchange for purchased interest in exchanged basis transaction treated 
as purchased), an acquisition of stock in a corporation in a section 351 
transaction by one or more persons in exchange for an amount of stock in 
another corporation (the transferred corporation) that meets the 
requirements of section 1504(a)(2) is not a purchase by the transferor 
or transferors, regardless of whether the stock of the transferred 
corporation is marketable stock under section 355(d)(5)(B)(ii) and 
paragraph (d)(3)(ii) of this section.
    (B) Example. The following example illustrates this paragraph 
(d)(3)(iii):

    Example. D's two classes of stock, voting common and nonvoting 
preferred, are both widely held and publicly traded. The nonvoting 
preferred stock is stock described in section 1504(a)(4). Assume that 
all of the D stock is marketable stock under section 355(d)(5)(B)(ii) 
and paragraph (d)(3)(ii) of this section. D's board of directors 
proposes that, for valid business purposes, D's common stock should be 
held by a holding company, HC, but its preferred stock should not be 
transferred to HC. As proposed, the D common shareholders exchange their 
D stock solely for HC common stock in a section 351(a) transaction. The 
D preferred shareholders retain their stock. HC acquires an amount of D 
stock that meets the requirements of section 1504(a)(2). Although the D 
common stock was marketable stock in the hands of the D shareholders 
immediately before the transfer, and the D nonvoting preferred stock is 
marketable stock after the transfer, the D shareholders are not treated 
as having acquired the HC stock by purchase (except to the extent the 
exchanged basis rule of paragraph (e)(3) of this section may apply to 
treat HC stock as purchased on the date the exchanged D stock was 
purchased).

    (iv) Exception for assets transferred as part of an active trade or 
business--(A) In general. Except to the extent provided in paragraph 
(e)(3) of this section, an acquisition not described in paragraph 
(d)(3)(iii) of this section of stock in exchange for any cash or cash 
item, any marketable stock, or any debt of the transferor in a section 
351 transaction is not a purchase if--
    (1) The transferor is engaged in the active conduct of a trade or 
business under paragraph (d)(3)(iv)(B) of this section and the 
transferred items (including debt incurred in the ordinary course of the 
trade or business) are used in the trade or business;
    (2) The transferred items do not exceed the reasonable needs of the 
trade or business under paragraph (d)(3)(iv)(C) of this section;
    (3) The transferor transfers the items as part of the trade or 
business; and
    (4) The transferee continues the active conduct of the trade or 
business.
    (B) Active conduct of a trade or business. For purposes of this 
paragraph (d)(3)(iv), whether, with respect to the trade or business at 
issue, the transferor and transferee are engaged in the active conduct 
of a trade or business is determined under Sec. 1.355-3(b)(2) and (3), 
except that--
    (1) Conduct is tested before the transfer (with respect to the 
transferor) and after the transfer (with respect to the transferee) 
rather than immediately after a distribution; and
    (2) The trade or business need not have been conducted for five 
years before its transfer, but it must have been conducted for a 
sufficient period of time to establish that it is a viable and ongoing 
trade or business.
    (C) Reasonable needs of the trade or business. For purposes of this 
paragraph (d)(3)(iv), the reasonable needs of the trade or business 
include only the amount of cash or cash items, marketable stock, or debt 
of the transferor that a prudent business person apprised of all 
relevant facts would consider necessary for the present and reasonably 
anticipated future needs of the business. Transferred items may be 
considered necessary for reasonably anticipated future needs only if the 
transferor and transferee have specific, definite, and feasible plans 
for their use. Those plans must require that items intended for 
anticipated future needs rather than present needs be used as 
expeditiously as possible consistent with the business purpose for 
retention of the items. Future needs are not reasonably anticipated if 
they are uncertain or vague or where the execution of the plan for their 
use is substantially postponed. The reasonable needs of a trade or 
business are generally its needs at the time of the transfer of the 
business including the items. However, for purposes of applying section 
355(d) to a distribution, events and conditions

[[Page 212]]

after the transfer and through the date immediately after the 
distribution (including whether plans for the use of transferred items 
have been consummated or substantially postponed) may be considered to 
determine whether at the time of the transfer the items were necessary 
for the present and reasonably anticipated future needs of the business.
    (D) Consideration of all facts and circumstances. All facts and 
circumstances are considered in determining whether this paragraph 
(d)(3)(iv) applies.
    (E) Successive transfers. A transfer of assets does not fail to meet 
the requirements of paragraph (d)(3)(iv)(A)(4) of this section solely 
because the transferee transfers the assets directly (or indirectly 
through other members) to another member of the transferee's affiliated 
group, as defined in Sec. 1.355-3(b)(4)(iv) (the final transferee), if 
the requirements of paragraphs (d)(3)(iv)(A)(1), (2), (3) and (4) of 
this section would be met if the transferor had transferred the assets 
directly to the final transferee.
    (v) Exception for transfer between members of the same affiliated 
group--(A) In general. Except to the extent provided in paragraph (e)(3) 
of this section, an acquisition of stock (whether actual or 
constructive) not described in paragraphs (d)(3)(iii) and (iv) of this 
section in exchange for any cash or cash item, marketable stock, or debt 
of the transferor in a section 351 transaction is not a purchase if--
    (1) The transferor corporation or corporations and the transferee 
corporation (whether formed in the transaction or already existing) are 
members of the same affiliated group as defined in section 1504(a) 
before the section 351 transaction (if the transferee corporation is in 
existence before the transaction);
    (2) The cash or cash item, marketable stock or debt of the 
transferor are not included in assets that are acquired (or treated as 
acquired) by the transferor (or another member of the transferor's 
affiliated group) from a nonmember in a related transaction in which 
section 362(a) or (b) applies to determine the basis in the acquired 
assets; and
    (3) The transferor corporation or corporations, the transferee 
corporation, and any distributed controlled corporation of the 
transferee corporation do not cease to be members of such affiliated 
group in any transaction pursuant to a plan that includes the section 
351 transaction (including any distribution of a controlled corporation 
by the transferee corporation). But see paragraph (b)(4) of this section 
where the transfer is made for a principal purpose to avoid the purposes 
of section 355(d).
    (B) Examples. The following examples illustrate this paragraph 
(d)(3)(v):

    Example 1. Publicly traded P has wholly owned S since 1990. S is 
engaged in the telecommunications business and the business of computer 
software development. S is developing new software for use in the 
managed health care industry. Over a period of four years beginning on 
January 31, 2000, P contributes a substantial amount of cash to S solely 
for the purpose of funding the software development. On completion of 
the software in January of 2004, 60 percent of the value of the S stock 
is attributable to the cash contributions made within the last four 
years. The P group's primary lender requires that S separately 
incorporate the software and related assets and distribute the new 
subsidiary to P as a condition of providing required funding to market 
the software. Accordingly, on February 1, 2004, S forms N, contributes 
the software and related assets to N, and distributes all of the N stock 
to P in a transaction intended to qualify under section 355(a). P, S, 
and N will not leave the affiliated group in any transaction related to 
the cash contributions. Under paragraph (d)(3)(v)(A) of this section, 
P's cash contributions to S are not treated as purchases of additional S 
stock, and the distribution of N from S to P is not a disqualified 
distribution under section 355(d)(2) and paragraph (b)(1) of this 
section.
    Example 2. On Date 1, P contributes cash to its subsidiary S with a 
principal purpose to increase its stock basis in S. Sixty percent of the 
value of P's S stock is attributable to the cash contribution. Under 
paragraph (b)(4) of this section (anti-avoidance rule), 60 percent of 
the S stock is treated as purchased under section 355(d)(5)(B), 
notwithstanding paragraph (d)(3)(v)(A) of this section. Accordingly, any 
distribution of a subsidiary of S to P within the five-year period after 
Date 1 will be a disqualified distribution, regardless of whether P, S, 
and any distributed S subsidiary remain affiliated after the 
distribution and any transactions related to the cash contribution.


[[Page 213]]


    (4) Triangular asset reorganizations--(i) Definition. A triangular 
asset reorganization is a reorganization that qualifies under--
    (A) Section 368(a)(1)(A) or (G) by reason of section 368(a)(2)(D);
    (B) Section 368(a)(1)(A) by reason of section 368(a)(2)(E) 
(regardless of whether section 368(a)(3)(E) applies), unless the 
transaction also qualifies as either a section 351 transfer or a 
reorganization under section 368(a)(1)(B); or
    (C) Section 368(a)(1)(C), and stock of the controlling corporation 
rather than the acquiring corporation is exchanged for the acquired 
corporation's properties.
    (ii) Treatment. Notwithstanding section 355(d)(5)(A), for purposes 
of section 355(d), the controlling corporation in a triangular asset 
reorganization is treated as having--
    (A) Acquired the assets of the acquired corporation (and as having 
assumed any liabilities assumed by the controlling corporation's 
subsidiary corporation or to which the acquired corporation's assets 
were subject (the acquired liabilities)) in a transaction in which the 
controlling corporation's basis in the acquired corporation's assets was 
determined under section 362(b); and
    (B) Transferred the acquired assets and acquired liabilities to its 
subsidiary corporation in a section 351 transfer.
    (iii) Example. The following example illustrates this paragraph 
(d)(4):

    Example. Forward triangular reorganization. P forms S with $25 of 
cash and T merges into S in a reorganization qualifying under section 
368(a)(1)(A) by reason of section 368(a)(2)(D) in which the T 
shareholders receive $70 of P stock and $15 of cash in exchange for 
their T stock. T is not a common parent of a consolidated group of 
corporations. The remaining $10 of cash with which P formed S will not 
be used in the acquired business. T's assets consist only of assets part 
of and used in its business with a value of $80, and $5 of cash that is 
not part of or used in T's business. T has no liabilities. S will use 
T's business assets in T's business (which will become S's business), 
but will invest the $5 of cash in an unrelated passive investment. Under 
paragraph (d)(4)(ii) of this section, P is treated as acquiring the T 
assets in a transaction in which P's basis in the T assets was 
determined under section 362(b) and contributing them to S in a section 
351 transfer. Under paragraph (d)(3)(v) of this section, $10 (of the 
total $25) of cash contributed by P to S upon S's formation is not 
treated as a purchase of S stock. The $15 (of the total $25) of cash 
contributed by P to S upon S's formation that is paid to T's 
shareholders is not treated as a purchase of S stock. The exception in 
paragraph (d)(3)(v) of this section does not apply to the $5 of cash 
from T's business because P is treated as having acquired T's assets in 
a related transaction in which section 362(b) applies to determine P's 
basis in such assets. Accordingly, P is treated under section 
355(d)(5)(B) and paragraph (d)(3)(iv) of this section as having 
purchased $5 of the S stock, but is not deemed to have purchased the 
remaining $80 of the S stock.

    (5) Reverse triangular reorganizations other than triangular asset 
reorganizations--(i) In general. Except as provided in paragraph 
(d)(5)(ii) of this section, if a transaction qualifies as a 
reorganization under section 368(a)(1)(A) by reason of section 
368(a)(2)(E) and also as either a reorganization under section 
368(a)(1)(B) or a section 351 transfer, then either section 355(d)(5)(B) 
(and paragraphs (d)(3)(i) through (iv) of this section) or 355(d)(5)(C) 
(and paragraph (e)(2) of this section) applies. Regardless of which 
method the controlling corporation employs to determine its basis in the 
surviving corporation stock under Sec. 1.358-6(c)(2)(ii) or Sec. 
1.1502-30(b), the total amount of surviving corporation stock treated as 
purchased by the controlling corporation will equal the higher of--
    (A) The amount of surviving corporation stock that would be treated 
as purchased (on the date of the deemed section 351 transfer) by the 
controlling corporation if the controlling corporation acquired the 
surviving corporation's assets and assumed its liabilities in a 
transaction in which the controlling corporation's basis in the 
surviving corporation assets was determined under section 362(b), and 
then transferred the acquired assets and liabilities to the surviving 
corporation in a section 351 transfer (see Sec. Sec. 1.358-6(c)(1) and 
(2)(ii)(A), and 1.1502-30(b)); or
    (B) The amount of surviving corporation stock that would be treated 
as purchased (on the date the surviving corporation shareholders 
purchased their surviving corporation stock) if the controlling 
corporation acquired the stock of the surviving corporation

[[Page 214]]

in a transaction in which the basis in the surviving corporation's stock 
was determined under section 362(b) (see Sec. Sec. 1.358-6(c)(2)(ii)(B) 
and 1.1502-30(b)).
    (ii) Letter ruling and closing agreement. If a controlling 
corporation obtains a letter ruling and enters into a closing agreement 
under section 7121 in which it agrees to determine its basis in 
surviving corporation stock under Sec. 1.358-6(c)(2)(ii)(A), or under 
Sec. 1.1502-30(b) by applying Sec. 1.358-6(c)(2)(ii)(A) (deemed asset 
acquisition and transfer by controlling corporation), then section 
355(d)(5)(B) and paragraphs (d)(3)(i) through (iv) of this section 
apply, and section 355(d)(5)(C) and paragraph (e)(2) of this section do 
not apply. If a controlling corporation obtains a letter ruling and 
enters into a closing agreement under section 7121 under which it agrees 
to determine its basis in surviving corporation stock under Sec. 1.358-
6(c)(2)(ii)(B), or under Sec. 1.1502-30(b) by applying Sec. 1.358-
6(c)(2)(ii)(B) (deemed stock acquisition), then section 355(d)(5)(C) and 
paragraph (e)(2) of this section apply, and section 355(d)(5)(B) and 
paragraphs (d)(3)(i) through (iv) of this section do not apply.
    (iii) Example. The following example illustrates this paragraph 
(d)(5):

    Example. Reverse triangular reorganization; purchase. (i) A 
purchases 60 percent of the stock of D on Date 1. D owns no cash items, 
marketable stock, or transferor debt, but holds cash that is not part of 
or used in D's trade or business under paragraph (d)(3)(iv) of this 
section and that represents 20 percent of D's value. On Date 2, P forms 
S, and S merges into D in a reorganization qualifying under section 
368(a)(1)(B) and under section 368(a)(1)(A) by reason of section 
368(a)(2)(E). In the reorganization, P acquires all of the D stock in 
exchange solely for P stock. After Date 2, and within five years after 
Date 1, D distributes its wholly owned subsidiary C to P. P does not 
obtain a letter ruling and enter into a closing agreement under 
paragraph (d)(5)(ii) of this section. P would acquire 20 percent of the 
D stock by purchase on Date 2 under paragraph (d)(5)(i)(A) of this 
section by operation of section 355(d)(5)(B) and paragraph (d)(3)(iv) of 
this section. The exception in paragraph (d)(3)(v) of this section does 
not apply because D was not affiliated with P before the transaction in 
which the section 351 transfer is deemed to occur and D's assets are 
treated as acquired by P in a related transaction in which section 
362(b) applies to determine P's basis in the D assets. P would acquire 
60 percent of the D stock by purchase on Date 1 under paragraph 
(d)(5)(i)(B) of this section because, under the transferred basis rule 
of section 355(d)(5)(C) and paragraph (e)(2) of this section, P is 
treated as though P purchased the D stock on the date A purchased it. 
Accordingly, under paragraph (d)(5)(i) of this section, P is treated as 
acquiring the higher amount (60 percent) by purchase on Date 1. D's 
distribution of C to P is a disqualified distribution under section 
355(d)(2) and paragraph (b)(1) of this section. In addition, A is 
treated as acquiring the P stock by purchase on Date 1 under paragraph 
(e)(3) of this section because A's basis in the P stock is determined by 
reference to A's basis in the D stock.
    (ii) The facts are the same as in paragraph (i) of this Example, 
except that P obtains a letter ruling and enters into a closing 
agreement under which it agrees to determine its basis in the D stock 
under Sec. 1.358-6(c)(2)(ii)(A). Under paragraph (d)(5)(ii) of this 
section, section 355(d)(5)(B) (and paragraphs (d)(3)(i) through (iv) of 
this section) applies, and section 355(d)(5)(C) (and paragraph (e)(2) of 
this section) does not apply. Accordingly, P is treated as acquiring 
only 20 percent of the D stock by purchase on Date 2. D's distribution 
of C to P is not a disqualified distribution under section 355(d)(2) and 
paragraph (b)(1) of this section.

    (6) Treatment of group structure changes--(i) In general. 
Notwithstanding section 355(d)(5)(A), for purposes of section 355(d), if 
a corporation succeeds another corporation as the common parent of a 
consolidated group in a group structure change to which Sec. 1.1502-31 
applies, the new common parent is treated as having acquired the assets 
and assumed the liabilities of the former common parent in a transaction 
in which the new common parent's basis in the former common parent's 
assets was determined under section 362(b), and then transferred the 
acquired assets and liabilities to the former common parent (or, if the 
former common parent does not survive, to the new common parent's 
subsidiary) in a section 351 transfer, with the new common parent and 
former common parent being treated as not in the same affiliated group 
at the time of the transfer for purposes of applying paragraph (d)(3)(v) 
of this section (notwithstanding Sec. 1.1502-31(c)(2)).
    (ii) Adjustments to basis of higher-tier members. A higher-tier 
member that indirectly owns all or part of the former common parent's 
stock after a group structure change is treated as having

[[Page 215]]

purchased the stock of an immediate subsidiary to the extent that the 
higher-tier member's basis in the subsidiary is increased under Sec. 
1.1502-31(d)(4).
    (iii) Example. The following example illustrates this paragraph 
(d)(6):

    Example. P is the common parent of a consolidated group, and T is 
the common parent of another group. P has owned S for more than five 
years, and the fair market value of the S stock is $50. T's assets 
consist only of non-marketable stock of direct and indirect wholly owned 
subsidiaries with a value of $50, assets used in its business with a 
value of $50, and $50 of marketable stock that is not part of or used in 
T's business. T has no liabilities. T merges into S with the T 
shareholders receiving solely P stock with a value of $150 in exchange 
for their T stock in a section 368(a)(2)(D) reorganization. S will use 
T's business assets in T's business (which will become S's business), 
but will hold the $50 of marketable stock for investment purposes. 
Assume that the transaction is a reverse acquisition under Sec. 1.1502-
75(d)(3) because the T shareholders, as a result of owning T stock, own 
more than 50 percent of the value of P's stock immediately after the 
transaction. Thus, the transaction is a group structure change under 
Sec. 1.1502-33(f)(1). Under paragraph (d)(6) of this section, P is 
treated as having acquired the assets of T in a transaction in which P's 
basis in the T assets was determined under section 362(b), and then 
transferred the acquired assets to S in a section 351 transfer, with P 
and T being treated as not in the same affiliated group at the time of 
the transfer solely for purposes of paragraph (d)(3)(v) of this section. 
The exception in paragraph (d)(3)(v) of this section (transfers within 
an affiliated group) does not apply. Accordingly, P is treated under 
section 355(d)(5)(B) and paragraph (d)(3)(iv) of this section as having 
purchased $50 of the S stock (attributable to the marketable stock), but 
is not deemed to have purchased the remaining $150 of the S stock.

    (7) Special rules for triangular asset reorganizations, other 
reverse triangular reorganizations, and group structure changes. The 
amount of acquiring subsidiary, surviving corporation, or former common 
parent stock that is treated as purchased under paragraph (c)(4), 
(5)(i)(A), or (6) of this section (by operation of section 355(d)(5)(B) 
and paragraphs (d)(3)(i) through (iv) of this section) is adjusted to 
reflect any basis adjustment under--
    (i) Section 1.358-6(c)(2)(i)(B) and (C) (reduction of basis 
adjustment in reverse triangular reorganization where controlling 
corporation acquires less than all of the surviving corporation stock), 
Sec. 1.1502-30(b) (applying Sec. 1.358-6(c)(2)(i)(B) and (C) to a 
consolidated group), and Sec. 1.1502-31(d)(2)(ii) (reduction of basis 
adjustment in group structure change where new common parent acquires 
less than all of the former common parent stock); or
    (ii) Section 1.358-6(d) (reduction of basis adjustment in any 
triangular reorganization to the extent controlling corporation does not 
provide consideration), Sec. 1.1502-30(b) (applying Sec. 1.358-6(d) 
(except Sec. 1.358-6(d)(2)) to a consolidated group), and Sec. 1.1502-
31(d)(1) (reduction of basis adjustment in group structure change to the 
extent new common parent does not provide consideration).
    (e) Deemed purchase and timing rules--(1) Attribution and 
aggregation--(i) In general. Under section 355(d)(8)(B), if any person 
acquires by purchase an interest in any entity, and the person is 
treated under section 355(d)(8)(A) as holding any stock by reason of 
holding the interest, the stock shall be treated as acquired by purchase 
on the later of the date of the purchase of the interest in the entity 
or the date the stock is acquired by purchase by such entity.
    (ii) Purchase of additional interest. If a person and an entity are 
treated as a single person under section 355(d)(7), and the person later 
purchases an additional interest in the entity, the person is treated as 
purchasing on the date of the later purchase the amount of stock 
attributed from the entity to the person under section 355(d)(8)(A) as a 
result of the additional interest.
    (iii) Purchase between persons treated as one person. If two persons 
are treated as one person under section 355(d)(7), and one later 
purchases stock from the other, the date of the later purchase is used 
for purposes of determining when the five-year period commences.
    (iv) Purchase by a person already treated as holding stock under 
section 355(d)(8)(A). If a person who is already treated as holding 
stock under section 355(d)(8)(A) later directly purchases such stock, 
the date of the later direct purchase is used for purposes of 
determining when the five-year period commences.

[[Page 216]]

    (v) Examples. The following examples illustrate this paragraph 
(e)(1):

    Example 1. On Date 1, A purchases 10 percent of the stock of P, 
which has held 100 percent of the stock of T for more than five years at 
the time of A's purchase. A is deemed to have purchased 10 percent of 
P's T stock on Date 1. If A later purchases an additional 41 percent of 
the stock of P on Date 2, A is deemed to have purchased an additional 41 
percent of P's T stock on Date 2. Because A and P are now related 
persons under section 267(b), they are treated as one person under 
section 355(d)(7)(A), and A is treated as owning all of P's T stock. A 
is treated as acquiring 51 percent of the T stock by purchase at the 
times of A's respective purchases of P stock on Date 1 and Date 2. The 
remaining 49 percent of T stock is treated as acquired when P acquired 
the T stock, more than five years before Date 1. If P distributes T 
after Date 2 and within five years after Date 1, the distribution will 
be a disqualified distribution under section 355(d)(2) and paragraph 
(b)(1) of this section.
    Example 2. A has owned 60 percent of the stock of P for more than 
five years, and P has owned 40 percent of the stock of T for more than 
five years. A and P are treated as one person, and A is treated as 
owning 40 percent of the stock of T for more than five years. If P later 
purchases an additional 20 percent of the stock of T on Date 1, A is 
treated as acquiring by purchase the additional 20 percent of T stock on 
Date 1. If A then purchases an additional 10 percent of the stock of P 
on Date 2, under paragraph (e)(1)(i) of this section, A is deemed to 
have purchased on Date 2 an additional four percent of the T stock (10 
percent of the 40 percent that P originally owned). In addition, even 
though A and P were already treated as one person under section 
355(d)(7)(A), A also is deemed to have purchased two percent of the T 
stock on Date 2 (10 percent of the 20 percent of the T stock that it was 
treated as purchasing on Date 1). A is still treated as owning all 60 
percent of the T stock owned by P. However, of the 60 percent, A is 
treated as having purchased 18 percent of the T stock on Date 1 and 6 
percent of the T stock on Date 2, for a total of 24 percent purchased 
stock.
    Example 3. A purchases a 20 percent interest in partnership M on 
Date 1. M has owned 30 percent of the stock and 25 percent of the 
securities of P for more than five years. P has owned 40 percent of the 
stock and 100 percent of the securities of T for more than five years. 
Under section 318(a)(2)(C) as modified by section 355(d)(8)(A), M is 
deemed to own 12 percent of the stock (30 percent of the 40 percent P 
owns) and 30 percent of the securities (30 percent of the 100 percent P 
owns) of T. Under sections 318(a)(2)(A) and 355(d)(8)(B), A is deemed to 
have purchased 2.4 percent of the stock (20 percent of the 12 percent M 
is deemed to own) and 6 percent of the securities (20 percent of the 30 
percent M is deemed to own) of T on Date 1. Similarly, A is deemed to 
have purchased 6 percent of the stock (20 percent of the 30 percent M 
owns) and five percent of the securities (20 percent of the 25 percent M 
owns) of P on Date 1. If M later purchases an additional 10 percent of P 
stock on Date 2, M is deemed to have purchased four percent of the stock 
(10 percent of the 40 percent P owns) and 10 percent of the securities 
(10 percent of the 100 percent P owns) of T on Date 2. A is deemed to 
have purchased two percent of the stock of P on Date 2 (20 percent of 
the 10 percent M purchased). A is also deemed to have purchased 0.8 
percent of the stock (20 percent of the four percent M is deemed to have 
purchased) and two percent of the securities (20 percent of the 10 
percent M is deemed to have purchased) of T on Date 2.
    Example 4. A and B are brother and sister. For more than five years, 
A has owned 75 percent of the stock of P, and B has owned 25 percent of 
the stock of P. A and B are treated as one person under section 267(b), 
and the stock of each is treated as purchased on the date it was 
purchased by A and B, respectively. If B later purchases 50 percent of 
the P stock from A on Date 1, A and B are still treated as one person. 
However, under paragraph (e)(3)(iii) of this section, the 50 percent of 
P stock that B purchased from A is treated as purchased on Date 1.

    (2) Transferred basis rule. If any person acquires property from 
another person who acquired the property by purchase (determined with 
regard to section 355(d)(5) and paragraphs (d) and (e)(2), (3) and (4) 
of this section, but without regard to section 355(d)(8) and paragraph 
(e)(1) of this section), and the adjusted basis of the property in the 
hands of the acquirer is determined in whole or in part by reference to 
the adjusted basis of the property in the hands of the other person, the 
acquirer is treated as having acquired the property by purchase on the 
date it was so acquired by the other person. The rule in this paragraph 
(e)(2) applies, for example, where stock of a corporation acquired by 
purchase is subsequently acquired in a section 351 transfer or a 
reorganization qualifying under section 368(a)(1)(B), but does not apply 
if the stock of a former common parent is acquired in a group structure 
change to which Sec. 1.1502-31 applies. But see paragraph 
(d)(2)(i)(B)(2) of this section for situations where the stock is 
treated as purchased on the date of a transfer.

[[Page 217]]

    (3) Exchanged basis rule--(i) In general. If any person acquires an 
interest in an entity (the first interest) by purchase (determined with 
regard to section 355(d)(5) and paragraphs (d) and (e)(2), (3) and (4) 
of this section, but without regard to section 355(d)(8) and paragraph 
(e)(1) of this section), and the first interest is exchanged for an 
interest in the same or another entity (the second interest) where the 
adjusted basis of the second interest is determined in whole or in part 
by reference to the adjusted basis of the first interest, then the 
second interest is treated as having been purchased on the date the 
first interest was purchased. The rule in this paragraph (e)(3) applies 
only to exchanges that are not otherwise treated as purchases under 
section 355(d)(5) and paragraph (d) of this section. The rule in this 
paragraph (e)(3) applies, for example, where stock of a corporation 
acquired by purchase is subsequently exchanged for other stock in a 
section 351, 354, or 1036(a) exchange. But see paragraph (d)(2)(i)(A)(2) 
of this section for situations where the stock is treated as purchased 
on the date of an exchange or distribution.
    (ii) Example. The following example illustrates this paragraph 
(e)(3):

    Example. A purchases 50 percent of the stock of T on Date 1. On Date 
2, T merges into D in a section 368(a)(1)(A) reorganization, with A 
exchanging all of the T stock solely for stock of D. Under section 
358(a), A's basis in the D stock is determined by reference to the basis 
of the T stock it purchased. Accordingly, A is treated as having 
purchased the D stock on Date 1, and has a purchased basis in the D 
stock under paragraph (b)(3)(iii) of this section.

    (4) Certain section 355 or section 305 distributions--(i) Section 
355. If a distributing corporation distributes any stock of a controlled 
corporation with respect to recently purchased distributing stock in a 
distribution that qualifies under section 355 (or so much of section 356 
as relates to section 355), such controlled corporation stock is deemed 
to be acquired by purchase by the distributee on the date the 
distributee acquired the recently purchased distributing stock. Recently 
purchased distributing stock is stock in the distributing corporation 
acquired by purchase (determined with regard to section 355(d)(5) and 
paragraphs (d) and (e)(2), (3), and (4) of this section, but without 
regard to section 355(d)(8) and paragraph (e)(1) of this section) by the 
distributee during the five-year period with respect to that 
distribution.
    (ii) Section 305. If a corporation distributes its stock in a 
distribution that qualifies under section 305(a), the stock received in 
the distribution (to the extent section 307(a) applies to determine the 
recipient's basis) is deemed to be acquired by purchase by the recipient 
on the date (if any) that the recipient acquired by purchase (determined 
with regard to section 355(d)(5) and paragraphs (d) and (e)(2), (3), and 
(4) of this section), the stock with respect to which the distribution 
is made.
    (5) Substantial diminution of risk--(i) In general. If section 
355(d)(6) applies to any stock for any period, the running of any five-
year period set forth in section 355(d)(3) is suspended during such 
period.
    (ii) Property to which suspension applies. Section 355(d)(6) applies 
to any stock for any period during which the holder's risk of loss with 
respect to such stock, or with respect to any portion of the activities 
of the corporation, is (directly or indirectly) substantially diminished 
by an option, a short sale, any special class of stock, or any other 
device or transaction.
    (iii) Risk of loss substantially diminished. Whether a holder's risk 
of loss is substantially diminished under section 355(d)(6) and 
paragraph (e)(5)(ii) of this section will be determined based on all 
facts and circumstances relating to the stock, the corporate activities, 
and arrangements for holding the stock.
    (iv) Special class of stock. For purposes of section 355(d)(6) and 
paragraph (e)(5)(ii) of this section, the term special class of stock 
includes a class of stock that grants particular rights to, or bears 
particular risks for, the holder or the issuer with respect to the 
earnings, assets, or attributes of less than all the assets or 
activities of a corporation or any of its subsidiaries. The term 
includes, for example, tracking stock and stock (or any related 
instruments or arrangements) the terms of which provide for the 
distribution

[[Page 218]]

(whether or not at the option of any party or in the event of any 
contingency) of any controlled corporation or other specified assets to 
the holder or to one or more persons other than the holder.
    (f) Duty to determine stockholders--(1) In general. In determining 
whether section 355(d) applies to a distribution of controlled 
corporation stock, a distributing corporation must determine whether a 
disqualified person holds its stock or the stock of any distributed 
controlled corporation. This paragraph (f) provides rules regarding this 
determination and the extent to which a distributing corporation must 
investigate whether a disqualified person holds stock.
    (2) Deemed knowledge of contents of securities filings. A 
distributing corporation is deemed to have knowledge of the existence 
and contents of all schedules, forms, and other documents filed with or 
under the rules of the Securities and Exchange Commission, including 
without limitation any Schedule 13D or 13G (or any similar schedules) 
and amendments, with respect to any relevant corporation.
    (3) Presumption as to securities filings. Absent actual knowledge to 
the contrary, in determining whether section 355(d) applies to a 
distribution, a distributing corporation may presume, with respect to 
stock that is reporting stock (while such stock is reporting stock), 
that every shareholder or other person required to file a schedule, 
form, or other document with or under the rules of the Securities and 
Exchange Commission as of a given date has filed the schedule, form, or 
other document as of that date and that the contents of filed schedules, 
forms, or other documents are accurate and complete. Reporting stock is 
stock that is described in Rule 13d-1(i) of Regulation 13D (17 CFR 
240.13d-1(i)) (or any rule or regulation to generally the same effect) 
promulgated by the Securities and Exchange Commission under the 
Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.).
    (4) Presumption as to less-than-five-percent shareholders. Absent 
actual knowledge (or deemed knowledge under paragraph (f)(2) of this 
section) immediately after the distribution to the contrary with regard 
to a particular shareholder, a distributing corporation may presume that 
no less-than-five-percent shareholder of a corporation acquired stock or 
securities by purchase under section 355(d)(5) or (8) and paragraphs (d) 
and (e) of this section during the five-year period. For purposes of 
this paragraph (f), a less-than-five-percent shareholder is a person 
that, at no time during the five-year period, holds directly (or by 
application of paragraph (c)(3)(ii) of this section, but not by 
application of section 355(d)(7) or (8)) stock possessing five percent 
or more of the total combined voting power of all classes of stock 
entitled to vote or the total value of shares of all classes of stock of 
a corporation. However, this presumption does not apply to any less-
than-five-percent shareholder that, at any time during the five-year 
period--
    (i) Is related under section 355(d)(7)(A) to a shareholder in the 
corporation that is, at any time during the five-year period, not a 
less-than-five-percent shareholder;
    (ii) Acted pursuant to a plan or arrangement, with respect to 
acquisitions of the corporation's stock or securities under section 
355(d)(7)(B) and paragraph (c)(4) of this section, with a shareholder in 
the corporation that is, at any time during the five-year period, not a 
less-than-five-percent shareholder; or
    (iii) Holds stock or securities that is attributed under section 
355(d)(8)(A) to a shareholder in the corporation that is, at any time 
during the five-year period, not a less-than-five-percent shareholder.
    (5) Examples. The following examples illustrate this paragraph (f):

    Example 1. Publicly traded corporation; no schedules filed. D is a 
widely held and publicly traded corporation with a single class of 
reporting stock and no other class of stock. Assume that applicable 
federal law requires any person that directly holds five percent or more 
of the D stock to file a schedule with the Securities and Exchange 
Commission within 10 days after an acquisition. D distributes its wholly 
owned subsidiary C pro rata. D determines that no schedule, form, or 
other document has been filed with respect to its stock or the stock of 
any other relevant corporation during the five-year period or within 10 
days after the

[[Page 219]]

distribution. Immediately after the distribution, D has no knowledge 
that any of its shareholders are (or were at any time during the five-
year period) not less-than-five-percent shareholders, or that any 
particular shareholder acquired D stock by purchase under section 
355(d)(5) or (8) and paragraphs (d) and (e) of this section during the 
five-year period. Under paragraph (f)(3) of this section, D may presume 
it has no shareholder that is or was not a less-than-five-percent 
shareholder during the five-year period due to the absence of any filed 
schedules, forms, or other documents. Under paragraph (f)(4) of this 
section, D may presume that none of its less-than-five-percent 
shareholders acquired D's stock by purchase during the five-year period. 
Accordingly, D may presume that section 355(d) does not apply to the 
distribution of C.
    Example 2. Publicly traded corporation; schedule filed. The facts 
are the same as those in Example 1, except that D determines that, as of 
10 days after the distribution, only one schedule has been filed with 
respect to its stock. That schedule discloses that X acquired 15 percent 
of the D stock one year before the distribution. Absent contrary 
knowledge, D may rely on the presumptions in paragraph (f)(3) of this 
section and so may presume that X is its only shareholder that is or was 
not a less-than-five-percent shareholder during the five-year period. D 
may not rely on the presumption in paragraph (f)(4) of this section with 
respect to X. In addition, D may not rely on the presumption in 
paragraph (f)(4) of this section with respect to any less-than-five-
percent shareholder that, at any time during the five-year period, is 
related to X under section 355(d)(7)(A), acted pursuant to a plan or 
arrangement with X under section 355(d)(7)(B) and paragraph (c)(4) of 
this section with respect to acquisitions of D stock, or holds stock 
that is attributed to X under section 355(d)(8)(A). Accordingly, under 
paragraph (f)(1) of this section, to determine whether section 355(d) 
applies, D must determine: whether X acquired its directly held D stock 
by purchase under section 355(d)(5) and paragraphs (d) and (e)(2) and 
(3) of this section during the five-year period; whether X is treated as 
having purchased any additional D stock under section 355(d)(8) and 
paragraph (e)(1) of this section during the five-year period; and 
whether X is related to, or acquired its D stock pursuant to a plan or 
arrangement with, one or more of D's other shareholders during the five-
year period under section 355(d)(7)(A) or (B) and paragraph (c)(4) of 
this section, and if so, whether those shareholders acquired their D 
stock by purchase under section 355(d)(5) or (8) and paragraphs (d) and 
(e) of this section during the five-year period.
    Example 3. Acquisition of publicly traded corporation. The facts are 
the same as those in Example 1, except that P acquires all of the D 
stock in a section 368(a)(1)(B) reorganization that is not also a 
reorganization under section 368(a)(1)(A) by reason of section 
368(a)(2)(E), and D distributes C to P one year later. Because D was 
widely held, P applies statistical sampling procedures that involve less 
than 50% of D's outstanding shares, to estimate the basis of all shares 
acquired, instead of surveying each shareholder. Under the deemed 
purchase rule of section 355(d)(5)(C) and paragraph (e)(2) of this 
section, P is treated as having acquired the D stock by purchase on the 
date the D shareholders acquired the D stock by purchase. Even though D 
has no less-than-five-percent shareholder immediately after the 
distribution, D may rely on the presumptions in paragraphs (f)(3) and 
(4) of this section to determine whether and to what extent the D stock 
is treated as purchased during the five-year period in P's hands under 
the deemed purchase rule of section 355(d)(5)(C) and paragraph (e)(2) of 
this section. Accordingly, D may presume that section 355(d) does not 
apply to the distribution of C to P. This result would not change even 
if the statistical sampling that involves less than 50 percent of D's 
outstanding shares indicated that more than 50% of D's shares were 
acquired by purchase during the five-year period.
    Example 4. Non-publicly traded corporation. D is owned by 20 
shareholders and has a single class of stock that is not reporting 
stock. D knows that A owns 40 percent of the D stock, and D does not 
know that any other shareholder has owned as much as five percent of the 
D stock at any time during the five-year period. D may not rely on the 
presumption in paragraph (f)(3) of this section because its stock is not 
reporting stock. D may not rely on the presumption in paragraph (f)(4) 
of this section with respect to A. In addition, D may not rely on the 
presumption in paragraph (f)(4) of this section for any less-than-five-
percent shareholder that, at any time during the five-year period, is 
related to A under section 355(d)(7)(A), acted pursuant to a plan or 
arrangement with A under section 355(d)(7)(B) and paragraph (c)(4) of 
this section with respect to acquisitions of D stock, or holds stock 
that is attributed to A under section 355(d)(8)(A). D may rely on the 
presumption in paragraph (f)(4) of this section for less-than-five-
percent shareholders that during the five-year period are not related to 
A, did not act pursuant to a plan or arrangement with A, and do not hold 
stock attributed to A. Accordingly, under paragraph (f)(1) of this 
section, to determine whether section 355(d) applies, D must determine: 
that A is its only shareholder that is (or was at any time during the 
five-year period) not a less-than-five-percent shareholder; whether A 
acquired its directly held D stock by purchase under section

[[Page 220]]

355(d)(5) and paragraphs (d) and (e)(2) and (3) of this section during 
the five-year period; whether A is treated as having purchased any 
additional D stock under section 355(d)(8) and paragraph (e)(1) of this 
section during the five-year period; and whether A is related to, or 
acquired its D stock pursuant to a plan or arrangement with, one or more 
of D's other shareholders during the five-year period under section 
355(d)(7)(A) or (B) and paragraph (c)(4) of this section, and if so, 
whether those shareholders acquired their D stock by purchase under 
section 355(d)(5) or (8) and paragraphs (d) and (e) of this section 
during the five-year period.

    (g) Effective date. This section applies to distributions occurring 
after December 20, 2000, except that they do not apply to any 
distributions occurring pursuant to a written agreement which is 
(subject to customary conditions) binding on December 20, 2000, and at 
all times thereafter.

[T.D. 8913, 65 FR 79723, Dec. 20, 2000; 66 FR 9034, Feb. 6, 2001]



Sec. 1.355-7  Recognition of gain on certain distributions of stock 
or securities in connection with an acquisition.

    (a) In general. Except as provided in section 355(e) and in this 
section, section 355(e) applies to any distribution--
    (1) To which section 355 (or so much of section 356 as relates to 
section 355) applies; and
    (2) That is part of a plan (or series of related transactions) 
(hereinafter, plan) pursuant to which 1 or more persons acquire directly 
or indirectly stock representing a 50-percent or greater interest in the 
distributing corporation (Distributing) or any controlled corporation 
(Controlled).
    (b) Plan--(1) In general. Whether a distribution and an acquisition 
are part of a plan is determined based on all the facts and 
circumstances. The facts and circumstances to be considered in 
demonstrating whether a distribution and an acquisition are part of a 
plan include, but are not limited to, the facts and circumstances set 
forth in paragraphs (b)(3) and (4) of this section. In general, the 
weight to be given each of the facts and circumstances depends on the 
particular case. Whether a distribution and an acquisition are part of a 
plan does not depend on the relative number of facts and circumstances 
set forth in paragraph (b)(3) that evidence that a distribution and an 
acquisition are part of a plan as compared to the relative number of 
facts and circumstances set forth in paragraph (b)(4) that evidence that 
a distribution and an acquisition are not part of a plan.
    (2) Certain post-distribution acquisitions. In the case of an 
acquisition (other than involving a public offering) after a 
distribution, the distribution and the acquisition can be part of a plan 
only if there was an agreement, understanding, arrangement, or 
substantial negotiations regarding the acquisition or a similar 
acquisition at some time during the two-year period ending on the date 
of the distribution. In the case of an acquisition (other than involving 
a public offering) after a distribution, the existence of an agreement, 
understanding, arrangement, or substantial negotiations regarding the 
acquisition or a similar acquisition at some time during the two-year 
period ending on the date of the distribution tends to show that the 
distribution and the acquisition are part of a plan. See paragraph 
(b)(3)(i) of this section. However, all facts and circumstances must be 
considered to determine whether the distribution and the acquisition are 
part of a plan. For example, in the case of an acquisition (other than 
involving a public offering) after a distribution, if the distribution 
was motivated in whole or substantial part by a corporate business 
purpose (within the meaning of Sec. 1.355-2(b)) other than a business 
purpose to facilitate the acquisition or a similar acquisition of 
Distributing or Controlled (see paragraph (b)(4)(v) of this section) and 
would have occurred at approximately the same time and in similar form 
regardless of whether the acquisition or a similar acquisition was 
effected (see paragraph (b)(4)(vi) of this section), the taxpayer may be 
able to establish that the distribution and the acquisition are not part 
of a plan.
    (3) Plan factors. Among the facts and circumstances tending to show 
that a distribution and an acquisition are part of a plan are the 
following:
    (i) In the case of an acquisition (other than involving a public 
offering)

[[Page 221]]

after a distribution, at some time during the two-year period ending on 
the date of the distribution, there was an agreement, understanding, 
arrangement, or substantial negotiations regarding the acquisition or a 
similar acquisition. The weight to be accorded this fact depends on the 
nature, extent, and timing of the agreement, understanding, arrangement, 
or substantial negotiations. The existence of an agreement, 
understanding, or arrangement at the time of the distribution is given 
substantial weight.
    (ii) In the case of an acquisition involving a public offering after 
a distribution, at some time during the two-year period ending on the 
date of the distribution, there were discussions by Distributing or 
Controlled with an investment banker regarding the acquisition or a 
similar acquisition. The weight to be accorded this fact depends on the 
nature, extent, and timing of the discussions.
    (iii) In the case of an acquisition (other than involving a public 
offering) before a distribution, at some time during the two-year period 
ending on the date of the acquisition, there were discussions by 
Distributing or Controlled with the acquirer regarding a distribution. 
The weight to be accorded this fact depends on the nature, extent, and 
timing of the discussions. In addition, in the case of an acquisition 
(other than involving a public offering) before a distribution, the 
acquirer intends to cause a distribution and, immediately after the 
acquisition, can meaningfully participate in the decision regarding 
whether to make a distribution.
    (iv) In the case of an acquisition involving a public offering 
before a distribution, at some time during the two-year period ending on 
the date of the acquisition, there were discussions by Distributing or 
Controlled with an investment banker regarding a distribution. The 
weight to be accorded this fact depends on the nature, extent, and 
timing of the discussions.
    (v) In the case of an acquisition either before or after a 
distribution, the distribution was motivated by a business purpose to 
facilitate the acquisition or a similar acquisition.
    (4) Non-plan factors. Among the facts and circumstances tending to 
show that a distribution and an acquisition are not part of a plan are 
the following:
    (i) In the case of an acquisition involving a public offering after 
a distribution, during the two-year period ending on the date of the 
distribution, there were no discussions by Distributing or Controlled 
with an investment banker regarding the acquisition or a similar 
acquisition.
    (ii) In the case of an acquisition after a distribution, there was 
an identifiable, unexpected change in market or business conditions 
occurring after the distribution that resulted in the acquisition that 
was otherwise unexpected at the time of the distribution.
    (iii) In the case of an acquisition (other than involving a public 
offering) before a distribution, during the two-year period ending on 
the date of the earlier to occur of the acquisition or the first public 
announcement regarding the distribution, there were no discussions by 
Distributing or Controlled with the acquirer regarding a distribution. 
Paragraph (b)(4)(iii) of this section does not apply to an acquisition 
where the acquirer intends to cause a distribution and, immediately 
after the acquisition, can meaningfully participate in the decision 
regarding whether to make a distribution.
    (iv) In the case of an acquisition before a distribution, there was 
an identifiable, unexpected change in market or business conditions 
occurring after the acquisition that resulted in a distribution that was 
otherwise unexpected.
    (v) In the case of an acquisition either before or after a 
distribution, the distribution was motivated in whole or substantial 
part by a corporate business purpose (within the meaning of Sec. 1.355-
2(b)) other than a business purpose to facilitate the acquisition or a 
similar acquisition.
    (vi) In the case of an acquisition either before or after a 
distribution, the distribution would have occurred at approximately the 
same time and in similar form regardless of the acquisition or a similar 
acquisition.
    (c) Operating rules. The operating rules contained in this paragraph 
(c) apply for all purposes of this section.
    (1) Internal discussions and discussions with outside advisors 
evidence of business purpose. Discussions by Distributing or

[[Page 222]]

Controlled with outside advisors and internal discussions may be 
indicative of one or more business purposes for the distribution and the 
relative importance of such purposes.
    (2) Takeover defense. If Distributing engages in discussions with a 
potential acquirer regarding an acquisition of Distributing or 
Controlled and distributes Controlled stock intending, in whole or 
substantial part, to decrease the likelihood of the acquisition of 
Distributing or Controlled by separating it from another corporation 
that is likely to be acquired, Distributing will be treated as having a 
business purpose to facilitate the acquisition of the corporation that 
was likely to be acquired.
    (3) Effect of distribution on trading in stock. The fact that the 
distribution made all or a part of the stock of Controlled available for 
trading or made Distributing's or Controlled's stock trade more actively 
is not taken into account in determining whether the distribution and an 
acquisition of Distributing or Controlled stock were part of a plan.
    (4) Consequences of section 355(e) disregarded for certain purposes. 
For purposes of determining the intentions of the relevant parties under 
this section, the consequences of the application of section 355(e), and 
the existence of any contractual indemnity by Controlled for tax 
resulting from the application of section 355(e) caused by an 
acquisition of Controlled, are disregarded.
    (5) Multiple acquisitions. All acquisitions of stock of Distributing 
or Controlled that are considered to be part of a plan with a 
distribution pursuant to paragraph (b) of this section will be 
aggregated for purposes of the 50-percent test of paragraph (a)(2) of 
this section.
    (d) Safe harbors--(1) Safe Harbor I. A distribution and an 
acquisition occurring after the distribution will not be considered part 
of a plan if--
    (i) The distribution was motivated in whole or substantial part by a 
corporate business purpose (within the meaning of Sec. 1.355-2(b)), 
other than a business purpose to facilitate an acquisition of the 
acquired corporation (Distributing or Controlled); and
    (ii) The acquisition occurred more than six months after the 
distribution and there was no agreement, understanding, arrangement, or 
substantial negotiations concerning the acquisition or a similar 
acquisition during the period that begins one year before the 
distribution and ends six months thereafter.
    (2) Safe Harbor II--(i) In general. A distribution and an 
acquisition occurring after the distribution will not be considered part 
of a plan if--
    (A) The distribution was not motivated by a business purpose to 
facilitate the acquisition or a similar acquisition;
    (B) The acquisition occurred more than six months after the 
distribution and there was no agreement, understanding, arrangement, or 
substantial negotiations concerning the acquisition or a similar 
acquisition during the period that begins one year before the 
distribution and ends six months thereafter; and
    (C) No more than 25 percent of the stock of the acquired corporation 
(Distributing or Controlled) was either acquired or the subject of an 
agreement, understanding, arrangement, or substantial negotiations 
during the period that begins one year before the distribution and ends 
six months thereafter.
    (ii) Special rule. For purposes of paragraph (d)(2)(i)(C) of this 
section, acquisitions of stock that are treated as not part of a plan 
pursuant to Safe Harbor VII, Safe Harbor VIII, or Safe Harbor IX are 
disregarded.
    (3) Safe Harbor III. If an acquisition occurs after a distribution, 
there was no agreement, understanding, or arrangement concerning the 
acquisition or a similar acquisition at the time of the distribution, 
and there was no agreement, understanding, arrangement, or substantial 
negotiations concerning the acquisition or a similar acquisition within 
one year after the distribution, the acquisition and the distribution 
will not be considered part of a plan.
    (4) Safe Harbor IV--(i) In general. A distribution and an 
acquisition (other than involving a public offering) occurring before 
the distribution will not be considered part of a plan if the 
acquisition occurs before the date of the first

[[Page 223]]

disclosure event regarding the distribution.
    (ii) Special rules. (A) Paragraph (d)(4)(i) of this section does not 
apply to a stock acquisition if the acquirer or a coordinating group of 
which the acquirer is a member is a controlling shareholder or a ten-
percent shareholder of the acquired corporation (Distributing or 
Controlled) at any time during the period beginning immediately after 
the acquisition and ending on the date of the distribution.
    (B) Paragraph (d)(4)(i) of this section does not apply to an 
acquisition that occurs in connection with a transaction in which the 
aggregate acquisitions are of stock possessing 20 percent or more of the 
total voting power of the stock of the acquired corporation 
(Distributing or Controlled) or stock having a value of 20 percent or 
more of the total value of the stock of the acquired corporation 
(Distributing or Controlled).
    (5) Safe Harbor V--(i) In general. A distribution that is pro rata 
among the Distributing shareholders and an acquisition (other than 
involving a public offering) of Distributing stock occurring before the 
distribution will not be considered part of a plan if--
    (A) The acquisition occurs after the date of a public announcement 
regarding the distribution; and
    (B) There were no discussions by Distributing or Controlled with the 
acquirer regarding a distribution on or before the date of the first 
public announcement regarding the distribution.
    (ii) Special rules. (A) Paragraph (d)(5)(i) of this section does not 
apply to a stock acquisition if the acquirer or a coordinating group of 
which the acquirer is a member is a controlling shareholder or a ten-
percent shareholder of Distributing at any time during the period 
beginning immediately after the acquisition and ending on the date of 
the distribution.
    (B) Paragraph (d)(5)(i) of this section does not apply to an 
acquisition that occurs in connection with a transaction in which the 
aggregate acquisitions are of stock possessing 20 percent or more of the 
total voting power of the stock of Distributing or stock having a value 
of 20 percent or more of the total value of the stock of Distributing.
    (6) Safe Harbor VI. A distribution and an acquisition involving a 
public offering occurring before the distribution will not be considered 
part of a plan if the acquisition occurs before the date of the first 
disclosure event regarding the distribution in the case of an 
acquisition of stock that is not listed on an established market 
immediately after the acquisition, or before the date of the first 
public announcement regarding the distribution in the case of an 
acquisition of stock that is listed on an established market immediately 
after the acquisition.
    (7) Safe Harbor VII--(i) In general. An acquisition (other than 
involving a public offering) of Distributing or Controlled stock that is 
listed on an established market is not part of a plan if, immediately 
before or immediately after the transfer, none of the transferor, the 
transferee, and any coordinating group of which either the transferor or 
the transferee is a member is--
    (A) The acquired corporation (Distributing or Controlled);
    (B) A corporation that the acquired corporation (Distributing or 
Controlled) controls within the meaning of section 368(c);
    (C) A member of a controlled group of corporations within the 
meaning of section 1563 of which the acquired corporation (Distributing 
or Controlled) is a member;
    (D) A controlling shareholder of the acquired corporation 
(Distributing or Controlled); or
    (E) A ten-percent shareholder of the acquired corporation 
(Distributing or Controlled).
    (ii) Special rules. (A) Paragraph (d)(7)(i) of this section does not 
apply to a transfer of stock by or to a person if the corporation the 
stock of which is being transferred knows, or has reason to know, that 
the person or a coordinating group of which such person is a member 
intends to become a controlling shareholder or a ten-percent shareholder 
of the acquired corporation (Distributing or Controlled) at any time 
after the acquisition and before the date that is two years after the 
distribution.

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    (B) If a transfer of stock to which paragraph (d)(7)(i) of this 
section applies results immediately, or upon a subsequent event or the 
passage of time, in an indirect acquisition of voting power by a person 
other than the transferee, paragraph (d)(7)(i) of this section does not 
prevent an acquisition of stock (with the voting power such stock 
represents after the transfer to which paragraph (d)(7)(i) of this 
section applies) by such other person from being treated as part of a 
plan.
    (8) Safe Harbor VIII--(i) In general. If, in a transaction to which 
section 83 or section 421(a) or (b) applies, stock of Distributing or 
Controlled is acquired by a person in connection with such person's 
performance of services as an employee, director, or independent 
contractor for Distributing, Controlled, a related person, a corporation 
the assets of which Distributing, Controlled, or a related person 
acquires in a reorganization under section 368(a), or a corporation that 
acquires the assets of Distributing or Controlled in such a 
reorganization (and the stock acquired is not excessive by reference to 
the services performed), the acquisition and the distribution will not 
be considered part of a plan. For purposes of this paragraph (d)(8)(i), 
a related person is a person related to Distributing or Controlled under 
section 355(d)(7)(A).
    (ii) Special rule. Paragraph (d)(8)(i) of this section does not 
apply to a stock acquisition if the acquirer or a coordinating group of 
which the acquirer is a member is a controlling shareholder or a ten-
percent shareholder of the acquired corporation (Distributing or 
Controlled) immediately after the acquisition.
    (9) Safe Harbor IX--(i) In general. If stock of Distributing or 
Controlled is acquired by a retirement plan of Distributing or 
Controlled (or a retirement plan of any other person that is treated as 
the same employer as Distributing or Controlled under section 414(b), 
(c), (m), or (o)) that qualifies under section 401(a) or 403(a), the 
acquisition and the distribution will not be considered part of a plan.
    (ii) Special rule. Paragraph (d)(9)(i) of this section does not 
apply to the extent that the stock acquired pursuant to acquisitions by 
all of the qualified plans of the persons described in paragraph 
(d)(9)(i) of this section during the four-year period beginning two 
years before the distribution, in the aggregate, represents more than 
ten percent of the total combined voting power of all classes of stock 
entitled to vote, or more than ten percent of the total value of shares 
of all classes of stock, of the acquired corporation (Distributing or 
Controlled).
    (e) Options, warrants, convertible obligations, and other similar 
interests--(1) Treatment of options--(i) General rule. For purposes of 
this section, if stock of Distributing or Controlled is acquired 
pursuant to an option that is written by Distributing, Controlled, or a 
person that is a controlling shareholder of Distributing or Controlled 
at the time the option is written, or that is acquired by a person that 
is a controlling shareholder of Distributing or Controlled immediately 
after the option is written, the option will be treated as an agreement, 
understanding, or arrangement to acquire the stock on the earliest of 
the following dates: the date that the option is written, if the option 
was more likely than not to be exercised as of such date; the date that 
the option is transferred if, immediately before or immediately after 
the transfer, the transferor or transferee was Distributing, Controlled, 
a corporation that Distributing or Controlled controls within the 
meaning of section 368(c), a member of a controlled group of 
corporations within the meaning of section 1563 of which Distributing or 
Controlled is a member, or a controlling shareholder or a ten-percent 
shareholder of Distributing or Controlled and the option was more likely 
than not to be exercised as of such date; and the date that the option 
is modified in a manner that materially increases the likelihood of 
exercise, if the option was more likely than not to be exercised as of 
such date; provided, however, if the writing, transfer, or modification 
had a principal purpose of avoiding section 355(e), the option will be 
treated as an agreement, understanding, arrangement, or substantial 
negotiations to acquire the stock on the date of the distribution. The 
determination of whether an option was more likely than not to be 
exercised is based on all

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the facts and circumstances, taking control premiums and minority and 
blockage discounts into account in determining the fair market value of 
stock underlying an option.
    (ii) Agreement, understanding, or arrangement to write, transfer, or 
modify an option. If there is an agreement, understanding, or 
arrangement to write an option, the option will be treated as written on 
the date of the agreement, understanding, or arrangement. If there is an 
agreement, understanding, or arrangement to transfer an option, the 
option will be treated as transferred on the date of the agreement, 
understanding, or arrangement. If there is an agreement, understanding, 
or arrangement to modify an option in a manner that materially increases 
the likelihood of exercise, the option will be treated as so modified on 
the date of the agreement, understanding, or arrangement.
    (iii) Substantial negotiations related to options. If an option is 
treated as an agreement, understanding, or arrangement to acquire the 
stock on the date that the option is written, substantial negotiations 
to acquire the option will be treated as substantial negotiations to 
acquire the stock subject to such option. If an option is treated as an 
agreement, understanding, or arrangement to acquire the stock on the 
date that the option is transferred, substantial negotiations regarding 
the transfer of the option will be treated as substantial negotiations 
to acquire the stock subject to such option. If an option is treated as 
an agreement, understanding, or arrangement to acquire the stock on the 
date that the option is modified in a manner that materially increases 
the likelihood of exercise, substantial negotiations regarding such 
modifications to the option will be treated as substantial negotiations 
to acquire the stock subject to such option.
    (2) Stock acquired pursuant to options. For purposes of this 
section, if an option is issued for cash, the terms of the acquisition 
of the option and the terms of the option are established by the 
corporation the stock of which is subject to the option (Distributing or 
Controlled) or the writer with the involvement of one or more investment 
bankers, and the potential acquirers of the option have no opportunity 
to negotiate the terms of the acquisition of the option or the terms of 
the option, then an acquisition pursuant to such option shall be treated 
as an acquisition involving a public offering occurring after the 
distribution if the option is exercised after the distribution or an 
acquisition involving a public offering before a distribution if the 
option is exercised before the distribution. Otherwise, an acquisition 
pursuant to an option shall be treated as an acquisition not involving a 
public offering.
    (3) Instruments treated as options. For purposes of this section, 
except to the extent provided in paragraph (e)(4) of this section, call 
options, warrants, convertible obligations, the conversion feature of 
convertible stock, put options, redemption agreements (including rights 
to cause the redemption of stock), any other instruments that provide 
for the right or possibility to issue, redeem, or transfer stock 
(including an option on an option), or any other similar interests are 
treated as options.
    (4) Instruments generally not treated as options. For purposes of 
this section, the following are not treated as options unless (in the 
case of paragraphs (e)(4)(i), (ii), and (iii) of this section) written, 
transferred (directly or indirectly), modified, or listed with a 
principal purpose of avoiding the application of section 355(e) or this 
section.
    (i) Escrow, pledge, or other security agreements. An option that is 
part of a security arrangement in a typical lending transaction 
(including a purchase money loan), if the arrangement is subject to 
customary commercial conditions. For this purpose, a security 
arrangement includes, for example, an agreement for holding stock in 
escrow or under a pledge or other security agreement, or an option to 
acquire stock contingent upon a default under a loan.
    (ii) Options exercisable only upon death, disability, mental 
incompetency, or separation from service. Any option entered into 
between shareholders of a corporation (or a shareholder and the 
corporation) that is exercisable only upon the death, disability, or 
mental incompetency of the shareholder, or, in

[[Page 226]]

the case of stock acquired in connection with the performance of 
services for the corporation or a person related to it under section 
355(d)(7)(A) (and that is not excessive by reference to the services 
performed), the shareholder's separation from service.
    (iii) Rights of first refusal. A bona fide right of first refusal 
regarding the corporation's stock with customary terms, entered into 
between shareholders of a corporation (or between the corporation and a 
shareholder).
    (iv) Other enumerated instruments. Any other instrument the 
Commissioner may designate in revenue procedures, notices, or other 
guidance published in the Internal Revenue Bulletin (see Sec. 
601.601(d)(2) of this chapter).
    (f) Multiple controlled corporations. Only the stock or securities 
of a controlled corporation in which one or more persons acquire 
directly or indirectly stock representing a 50-percent or greater 
interest as part of a plan involving the distribution of that 
corporation will be treated as not qualified property under section 
355(e)(1) if--
    (1) The stock or securities of more than one controlled corporation 
are distributed in distributions to which section 355 (or so much of 
section 356 as relates to section 355) applies; and
    (2) One or more persons do not acquire, directly or indirectly, 
stock representing a 50-percent or greater interest in Distributing 
pursuant to a plan involving any of those distributions.
    (g) Valuation. Except as provided in paragraph (e)(1)(i) of this 
section, for purposes of section 355(e) and this section, all shares of 
stock within a single class are considered to have the same value. Thus, 
control premiums and minority and blockage discounts within a single 
class are not taken into account.
    (h) Definitions. For purposes of this section, the following 
definitions shall apply:
    (1) Agreement, understanding, arrangement, or substantial 
negotiations. (i) An agreement, understanding, or arrangement generally 
requires either--
    (A) An agreement, understanding, or arrangement by one or more 
officers or directors acting on behalf of Distributing or Controlled, by 
controlling shareholders of Distributing or Controlled, or by another 
person or persons with the implicit or explicit permission of one or 
more of such officers, directors, or controlling shareholders, with the 
acquirer or with a person or persons with the implicit or explicit 
permission of the acquirer; or
    (B) An agreement, understanding, or arrangement by an acquirer that 
is a controlling shareholder of Distributing or Controlled immediately 
after the acquisition that is the subject of the agreement, 
understanding, or arrangement, or by a person or persons with the 
implicit or explicit permission of such acquirer, with the transferor or 
with a person or persons with the implicit or explicit permission of the 
transferor.
    (ii) In the case of an acquisition by a corporation, an agreement, 
understanding, or arrangement with the acquiring corporation generally 
requires an agreement, understanding, or arrangement with one or more 
officers or directors acting on behalf of the acquiring corporation, 
with controlling shareholders of the acquiring corporation, or with 
another person or persons with the implicit or explicit permission of 
one or more of such officers, directors, or controlling shareholders.
    (iii) Whether an agreement, understanding, or arrangement exists 
depends on the facts and circumstances. The parties do not necessarily 
have to have entered into a binding contract or have reached agreement 
on all significant economic terms to have an agreement, understanding, 
or arrangement. However, an agreement, understanding, or arrangement 
clearly exists if a binding contract to acquire stock exists.
    (iv) Substantial negotiations in the case of an acquisition (other 
than involving a public offering) generally require discussions of 
significant economic terms, e.g., the exchange ratio in a 
reorganization, either--
    (A) By one or more officers or directors acting on behalf of 
Distributing or Controlled, by controlling shareholders of Distributing 
or Controlled, or by another person or persons with the implicit or 
explicit permission of one or more of such officers, directors, or 
controlling shareholders, with the acquirer or with a person or persons 
with the implicit or explicit permission of the acquirer; or

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    (B) If the acquirer is a controlling shareholder of Distributing or 
Controlled immediately after the acquisition that is the subject of 
substantial negotiations, by the acquirer or by a person or persons with 
the implicit or explicit permission of the acquirer, with the transferor 
or with a person or persons with the implicit or explicit permission of 
the transferor.
    (v) In the case of an acquisition (other than involving a public 
offering) by a corporation, substantial negotiations generally require 
discussions of significant economic terms with one or more officers or 
directors acting on behalf of the acquiring corporation, with 
controlling shareholders of the acquiring corporation, or with another 
person or persons with the implicit or explicit permission of one or 
more of such officers, directors, or controlling shareholders.
    (vi) In the case of an acquisition involving a public offering, the 
existence of an agreement, understanding, arrangement, or substantial 
negotiations will be based on discussions by one or more officers or 
directors acting on behalf of Distributing or Controlled, by controlling 
shareholders of Distributing or Controlled, or by another person or 
persons with the implicit or explicit permission of one or more of such 
officers, directors, or controlling shareholders, with an investment 
banker.
    (2) Controlled corporation. A controlled corporation is a 
corporation the stock of which is distributed in a distribution to which 
section 355 (or so much of section 356 as relates to section 355) 
applies.
    (3) Controlling shareholder. (i) A controlling shareholder of a 
corporation the stock of which is listed on an established market is a 
five-percent shareholder who actively participates in the management or 
operation of the corporation. For purposes of this paragraph (h)(3)(i), 
a corporate director will be treated as actively participating in the 
management of the corporation.
    (ii) A controlling shareholder of a corporation the stock of which 
is not listed on an established market is any person that owns stock 
possessing voting power representing a meaningful voice in the 
governance of the corporation. For purposes of determining whether a 
person owns stock possessing voting power representing a meaningful 
voice in the governance of the corporation, the person shall be treated 
as owning the stock that such person owns actually and constructively 
under the rules of section 318 (without regard to section 318(a)(4)). In 
addition, if the exercise of an option (whether by itself or in 
conjunction with the deemed exercise of one or more other options) would 
cause the holder to own stock possessing voting power representing a 
meaningful voice in the governance of the corporation, then the option 
will be treated as exercised.
    (iii) If a distribution precedes an acquisition, Controlled's 
controlling shareholders immediately after the distribution and 
Distributing are included among Controlled's controlling shareholders at 
the time of the distribution.
    (4) Coordinating group. A coordinating group includes two or more 
persons that, pursuant to a formal or informal understanding, join in 
one or more coordinated acquisitions or dispositions of stock of 
Distributing or Controlled. A principal element in determining if such 
an understanding exists is whether the investment decision of each 
person is based on the investment decision of one or more other existing 
or prospective shareholders. A coordinating group is treated as a single 
shareholder for purposes of determining whether the coordinating group 
is treated as a controlling shareholder, a five-percent shareholder, or 
a ten-percent shareholder.
    (5) Disclosure event. A disclosure event regarding the distribution 
means any communication by an officer, director, controlling 
shareholder, or employee of Distributing, Controlled, or a corporation 
related to Distributing or Controlled, or an outside advisor of any of 
those persons (where such advisor makes the communication on behalf of 
such person), regarding the distribution, or the possibility thereof, to 
the acquirer or any other person (other than an officer, director, 
controlling shareholder, or employee of Distributing, Controlled, or a 
corporation related to Distributing or Controlled, or an outside advisor 
of any of those persons). For purposes of this paragraph

[[Page 228]]

(h)(5), a corporation is related to Distributing or Controlled if it is 
a member of an affiliated group (as defined in section 1504(a) without 
regard to section 1504(b)) that includes either Distributing or 
Controlled or it is a member of a qualified group (as defined in Sec. 
1.368-1(d)(4)(ii)) that includes either Distributing or Controlled.
    (6) Discussions. Discussions by Distributing or Controlled generally 
require discussions by one or more officers or directors acting on 
behalf of Distributing or Controlled, by controlling shareholders of 
Distributing or Controlled, or by another person or persons with the 
implicit or explicit permission of one or more of such officers, 
directors, or controlling shareholders. Discussions with the acquirer 
generally require discussions with the acquirer or with a person or 
persons with the implicit or explicit permission of the acquirer. In the 
case of an acquisition by a corporation, discussions with the acquiring 
corporation generally require discussions with one or more officers or 
directors acting on behalf of the acquiring corporation, with 
controlling shareholders of the acquiring corporation, or with another 
person or persons with the implicit or explicit permission of one or 
more of such officers, directors, or controlling shareholders.
    (7) Established market. An established market is--
    (i) A national securities exchange registered under section 6 of the 
Securities Exchange Act of 1934 (15 U.S.C. 78f);
    (ii) An interdealer quotation system sponsored by a national 
securities association registered under section 15A of the Securities 
Act of 1934 (15 U.S.C. 78o-3); or
    (iii) Any additional market that the Commissioner may designate in 
revenue procedures, notices, or other guidance published in the Internal 
Revenue Bulletin (see Sec. 601.601(d)(2) of this chapter).
    (8) Five-percent shareholder. A person will be considered a five-
percent shareholder of a corporation the stock of which is listed on an 
established market if the person owns five percent or more of any class 
of stock of the corporation whose stock is transferred. For purposes of 
determining whether a person owns five percent or more of any class of 
stock of the corporation whose stock is transferred, the person shall be 
treated as owning the stock that such person owns actually and 
constructively under the rules of section 318 (without regard to section 
318(a)(4)). In addition, if the exercise of an option (whether by itself 
or in conjunction with the deemed exercise of one or more other options) 
would cause the holder to become a five-percent shareholder, then the 
option will be treated as exercised. Absent actual knowledge that a 
person is a five-percent shareholder, a corporation can rely on 
Schedules 13D and 13G (or any similar schedules) filed with the 
Securities and Exchange Commission to identify its five-percent 
shareholders.
    (9) Implicit permission. A corporation is treated as having the 
implicit permission of its shareholders when it engages in discussions 
or negotiations, or enters into an agreement, understanding, or 
arrangement.
    (10) Public announcement. A public announcement regarding the 
distribution means any communication by Distributing or Controlled 
regarding Distributing's intention to effect the distribution where the 
communication is generally available to the public.
    (11) Public offering. An acquisition involving a public offering 
means an acquisition of stock for cash where the terms of the 
acquisition are established by the acquired corporation (Distributing or 
Controlled) or the seller with the involvement of one or more investment 
bankers and the potential acquirers have no opportunity to negotiate the 
terms of the acquisition. For example, a public offering includes an 
underwritten offering of registered stock for cash.
    (12) Similar acquisition (not involving a public offering). In 
general, an actual acquisition (other than involving a public offering) 
is similar to another potential acquisition if the actual acquisition 
effects a direct or indirect combination of all or a significant portion 
of the same business operations as the combination that would have been 
effected by such other potential acquisition. Thus, an actual 
acquisition may be similar to another acquisition even

[[Page 229]]

if the timing or terms of the actual acquisition are different from the 
timing or terms of the other acquisition. For example, an actual 
acquisition of Distributing by shareholders of another corporation in 
connection with a merger of such other corporation with and into 
Distributing is similar to another acquisition of Distributing by merger 
into such other corporation or into a subsidiary of such other 
corporation. However, in general, an actual acquisition (other than 
involving a public offering) is not similar to another acquisition if 
the ultimate owners of the business operations with which Distributing 
or Controlled is combined in the actual acquisition are substantially 
different from the ultimate owners of the business operations with which 
Distributing or Controlled was to be combined in such other acquisition.
    (13) Similar acquisition involving a public offering--(i) One public 
offering. In general, an actual acquisition involving a public offering 
may be similar to a potential acquisition involving a public offering, 
even though there are changes in the terms of the stock, the class of 
stock being offered, the size of the offering, the timing of the 
offering, the price of the stock, or the participants in the offering.
    (ii) More than one public offering. More than one actual acquisition 
involving a public offering may be similar to a potential acquisition 
involving a public offering. If there is an actual acquisition involving 
a public offering (the first public offering) that is the same as, or 
similar to, a potential acquisition involving a public offering, then 
another actual acquisition involving a public offering (the second 
public offering) cannot be similar to the potential acquisition unless 
the purpose of the second public offering is similar to that of the 
potential acquisition and occurs close in time to the first public 
offering.
    (iii) Potential acquisition involving a public offering. For 
purposes of paragraph (h)(13)(i) and (ii) of this section, as the 
context may require, a potential acquisition involving a public offering 
means a potential acquisition involving a public offering that was 
discussed by Distributing or Controlled with an investment banker, that 
motivated the distribution, or that was the subject of an agreement, 
understanding, arrangement, or substantial negotiations.
    (14) Ten-percent shareholder. A person will be considered a ten-
percent shareholder of a corporation the stock of which is listed on an 
established market if the person owns, actually or constructively under 
the rules of section 318 (without regard to section 318(a)(4)), ten 
percent or more of any class of stock of the corporation whose stock is 
transferred. A person will be considered a ten-percent shareholder of a 
corporation the stock of which is not listed on an established market if 
the person owns stock possessing ten percent or more of the total voting 
power of the stock of the corporation whose stock is transferred or 
stock having a value equal to ten percent or more of the total value of 
the stock of the corporation whose stock is transferred. For purposes of 
determining whether a person owns ten percent or more of the total 
voting power or value of the stock of the corporation whose stock is 
transferred, the person shall be treated as owning the stock that such 
person owns actually and constructively under the rules of section 318 
(without regard to section 318(a)(4)). In addition, if the exercise of 
an option (whether by itself or in conjunction with the deemed exercise 
of one or more other options) would cause the holder to become a ten-
percent shareholder, then the option will be treated as exercised. 
Absent actual knowledge that a person is a ten-percent shareholder, a 
corporation the stock of which is listed on an established market can 
rely on Schedules 13D and 13G (or any similar schedules) filed with the 
Securities and Exchange Commission to identify its ten-percent 
shareholders.
    (i) [Reserved]
    (j) Examples. The following examples illustrate paragraphs (a) 
through (h) of this section. Throughout these examples, assume that 
Distributing (D) owns all of the stock of Controlled (C). Assume further 
that D distributes the stock of C in a distribution to which section 355 
applies and to which section 355(d) does not apply. Unless otherwise 
stated, assume the corporations do not

[[Page 230]]

have controlling shareholders. No inference should be drawn from any 
example concerning whether any requirements of section 355 other than 
those of section 355(e) are satisfied. The examples are as follows:

    Example 1. Unwanted assets. (i) D is in business 1. C is in business 
2. D is relatively small in its industry. D wants to combine with X, a 
larger corporation also engaged in business 1. X and D begin negotiating 
for X to acquire D, but X does not want to acquire C. To facilitate the 
acquisition of D by X, D agrees to distribute all the stock of C pro 
rata before the acquisition. Prior to the distribution, D and X enter 
into a contract for D to merge into X subject to several conditions. One 
month after D and X enter into the contract, D distributes C and, on the 
day after the distribution, D merges into X. As a result of the merger, 
D's former shareholders own less than 50 percent of the stock of X.
    (ii) The issue is whether the distribution of C and the merger of D 
into X are part of a plan. No Safe Harbor applies to this acquisition. 
To determine whether the distribution of C and the merger of D into X 
are part of a plan, D must consider all the facts and circumstances, 
including those described in paragraph (b) of this section.
    (iii) The following tends to show that the distribution of C and the 
merger of D into X are part of a plan: X and D had an agreement 
regarding the acquisition during the two-year period ending on the date 
of the distribution (paragraph (b)(3)(i) of this section), and the 
distribution was motivated by a business purpose to facilitate the 
merger (paragraph (b)(3)(v) of this section). Because the merger was 
agreed to at the time of the distribution, the fact described in 
paragraph (b)(3)(i) of this section is given substantial weight.
    (iv) None of the facts and circumstances listed in paragraph (b)(4) 
of this section, tending to show that a distribution and an acquisition 
are not part of a plan, exist in this case.
    (v) The distribution of C and the merger of D into X are part of a 
plan under paragraph (b) of this section.
    Example 2. Public offering. (i) D's managers, directors, and 
investment banker discuss the possibility of offering D stock to the 
public. They decide a public offering of 20 percent of D's stock with D 
as a stand-alone corporation would be in D's best interest. One month 
later, to facilitate a stock offering by D of 20 percent of its stock, D 
distributes all the stock of C pro rata to D's shareholders. D issues 
new shares amounting to 20 percent of its stock to the public in a 
public offering seven months after the distribution.
    (ii) The issue is whether the distribution of C and the public 
offering by D are part of a plan. No Safe Harbor applies to this 
acquisition. Safe Harbor VII, relating to public trading, does not apply 
to public offerings (see paragraph (d)(7)(i) of this section). To 
determine whether the distribution of C and the public offering by D are 
part of a plan, D must consider all the facts and circumstances, 
including those described in paragraph (b) of this section.
    (iii) The following tends to show that the distribution of C and the 
public offering by D are part of a plan: D discussed the public offering 
with its investment banker during the two-year period ending on the date 
of the distribution (paragraph (b)(3)(ii) of this section), and the 
distribution was motivated by a business purpose to facilitate the 
public offering (paragraph (b)(3)(v) of this section).
    (iv) None of the facts and circumstances listed in paragraph (b)(4) 
of this section, tending to show that a distribution and an acquisition 
are not part of a plan, exist in this case.
    (v) The distribution of C and the public offering by D are part of a 
plan under paragraph (b) of this section.
    Example 3. Hot market. (i) D is a widely-held corporation the stock 
of which is listed on an established market. D announces a distribution 
of C and distributes C pro rata to D's shareholders. By contract, C 
agrees to indemnify D for any imposition of tax under section 355(e) 
caused by the acts of C. The distribution is motivated by a desire to 
improve D's access to financing at preferred customer interest rates, 
which will be more readily available if D separates from C. At the time 
of the distribution, although neither D nor C has been approached by any 
potential acquirer of C, it is reasonably certain that soon after the 
distribution either an acquisition of C will occur or there will be an 
agreement, understanding, arrangement, or substantial negotiations 
regarding an acquisition of C. Corporation Y acquires C in a merger 
described in section 368(a)(1)(A) by reason of section 368(a)(2)(E) 
within six months after the distribution. The C shareholders receive 
less than 50 percent of the stock of Y in the exchange.
    (ii) The issue is whether the distribution of C and the acquisition 
of C by Y are part of a plan. No Safe Harbor applies to this 
acquisition. Under paragraph (b)(2) of this section, because prior to 
the distribution neither D nor C and Y had an agreement, understanding, 
arrangement, or substantial negotiations regarding the acquisition or a 
similar acquisition, the distribution of C by D and the acquisition of C 
by Y are not part of a plan under paragraph (b) of this section.
    Example 4. Unexpected opportunity. (i) D, the stock of which is 
listed on an established market, makes a public announcement that it 
will distribute all the stock of C pro rata to D's shareholders. After 
the public announcement but before the distribution,

[[Page 231]]

widely-held X becomes available as an acquisition target. There were no 
discussions by D or C with X before the date of the public announcement. 
D negotiates with X and X merges into D before the distribution. In the 
merger, X's shareholders receive ten percent of D's stock. D distributes 
the stock of C pro rata within six months after the acquisition of X. No 
shareholder of X was a controlling shareholder or a ten-percent 
shareholder of D at any time during the period beginning immediately 
after the merger and ending on the date of the distribution
    (ii) The issue is whether the acquisition of X by D and the 
distribution of C are part of a plan. Safe Harbor V applies to this 
acquisition because the distribution is pro rata among D's shareholders, 
the acquisition occurs after the date of a public announcement regarding 
the distribution, there were no discussions by D or C with X on or 
before the date of the public announcement, no acquirer was a 
controlling shareholder or a ten-percent shareholder of D during the 
period beginning immediately after the merger and ending on the date of 
the distribution, and not more than 20 percent of D's stock was acquired 
by the X shareholders in the merger.
    Example 5. Vote shifting transaction. (i) D is in business 1. C is 
in business 2. D wants to combine with X, which is also engaged in 
business 1. The stock of X is closely held. X and D begin negotiating 
for D to acquire X, but the X shareholders do not want to acquire an 
indirect interest in C. To facilitate the acquisition of X by D, D 
agrees to distribute all the stock of C pro rata before the acquisition 
of X. D and X enter into a contract for X to merge into D subject to 
several conditions. Among those conditions is that D will amend its 
corporate charter to provide for two classes of stock: Class A and Class 
B. Under all circumstances, each share of Class A stock will be entitled 
to ten votes in the election of each director on D's board of directors. 
Upon issuance, each share of Class B stock will be entitled to ten votes 
in the election of each director on D's board of directors; however, a 
disposition of such share by its original holder will result in such 
share being entitled to only one vote, rather than ten votes, in the 
election of each director. Immediately after the merger, the Class B 
shares will be listed on an established market. One month after D and X 
enter into the contract, D distributes C. Immediately after the 
distribution, the shareholders of D exchange their D stock for the new 
Class B shares. On the day after the distribution, X merges into D. In 
the merger, the former shareholders of X exchange their X stock for 
Class A shares of D. Immediately after the merger, D's historic 
shareholders own stock of D representing 51 percent of the total 
combined voting power of all classes of stock of D entitled to vote and 
more than 50 percent of the total value of all classes of stock of D. 
During the 30-day period following the merger, none of the Class A 
shares are transferred, but a number of D's historic shareholders sell 
their Class B stock of D in public trading with the result that, at the 
end of that 30-day period, the Class A shares owned by the former X 
shareholders represent 52 percent of the total combined voting power of 
all classes of stock of D entitled to vote.
    (ii) X acquisition. (A) The issue is whether the distribution of C 
and the merger of X into D are part of a plan. No Safe Harbor applies to 
this acquisition. To determine whether the distribution of C and the 
merger of X into D are part of a plan, D must consider all the facts and 
circumstances, including those described in paragraph (b) of this 
section.
    (B) The following tends to show that the distribution of C and the 
merger of X into D are part of a plan: X and D had an agreement 
regarding the acquisition during the two-year period ending on the date 
of the distribution (paragraph (b)(3)(i) of this section), and the 
distribution was motivated by a business purpose to facilitate the 
merger (paragraph (b)(3)(v) of this section). Because the merger was 
agreed to at the time of the distribution, the fact described in 
paragraph (b)(3)(i) of this section is given substantial weight.
    (C) None of the facts and circumstances listed in paragraph (b)(4) 
of this section, tending to show that a distribution and an acquisition 
are not part of a plan, exist in this case.
    (D) The distribution of C and the merger of X into D are part of a 
plan under paragraph (b) of this section.
    (iii) Public trading of Class B shares. (A) Assuming that each of 
the transferors and the transferees of the Class B stock of D in public 
trading is not one of the prohibited transferors or transferees listed 
in paragraph (d)(7)(i), Safe Harbor VII will apply to the acquisitions 
of the Class B stock during the 30-day period following the merger such 
that the distribution and those acquisitions will not be treated as part 
of a plan. However, to the extent that those acquisitions result in an 
indirect acquisition of voting power by a person other than the acquirer 
of the transferred stock, Safe Harbor VII does not prevent the 
acquisition of the D stock (with the voting power such stock represents 
after those acquisitions) by the former X shareholders from being 
treated as part of a plan.
    (B) To the extent that the transfer of the Class B shares causes the 
voting power of D to shift to the Class A stock acquired by the former X 
shareholders, such shifted voting power will be treated as attributable 
to the stock acquired by the former X shareholders as part of a plan 
that includes the distribution and the X acquisition.

[[Page 232]]

    Example 6. Acquisition not involving a public offering that is not 
similar. (i) D, X, and Y are each corporations the stock of which is 
publicly traded and widely held. Each of D, X, and Y is engaged in the 
manufacture and sale of trucks. C is engaged in the manufacture and sale 
of buses. D and X engage in substantial negotiations concerning X's 
acquisition of the stock of D from the D shareholders in exchange for 
stock of X. D and X do not reach an agreement regarding that 
acquisition. Three months after D and X first began negotiations 
regarding that acquisition, D distributes the stock of C pro rata to its 
shareholders. Three months after the distribution, Y acquires the stock 
of D from the D shareholders in exchange for stock of Y. The ultimate 
owners of Y are substantially different from the ultimate owners of X.
    (ii) Although both X and Y engage in the manufacture and sale of 
trucks, X's truck business and Y's truck business are not the same 
business operations. Therefore, because Y's acquisition of D does not 
effect a combination of the same business operations as X's acquisition 
of D would have effected, and because the ultimate owners of Y are 
substantially different from the ultimate owners of X, Y's acquisition 
of D is not similar to X's potential acquisition of D that was the 
subject of earlier negotiations.
    Example 7. Acquisition not involving a public offering that is 
similar. (i) D is engaged in the business of writing custom software for 
several industries (industries 1 through 6). The software business of D 
related to industries 4, 5, and 6 is significant relative to the 
software business of D related to industries 3, 4, 5, and 6. X, an 
unrelated corporation, is engaged in the business of writing software 
and the business of manufacturing and selling hardware devices. X's 
business of writing software is significant relative to its total 
businesses. X and D engage in substantial negotiations regarding X's 
acquisition of D stock from the D shareholders in exchange for stock of 
X. Because X does not want to acquire the software businesses related to 
industries 1 and 2, these negotiations relate to an acquisition of D 
stock where D owns the software businesses related only to industries 3, 
4, 5, and 6. Thereafter, D concludes that the intellectual property 
licenses central to the software business related to industries 1 and 2 
are not transferable and that a separation of the software business 
related to industry 3 from the software business related to industry 2 
is not desirable. One month after D begins negotiating with X, D 
contributes the software businesses related to industries 4, 5, and 6 to 
C, and distributes the stock of C pro rata to its shareholders. In 
addition, X sells its hardware businesses for cash. After the 
distribution, C and X negotiate for X's acquisition of the C stock from 
the C shareholders in exchange for X stock, and X acquires the stock of 
C.
    (ii) Although D and C are different corporations, C does not own the 
custom software business related to industry 3, and X sold its hardware 
business prior to the acquisition of C, because X's acquisition of C 
involves a combination of a significant portion of the same business 
operations as the combination that would have been effected by the 
acquisition of D that was the subject of negotiations between D and X, 
X's acquisition of C is the same as, or similar to, X's potential 
acquisition of D that was the subject of earlier negotiations.
    Example 8. Acquisitions involving public offerings with different 
purposes. (i) D's managers, directors, and investment banker discuss the 
possibility of offering D stock to the public for the purpose of funding 
the acquisition of the assets of X. They decide a public offering of 20 
percent of D's stock with D as a stand-alone corporation would allow D 
to raise the capital needed to effect the acquisition of X's assets. One 
month later, to facilitate a stock offering by D of 20 percent of its 
stock, D distributes all the stock of C pro rata to D's shareholders. 
Two months after the distribution, D issues new shares amounting to 20 
percent of its stock to the public in a public offering (the first 
public offering). Four months after the distribution, D acquires the 
assets of X. Seven months after the distribution, D's managers, 
directors, and investment banker discuss the possibility of offering D 
stock to the public solely for the purpose of funding the acquisition of 
the assets of Y, a corporation unrelated to X. One year after the 
distribution, D issues new shares amounting to 40 percent of its stock 
to the public in a public offering (the second public offering). One 
month after the second public offering, D acquires the assets of Y.
    (ii) The first public offering is the same as the potential 
acquisition that D's managers, directors, and investment banker 
discussed prior to the distribution. The purpose of the second public 
offering (funding the acquisition of the assets of Y) is not similar to 
that of the potential acquisition (funding the acquisition of the assets 
of X). Therefore, the second public offering is not similar to the 
potential acquisition.
    Example 9. Acquisitions involving public offerings that are close in 
time. (i) D's managers, directors, and investment banker discuss the 
possibility of offering D stock to the public for the purpose of raising 
funds for general corporate purposes. They decide a public offering of 
20 percent of D's stock with D as a stand-alone corporation would allow 
D to raise such funds. One month later, to facilitate a stock offering 
by D of 20 percent of its stock, D distributes all the stock of C pro 
rata to D's shareholders. Two months after the distribution, D issues 
new shares amounting to 20 percent of its stock to the

[[Page 233]]

public in a public offering (the first public offering). After the first 
public offering, D's managers, directors, and investment banker discuss 
the possibility of another offering of D stock to the public for the 
purpose of raising additional funds for general corporate purposes. 
Eight months after the distribution, D issues new shares amounting to 
ten percent of its stock to the public in a public offering (the second 
public offering).
    (ii) The first public offering is the same as the potential 
acquisition that D's managers, directors, and investment banker 
discussed prior to the distribution. The purpose of the second public 
offering (raising funds for general corporate purposes) is the same as 
that of the potential acquisition. In addition, the second public 
offering is close in time to the first public offering. Therefore, the 
second public offering is similar to the potential acquisition.
    Example 10. Acquisitions involving public offerings that are not 
close in time. The facts are the same as those in Example 9, except that 
the second public offering occurs fourteen months after the 
distribution. Although the purpose of the second public offering is the 
same as that of the potential acquisition, the second public offering is 
not close in time to the first public offering. Therefore, the second 
public offering is not similar to the potential acquisition.

    (k) Effective dates. This section applies to distributions occurring 
after April 19, 2005. For distributions occurring on or before April 19, 
2005, and after April 26, 2002, see Sec. 1.355-7T as contained in 26 
CFR part 1 revised as of April 1, 2003; however, taxpayers may apply 
these regulations, in whole, but not in part, to such distributions. For 
distributions occurring on or before April 26, 2002, and after August 3, 
2001, see Sec. 1.355-7T as contained in 26 CFR part 1 revised as of 
April 1, 2002; however, taxpayers may apply, in whole, but not in part, 
either these regulations or Sec. 1.355-7T as contained in 26 CFR part 1 
revised as of April 1, 2003, to such distributions. For distributions 
occurring on or before August 3, 2001, and after April 16, 1997, 
taxpayers may apply, in whole, but not in part, either these regulations 
or Sec. 1.355-7T as contained in 26 CFR part 1 revised as of April 1, 
2003, to such distributions.

[T.D. 9198, 70 FR 20283, Apr. 19, 2005]



Sec. 1.356-1  Receipt of additional consideration in connection with an 
exchange.

    (a) If in any exchange to which the provisions of section 354 or 
section 355 would apply except for the fact that there is received by 
the shareholders or security holders other property (in addition to 
property permitted to be received without recognition of gain by such 
sections) or money, then--
    (1) The gain, if any, to the taxpayer shall be recognized in an 
amount not in excess of the sum of the money and the fair market value 
of the other property, but,
    (2) The loss, if any, to the taxpayer from the exchange or 
distribution shall not be recognized to any extent.
    (b) For purposes of computing the gain, if any, recognized pursuant 
to section 356 and paragraph (a)(1) of this section, to the extent the 
terms of the exchange specify the other property or money that is 
received in exchange for a particular share of stock or security 
surrendered or a particular class of stock or securities surrendered, 
such terms shall control provided that such terms are economically 
reasonable. To the extent the terms of the exchange do not specify the 
other property or money that is received in exchange for a particular 
share of stock or security surrendered or a particular class of stock or 
securities surrendered, a pro rata portion of the other property and 
money received shall be treated as received in exchange for each share 
of stock and security surrendered, based on the fair market value of 
such surrendered share of stock or security.
    (c) If the distribution of such other property or money by or on 
behalf of a corporation has the effect of the distribution of a 
dividend, then there shall be chargeable to each distributee (either an 
individual or a corporation)--
    (1) As a dividend, such an amount of the gain recognized as is not 
in excess of the distributee's ratable share of the undistributed 
earnings and profits of the corporation accumulated after February 28, 
1913, and
    (2) As a gain from the exchange of property, the remainder of the 
gain so recognized.

[[Page 234]]

    (d) The rules of this section may be illustrated by the following 
examples:

    Example 1. In an exchange to which the provisions of section 356 
apply and to which section 354 would apply but for the receipt of 
property not permitted to be received without the recognition of gain or 
loss, A (either an individual or a corporation), received the following 
in exchange for a share of stock having an adjusted basis to A of $85:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
One share of stock worth...................................         $100
Cash.......................................................           25
Other property (basis $25) fair market value...............           50
 
    Total fair market value of consideration received......          175
    Adjusted basis of stock surrendered in exchange........           85
        Total gain.........................................           90
 
Gain to be recognized, limited to cash and other property             75
 received..................................................
A's pro rata share of earnings and profits accumulated                30
 after February 28, 1913 (taxable dividend)................
 
    Remainder to be treated as a gain from the exchange of            45
     property..............................................
------------------------------------------------------------------------

    Example 2. If, in Example 1, A's stock had an adjusted basis to A of 
$200, A would have realized a loss of $25 on the exchange, which loss 
would not be recognized.
    Example 3. (i) Facts. J, an individual, acquired 10 shares of Class 
A stock of Corporation X on Date 1 for $3 each and 10 shares of Class B 
stock of Corporation X on Date 2 for $9 each. On Date 3, Corporation Y 
acquires the assets of Corporation X in a reorganization under section 
368(a)(1)(A). Pursuant to the terms of the plan of reorganization, J 
surrenders all of J's shares of Corporation X stock for 10 shares of 
Corporation Y stock and $100 of cash. On the date of the exchange, the 
fair market value of each share of Class A stock of Corporation X is 
$10, the fair market value of each share of Class B stock of Corporation 
X is $10, and the fair market value of each share of Corporation Y stock 
is $10. The terms of the exchange do not specify that shares of 
Corporation Y stock or cash are received in exchange for particular 
shares of Class A stock or Class B stock of Corporation X.
    (ii) Analysis. Under paragraph (b) of this section, because the 
terms of the exchange do not specify that the cash is received in 
exchange for shares of Class A or Class B stock of Corporation X, a pro 
rata portion of the cash received is treated as received in exchange for 
each share of Class A stock of Corporation X and each share of Class B 
stock of Corporation X based on the fair market value of the surrendered 
shares. Therefore, J is treated as receiving shares of Corporation Y 
stock with a fair market value of $50 and $50 of cash in exchange for 
its shares of Class A stock of Corporation X and shares of Corporation Y 
stock with a fair market value of $50 and $50 of cash in exchange for 
its shares of Class B stock of Corporation X. J realizes a gain of $70 
on the exchange of shares of Class A stock, $50 of which is recognized 
under section 356 and paragraph (a) of this section, and J realizes a 
gain of $10 on the exchange of shares of Class B stock of Corporation X, 
all of which is recognized under section 356 and paragraph (a) of this 
section. Assuming that J's gain recognized is not treated as a dividend 
under section 356(a)(2), such gain shall be treated as gain from the 
exchange of property.
    Example 4. (i) Facts. The facts are the same as in Example 3, except 
that the terms of the plan of reorganization specify that J receives 10 
shares of stock of Corporation Y in exchange for J's shares of Class A 
stock of Corporation X and $100 of cash in exchange for J's shares of 
Class B stock of Corporation X.
    (ii) Analysis. Under paragraph (b) of this section, because the 
terms of the exchange specify that J receives 10 shares of stock of 
Corporation Y in exchange for J's shares of Class A stock of Corporation 
X and $100 of cash in exchange for J's shares of Class B stock of 
Corporation X and such terms are economically reasonable, such terms 
control. J realizes a gain of $70 on the exchange of shares of Class A 
stock, none of which is recognized under section 356 and paragraph (a) 
of this section, and J realizes a gain of $10 on the exchange of shares 
of Class B stock of Corporation X, all of which is recognized under 
section 356 and paragraph (a) of this section.

    (e) Section 301(b)(1)(B) and section 301(d)(2) do not apply to a 
distribution of ``other property'' to a corporate shareholder if such 
distribution is within the provisions of section 356.
    (f) See paragraph (l) of Sec. 1.301-1 for certain transactions which 
are not within the scope of section 356.

[[Page 235]]

    (g) This section applies to exchanges and distributions of stock and 
securities occurring on or after January 23, 2006.

[T.D. 9244, 71 FR 4268, Jan. 26, 2006]



Sec. 1.356-2  Receipt of additional consideration not in connection 
with an exchange.

    (a) If, in a transaction to which section 355 would apply except for 
the fact that a shareholder (individual or corporate) receives property 
permitted by section 355 to be received without the recognition of gain, 
together with other property or money, without the surrender of any 
stock or securities of the distributing corporation, then the sum of the 
money and the fair market value of the other property as of the date of 
the distribution shall be treated as a distribution of property to which 
the rules of section 301 (other than section 301(b) and section 301(d)) 
apply. See section 358 for determination of basis of such other 
property.
    (b) Paragraph (a) of this section may be illustrated by the 
following examples:

    Example (1). Individuals A and B each own 50 of the 100 outstanding 
shares of common stock of Corporation X. Corporation X owns all of the 
stock of Corporation Y, 100 shares. Corporation X distributes to each 
shareholder 50 shares of the stock of Corporation Y plus $100 cash 
without requiring the surrender of any shares of its own stock. The $100 
cash received by each is treated as a distribution of property to which 
the rules of section 301 apply.
    Example (2). If, in the above example, Corporation X distributes 50 
shares of stock of Corporation Y to A and 30 shares of such stock plus 
$100 cash to B without requiring the surrender of any of its own stock, 
the amount of cash received by B is treated as a distribution of 
property to which the rules of section 301 apply.



Sec. 1.356-3  Rules for treatment of securities as ``other property''.

    (a) As a general rule, for purposes of section 356, the term other 
property includes securities. However, it does not include securities 
permitted under section 354 or section 355 to be received tax free. 
Thus, when securities are surrendered in a transaction to which section 
354 or section 355 is applicable, the characterization of the securities 
received as ``other property'' does not include securities received 
where the principal amount of such securities does not exceed the 
principal amount of securities surrendered in the transaction. If a 
greater principal amount of securities is received in an exchange 
described in section 354 (other than subsection (c) or (d) thereof) or 
section 355 over the principal amount of securities surrendered, the 
term other property includes the fair market value of such excess 
principal amount as of the date of the exchange. If no securities are 
surrendered in exchange, the term other property includes the fair 
market value, as of the date of receipt, of the entire principal amount 
of the securities received.
    (b) Except as provided in Sec. 1.356-6, for purposes of this 
section, a right to acquire stock that is treated as a security for 
purposes of section 354 or 355 has no principal amount. Thus, such right 
is not other property when received in a transaction to which section 
356 applies (regardless of whether securities are surrendered in the 
exchange). This paragraph (b) applies to transactions occurring on or 
after March 9, 1998.
    (c) In the examples in this paragraph (c), stock means common stock 
and warrants means rights to acquire common stock. The following 
examples illustrate the rules of paragraph (a) of this section:

    Example 1. A, an individual, exchanged 100 shares of stock for 100 
shares of stock and a security in the principal amount of $1,000 with a 
fair market value of $990. The amount of $990 is treated as ``other 
property.''
    Example 2. B, an individual, exchanged 100 shares of stock and a 
security in the principal amount of $1,000 for 300 shares of stock and a 
security in the principal amount of $1,500. The security had a fair 
market value on the date of receipt of $1,575. The fair market value of 
the excess principal amount, or $525, is treated as ``other property.''
    Example 3. C, an individual, exchanged a security in the principal 
amount of $1,000 for 100 shares of stock and a security in the principal 
amount of $900. No part of the security received is treated as ``other 
property.''
    Example 4. D, an individual, exchanged a security in the principal 
amount of $1,000 for 100 shares of stock and a security in the principal 
amount of $1,200 with a fair market value of $1,100. The fair market 
value of the

[[Page 236]]

excess principal amount, or $183.33, is treated as ``other property.''
    Example 5. E, an individual, exchanged a security in the principal 
amount of $1,000 for another security in the principal amount of $1,200 
with a fair market value of $1,080. The fair market value of the excess 
principal amount, or $180, is treated as ``other property.''
    Example 6. F, an individual, exchanged a security in the principal 
amount of $1,000 for two different securities each in the principal 
amount of $750. One of the securities had a fair market value of $750, 
the other had a fair market value of $600. One-third of the fair market 
value of each security ($250 and $200) is treated as ``other property.''
    Example 7. G, an individual, exchanged stock for stock and a 
warrant. The warrant had no principal amount. Thus, G received no excess 
principal amount within the meaning of section 356(d).
    Example 8. H, an individual, exchanged a warrant for stock and a 
warrant. The warrants had no principal amount. Thus, H received no 
excess principal amount within the meaning of section 356(d).
    Example 9. I, an individual, exchanged a warrant for stock and a 
debt security. The warrant had no principal amount. The debt security 
had a $100 principal amount. I received $100 of excess principal amount 
within the meaning of section 356(d).

[T.D. 6500, 25 FR 11607, Nov. 26, 1960, as amended by T.D. 7616, 44 FR 
26869, May 8, 1979; T.D. 8752, 63 FR 410, Jan. 6, 1998; T.D. 8882, 65 FR 
31078, May 16, 2000]



Sec. 1.356-4  Exchanges for section 306 stock.

    If, in a transaction to which section 356 is applicable, other 
property or money is received in exchange for section 306 stock, an 
amount equal to the fair market value of the property plus the money, if 
any, shall be treated as a distribution of property to which section 301 
is applicable. The determination of whether section 306 stock is 
surrendered for other property (including money) is a question of fact 
to be decided under all of the circumstances of each case. Ordinarily, 
the other property (including money) received will first be treated as 
received in exchange for any section 306 stock owned by a shareholder 
prior to such transaction. For example, if a shareholder who owns a 
share of common stock (having a basis to him of $100) and a share of 
preferred stock which is section 306 stock (having a basis to him of 
$100) surrenders both shares in a transaction to which section 356 is 
applicable for one share of common stock having a fair market value of 
$80 and one $100 bond having a fair market value of $100, the bond will 
be deemed received in exchange for the section 306 stock and it will be 
treated as a distribution to which section 301 is applicable to the 
extent of its entire fair market value ($100).



Sec. 1.356-5  Transactions involving gift or compensation.

    With respect to transactions described in sections 354, 355, or 356, 
but which--
    (a) Result in a gift, see section 2501 and following, and the 
regulations pertaining thereto, or
    (b) Have the effect of the payment of compensation, see section 
61(a)(1), and the regulations pertaining thereto.



Sec. 1.356-6  Rules for treatment of nonqualified preferred stock as 
other property.

    (a) In general. For purposes of Sec. Sec. 1.354-1(e), 1.355-1(c), 
and 1.356-3(b), the terms stock and securities do not include--
    (1) Nonqualified preferred stock, as defined in section 351(g)(2), 
received in exchange for (or in a distribution with respect to) stock, 
or a right to acquire stock, other than nonqualified preferred stock; or
    (2) A right to acquire such nonqualified preferred stock, received 
in exchange for (or in a distribution with respect to) stock, or a right 
to acquire stock, other than nonqualified preferred stock.
    (b) Exceptions. The following exceptions apply:
    (1) Certain recapitalizations. Paragraph (a) of this section does 
not apply in the case of a recapitalization under section 368(a)(1)(E) 
of a family-owned corporation as described in section 
354(a)(2)(C)(ii)(II).
    (2) Transition rule. Paragraph (a) of this section does not apply to 
a transaction described in section 1014(f)(2) of the Taxpayer Relief Act 
of 1997 (111 Stat. 921).
    (c) Effective date. This section applies to nonqualified preferred 
stock, or a right to acquire such stock, received in

[[Page 237]]

connection with a transaction occurring on or after March 9, 1998.

[T.D. 8753, 63 FR 411, Jan. 6, 1998. Redesignated by T.D. 8882, 65 FR 
31078, May 16, 2000]



Sec. 1.356-7  Rules for treatment of nonqualified preferred stock and 
other preferred stock received in certain transactions.

    (a) Stock issued prior to effective date. Stock described in section 
351(g)(2) is nonqualified preferred stock (NQPS) regardless of the date 
on which the stock is issued. However, sections 351(g), 354(a)(2)(C), 
355(a)(3)(D), 356(e), and 1036(b) do not apply to any transaction 
occurring prior to June 9, 1997, or to any transaction occurring after 
June 8, 1997, that is described in section 1014(f)(2) of the Taxpayer 
Relief Act of 1997, Public Law 105-34 (111 Stat. 788, 921). For purposes 
of this section, preferred stock that is not NQPS is referred to as 
Qualified Preferred Stock (QPS).
    (b) Receipt of preferred stock in exchange for (or distribution on) 
substantially identical preferred stock--(1) General rule. For purposes 
of sections 354(a)(2)(C)(i), 355(a)(3)(D), and 356(e)(2), preferred 
stock is QPS, even though it is described in section 351(g)(2), if it is 
received in exchange for (or in a distribution with respect to) 
preferred stock (the original preferred stock) that is QPS, provided--
    (i) The original preferred stock is QPS solely because, on its issue 
date, either a right or obligation described in clause (i), (ii), or 
(iii) of section 351(g)(2)(A) was not exercisable until after a 20-year 
period beginning on the issue date, or the right or obligation was 
exercisable within the 20-year period beginning on the issue date but 
was subject to a contingency which made remote the likelihood of the 
redemption or purchase, or the issuer's (or a related party's) right to 
redeem or purchase the stock was not more likely than not to be 
exercised within a 20-year period beginning on the issue date, or 
because of any combination of these reasons; and
    (ii) The stock received is substantially identical to the original 
preferred stock.
    (2) Substantially identical. The stock received is substantially 
identical to the original preferred stock if--
    (i) The stock received does not contain any term or terms that, in 
relation to any term or terms of the original preferred stock, either 
decrease the period in which a right or obligation described in clause 
(i), (ii), or (iii) of section 351(g)(2)(A) can be exercised, or 
increase the likelihood that such a right or obligation will be 
exercised, or accelerate the timing of the returns from the stock 
instrument, including the timing of actual or deemed dividends or other 
distributions received on the stock; and
    (ii) As a result of the exchange or distribution, exercise of the 
right or obligation does not become more likely than not to occur within 
a 20-year period beginning on the issue date of the original preferred 
stock.
    (3) Treatment of stock received. The stock received will continue to 
be treated as QPS in subsequent transactions involving such stock, and 
the principles of this paragraph (b) apply to such transactions as 
though the stock received is the original preferred stock issued on the 
same date as the original preferred stock.
    (c) Stock transferred for services. For purposes of sections 
351(g)(1), 354(a)(2)(C)(i), 355(a)(3)(D), and 356(e)(2), preferred stock 
containing a right or obligation described in clause (i), (ii) or (iii) 
of section 351(g)(2)(A) that is exercisable only upon the holder's 
separation from service from the issuer or a related person (as 
described in section 351(g)(3)(B)) will be treated as transferred in 
connection with the performance of services (and representing reasonable 
compensation) within the meaning of section 351(g)(2)(C)(i)(II), if such 
preferred stock is received in exchange for (or in a distribution with 
respect to) existing stock containing a similar right or obligation 
(exercisable only upon separation from service) and the existing stock 
was transferred in connection with the performance of services for the 
issuer or a related person (and represented reasonable compensation when 
transferred). In applying the rules relating to NQPS, the preferred 
stock received will continue to be treated as transferred in connection

[[Page 238]]

with the performance of services (and representing reasonable 
compensation) in subsequent transactions involving such stock, and the 
principles of this paragraph (c) apply to such transactions.
    (d) Rights to acquire stock. For purposes of Sec. 1.356-6, the 
principles of paragraphs (a), (b), and (c) of this section apply.
    (e) Examples. In the examples in this paragraph (e), T and P are 
corporations, A is a shareholder of T, and A surrenders and receives (in 
addition to the stock exchanged in the examples) common stock in the 
reorganizations described. The following examples illustrate paragraphs 
(a), (b), and (c) of this section:

    Example 1. In 1995, A transfers property to T and receives T 
preferred stock that is described in section 351(g)(2) in a transaction 
under section 351. In 2002, pursuant to a reorganization under section 
368(a)(1)(B), A surrenders the T preferred stock in exchange for P NQPS. 
Under paragraph (a) of this section, the T preferred stock issued to A 
in 1995 is NQPS. However, because section 351(g) does not apply to 
transactions occurring before June 9, 1997, the T NQPS was not ``other 
property'' within the meaning of section 351(b) when issued in 1995. 
Under sections 354(a)(2)(C) and 356(e)(2), the P NQPS received by A in 
2002 is not ``other property'' within the meaning of section 
356(a)(1)(B) because it is received in exchange for NQPS.
    Example 2. T issues QPS to A on January 1, 2000 that is not NQPS 
solely because the holder cannot require T to redeem the stock until 
January 1, 2022. In 2007, pursuant to a reorganization under section 
368(a)(1)(A) in which T merges into P, A surrenders the T preferred 
stock in exchange for P preferred stock with terms that are identical to 
the terms of the T preferred stock, including the term that the holder 
cannot require the redemption of the stock until January 1, 2022. 
Because the P stock and the T stock have identical terms, and because 
the redemption did not become more likely than not to occur within the 
20-year period that begins on January 1, 2000 (which is the issue date 
of the T preferred stock) as a result of the exchange, under paragraph 
(b) of this section, the P preferred stock received by A is treated as 
QPS. Thus, the P preferred stock received is not ``other property'' 
within the meaning of section 356(a)(1)(B).
    Example 3. The facts are the same as in Example 2, except that, in 
addition, in 2010, pursuant to a recapitalization of P under section 
368(a)(1)(E), A exchanges the P preferred stock above for P NQPS that 
permits the holder to require P to redeem the stock in 2020. Under 
paragraph (b) of this section, the P preferred stock surrendered by A is 
treated as QPS. Because the P preferred stock received by A in the 
recapitalization is not substantially identical to the P preferred stock 
surrendered, the P preferred stock received by A is not treated as QPS. 
Thus, the P preferred stock received is ``other property'' within the 
meaning of section 356(a)(1)(B).
    Example 4. T issues preferred stock to A on January 1, 2000 that 
permits the holder to require T to redeem the stock on January 1, 2018, 
or at any time thereafter, but which is not NQPS solely because, as of 
the issue date, the holder's right to redeem is subject to a contingency 
that makes remote the likelihood of redemption on or before January 1, 
2020. In 2007, pursuant to a reorganization under section 368(a)(1)(A) 
in which T merges into P, A surrenders the T preferred stock in exchange 
for P preferred stock with terms that are identical to the terms of the 
T preferred stock. Immediately before the exchange, the contingency to 
which the holder's right to cause redemption of the T stock is subject 
makes remote the likelihood of redemption before January 1, 2020, but 
the P stock, although subject to the same contingency, is more likely 
than not to be redeemed before January 1, 2020. Because, as a result of 
the exchange of T stock for P stock, the exercise of the redemption 
right became more likely than not to occur within the 20-year period 
beginning on the issue date of the T preferred stock, the P preferred 
stock received by A is not substantially identical to the T stock 
surrendered, and is not treated as QPS. Thus, the P preferred stock 
received is ``other property'' within the meaning of section 
356(a)(1)(B).
    Example 5. The facts are the same as in Example 4, except that, 
immediately before the merger of T into P in 2007, the contingency to 
which the holder's right to cause redemption of the T stock is subject 
makes it more likely than not that the T stock will be redeemed before 
January 1, 2020. Because exercise of the redemption right did not become 
more likely than not to occur within the 20-year period beginning on the 
issue date of the T preferred stock as a result of the exchange, the P 
preferred stock received by A is substantially identical to the T stock 
surrendered, and is treated as QPS. Thus, the P preferred stock received 
is not ``other property'' within the meaning of section 356(a)(1)(B).
    Example 6. A is an employee of T. In connection with A's performance 
of services for T, T transfers to A in 2000 an amount of T common stock 
that represents reasonable compensation. The T common stock contains a 
term granting A the right to require T to redeem the common stock, but 
only upon A's separation from service from T. In 2005, pursuant to a 
reorganization under section

[[Page 239]]

368(a)(1)(A) in which T merges into P, A receives, in exchange for A's T 
common stock, P preferred stock granting a similar redemption right upon 
A's separation from P's service. Under paragraph (c) of this section, 
the P preferred stock received by A is treated as transferred in 
connection with the performance of services (and representing reasonable 
compensation) within the meaning of section 351(g)(2)(C)(i)(II). Thus, 
the P preferred stock received by A is QPS.

    (f) Effective dates. This section applies to transactions occurring 
on or after October 2, 2000.

[T.D. 8904, 65 FR 58651, Oct. 2, 2000]



Sec. 1.357-1  Assumption of liability.

    (a) General rule. Section 357(a) does not affect the rule that 
liabilities assumed are to be taken into account for the purpose of 
computing the amount of gain or loss realized under section 1001 upon an 
exchange. Section 357(a) provides, subject to the exceptions and 
limitations specified in section 357 (b) and (c), that--
    (1) Liabilities assumed are not to be treated as ``other property or 
money'' for the purpose of determining the amount of realized gain which 
is to be recognized under section 351, 361, 371, or 374, if the 
transactions would, but for the receipt of ``other property or money'' 
have been exchanges of the type described in any one of such sections; 
and
    (2) If the only type of consideration received by the transferor in 
addition to that permitted to be received by section 351, 361, 371, or 
374, consists of an assumption of liabilities, the transaction, if 
otherwise qualified, will be deemed to be within the provisions of 
section 351, 361, 371, or 374.
    (b) Application of general rule. The application of paragraph (a) of 
this section may be illustrated by the following example:

    Example. A, an individual, transfers to a controlled corporation 
property with an adjusted basis of $10,000 in exchange for stock of the 
corporation with a fair market value of $8,000, $3,000 cash, and the 
assumption by the corporation of indebtedness of A amounting to $4,000. 
A's gain is $5,000, computed as follows:

Stock received, fair market value.............................    $8,000
Cash received.................................................     3,000
Liability assumed by transferee...............................     4,000
                                                               ---------
 Total consideration received.................................    15,000
Less: Adjusted basis of property transferred..................    10,000
                                                               ---------
 Gain realized................................................     5,000
 


Assuming that the exchange falls within section 351 as a transaction in 
which the gain to be recognized is limited to ``other property or 
money'' received, the gain recognized to A will be limited to the $3,000 
cash received, since, under the general rule of section 357(a), the 
assumption of the $4,000 liability does not constitute ``other 
property.''

    (c) Tax avoidance purpose. The benefits of section 357(a) do not 
extend to any exchange involving an assumption of liabilities where it 
appears that the principal purpose of the taxpayer with respect to such 
assumption was to avoid Federal income tax on the exchange, or, if not 
such purpose, was not a bona fide business purpose. In such cases, the 
total amount of liabilities assumed or acquired pursuant to such 
exchange (and not merely a particular liability with respect to which 
the tax avoidance purpose existed) shall, for the purpose of determining 
the amount of gain to be recognized upon the exchange in which the 
liabilities are assumed or acquired, be treated as money received by the 
taxpayer upon the exchange. Thus, if in the example set forth in 
paragraph (b) of this section, the principal purpose of the assumption 
of the $4,000 liability was to avoid tax on the exchange, or was not a 
bona fide business purpose, then the amount of gain recognized would be 
$5,000. In any suit or proceeding where the burden is on the taxpayer to 
prove that an assumption of liabilities is not to be treated as ``other 
property or money'' under section 357, which is the case if the 
Commissioner determines that the taxpayer's purpose with respect thereto 
was a purpose to avoid Federal income tax on the exchange or was not a 
bona fide business purpose, and the taxpayer contests such determination 
by litigation, the taxpayer must sustain such burden by the clear 
preponderance of the evidence. Thus, the taxpayer must prove his case by 
such a clear preponderance of all the evidence that the absence of a 
purpose to avoid Federal income tax on the exchange, or the presence of 
a bona fide business purpose, is unmistakable.

[T.D. 6500, 25 FR 11607, Nov. 26, 1960, as amended by T.D. 6528, 26 FR 
399, Jan. 19, 1961]

[[Page 240]]



Sec. 1.357-2  Liabilities in excess of basis.

    (a) Section 357(c) provides in general that in an exchange to which 
section 351 (relating to a transfer to a corporation controlled by the 
transferor) is applicable, or to which section 361 (relating to the 
nonrecognition of gain or loss to corporations) is applicable by reason 
of a section 368(a)(1)(D) reorganization, if the sum of the amount of 
liabilities assumed plus the amount of liabilities to which the property 
is subject exceeds the total of the adjusted basis of the property 
transferred pursuant to such exchange, then such excess shall be 
considered as a gain from the sale or exchange of a capital asset or of 
property which is not a capital asset as the case may be. Thus, if an 
individual transfers, under section 351, properties having a total basis 
in his hands of $20,000, one of which has a basis of $10,000 but is 
subject to a mortgage of $30,000, to a corporation controlled by him, 
such individual will be subject to tax with respect to $10,000, the 
excess of the amount of the liability over the total adjusted basis of 
all the properties in his hands. The same result will follow whether or 
not the liability is assumed by the transferee. The determination of 
whether a gain resulting from the transfer of capital assets is long-
term or short-term capital gain shall be made by reference to the 
holding period to the transferor of the assets transferred. An exception 
to the general rule of section 357(c) is made (1) for any exchange as to 
which under section 357(b) (relating to assumption of liabilities for 
tax-avoidance purposes) the entire amount of the liabilities is treated 
as money received and (2) for an exchange to which section 371 (relating 
to reorganizations in certain receivership and bankruptcy proceedings) 
or section 374 (relating to gain or loss not recognized in certain 
railroad reorganizations) is applicable.
    (b) The application of paragraph (a) of this section may be 
illustrated by the following examples:
    Example (1). If all such assets transferred are capital assets and 
if half the assets (ascertained by reference to their fair market value 
at the time of the transfer) have been held for less than 1 year (6 
months for taxable years beginning before 1977; 9 months for taxable 
years beginning in 1977), and the remaining half for more than 1 year (6 
months for taxable years beginning before 1977; 9 months for taxable 
years beginning in 1977), half the excess of the amount of the liability 
over the total of the adjusted basis of the property transferred 
pursuant to the exchange shall be treated as short-term capital gain, 
and the remaining half shall be treated as long-term capital gain.
    Example (2). If half of the assets (ascertained by reference to 
their fair market value at the time of the transfer) transferred are 
capital assets and half are assets other than capital assets, then half 
of the excess of the amount of the liability over the total of the 
adjusted basis of the property transferred pursuant to the exchange 
shall be treated as capital gain, and the remaining half shall be 
treated as gain from the sale or exchange of assets other than capital 
assets.

[T.D. 6500, 25 FR 11607, Nov. 26, 1960, as amended by T.D. 6528, 26 FR 
399, Jan. 19, 1961; T.D. 7728, 45 FR 72650, Nov. 3, 1980]



Sec. 1.358-1  Basis to distributees.

    (a) In the case of an exchange to which section 354 or 355 applies 
in which, under the law applicable to the year in which the exchange is 
made, only nonrecognition property is received, immediately after the 
transaction, the sum of the basis of all of the stock and securities 
received in the transaction shall be the same as the basis of all the 
stock and securities in such corporation surrendered in the transaction, 
allocated in the manner described in Sec. 1.358-2. In the case of a 
distribution to which section 355 applies in which, under the law 
applicable to the year in which the distribution is made, only 
nonrecognition property is received, immediately after the transaction, 
the sum of the basis of all of the stock and securities with respect to 
which the distribution is made plus the basis of all stock and 
securities received in the distribution with respect to such stock and 
securities shall be the same as the basis of the stock and securities 
with respect to which the distribution is made immediately before the 
transaction, allocated in the manner described in Sec. 1.358-2. In the 
case of an exchange to which section 351 or 361 applies in which, under 
the law applicable to the year in which the exchange was made, only 
nonrecognition property is received, the basis of all the stock and 
securities received in the exchange shall be the same as the

[[Page 241]]

basis of all property exchanged therefor. If in an exchange or 
distribution to which section 351, 356, or 361 applies both 
nonrecognition property and ``other property'' are received, the basis 
of all the property except ``other property'' held after the transaction 
shall be determined as described in the preceding three sentences 
decreased by the sum of the money and the fair market value of the 
``other property'' (as of the date of the transaction) and increased by 
the sum of the amount treated as a dividend (if any) and the amount of 
the gain recognized on the exchange, but the term gain as here used does 
not include any portion of the recognized gain that was treated as a 
dividend. In any case in which a taxpayer transfers property with 
respect to which loss is recognized, such loss shall be reflected in 
determining the basis of the property received in the exchange. The 
basis of the ``other property'' is its fair market value as of the date 
of the transaction. See Sec. 1.460-4(k)(3)(iv)(A) for rules relating to 
stock basis adjustments required where a contract accounted for using a 
long-term contract method of accounting is transferred in a transaction 
described in section 351 or a reorganization described in section 
368(a)(1)(D) with respect to which the requirements of section 355 (or 
so much of section 356 as relates to section 355) are met.
    (b) The application of paragraph (a) of this section may be 
illustrated by the following example:

    Example. A purchased a share of stock in Corporation X in 1935 for 
$150. Since that date A has received distributions out of other than 
earnings and profits (as defined in section 316) totaling $60, so that 
A's adjusted basis for the stock is $90. In a transaction qualifying 
under section 356, A exchanged this share for one share in Corporation 
Y, worth $100, cash in the amount of $10, and other property with a fair 
market value of $30. The exchange had the effect of the distribution of 
a dividend. A's ratable share of the earnings and profits of Corporation 
X accumulated after February 28, 1913, was $5. A realized a gain of $50 
on the exchange, but the amount recognized is limited to $40, the sum of 
the cash received and the fair market value of the other property. Of 
the gain recognized, $5 is taxable as a dividend, and $35 is taxable as 
a gain from the exchange of property. The basis to A of the one share of 
stock of Corporation Y is $90. That is, the adjusted basis of the one 
share of stock Corporation X ($90), decreased by the sum of the cash 
received ($10) and the fair market value of the other property received 
($30) and increased by the sum of the amount treated as a dividend ($5) 
and the amount treated as a gain from the exchange of property ($35). 
The basis of the other property received is $30.

    (c) This section applies to exchanges and distributions of stock and 
securities occurring on or after January 23, 2006.

[T.D. 9244, 71 FR 4269, Jan. 26, 2006]



Sec. 1.358-2  Allocation of basis among nonrecognition property.

    (a) Allocation of basis in exchanges or distributions to which 
section 354, 355, or 356 applies. (1) As used in this paragraph the term 
stock means stock which is not ``other property'' under section 356. The 
term securities means securities (including, where appropriate, 
fractional parts of securities) which are not ``other property'' under 
section 356. Stock, or securities, as the case may be, which differ 
either because they are in different corporations or because the rights 
attributable to them differ (although they are in the same corporation) 
are considered different classes of stock or securities, as the case may 
be, for purposes of this section.
    (2)(i) If a shareholder or security holder surrenders a share of 
stock or a security in an exchange under the terms of section 354, 355, 
or 356, the basis of each share of stock or security received in the 
exchange shall be the same as the basis of the share or shares of stock 
or security or securities (or allocable portions thereof) exchanged 
therefor (as adjusted under Sec. 1.358-1). If more than one share of 
stock or security is received in exchange for one share of stock or one 
security, the basis of the share of stock or security surrendered shall 
be allocated to the shares of stock or securities received in the 
exchange in proportion to the fair market value of the shares of stock 
or securities received. If one share of stock or security is received in 
exchange for more than one share of stock or security or if a fraction 
of a share of stock or security is received, then the basis of the 
shares of stock or

[[Page 242]]

securities surrendered must be allocated to the shares of stock or 
securities (or allocable portions thereof) received in a manner that 
reflects, to the greatest extent possible, that a share of stock or 
security received is received in respect of shares of stock or 
securities that were acquired on the same date and at the same price. To 
the extent it is not possible to allocate basis in this manner, the 
basis of the shares of stock or securities surrendered must be allocated 
to the shares of stock or securities (or allocable portions thereof) 
received in a manner that minimizes the disparity in the holding periods 
of the surrendered shares of stock or securities whose basis is 
allocated to any particular share of stock or security received.
    (ii) If a shareholder or security holder surrenders a share of stock 
or a security in an exchange under the terms of section 354, 355, or 
356, and receives shares of stock or securities of more than one class, 
or receives ``other property'' or money in addition to shares of stock 
or securities, then, to the extent the terms of the exchange specify 
that shares of stock or securities of a particular class or ``other 
property'' or money is received in exchange for a particular share of 
stock or security or a particular class of stock or securities, for 
purposes of applying the rules of this section, such terms shall control 
provided such terms are economically reasonable. To the extent the terms 
of the exchange do not specify that shares of stock or securities of a 
particular class or ``other property'' or money is received in exchange 
for a particular share of stock or security or a particular class of 
stock or securities, then, for purposes of applying the rules of 
paragraph (a)(2)(i) of this section, a pro rata portion of the shares of 
stock and securities of each class received and a pro rata portion of 
the ``other property'' and money received shall be treated as received 
in exchange for each share of stock and security surrendered, based on 
the fair market value of the stock and securities surrendered.
    (iii) For purposes of this section, if a shareholder or security 
holder surrenders a share of stock or a security in a transaction under 
the terms of section 354 (or so much of section 356 as relates to 
section 354) in which such shareholder or security holder receives no 
property or property (including property permitted by section 354 to be 
received without the recognition of gain or ``other property'' or money) 
with a fair market value less than that of the stock or securities 
surrendered in the transaction, such shareholder or security holder 
shall be treated as follows. First, the shareholder or security holder 
shall be treated as receiving the stock, securities, other property, and 
money actually received by the shareholder or security holder in the 
transaction and an amount of stock of the issuing corporation (as 
defined in Sec. 1.368-1(b)) that has a value equal to the excess of the 
value of the stock or securities the shareholder or security holder 
surrendered in the transaction over the value of the stock, securities, 
other property, and money the shareholder or security holder actually 
received in the transaction. If the shareholder owns only one class of 
stock of the issuing corporation the receipt of which would be 
consistent with the economic rights associated with each class of stock 
of the issuing corporation, the stock deemed received by the shareholder 
pursuant to the previous sentence shall be stock of such class. If the 
shareholder owns multiple classes of stock of the issuing corporation 
the receipt of which would be consistent with the economic rights 
associated with each class of stock of the issuing corporation, the 
stock deemed received by the shareholder shall be stock of each such 
class owned by the shareholder immediately prior to the transaction, in 
proportion to the value of the stock of each such class owned by the 
shareholder immediately prior to the transaction. The basis of each 
share of stock or security deemed received and actually received shall 
be determined under the rules of this section. Second, the shareholder 
or security holder shall then be treated as surrendering all of its 
shares of stock and securities in the issuing corporation, including 
those shares of stock or securities held immediately prior to the 
transaction, those shares of stock or securities actually received in 
the transaction, and those shares of stock

[[Page 243]]

deemed received pursuant to the previous sentence, in a reorganization 
under section 368(a)(1)(E) in exchange for the shares of stock and 
securities of the issuing corporation that the shareholder or security 
holder actually holds immediately after the transaction. The basis of 
each share of stock and security deemed received in the reorganization 
under section 368(a)(1)(E) shall be determined under the rules of this 
section.
    (iv) If a shareholder or security holder receives one or more shares 
of stock or one or more securities in a distribution under the terms of 
section 355 (or so much of section 356 as relates to section 355), the 
basis of each share of stock or security of the distributing corporation 
(as defined in Sec. 1.355-1(b)), as adjusted under Sec. 1.358-1, shall 
be allocated between the share of stock or security of the distributing 
corporation with respect to which the distribution is made and the share 
or shares of stock or security or securities (or allocable portions 
thereof) received with respect to the share of stock or security of the 
distributing corporation in proportion to their fair market values. If 
one share of stock or security is received with respect to more than one 
share of stock or security or if a fraction of a share of stock or 
security is received, then the basis of each share of stock or security 
of the distributing corporation must be allocated to the shares of stock 
or securities (or allocable portions thereof) received in a manner that 
reflects that, to the greatest extent possible, a share of stock or 
security received is received with respect to shares of stock or 
securities acquired on the same date and at the same price. To the 
extent it is not possible to allocate basis in this manner, the basis of 
each share of stock or security of the distributing corporation must be 
allocated to the shares of stock or securities (or allocable portions 
thereof) received in a manner that minimizes the disparity in the 
holding periods of the shares of stock or securities with respect to 
which such shares of stock or securities are received.
    (v) If a shareholder or security holder receives shares of stock or 
securities of more than one class, or receives ``other property'' or 
money in addition to stock or securities in a distribution under the 
terms of section 355 (or so much of section 356 as relates to section 
355), then, to the extent the terms of the distribution specify that 
shares of stock or securities of a particular class or ``other 
property'' or money is received with respect to a particular share of 
stock or security of the distributing corporation or a particular class 
of stock or securities of the distributing corporation, for purposes of 
applying the rules of this section, such terms shall control provided 
that such terms are economically reasonable. To the extent the terms of 
the distribution do not specify that shares of stock or securities of a 
particular class or ``other property'' or money is received with respect 
to a particular share of stock or security of the distributing 
corporation or a particular class of stock or securities of the 
distributing corporation, then, for purposes of applying the rules of 
this section, a pro rata portion of the shares of stock and securities 
of each class received and a pro rata portion of the ``other property'' 
and money received shall be treated as received with respect to each 
share of stock and security of the distributing corporation with respect 
to which the distribution is made, based on the fair market value of 
each such share of stock or security.
    (vi) If a share of stock or a security is received in exchange for, 
or with respect to, more than one share of stock or security and such 
shares or securities were acquired on different dates or at different 
prices, the share of stock or security received shall be divided into 
segments based on the relative fair market values of the shares of stock 
or securities surrendered in exchange for such share or security or the 
relative fair market values of the shares of stock or securities with 
respect to which the share of stock or security is received in a 
distribution under the terms of section 355 (or so much of section 356 
as relates to section 355)). Each segment shall have a basis determined 
under the rules of paragraph (a)(2) of this section and a corresponding 
holding period.
    (vii) If a shareholder or security holder that purchased or acquired 
shares of

[[Page 244]]

stock or securities in a corporation on different dates or at different 
prices exchanges such shares of stock or securities under the terms of 
section 354, 355, or 356, or receives a distribution of shares of stock 
or securities under the terms of section 355 (or so much of section 356 
as relates to section 355), and the shareholder or security holder is 
not able to identify which particular share of stock or security (or 
allocable portion of a share of stock or security) is received (or 
deemed received) in exchange for, or with respect to, a particular share 
of stock or security, the shareholder or security holder may designate 
which share of stock or security is received in exchange for, or with 
respect to, a particular share of stock or security, provided that such 
designation is consistent with the terms of the exchange or distribution 
(or an exchange deemed to have occurred pursuant to paragraph 
(a)(2)(iii) of this section), and the other rules of this section. In 
the case of an exchange under the terms of section 354 or 356 (including 
a deemed exchange as a result of the application of paragraph 
(a)(2)(iii) of this section), the designation must be made on or before 
the first date on which the basis of a share of stock or a security 
received (or deemed received in the reorganization under section 
368(a)(1)(E) in the case of a transaction to which paragraph (a)(2)(iii) 
of this section applies) is relevant. In the case of an exchange or 
distribution under the terms of section 355 (or so much of section 356 
as relates to section 355), the designation must be made on or before 
the first date on which the basis of a share of stock or a security of 
the distributing corporation or the controlled corporation (as defined 
in Sec. 1.355-1(b)) is relevant. The basis of the shares or securities 
received in an exchange under the terms of section 354 or section 356, 
for example, is relevant when such shares or securities are sold or 
otherwise transferred. The designation will be binding for purposes of 
determining the Federal tax consequences of any sale or transfer of, or 
distribution with respect to, the shares or securities received. If the 
shareholder fails to make a designation in a case in which the 
shareholder is not able to identify which share of stock is received in 
exchange for, or with respect to, a particular share of stock, then the 
shareholder will not be able to identify which shares are sold or 
transferred for purposes of determining the basis of property sold or 
transferred under section 1012 and Sec. 1.1012-1(c) and, instead, will 
be treated as selling or transferring the share received in respect of 
the earliest share purchased or acquired.
    (viii) This paragraph (a)(2) shall not apply to determine the basis 
of a share of stock or security received by a shareholder or security 
holder in an exchange described in both section 351 and section 354 or 
section 356, if, in connection with the exchange, the shareholder or 
security holder exchanges property for stock or securities in an 
exchange to which neither section 354 nor 356 applies or liabilities of 
the shareholder or security holder are assumed.
    (ix) This paragraph (a)(2) shall apply to determine the basis of a 
share of stock or security received by a shareholder or security holder 
in an exchange described in both section 1036 and section 354 or section 
356.
    (b) Allocation of basis in exchanges to which section 351 or 361 
applies. (1) As used in this paragraph (b), the term stock refers only 
to stock which is not ``other property'' under section 351 or 361 and 
the term securities refers only to securities which are not ``other 
property'' under section 351 or 361.
    (2) If in an exchange to which section 351 or 361 applies property 
is transferred to a corporation and the transferor receives stock or 
securities of more than one class or receives both stock and securities, 
then the basis of the property transferred (as adjusted under Sec. 
1.358-1) shall be allocated among all of the stock and securities 
received in proportion to the fair market values of the stock of each 
class and the securities of each class.
    (c) Examples. The application of paragraphs (a) and (b) of this 
section is illustrated by the following examples:

    Example 1. (i) Facts. J, an individual, acquired 20 shares of 
Corporation X stock on Date 1 for $3 each and 10 shares of Corporation X 
stock on Date 2 for $6 each. On Date 3, Corporation Y acquires the 
assets of Corporation X in a reorganization under section

[[Page 245]]

368(a)(1)(A). Pursuant to the terms of the plan of reorganization, J 
receives 2 shares of Corporation Y stock in exchange for each share of 
Corporation X stock. Therefore, J receives 60 shares of Corporation Y 
stock. Pursuant to section 354, J recognizes no gain or loss on the 
exchange. J is not able to identify which shares of Corporation Y stock 
are received in exchange for each share of Corporation X stock.
    (ii) Analysis. Under paragraph (a)(2)(i) of this section, J has 40 
shares of Corporation Y stock each of which has a basis of $1.50 and is 
treated as having been acquired on Date 1 and 20 shares of Corporation Y 
stock each of which has a basis of $3 and is treated as having been 
acquired on Date 2. Under paragraph (a)(2)(vii) of this section, on or 
before the date on which the basis of a share of Corporation Y stock 
received becomes relevant, J may designate which of the shares of 
Corporation Y stock have a basis of $1.50 and which have a basis of $3.
    Example 2. (i) Facts. The facts are the same as in Example 1, except 
that instead of receiving 2 shares of Corporation Y stock in exchange 
for each share of Corporation X stock, J receives 1\1/2\ shares of 
Corporation Y stock in exchange for each share of Corporation X stock. 
Therefore, J receives 45 shares of Corporation Y stock. Again, J is not 
able to identify which shares (or portions of shares) of Corporation Y 
stock are received in exchange for each share of Corporation X stock.
    (ii) Analysis. Under paragraph (a)(2)(i) of this section, J has 30 
shares of Corporation Y stock each of which has a basis of $2 and is 
treated as having been acquired on Date 1 and 15 shares of Corporation Y 
stock each of which has a basis of $4 and is treated as having been 
acquired on Date 2. Under paragraph (a)(2)(vii) of this section, on or 
before the date on which the basis of a share of Corporation Y stock 
received becomes relevant, J may designate which of the shares of 
Corporation Y stock received have a basis of $2 and which have a basis 
of $4.
    Example 3. (i) Facts. J, an individual, acquired 10 shares of Class 
A stock of Corporation X on Date 1 for $3 each, 10 shares of Class A 
stock of Corporation X on Date 2 for $9 each, and 10 shares of Class B 
stock of Corporation X on Date 3 for $3 each. On Date 4, J surrenders 
all of J's shares of Class A stock in exchange for 20 shares of new 
Class C stock and 20 shares of new Class D stock in a reorganization 
under section 368(a)(1)(E). Pursuant to section 354, J recognizes no 
gain or loss on the exchange. On the date of the exchange, the fair 
market value of each share of Class A stock is $6, the fair market value 
of each share of Class C stock is $2, and the fair market value of each 
share of Class D stock is $4. The terms of the exchange do not specify 
that shares of Class C stock or shares of Class D stock of Corporation X 
are received in exchange for particular shares of Class A stock of 
Corporation X.
    (ii) Analysis. Under paragraph (a)(2)(ii) of this section, because 
the terms of the exchange do not specify that shares of Class C stock or 
shares of Class D stock of Corporation X are received in exchange for 
particular shares of Class A stock of Corporation X, a pro rata portion 
of the shares of Class C stock and shares of Class D stock received will 
be treated as received in exchange for each share of Class A stock based 
on the fair market value of the surrendered shares of Class A stock. 
Therefore, J is treated as receiving one share of Class C stock and one 
share of Class D stock in exchange for each share of Class A stock. 
Under paragraph (a)(2)(i) of this section, J has 10 shares of Class C 
stock, each of which has a basis of $1 and is treated as having been 
acquired on Date 1 and 10 shares of Class C stock, each of which has a 
basis of $3 and is treated as having been acquired on Date 2. In 
addition, J has 10 shares of Class D stock, each of which has a basis of 
$2 and is treated as having been acquired on Date 1 and 10 shares of 
Class D stock, each of which has a basis of $6 and is treated as having 
been acquired on Date 2. J's basis in each share of Class B stock 
remains $3. Under paragraph (a)(2)(vii) of this section, on or before 
the date on which the basis of a share of Class C stock or Class D stock 
received becomes relevant, J may designate which of the shares of Class 
C stock have a basis of $1 and which have a basis of $3, and which of 
the shares of Class D stock have a basis of $2 and which have a basis of 
$6.
    Example 4. (i) Facts. J, an individual, acquired 10 shares of Class 
A stock of Corporation X on Date 1 for $2 each, 10 shares of Class A 
stock of Corporation X on Date 2 for $4 each, and 20 shares of Class B 
stock of Corporation X on Date 3 for $6 each. On Date 4, Corporation Y 
acquires the assets of Corporation X in a reorganization under section 
368(a)(1)(A). Pursuant to the terms of the plan of reorganization, J 
surrenders all of J's shares of Corporation X stock for 40 shares of 
Corporation Y stock and $200 of cash. On the date of the exchange, the 
fair market value of each share of Class A stock of Corporation X is 
$10, the fair market value of each share of Class B stock of Corporation 
X is $10, and the fair market value of each share of Corporation Y stock 
is $5. The terms of the exchange do not specify that shares of 
Corporation Y stock or cash are received in exchange for particular 
shares of Class A stock or Class B stock of Corporation X.
    (ii) Analysis. Under paragraph (a)(2)(ii) of this section and under 
section 1.356-1(b), because the terms of the exchange do not specify 
that shares of Corporation Y stock or cash are received in exchange for 
particular shares of Class A stock or Class B stock of Corporation X, a 
pro rata portion of the

[[Page 246]]

shares of Corporation Y stock and cash received will be treated as 
received in exchange for each share of Class A stock and Class B stock 
of Corporation X surrendered based on the fair market value of such 
stock. Therefore, J is treated as receiving one share of Corporation Y 
stock and $5 of cash in exchange for each share of Class A stock of 
Corporation X and one share of Corporation Y stock and $5 of cash in 
exchange for each share of Class B stock of Corporation X. J realizes a 
gain of $140 on the exchange of shares of Class A stock of Corporation 
X, $100 of which is recognized under section 1.356-1(a). J realizes a 
gain of $80 on the exchange of Class B stock of Corporation X, all of 
which is recognized under section 1.356-1(a). Under paragraph (a)(2)(i) 
of this section, J has 10 shares of Corporation Y stock, each of which 
has a basis of $2 and is treated as having been acquired on Date 1, 10 
shares of Corporation Y stock, each of which has a basis of $4 and is 
treated as having been acquired on Date 2, and 20 shares of Corporation 
Y stock, each of which has a basis of $5 and is treated as having been 
acquired on Date 3. Under paragraph (a)(2)(viii) of this section, on or 
before the date on which the basis of a share of Corporation Y stock 
received becomes relevant, J may designate which of the shares of 
Corporation Y stock received have a basis of $2, which have a basis of 
$4, and which have a basis of $5.
    Example 5. (i) Facts. The facts are the same as in Example 4, except 
that the terms of the plan of reorganization specify that J receives 40 
shares of stock of Corporation Y in exchange for J's shares of Class A 
stock of Corporation X and $200 of cash in exchange for J's shares of 
Class B stock of Corporation X.
    (ii) Analysis. Under paragraph (a)(2)(ii) of this section and under 
section 1.356-1(b), because the terms of the exchange specify that J 
receives 40 shares of stock of Corporation Y in exchange for J's shares 
of Class A stock of Corporation X and $200 of cash in exchange for J's 
shares of Class B stock of Corporation X and such terms are economically 
reasonable, such terms control. J realizes a gain of $140 on the 
exchange of shares of Class A stock of Corporation X, none of which is 
recognized under section 1.356-1(a). J realizes a gain of $80 on the 
exchange of shares of Class B stock of Corporation X, all of which is 
recognized under section 1.356-1(a). Under paragraph (a)(2)(i) of this 
section, J has 20 shares of Corporation Y stock, each of which has a 
basis of $1 and is treated as having been acquired on Date 1, and 20 
shares of Corporation Y stock, each of which has a basis of $2 and is 
treated as having been acquired on Date 2. Under paragraph (a)(2)(vii) 
of this section, on or before the date on which the basis of a share of 
Corporation Y stock received becomes relevant, J may designate which of 
the shares of Corporation Y stock received have a basis of $1 and which 
have a basis of $2.
    Example 6. (i) Facts. J, an individual, acquired 10 shares of stock 
of Corporation X on Date 1 for $2 each, and a security issued by 
Corporation X to J on Date 2 with a principal amount of $100 and a basis 
of $100. On Date 3, Corporation Y acquires the assets of Corporation X 
in a reorganization under section 368(a)(1)(A). Pursuant to the terms of 
the plan of reorganization, J surrenders all of J's shares of 
Corporation X stock in exchange for 10 shares of Corporation Y stock and 
surrenders J's Corporation X security in exchange for a Corporation Y 
security. On the date of the exchange, the fair market value of each 
share of stock of Corporation X is $10, the fair market value of J's 
Corporation X security is $100, the fair market value of each share of 
Corporation Y stock is $10, and the fair market value and principal 
amount of the Corporation Y security received by J is $100.
    (ii) Analysis. Under paragraph (a)(2)(ii) of this section and under 
section 1.354-1(a), because the terms of the exchange specify that J 
receives 10 shares of stock of Corporation Y in exchange for J's shares 
of Class A stock of Corporation X and a Corporation Y security in 
exchange for its Corporation X security and such terms are economically 
reasonable, such terms control. Pursuant to section 354, J recognizes no 
gain on either exchange. Under paragraph (a)(2)(i) of this section, J 
has 10 shares of Corporation Y stock, each of which has a basis of $2 
and is treated as having been acquired on Date 1, and a security that 
has a basis of $100 and is treated as having been acquired on Date 2.
    Example 7. (i) Facts. J, an individual, acquired 10 shares of 
Corporation X stock on Date 1 for $2 each and 10 shares of Corporation X 
stock on Date 2 for $5 each. On Date 3, Corporation Y acquires the stock 
of Corporation X in a reorganization under section 368(a)(1)(B). 
Pursuant to the terms of the plan of reorganization, J receives one 
share of Corporation Y stock in exchange for every 2 shares of 
Corporation X stock. Pursuant to section 354, J recognizes no gain or 
loss on the exchange. J is not able to identify which portion of each 
share of Corporation Y stock is received in exchange for each share of 
Corporation X stock.
    (ii) Analysis. Under paragraph (a)(2)(i) of this section, J has 5 
shares of Corporation Y stock each of which has a basis of $4 and is 
treated as having been acquired on Date 1 and 5 shares of Corporation Y 
stock each of which has a basis of $10 and is treated as having been 
acquired on Date 2. Under paragraph (a)(2)(vii) of this section, on or 
before the date on which the basis of a share of Corporation Y stock 
received becomes relevant, J may designate which of the shares of 
Corporation Y stock received have a basis of $4 and which have a basis 
of $10.

[[Page 247]]

    Example 8. (i) Facts. The facts are the same as in Example 7, except 
that, in addition to transferring the stock of Corporation X to 
Corporation Y, J transfers land to Corporation Y. In addition, after the 
transaction, J owns stock of Corporation Y satisfying the requirements 
of section 368(c). J's transfer of the Corporation X stock to 
Corporation Y is an exchange described in sections 351 and 354. J's 
transfer of land to Corporation Y is an exchange described in section 
351.
    (ii) Analysis. Under paragraph (a)(2)(viii) of this section, because 
neither section 354 nor section 356 applies to the transfer of land to 
Corporation Y, the rules of paragraph (a)(2) of this section do not 
apply to determine J's basis in the Corporation Y stock received in the 
transaction.
    Example 9. (i) Facts. J, an individual, acquired 10 shares of 
Corporation X stock on Date 1 for $3 each and 10 shares of Corporation X 
stock on Date 2 for $6 each. On Date 3, Corporation Z, a newly formed, 
wholly owned subsidiary of Corporation Y, merges with and into 
Corporation X with Corporation X surviving. As part of the plan of 
merger, J receives one share of Corporation Y stock in exchange for each 
share of Corporation X stock. In connection with the transaction, 
Corporation Y assumes a liability of J. In addition, after the 
transaction, J owns stock of Corporation Y satisfying the requirements 
of section 368(c). J's transfer of the Corporation X stock to 
Corporation Y is an exchange described in sections 351 and 354.
    (ii) Analysis. Under paragraph (a)(2)(viii) of this section, 
because, in connection with the transfer of the Corporation X stock to 
Corporation Y, Corporation Y assumed a liability of J, the rules of 
paragraph (a)(2) of this section do not apply to determine J's basis in 
the Corporation Y stock received in the transaction.
    Example 10. (i) Facts. Each of Corporation X and Corporation Y has a 
single class of stock outstanding, all of which is owned by J, an 
individual. J acquired 100 shares of Corporation X stock on Date 1 for 
$1 each and 100 shares of Corporation Y stock on Date 2 for $2 each. On 
Date 3, Corporation Y acquires the assets of Corporation X in a 
reorganization under section 368(a)(1)(D). Pursuant to the terms of the 
plan of reorganization, J surrenders J's 100 shares of Corporation X 
stock but does not receive any additional Corporation Y stock. 
Immediately before the effective time of the reorganization, the fair 
market value of each share of Corporation X stock and each share of 
Corporation Y stock is $1. Pursuant to section 354, J recognizes no gain 
or loss.
    (ii) Analysis. Under paragraph (a)(2)(iii) of this section, J is 
deemed to have received shares of Corporation Y stock with an aggregate 
fair market value of $100 in exchange for J's Corporation X shares. 
Given the number of outstanding shares of stock of Corporation Y and 
their value immediately before the effective time of the reorganization, 
J is deemed to have received 100 shares of stock of Corporation Y in the 
reorganization. Under paragraph (a)(2)(i) of this section, each of those 
shares has a basis of $1 and is treated as having been acquired on Date 
1. Then, the stock of Corporation Y is deemed to be recapitalized in a 
reorganization under section 368(a)(1)(E) in which J receives 100 shares 
of Corporation Y stock in exchange for those shares of Corporation Y 
stock that J held immediately prior to the reorganization and those 
shares J is deemed to have received in the reorganization. Under 
paragraph (a)(2)(i), immediately after the reorganization, J holds 50 
shares of Corporation Y stock each of which has a basis of $2 and is 
treated as having been acquired on Date 1 and 50 shares of Corporation Y 
stock each of which has a basis of $4 and is treated as having been 
acquired on Date 2. Under paragraph (a)(2)(vii) of this section, on or 
before the date on which the basis of any share of J's Corporation Y 
stock becomes relevant, J may designate which of the shares of 
Corporation Y have a basis of $2 and which have a basis of $4.
    Example 11. (i) Facts. Corporation X has a single class of stock 
outstanding, all of which is owned by J, an individual. J acquired 100 
shares of Corporation X stock on Date 1 for $1 each. Corporation Y has 
two classes of stock outstanding, common stock and nonvoting preferred 
stock. On Date 2, J acquired 100 shares of Corporation Y common stock 
for $2 each and 100 shares of Corporation Y preferred stock for $4 each. 
On Date 3, Corporation Y acquires the assets of Corporation X in a 
reorganization under section 368(a)(1)(D). Pursuant to the terms of the 
plan of reorganization, J surrenders J's 100 shares of Corporation X 
stock but does not receive any additional Corporation Y stock. 
Immediately before the effective time of the reorganization, the fair 
market value of each share of Corporation X stock is $10, the fair 
market value of each share of Corporation Y common stock is $10, and the 
fair market value of each share of Corporation Y preferred stock is $20. 
Pursuant to section 354, J recognizes no gain or loss.
    (ii) Analysis. Under paragraph (a)(2)(iii) of this section, J is 
deemed to have received shares of Corporation Y stock with an aggregate 
fair market value of $1,000 in exchange for J's Corporation X shares. 
Consistent with the economics of the transaction and the rights 
associated with each class of stock of Corporation Y owned by J, J is 
deemed to receive additional shares of Corporation Y common stock. 
Because the value of the common stock indicates that liquidation 
preference associated with the Corporation Y preferred stock could be 
satisfied even if the reorganization did not occur, it is not 
appropriate to deem the issuance of additional

[[Page 248]]

Corporation Y preferred stock. Given the number of outstanding shares of 
common stock of Corporation Y and their value immediately before the 
effective time of the reorganization, J is deemed to have received 100 
shares of common stock of Corporation Y in the reorganization. Under 
paragraph (a)(2)(i) of this section, each of those shares has a basis of 
$1 and is treated as having been acquired on Date 1. Then, the common 
stock of Corporation Y is deemed to be recapitalized in a reorganization 
under section 368(a)(1)(E) in which J receives 100 shares of Corporation 
Y common stock in exchange for those shares of Corporation Y common 
stock that J held immediately prior to the reorganization and those 
shares of Corporation Y common stock that J is deemed to have received 
in the reorganization. Under paragraph (a)(2)(i), immediately after the 
reorganization, J holds 50 shares of Corporation Y common stock each of 
which has a basis of $2 and is treated as having been acquired on Date 1 
and 50 shares of Corporation Y common stock each of which has a basis of 
$4 and is treated as having been acquired on Date 2. Under paragraph 
(a)(2)(vii) of this section, on or before the date on which the basis of 
any share of J's Corporation Y common stock becomes relevant, J may 
designate which of those shares have a basis of $2 and which have a 
basis of $4.
    Example 12. (i) Facts. J, an individual, acquired 5 shares of 
Corporation X stock on Date 1 for $4 each and 5 shares of Corporation X 
stock on Date 2 for $8 each. Corporation X owns all of the outstanding 
stock of Corporation Y. The fair market value of the stock of 
Corporation X is $1800. The fair market value of the stock of 
Corporation Y is $900. In a distribution to which section 355 applies, 
Corporation X distributes all of the stock of Corporation Y pro rata to 
its shareholders. No stock of Corporation X is surrendered in connection 
with the distribution. In the distribution, J receives 2 shares of 
Corporation Y stock with respect to each share of Corporation X stock. 
Pursuant to section 355, J recognizes no gain or loss on the receipt of 
the shares of Corporation Y stock. J is not able to identify which share 
of Corporation Y stock is received in respect of each share of 
Corporation X stock.
    (ii) Analysis. Under paragraph (a)(2)(iv) of this section, because J 
receives 2 shares of Corporation Y stock with respect to each share of 
Corporation X stock, the basis of each share of Corporation X stock is 
allocated between such share of Corporation X stock and two shares of 
Corporation Y stock in proportion to the fair market value of those 
shares. Therefore, each of the 5 shares of Corporation X stock acquired 
on Date 1 will have a basis of $2 and each of the 10 shares of 
Corporation Y stock received with respect to those shares will have a 
basis of $1. In addition, each of the 5 shares of Corporation X stock 
acquired on Date 2 will have a basis of $4 and each of the 10 shares of 
Corporation Y stock received with respect to those shares will have a 
basis of $2. Under paragraph (a)(2)(vii) of this section, on or before 
the date on which the basis of a share of Corporation Y stock received 
becomes relevant, J may designate which of the shares of Corporation Y 
stock have a basis of $1 and which have a basis of $2.
    Example 13. (i) Facts. J, an individual, acquired 20 shares of 
Corporation X stock on Date 1 for $2 each and 20 shares of Corporation X 
stock on Date 2 for $4 each. Corporation X has 80 shares of stock 
outstanding. Corporation X owns 40 shares of stock of Corporation Y, 
which represents all of the outstanding stock of Corporation Y. The fair 
market value of the stock of Corporation X is $80. The fair market value 
of the stock of Corporation Y is $40. Corporation X distributes all of 
the stock of Corporation Y in a transaction to which section 355 
applies. In the transaction, J surrenders 20 shares of stock of 
Corporation X in exchange for 20 shares of stock of Corporation Y. J 
retains 20 shares of Corporation X stock. Pursuant to section 355, J 
recognizes no gain or loss on the receipt of the shares of Corporation Y 
stock. J is not able to identify which shares of Corporation X stock are 
surrendered. In addition, J is not able to identify which shares of 
Corporation Y stock are received in exchange for each surrendered share 
of Corporation X stock.
    (ii) Analysis. Under paragraph (a)(2)(i) of this section, J has 20 
shares of Corporation Y stock each of which is treated as received in 
exchange for one share of Corporation X stock. The basis of the 20 
shares of Corporation X stock that are retained by J will remain 
unchanged. Under paragraph (a)(2)(vii) of this section, on or before the 
date on which the basis of a share of Corporation X or Corporation Y 
stock becomes relevant, J may designate which shares of Corporation X 
stock J surrendered in the exchange and which share of the Corporation Y 
stock received is received for each share of Corporation X stock 
surrendered. Therefore, it is possible that a share of Corporation Y 
stock would have a basis of $2 and be treated as having been acquired on 
Date 1, or would have a basis of $4 and be treated as having been 
acquired on Date 2.
    Example 14. (i) Facts. J, an individual, acquired 10 shares of 
Corporation X stock on Date 1 for $3 each, 10 shares of Corporation X 
stock on Date 2 for $18 each, 10 shares of Corporation X stock on Date 3 
for $6 each, and 10 shares of Corporation X stock on Date 4 for $9 each. 
On Date 5, Corporation Y acquires the assets of Corporation X in a 
reorganization under section 368(a)(1)(A). Pursuant to the terms of the 
plan of reorganization, J receives a \3/4\ share of Corporation Y

[[Page 249]]

stock in exchange for each share of Corporation X stock. Therefore, J 
receives 30 shares of Corporation X stock. Pursuant to section 354, J 
recognizes no gain or loss on the exchange. J is not able to identify 
which shares of Corporation Y stock are received in exchange for each 
share (or portions of shares) of Corporation X stock.
    (ii) Analysis. Under paragraph (a)(2)(i) of this section, J has 7 
shares of Corporation Y stock each of which has a basis of $4 and is 
treated as having been acquired on Date 1, 7 shares of Corporation Y 
stock each of which has a basis of $24 and is treated as having been 
acquired on Date 2, 7 shares of Corporation Y stock each of which has a 
basis of $8 and is treated as having been acquired on Date 3, and 7 
shares of Corporation Y stock each of which has a basis of $12 and is 
treated as having been acquired on Date 4. In addition, J has two shares 
of Corporation Y stock, each of which is divided into two equal segments 
under paragraph (a)(2)(vi) of this section. The first of those two 
shares has one segment with a basis of $2 that is treated as having been 
acquired on Date 1 and a second segment with a basis of $12 that is 
treated as having been acquired on Date 2. The second of those two 
shares has one segment with a basis of $4 that is treated as having been 
acquired on Date 3 and a second segment with a basis of $6 that is 
treated as having been acquired on Date 4. Under paragraph (a)(2)(vii), 
on or before the date on which a share of Corporation Y stock received 
becomes relevant, J may designate which of the shares of Corporation Y 
stock have a basis of $4, which have a basis of $24, which have a basis 
of $8, which have a basis of $12, and which share has a split basis of 
$2 and $12, and which share has a split basis of $4 and $6.

    (d) Effective date. This section applies to exchanges and 
distributions of stock and securities occurring on or after January 23, 
2006.

[T.D. 6500, 25 FR 11607, Nov. 26, 1960, as amended by T.D. 7616, 44 FR 
26869, May 8, 1979; T.D. 8648, 60 FR 66079, Dec. 21, 1995; T.D. 9244, 71 
FR 4270, Jan. 26, 2006]



Sec. 1.358-3  Treatment of assumption of liabilities.

    (a) For purposes of section 358, where a party to the exchange 
assumes a liability of a distributee or acquires from him property 
subject to a liability, the amount of such liability is to be treated as 
money received by the distributee upon the exchange, whether or not the 
assumption of liabilities resulted in a recognition of gain or loss to 
the taxpayer under the law applicable to the year in which the exchange 
was made.
    (b) The application of paragraph (a) of this section may be 
illustrated by the following examples:

    Example (1). A, an individual, owns property with an adjusted basis 
of $100,000 on which there is a purchase money mortgage of $25,000. On 
December 1, 1945, A organizes Corporation X to which he transfers the 
property in exchange for all the stock of Corporation X and the 
assumption by Corporation X of the mortgage. The capital stock of the 
Corporation X has a fair market value of $150,000. Under sections 351 
and 357, no gain or loss is recognized to A. The basis in A's hands of 
the stock of Corporation X is $75,000, computed as follows:

Adjusted basis of property transferred......................    $100,000
Less: Amount of money received (amount of liabilities           --25,000
 assumed)...................................................
                                                             -----------
 Basis of Corporation X stock to A..........................      75,000
 

    Example (2). A, an individual, owns property with an adjusted basis 
of $25,000 on which there is a mortgage of $50,000. On December 1, 1954, 
A organizes Corporation X to which he transfers the property in exchange 
for all the stock of Corporation X and the assumption by Corporation X 
of the mortgage. The stock of Corporation X has a fair market value of 
$50,000. Under sections 351 and 357, gain is recognized to A in the 
amount of $25,000. The basis in A's hands of the stock of Corporation X 
is zero, computed as follows:

Adjusted basis of property transferred......................     $25,000
Less: Amount of money received (amount of liabilities)......    --50,000
Plus: Amount of gain recognized to taxpayer.................      25,000
                                                             -----------
 Basis of Corporation X stock to A..........................           0
 



Sec. 1.358-4  Exceptions.

    (a) Plan of reorganization adopted after October 22, 1968. In the 
case of a plan of reorganization adopted after October 22, 1968, section 
358 does not apply in determining the basis of property acquired by a 
corporation in connection with such reorganization by the exchange of 
its stock or securities (or by the exchange of stock or securities of a 
corporation which is in control of the acquiring corporation) as the 
consideration in whole or in part for the transfer of the property to 
it. See section 362 and the regulations pertaining to that section for 
rules relating to basis to corporations of property acquired in such 
cases.
    (b) Plan of reorganization adopted before October 23, 1968. In the 
case of a plan of reorganization adopted before

[[Page 250]]

October 23, 1968, section 358 does not apply in determining the basis of 
property acquired by a corporation in connection with such 
reorganization by the issuance of stock or securities of such 
corporation (or by the issuance of stock or securities of another 
corporation which is in control of such corporation) as the 
consideration in whole or in part for the transfer of the property to 
it. The term issuance of stock or securities includes any transfer of 
stock or securities, including stock or securities which were purchased 
or were acquired as a contribution to capital. See section 362 and the 
regulations pertaining to that section for rules relating to basis to 
corporations of property acquired in such cases.

[T.D. 7422, 41 FR 26569, June 28, 1976]



Sec. 1.358-5  [Reserved]



Sec. 1.358-5T  Special rules for assumption of liabilities (temporary).

    (a) In general. Section 358(h)(2)(B) does not apply to an exchange 
occurring on or after June 24, 2003.
    (b) Effective dates. This section applies to exchanges occurring on 
or after June 24, 2003.

[T.D. 9207, 70 FR 30341, May 26, 2005]



Sec. 1.358-6  Stock basis in certain triangular reorganizations.

    (a) Scope. This section provides rules for computing the basis of a 
controlling corporation in the stock of a controlled corporation as the 
result of certain reorganizations involving the stock of the controlling 
corporation as described in paragraph (b) of this section. The rules of 
this section are in addition to rules under other provisions of the 
Internal Revenue Code and principles of law. See, e.g., section 1001 for 
the recognition of gain or loss by the controlled corporation on the 
exchange of property for the assets or stock of a target corporation in 
a reorganization described in section 368.
    (b) Triangular reorganizations--(1) Nomenclature. For purposes of 
this section--
    (i) P is a corporation--
    (A) That is a party to a reorganization,
    (B) That is in control (within the meaning of section 368(c)) of 
another party to the reorganization, and
    (C) Whose stock is transferred pursuant to the reorganization.
    (ii) S is a corporation--
    (A) That is a party to the reorganization, and
    (B) That is controlled by P.
    (iii) T is a corporation that is another party to the 
reorganization.
    (2) Definitions of triangular reorganizations. This section applies 
to the following reorganizations (which are referred to collectively as 
triangular reorganizations):
    (i) Forward triangular merger. A forward triangular merger is a 
statutory merger of T and S, with S surviving, that qualifies as a 
reorganization under section 368(a)(1)(A) or (G) by reason of the 
application of section 368(a)(2)(D).
    (ii) Triangular C reorganization. A triangular C reorganization is 
an acquisition by S of substantially all of T's assets in exchange for P 
stock in a transaction that qualifies as a reorganization under section 
368(a)(1)(C).
    (iii) Reverse triangular merger. A reverse triangular merger is a 
statutory merger of S and T, with T surviving, that qualifies as a 
reorganization under section 368(a)(1)(A) by reason of the application 
of section 368(a)(2)(E).
    (iv) Triangular B reorganization. A triangular B reorganization is 
an acquisition by S of T stock in exchange for P stock in a transaction 
that qualifies as a reorganization under section 368(a)(1)(B).
    (c) General rules. Subject to the special rule provided in paragraph 
(d) of this section, P's basis in the stock of S or T, as applicable, as 
a result of a triangular reorganization, is adjusted under the following 
rules--
    (1) Forward triangular merger or triangular C reorganization--(i) In 
general. In a forward triangular merger or a triangular C 
reorganization, P's basis in its S stock is adjusted as if--
    (A) P acquired the T assets acquired by S in the reorganization (and 
P assumed any liabilities which S assumed or to which the T assets 
acquired by S were subject) directly from T in a transaction in which 
P's basis in the T assets was determined under section 362(b); and

[[Page 251]]

    (B) P transferred the T assets (and liabilities which S assumed or 
to which the T assets acquired by S were subject) to S in a transaction 
in which P's basis in S stock was determined under section 358.
    (ii) Limitation. If, in applying section 358, the amount of T 
liabilities assumed by S or to which the T assets acquired by S are 
subject equals or exceeds T's aggregate adjusted basis in its assets, 
the amount of the adjustment under paragraph (c)(1)(i) of this section 
is zero. P recognizes no gain under section 357(c) as a result of a 
triangular reorganization.
    (2) Reverse triangular merger--(i) In general--(A) Treated as a 
forward triangular merger. Except as otherwise provided in this 
paragraph (c)(2), P's basis in its T stock acquired in a reverse 
triangular merger equals its basis in its S stock immediately before the 
transaction adjusted as if T had merged into S in a forward triangular 
merger to which paragraph (c)(1) of this section applies.
    (B) Allocable share. If P acquires less than all of the T stock in 
the transaction, the basis adjustment described in paragraph 
(c)(2)(i)(A) of this section is reduced in proportion to the percentage 
of T stock not acquired in the transaction. The percentage of T stock 
not acquired in the transaction is determined by taking into account the 
fair market value of all classes of T stock.
    (C) Special rule if P owns T stock before the transaction. Solely 
for purposes of paragraphs (c)(2)(i)(A) and (B) of this section, if P 
owns T stock before the transaction, P may treat that stock as acquired 
in the transaction or not, without regard to the form of the 
transaction.
    (ii) Reverse triangular merger that qualifies as a section 351 
transfer or section 368(a)(1)(B) reorganization. Notwithstanding 
paragraph (c)(2)(i) of this section, if a reorganization qualifies as 
both a reverse triangular merger and as a section 351 transfer or as 
both a reverse triangular merger and a reorganization under section 
368(a)(1)(B), P can--
    (A) Determine the basis in its T stock as if paragraph (c)(2)(i) of 
this section applies; or
    (B) Determine the basis in the T stock acquired as if P acquired 
such stock from the former T shareholders in a transaction in which P's 
basis in the T stock was determined under section 362(b).
    (3) Triangular B reorganization. In a triangular B reorganization, 
P's basis in its S stock is adjusted as if--
    (i) P acquired the T stock acquired by S in the reorganization 
directly from the T shareholders in a transaction in which P's basis in 
the T stock was determined under section 362(b); and
    (ii) P transferred the T stock to S in a transaction in which P's 
basis in its S stock was determined under section 358.
    (4) Examples. The rules of this paragraph (c) are illustrated by the 
following examples. For purposes of these examples, P, S, and T are 
domestic corporations, P and S do not file consolidated returns, P owns 
all of the only class of S stock, the P stock exchanged in the 
transaction satisfies the requirements of the applicable triangular 
reorganization provisions, and the facts set forth the only corporate 
activity.

    Example 1. Forward triangular merger--(a) Facts. T has assets with 
an aggregate basis of $60 and fair market value of $100 and no 
liabilities. Pursuant to a plan, P forms S with $5 cash (which S 
retains), and T merges into S. In the merger, the T shareholders receive 
P stock worth $100 in exchange for their T stock. The transaction is a 
reorganization to which sections 368(a)(1)(A) and (a)(2)(D) apply.
    (b) Basis adjustment. Under Sec. 1.358-6(c)(1), P's $5 basis in its 
S stock is adjusted as if P acquired the T assets acquired by S in the 
reorganization directly from T in a transaction in which P's basis in 
the T assets was determined under section 362(b). Under section 362(b), 
P would have an aggregate basis of $60 in the T assets. P is then 
treated as if it transferred the T assets to S in a transaction in which 
P's basis in the S stock was determined under section 358. Under section 
358, P's $5 basis in its S stock would be increased by the $60 basis in 
the T assets deemed transferred. Consequently, P has a $65 basis in its 
S stock as a result of the reorganization.
    (c) Use of pre-existing S. The facts are the same as paragraph (a) 
of this Example 1, except that S is an operating company with 
substantial assets that has been in existence for several years. P has a 
$110 basis in the S stock. Under Sec. 1.358-6(c)(1), P's $110 basis in 
its S stock is increased by the $60 basis in the T assets deemed 
transferred. Consequently, P

[[Page 252]]

has a $170 basis in its S stock as a result of the reorganization.
    (d) Mixed consideration. The facts are the same as paragraph (a) of 
this Example 1, except that the T shareholders receive P stock worth $80 
and $20 cash from P. Under section 358, P's $5 basis in its S stock is 
increased by the $60 basis in the T assets deemed transferred. 
Consequently, P has a $65 basis in its S stock as a result of the 
reorganization.
    (e) Liabilities. The facts are the same as paragraph (a) of this 
Example 1, except that T's assets are subject to $50 of liabilities, and 
the T shareholders receive $50 of P stock in exchange for their T stock. 
Under section 358, P's basis in its S stock is increased by the $60 
basis in the T assets deemed transferred and decreased by the $50 of 
liabilities to which the T assets acquired by S are subject. 
Consequently, P has a net basis adjustment of $10, and a $15 basis in 
its S stock as a result of the reorganization. For certain triangular 
reorganizations where the surviving corporation (S or T) is foreign, see 
Sec. 1.367(b)-13.
    (f) Liabilities in excess of basis. The facts are the same as in 
paragraph (a) of this Example 1, except that T's assets are subject to 
liabilities of $90, and the T shareholders receive $10 of P stock in 
exchange for their T stock in the reorganization. Under Sec. 1.358-
6(c)(1)(ii), the adjustment under Sec. 1.358-6(c) is zero if the amount 
of the liabilities which S assumed or to which the T assets acquired by 
S are subject exceeds the aggregate adjusted basis in T's assets. 
Consequently, P has no adjustment in its S stock, and P has a $5 basis 
in its S stock as a result of the reorganization.
    Example 2. Reverse triangular merger. (a) Facts. T has assets with 
an aggregate basis of $60 and a fair market value of $100 and no 
liabilities. P has a $110 basis in its S stock. Pursuant to a plan, S 
merges into T with T surviving. In the merger, the T shareholders 
receive $10 cash from P and P stock worth $90 in exchange for their T 
stock. The transaction is a reorganization to which sections 
368(a)(1)(A) and (a)(2)(E) apply.
    (b) Basis adjustment. Under Sec. 1.358-6(c)(2)(i)(A), P's basis in 
the T stock acquired is P's $110 basis in its S stock before the 
transaction, adjusted as if T had merged into S in a forward triangular 
merger to which Sec. 1.358-6(c)(1) applies. In such a case, P's $110 
basis in its S stock before the transaction would have been increased by 
the $60 basis of the T assets deemed transferred. Consequently, P has a 
$170 basis in its T stock immediately after the transaction.
    (c) Reverse triangular merger that also qualifies under section 
368(a)(1)(B). The facts relating to T are the same as in paragraph (a) 
of this Example 2. P, however, forms S pursuant to the plan of 
reorganization. The T shareholders receive $100 worth of P stock (and no 
cash) in exchange for their T stock. The T shareholders have an 
aggregate basis in their T stock of $85 immediately before the 
reorganization. The reorganization qualifies as both a reverse 
triangular merger and a reorganization under section 368(a)(1)(B). Under 
Sec. 1.358-6(c)(2)(ii), P may determine its basis in its T stock either 
as if Sec. 1.358-6(c)(2)(i) applied to the T stock acquired, or as if P 
acquired the T stock from the former T shareholders in a transaction in 
which P's basis in the T stock was determined under section 362(b). 
Accordingly, P may determine a basis in its T stock of $60 (T's net 
asset basis) or $85 (the T shareholders' aggregate basis in the T stock 
immediately before the reorganization).
    (d) Allocable share in a reverse triangular merger. The facts are 
the same as in paragraph (a) of this Example 2, except that X, a 10% 
shareholder of T, does not participate in the transaction. The remaining 
T shareholders receive $10 cash from P and P stock worth $80 for their T 
stock. P owns 90% of the T stock after the transaction. Under Sec. 
1.358-6(c)(2)(i)(A), P's basis in its T stock is P's $110 basis in its S 
stock before the reorganization, adjusted as if T had merged into S in a 
forward triangular merger. In such a case, P's basis would have been 
adjusted by the $60 basis in the T assets deemed transferred. Under 
Sec. 1.358-6(c)(2)(i)(B), however, the basis adjustment determined 
under Sec. 1.358-6(c)(2)(i)(A) is reduced in proportion to the 
percentage of T stock not acquired by P in the transaction. The 
percentage of T stock not acquired in the transaction is 10%. Therefore, 
P reduces its $60 basis adjustment by 10%, resulting in a net basis 
adjustment of $54. Consequently, P has a $164 basis in its T stock as a 
result of the transaction.
    (e) P's ownership of T stock. The facts are the same as in paragraph 
(a) of this Example 2, except that P owns 10% of the T stock before the 
transaction. P's basis in that T stock is $8. All the T shareholders 
other than P surrender their T stock for $10 cash from P and P stock 
worth $80. P does not surrender the stock in the transaction. Under 
Sec. 1.358-6(c)(2)(i)(C), P may treat its T stock owned before the 
transaction as acquired in the transaction or not. If P treats that T 
stock as acquired in the transaction, P's basis in that T stock and the 
T stock actually acquired in the transaction equals P's $110 basis in 
its S stock before the transaction, adjusted by the $60 basis of the T 
assets deemed transferred, for a total basis of $170. If P treats its T 
stock as not acquired, P retains its $8 pre-transaction basis in that 
stock. P's basis in its other T shares equals P's $110 basis in its S 
stock before the transaction, adjusted by $54 (the $60 basis in the T 
assets deemed transferred, reduced by 10%), for a total basis of $164 in 
those shares. See Sec. 1.358-6(c)(2)(i)(A) and (B). Consequently, if P 
treats its T shares as not acquired, P's total basis in all of its T 
shares is $172.

[[Page 253]]

    Example 3. Triangular B reorganization. (a) Facts. T has assets with 
a fair market value of $100 and no liabilities. The T shareholders have 
an aggregate basis in their T stock of $85 immediately before the 
reorganization. Pursuant to a plan, P forms S with $5 cash and S 
acquires all of the T stock in exchange for $100 of P stock. The 
transaction is a reorganization to which section 368(a)(1)(B) applies.
    (b) Basis adjustment. Under Sec. 1.358-6(c)(3), P adjusts its $5 
basis in its S stock by treating P as if it acquired the T stock 
acquired by S in the reorganization directly from the T shareholders in 
exchange for the P stock in a transaction in which P's basis in the T 
stock was determined under section 362(b). Under section 362(b), P would 
have an aggregate basis of $85 in the T stock received by S in the 
reorganization. P is then treated as if it transferred the T stock to S 
in a transaction in which P's basis in the S stock was determined under 
section 358. Under section 358, P's basis in its S stock would be 
increased by the $85 basis in the T stock deemed transferred. 
Consequently, P has a $90 basis in its S stock as a result of the 
reorganization.

    (d) Special rule for consideration not provided by P--(1) In 
general. The amount of P's adjustment to basis in its S or T stock, as 
applicable, described in paragraph (c) of this section is decreased by 
the fair market value of any consideration (including P stock in which 
gain or loss is recognized, see Sec. 1.1032-2(c)) that is exchanged in 
the reorganization and that is not provided by P pursuant to the plan of 
reorganization. This paragraph (d) does not apply to the amount of T 
liabilities assumed by S or to which the T assets acquired by S are 
subject under paragraph (c)(1) of this section (or deemed assumed or 
taken subject to by S under paragraph (c)(2)(i) of this section).
    (2) Limitation. P makes no adjustment to basis under this section if 
the decrease required under paragraph (d)(1) of this section equals or 
exceeds the amount of the adjustment described in paragraph (c) of this 
section.
    (3) Example. The rules of this paragraph (d) are illustrated by the 
following example. For purposes of this example, P, S, and T are 
domestic corporations, P and S do not file consolidated returns, P owns 
all of the only class of S stock, the P stock exchanged in the 
transaction satisfies the requirements of the applicable triangular 
reorganization provisions, and the facts set forth the only corporate 
activity.

    Example. (a) Facts. T has assets with an aggregate basis of $60 and 
fair market value of $100 and no liabilities. S is an operating company 
with substantial assets that has been in existence for several years. P 
has a $100 basis in its S stock. Pursuant to a plan, T merges into S and 
the T shareholders receive $70 of P stock provided by P pursuant to the 
plan and $30 of cash provided by S in exchange for their T stock. The 
transaction is a reorganization to which sections 368(a)(1)(A) and 
(a)(2)(D) apply.
    (b) Basis adjustment. Under Sec. 1.358-6(c)(1), P's $100 basis in 
its S stock is increased by the $60 basis in the T assets deemed 
transferred. Under Sec. 1.358-6(d)(1), the $60 adjustment is decreased 
by the $30 of cash provided by S in the reorganization. Consequently, P 
has a net adjustment of $30 in its S stock, and P has a $130 basis in 
its S stock as a result of the reorganization.
    (c) Appreciated asset. The facts are the same as in paragraph (a) of 
this Example, except that in the reorganization S provides an asset with 
a $20 adjusted basis and $30 fair market value instead of $30 of cash. 
The basis results are the same as in paragraph (b) of this Example. In 
addition, S recognizes $10 of gain under section 1001 on its disposition 
of the asset in the reorganization.
    (d) Depreciated asset. The facts are the same as in paragraph (c) of 
this Example, except that S has a $60 adjusted basis in the asset. The 
basis results are the same as in paragraph (b) of this Example. In 
addition, S recognizes $30 of loss under section 1001 on its disposition 
of the asset in the reorganization.
    (e) P stock. The facts are the same as in paragraph (a) of this 
Example, except that in the reorganization S provides P stock with a 
fair market value of $30 instead of $30 of cash. S acquired the P stock 
in an unrelated transaction several years before the reorganization. S 
has a $20 adjusted basis in the P stock. The basis results are the same 
as in paragraph (b) of this Example. In addition, S recognizes $10 of 
gain on its disposition of the P stock in the reorganization. See Sec. 
1.1032-2(c).

    (e) Cross-reference. For rules relating to stock basis adjustments 
made as a result of a triangular reorganization in which P and S, or P 
and T, as applicable, are, or become, members of a consolidated group, 
see Sec. 1.1502-30. For rules relating to stock basis adjustments after 
a group structure change, see Sec. 1.1502-31.

[[Page 254]]

    (f) Effective dates--(1) General rule. Except as otherwise provided 
in this paragraph (f), this section applies to triangular 
reorganizations occurring on or after December 23, 1994.
    (2) Special rule for reverse triangular mergers. For a reverse 
triangular merger occurring before December 23, 1994, P may--
    (i) Determine the basis in its T stock as if paragraph (c)(2)(i) of 
this section applied; or
    (ii) Determine the basis in its T stock acquired as if P acquired 
such stock from the former T shareholders in a transaction in which P's 
basis in the T stock was determined under section 362(b).

[T.D. 8648, 60 FR 66079, Dec. 21, 1995; 61 FR 11547, Mar. 21, 1996; T.D. 
9243, 71 FR 4282, Jan. 26, 2006]



Sec. 1.358-7  Transfers by partners and partnerships to corporations.

    (a) Transfers by partners of partnership interests. For purposes of 
section 358(h), a transfer of a partnership interest to a corporation is 
treated as a transfer of the partner's share of each of the 
partnership's assets and an assumption by the corporation of the 
partner's share of partnership liabilities (including section 358(h) 
liabilities, as defined in paragraph (d) of this section). See paragraph 
(e) Example 2 of this section.
    (b) Transfers by partnerships. If a corporation assumes a section 
358(h) liability from a partnership in an exchange to which section 
358(a) applies, then, for purposes of applying section 705 
(determination of basis of partner's interest) and Sec. 1.704-1(b), any 
reduction, under section 358(h)(1), in the partnership's basis in 
corporate stock received in the transaction is treated as an expenditure 
of the partnership described in section 705(a)(2)(B). See paragraph (e) 
Example 1 of this section. This expenditure must be allocated among the 
partners in accordance with section 704(b) and (c) and Sec. 1.752-7(c). 
If a partner's share of the reduction, under section 358(h)(1), in the 
partnership's basis in corporate stock exceeds the partner's basis in 
the partnership interest, then the partner recognizes gain equal to the 
excess, which is treated as gain from the sale or exchange of a 
partnership interest. This paragraph does not apply to the extent that 
Sec. 1.752-7(j)(4) applies to the assumption of the Sec. 1.752-7 
liability by the corporation.
    (c) Assumption of section 358(h) liability by partnership followed 
by transfer of partnership interest or partnership property to a 
corporation--trade or business exception. Where a partnership assumes a 
section 358(h) liability from a partner and, subsequently, the partner 
transfers all or part of the partner's partnership interest to a 
corporation in an exchange to which section 358(a) applies, then, for 
purposes of applying section 358(h)(2), the section 358(h) liability is 
treated as associated only with the contribution made to the partnership 
by that partner. See paragraph (e) Example 2 of this section. Similar 
rules apply where a partnership assumes a section 358(h) liability of a 
partner and a corporation subsequently assumes that section 358(h) 
liability from the partnership in an exchange to which section 358(a) 
applies.
    (d) Section 358(h) liabilities defined. For purposes of this 
section, section 358(h) liabilities are liabilities described in section 
358(h)(3).
    (e) Examples. The following examples illustrate the provisions of 
this section. Assume, for purposes of these examples, that the 
obligation assumed by the corporation does not reduce the shareholder's 
basis in the corporate stock under section 358(d). The examples are as 
follows:

    Example 1. Transfer of partnership property to corporation. In 2004, 
in an exchange to which section 351(a) applies, PRS, a cash basis 
taxpayer, transfers $2,000,000 cash to Corporation X, also a cash basis 
taxpayer, in exchange for Corporation X shares and the assumption by 
Corporation X of $1,000,000 of accounts payable incurred by PRS. At the 
time of the exchange, PRS has two partners, A, a 90% partner, who has a 
$2,000,000 basis in the PRS interest, and B, a 10% partner, who has a 
$50,000 basis in the PRS interest. Assume that, under section 358(h)(1), 
PRS's basis in the Corporation X stock is reduced by the accounts 
payable assumed by Corporation X ($1,000,000). Under paragraph (b) of 
this section, A's and B's bases in PRS must be reduced, but not below 
zero, by their respective shares of the section 358(h)(1) basis 
reduction. If either partner's share of the section 358(h)(1) basis 
reduction exceeds the partner's basis in the partnership interest, then 
the partner recognizes gain equal to the excess. A's share of the 
section 358(h)

[[Page 255]]

basis reduction is $900,000 (90% of $1,000,000). Therefore, A's basis in 
the PRS interest is reduced to $1,100,000 ($2,000,000 - $900,000). B's 
share of the section 358(h) basis reduction is $100,000 (10% of 
$1,000,000). Because B's share of the section 358(h) basis reduction 
($100,000) exceeds B's basis in the PRS interest ($50,000), B's basis in 
the PRS interest is reduced to $0 and B recognizes $50,000 of gain. This 
gain is treated as gain from the sale of the PRS interest.
    Example 2. Transfer of partnership interest to corporation. In 2004, 
A contributes undeveloped land with a value and basis of $4,000,000 in 
exchange for a 50% interest in PRS and an assumption by PRS of 
$2,000,000 of pension liabilities from a separate business that A 
conducts. A's basis in the PRS interest immediately after the 
contribution is A's basis in the land, $4,000,000, unreduced by the 
amount of the pension liabilities. PRS develops the land as a landfill. 
Before PRS has economically performed with respect to the pension 
liabilities, A transfers A's interest in PRS to Corporation X, in an 
exchange to which section 351 applies. At the time of the exchange, the 
value of A's PRS interest is $2,000,000, A's basis in PRS is $4,000,000, 
and A has no share of partnership liabilities other than the pension 
liabilities. For purposes of applying section 358(h), the transfer of 
the PRS interest to Corporation X is treated as a transfer to 
Corporation X of A's share of PRS assets and an assumption by 
Corporation X of A's share of the pension liabilities of PRS 
($2,000,000). Because the pension liabilities were not assumed by PRS 
from A in an exchange in which the trade or business associated with the 
liability was transferred to PRS, the transfer of the PRS interest to 
Corporation X is not excepted from section 358(h) under section 
358(h)(2). See paragraph (c) of this section. Under section 358(h), A's 
basis in the Corporation X stock is reduced by the $2,000,000 of pension 
liabilities.

    (f) Effective date. This section applies to assumptions of 
liabilities by a corporation occurring on or after June 24, 2003.

[T.D. 9207, 70 FR 30341, May 26, 2005]

                         effects on corporation



Sec. 1.361-1  Nonrecognition of gain or loss to corporations.

    Section 361 provides the general rule that no gain or loss shall be 
recognized if a corporation, a party to a reorganization, exchanges 
property in pursuance of the plan of reorganization solely for stock or 
securities in another corporation, a party to the reorganization. This 
provision includes only stock and securities received in connection with 
a reorganization defined in section 368(a). It also includes nonvoting 
stock and securities in a corporation, a party to a reorganization, 
received in a transaction to which section 368(a)(1)(C) is applicable 
only by reason of section 368(a)(2)(B).



Sec. 1.362-1  Basis to corporations.

    (a) In general. Section 362 provides, as a general rule, that if 
property was acquired on or after June 22, 1954, by a corporation (1) in 
connection with a transaction to which section 351 (relating to transfer 
of property to corporation controlled by transferor) applies, (2) as 
paid-in surplus or as a contribution to capital, or (3) in connection 
with a reorganization to which part III, subchapter C, chapter 1 of the 
Code applies, then the basis shall be the same as it would be in the 
hands of the transferor, increased in the amount of gain recognized to 
the transferor on such transfer. (See also Sec. 1.362-2.) See Sec. 
1.460-4(k)(3)(iv)(B)(2) for rules relating to adjustments to the basis 
of certain contracts accounted for using a long-term contract method of 
accounting that are acquired in certain transfers described in section 
351 and certain reorganizations described in section 368(a).
    (b) Exceptions. (1) In the case of a plan of reorganization adopted 
after October 22, 1968, section 362 does not apply if the property 
acquired in connection with such reorganization consists of stock or 
securities in a corporation a party to the reorganization, unless 
acquired by the exchange of stock or securities of the transferee (or of 
a corporation which is in control of the transferee) as the 
consideration in whole or in part for the transfer.
    (2) In the case of a plan of reorganization adopted before October 
23, 1968, section 362 does not apply if the property acquired in 
connection with such reorganization consists of stock or securities in a 
corporation a party to the reorganization, unless acquired by the 
issuance of stock or securities of the transferee (or, in the case of 
transactions occurring after December 31,

[[Page 256]]

1963, of a corporation which is in control of the transferee) as the 
consideration in whole or in part for the transfer. The term issuance of 
stock or securities includes any transfer of stock or securities, 
including stock or securities which were purchased or were acquired as a 
contribution to capital.

[T.D. 7422, 41 FR 26569, June 28, 1976, as amended by T.D. 8995, 67 FR 
34605, May 15, 2002]



Sec. 1.362-2  Certain contributions to capital.

    The following regulations shall be used in the application of 
section 362(c):
    (a) Property deemed to be acquired with contributed money shall be 
that property, if any, the acquisition of which was the purpose 
motivating the contribution;
    (b) In the case of an excess of the amount of money contributed over 
the cost of the property deemed to be acquired with such money (as 
defined in paragraph (a) of this section) such excess shall be applied 
to the reduction of the basis (but not below zero) of other properties 
held by the corporation, on the last day of the 12-month period 
beginning on the day the contribution is received, in the following 
order--
    (1) All property of a character subject to an allowance for 
depreciation (not including any properties as to which a deduction for 
amortization is allowable),
    (2) Property with respect to which a deduction for amortization is 
allowable,
    (3) Property with respect to which a deduction for depletion is 
allowable under section 611 but not under section 613, and
    (4) All other remaining properties.

The reduction of the basis of each of the properties within each of the 
above categories shall be made in proportion to the relative bases of 
such properties.
    (c) With the consent of the Commissioner, the taxpayer may, however, 
have the basis of the various units of property within a particular 
category adjusted in a manner different from the general rule set forth 
in paragraph (b) of this section. Variations from such rule may, for 
example, involve adjusting the basis of only certain units of the 
taxpayer's property within a given category. A request for variations 
from the general rule should be filed by the taxpayer with its return 
for the taxable year for which the transfer of the property has 
occurred.



Sec. 1.367(a)-1T  Transfers to foreign corporations subject to section 
367(a): In general (temporary).

    (a) Purpose and scope of regulations. These regulations set forth 
rules relating to the provisions of section 367(a) concerning certain 
transfers of property to foreign corportions. This section provides 
general rules explaining the effect of section 367(a)(1) and describing 
the transfers of property that are subject to the rule of that section. 
Section 1.367(a)-2T provides rules concerning the exception from the 
rule of section 367(a)(1) for transfers of property to be used in the 
active conduct of a trade or business outside of the United States. 
Rules concerning the application of section 367(a)(1) to transfers of 
stock or securities are provided in Sec. 1.367(a)-3, while Sec. 
1.367(a)-4T provides special rules regarding other specified transfers 
of property. Section 1.367(a)-5T describes types of property that are 
subject to the rule of section 367(a)(1) regardless of whether they are 
transferred for use in a trade or business. Section 1.367(a)-6T provides 
rules concerning the application of section 367(a) to the transfer of a 
branch with previously deducted losses. Finally, Sec. 1.367(a)-7T 
contains transitional rules concerning transfers of intangible property 
to foreign corporations made after June 6, 1984 and before January 1, 
1985. Rules explaining the operation of section 367(d), concerning 
transfers of intangible property pursuant to an exchange described in 
section 351 or 361, are provided in Sec. 1.367(d)-1T. Rules concerning 
the reporting requirements of section 6038B are provided in Sec. Sec. 
1.6038B-1 and 1.6038B-1T.
    (b) General rules--(1) Foreign corporation not considered a 
corporation for purposes of certain transfers. If a U.S. person 
transfers property to a foreign corporation in connection with an 
exchange described in section 332, 351, 354, 355, 356, or 361, then 
pursuant to section 367(a)(1) the foreign corporation shall not be 
considered to be a corporation

[[Page 257]]

for purposes of determining the extent to which gain shall be recognized 
on the transfer. Section 367(a)(1) denies nonrecognition treatment only 
to transfers of items of property on which gain is realized. Thus, the 
amount of gain recognized because of section 367(a)(1) is unaffected by 
the transfer of items of property on which loss is realized (but not 
recognized). The transfers of property that are subject to section 
367(a)(1) are further described in paragraph (c) of this section, and 
relevant definitions are provided in paragraph (d) of this section.
    (2) Cases in which foreign corporate status is not disregarded. 
Section 367(a)(1) shall not apply, and a foreign corporate transferee 
shall, thus, be considered to be a corporation, in the case of any of 
the following:
    (i) [Reserved]
    (ii) The transfer of property for use in the active conduct of a 
trade or business outside of the United States in accordance with the 
rules of Sec. Sec. 1.367(a)-2T through 1.367(a)-6T; or
    (iii) Certain other transfers of property described in Sec. Sec. 
1.367(a)-2T through 1.367(a)-6T.
    (3) Limitation of gain required to be recognized--(i) In general. If 
a U.S. person transfers property to a foreign corporation in a 
transaction on which gain is required to be recognized under section 
367(a) and regulations thereunder, then the gain required to be 
recognized by the U.S. person shall in no event exceed the gain that 
would have been recognized on a taxable sale of those items of property 
if sold individually and without offsetting individual losses against 
individual gains.
    (ii) Losses. No loss may be recognized by reason of the operation of 
section 367.
    (iii) Ordinary income and capital gain. If section 367(a) and 
regulations thereunder require the recognition of ordinary income and 
capital gain in excess of the limitation described in paragraph 
(b)(3)(i) of this section, then the limitation shall be imposed by 
making proportionate reductions in the amounts or ordinary income and 
capital gain, regardless of the character of the gain that would have 
been recognized on a taxable sale of the property.
    (4) Character, source, and adjustments--(i) In general. If a U.S. 
person is required to recognize gain under section 367 upon a transfer 
of property to a foreign corporation, then--
    (A) The character and source of such gain shall be determined as if 
the property had been disposed of in a taxable exchange with the 
transferee foreign corporation (unless otherwise provided by 
regulation); and
    (B) Appropriate adjustments to earnings and profits, basis, and 
other affected items shall be made according to otherwise applicable 
rules, taking into account the gain recognized because of section 
367(a)(1). Any increase in the basis of the property received by the 
foreign corporation resulting from the application of section 367(a) and 
section 362 (a) or (b) shall be allocated over the transferred property 
with respect to which gain is recognized in proportion to the amount 
realized by the U.S. person on the transfer of each item of that 
property. See paragraph (c)(3) of this section for special rules 
applicable to transfers of partnership interests.
    (ii) Example. The rules of this paragraph (b)(4) are illustrated by 
the following example.

    Example. Domestic corporation DC transfers inventory with a fair 
market value of $1 million and adjusted basis of $800,000 to foreign 
corporation FC in an exchange for stock of FC that is described in 
section 351 (a). Title passes within the U.S. Pursuant to section 
367(a), DC is required to recognize gain of $200,000 upon the transfer. 
Under the rule of this paragraph (b)(4), such gain shall be treated as 
ordinary income (sections 1201 and 1221) from sources within the U.S. 
(section 861) arising from a taxable exchange with FC. Appropriate 
adjustments to earnings and profits, basis, etc., shall be made as if 
the transfer were subject to section 351. Thus, for example, DC's basis 
in the FC stock received, and FC's basis in the transferred inventory, 
will each be increased by the $200,000 gain recognized by DC, pursuant 
to sections 358(a)(1) and 362(a), respectively.

    (c) Transfers described in section 367(a)(1)--(1) In general. A 
transfer described in section 367(a)(1) is any transfer of property by a 
U.S. person to a foreign corporation pursuant to an exchange described 
in section 332, 351, 354, 355, 356, or 361. Section 367(a)(1) applies to 
such a transfer whether it is made

[[Page 258]]

directly, indirectly, or constructively. Indirect or constructive 
transfers that are described in section 367(a)(1) include the transfers 
described in subparagraphs (2) through (7) of this paragraph (c).
    (2) Indirect transfers in certain reorganizations. [Reserved]. For 
further guidance, see Sec. 1.367(a)-3(d).
    (3) Indirect transfers involving partnerships and interests 
therein--(i) Transfer by partnership treated as transfer by partners--
(A) In general. If a partnership (whether foreign or domestic) transfers 
property to a foreign corporation in an exchange described in section 
367(a)(1), then a U.S. person that is a partner in the partnership shall 
be treated as having transferred a proportionate share of the property 
in an exchange described in section 367(a)(1). A U.S. person's 
proportionate share of partnership property shall be determined under 
the rules and principles of sections 701 through 761 and the regulations 
thereunder. The rule of this paragraph (c)(3)(i)(A) is illustrated by 
the following example.

    Example P is a partnership having five equal general partners, two 
of whom are United States persons. P transfers property to F, a foreign 
corporation, in connection with an exchange described in section 351. 
The exchange includes an indirect transfer of property by the partners 
to F. The transfers of property attributable to those partners who are 
United States persons, that is, 40 percent of each asset transferred to 
F, are transfers described in section 367(a)(1). The gain (if any) 
recognized on the transfer of 40 percent of each asset to F is 
attributable to the two partners who are United States persons.

    (B) Special adjustments to basis. If a U.S. person is treated under 
the rule of this paragraph (c)(3)(i) as having transferred a 
proportionate share of the property of a partnership in an exchange 
described in section 367(a), and is therefore required to recognize gain 
upon the transfer, then--
    (1) The U.S. person's basis in the partnership shall be increased by 
the amount of gain recognized by him;
    (2) Solely for purposes of determining the basis of the partnership 
in the stock of the transferee foreign corporation, the U.S. person 
shall be treated as having newly acquired an interest in the partnership 
(for an amount equal to the gain recognized), permitting the partnership 
to make an optional adjustment to basis pursuant to sections 743 and 
754; and
    (3) The transferee foreign corporation's basis in the property 
acquired from the partnership shall be increased by the amount of gain 
recognized by U.S. persons under this paragraph (c)(3)(i).
    (ii) Transfer of partnership interest treated as transfer of 
proportionate share of assets--(A) In general. If a U.S. person 
transfers an interest as a partner in a partnership (whether foreign or 
domestic) in an exchange described in section 367(a)(1), then that 
person shall be treated as having transferred a proportionate share of 
the property of the partnership in an exchange described in section 
367(a)(1). Accordingly, the applicability of the exception to section 
367(a)(1) provided in Sec. 1.367(a)-2T shall be determined with 
reference to the property of the partnership rather than the partnership 
interest itself. A U.S. person's proportionate share of partnership 
property shall be determined under the rules and principles of sections 
701 through 761 and the regulations thereunder.
    (B) Special adjustments to basis. If a U.S. person is treated under 
the rule of paragraph (c)(3)(ii)(A) of this section as having 
transferred a proportionate share of the property of a partnership in an 
exchange described in section 367(a), and is therefore required to 
recognize gain upon the transfer, then--
    (1) The U.S. person's basis in the stock of the transferee foreign 
corporation shall be increased by the amount of gain so recognized by 
that person;
    (2) The transferee foreign corporation's basis in the transferred 
partnership interest shall be increased by the amount of gain recognized 
by the U.S. person; and
    (3) Solely for purposes of determining the partnership's basis in 
the property held by it, the U.S. person shall be treated as having 
newly acquired an interest in the partnership (for an amount equal to 
the gain recognized), permitting the partnership to make an optional 
adjustment to basis pursuant to sections 743 and 754.
    (C) Limited partnership interest. The transfer by a U.S. person of 
an interest

[[Page 259]]

in a partnership shall not be subject to the rules of paragraph 
(c)(3)(ii)(A) and (B) if--
    (1) The interest transferred is a limited partnership interest; and
    (2) Such interest is regularly traded on an established securities 
market.

Instead, the transfer of such an interest shall be treated in the same 
manner as a transfer of stock or securities. Thus, the consequences of 
such a transfer shall be determined under the rules of Sec. 1.367(a)-3. 
For purposes of this section, a limited partnership interest is an 
interest as a limited partner in a partnership that is organized under 
the laws of any State of the United States or the District of Columbia. 
Whether such an interest is regularly traded on an established 
securities market shall be determined under the provisions of paragraph 
(c)(3)(ii)(D) of this section.
    (D) Regularly traded on an established securities market--(1) 
Established securities market. For purposes of this paragraph 
(c)(3)(ii), an established securities market is--
    (i) A national securities exchange which is registered under section 
6 of the Securities Exchange Act of 1934 (15 U.S.C. 78f);
    (ii) A foreign national securities exchange which is officially 
recognized, sanctioned, or supervised by governmental authority; and
    (iii) An over-the-counter market. An over-the-counter market is any 
market reflected by the existence of an inter-dealer quotation system. 
An inter-dealer quotation system is any system of general circulation to 
brokers and dealers which regularly disseminates quotations of stock and 
securities by identified brokers or dealers, other than by quotation 
sheets which are prepared and distributed by a broker or dealer in the 
regular course of business and which contain only quotations of such 
broker or dealer.
    (2) Regularly traded. A class of interests that is traded on an 
established securities market is considered to be regularly traded if it 
is regularly quoted by brokers or dealers making a market in such 
interests. A class of interests shall be presumed to be regularly traded 
if the entity has a total of 500 or more interest-holders.
    (4) Transfers by trusts and estates--(i) In general. For purposes of 
section 367(a), a transfer of property by an estate or trust shall be 
treated as a transfer by the entity itself and not as an indirect 
transfer by its beneficiaries. Thus, a transfer of property by a foreign 
trust or estate (as defined in section 7701(a)(31)) is not described in 
section 367(a)(1), regardless of whether the beneficiaries of the trust 
or estate are U.S. persons. Similarly, a transfer of property by a 
domestic trust or estate may be described in section 367(a)(1), 
regardless of whether the beneficiaries of the trust or estate are 
foreign persons.
    (ii) Grantor trusts. A transfer of a portion or all of the assets of 
a foreign or domestic trust to a foreign corporation in an exchange 
described in section 367(a)(1) is considered a transfer by any U.S. 
person who is treated as the owner of any such portion or all of the 
assets of the trust under sections 671 through 679.
    (5) Termination of election under section 1504(d). Section 367(A) 
applies to the constructive reorganization and transfer of property from 
a domestic corporation to a foreign corporation that occurs upon the 
termination of an election under section 1504(d), which permits the 
treatment of certain contiguous country corporations as domestic 
corporations. The rule of this paragraph (c)(5) is illustrated by the 
following example.

    Example. Domestic corporation Y previously made a valid election 
under section 1504(d) to have its wholly owned Canadian subsidiary, C, 
treated as a domestic corporation. On July, 1, 1986, C fails to continue 
to qualify for the election under section 1504 (d). A constructive 
reorganization described in section 368(a)(1)(D) occurs. The resulting 
constructive transfer of assests by ``domestic'' corporation C to 
Canadian corporation C upon the termination of the election is a 
transfer of property described in section 367(a)(1).

    (6) Changes in classification of an entity. If a foreign entity is 
classified as an entity other than an association taxable as a 
corporation for United States tax purposes, and subsequently a change is 
made in the governing documents, articles, or agreements of the entity 
so that the entity is thereafter classified as an association taxable as 
a

[[Page 260]]

corporation, the change in classification is considered a transfer of 
property to a foreign corporation in connection with an exchange 
described in section 351. For purposes of section 367(a)(1), the 
transfer of property is considered as made by the persons determined 
under the rules set forth in paragraph (c)(3) of this section with 
respect to partnerships, and paragraph (c)(4)(i) or (ii), with respect 
to trusts and estates, and the rules of such paragraphs apply 
determining whether a transfer described in section 367(a)(1) has been 
made.
    (7) Contributions to capital. For rules with respect to the 
treatment of a contribution to the capital of a foreign corporation as a 
transfer described in section 367(a)(1), see section 367(c)(2) and the 
regulations thereunder.
    (d) Definitions. The following definitions apply for purposes of 
this section and Sec. 1.367(d)-1T.
    (1) United States person. The term United States person includes 
those persons described in section 7701(a)(30). The term includes a 
citizen or resident of the United States, a domestic partnership, a 
domestic corporation, and any estate or trust other than a foreign 
estate or trust. (For definitions of these terms, see section 7701 and 
regulations thereunder.) For purposes of this section, an individual 
with respect to whom an election has been made under section 6013 (g) or 
(h) is considered to be a resident of the United States while such 
election is in effect. A nonresident alien or a foreign corporation will 
not be considered a United States person because of its actual or deemed 
conduct of a trade or business within the United States during a taxable 
year.
    (2) Foreign corporation. The term foreign corporation has the 
meaning set forth in section 7701(a)(3) and (5) and Sec. 301.7701-5.
    (3) Transfer. For purposes of section 367 and regulations 
thereunder, the term transfer means any transaction that constitutes a 
transfer for purposes of sections 332, 351, 354, 355, 356, or 361, as 
applicable. A person's entering into a bona fide cost-sharing 
arrangement under Sec. 1.482-2(d)(4) or acquiring rights to intangible 
property under such an arrangement shall not be considered a transfer of 
property described in section 367(a)(1). See Sec. 1.6038B-1T(b)(3) for 
the date on which the transfer is considered to be made.
    (4) Property. For purposes of section 367 and regulations 
thereunder, the term property means any item that constitutes property 
for purposes of sections 332, 351, 354, 355, 356, or 361, as applicable.
    (5) Intangible property--(i) In general. For purposes of section 367 
and regulations thereunder, the term intangible property means 
knowledge, rights, documents, and any other intangible item within the 
meaning of section 936(h)(3)(B) that constitutes property for purposes 
of sections 332, 351, 354, 355, 356, or 361, as applicable. Such 
property shall be treated as intangible property for purposes of section 
367 (a) and (d) and the regulations thereunder without regard to whether 
it is used or developed in the United States or in a foreign country and 
without regard to whether it is used in manufacturing activities or in 
marketing activities. A working interest in oil and gas properties shall 
not be considered to be intangible property for purposes of section 367 
and the regulations thereunder.
    (ii) Operating intangibles. An operating intangible is any 
intangible property of a type not ordinarily licensed or otherwise 
transferred in transactions between unrelated parties for consideration 
contingent upon the licensee's or transferee's use of the property. 
Examples of operating intangibles may include long-term purchase or 
supply contracts, surveys, studies, and customer lists.
    (iii) Foreign goodwill or going concern value. Foreign goodwill or 
going concern value is the residual value of a business operation 
conducted outside of the United States after all other tangible and 
intangible assets have been identified and valued. For purposes of 
section 367 and regulations thereunder the value of the right to use a 
corporate name in a foreign country shall be treated as foreign goodwill 
or going concern value.
    (iv) Transitional rule for certain marketing intangibles. For 
transfers occurring after December 31, 1984, and before May 16, 1986, 
for foreign trademarks,

[[Page 261]]

tradenames, brandnames, and similar marketing intangibles developed by a 
foreign branch shall be treated as foreign goodwill or going concern 
value.
    (e) Close of taxable year in certain section 368(a)(1)(F) 
reorganizations. If a domestic corporation is the transferor corporation 
in a reorganization described in section 368(a)(1)(F) after March 30, 
1987, in which the acquiring corporation is a foreign corporation, then 
the taxable year of the transferor corporation shall end with the close 
of the date of the transfer and the taxable year of the acquiring 
corporation shall end with the close of the date on which the 
transferor's taxable year would have ended but for the occurrence of the 
transfer. With regard to the consequences of the closing of the taxable 
year, see section 381 and the regulations thereunder.
    (f) Exchanges under sections 354(a) and 361(a) in certain section 
368(a)(1)(F) reorganizations. In every reorganization under section 
368(a)(1)(F), where the transferor corporation is a domestic corporation 
and the acquiring corporation is a foreign corporation, there is 
considered to exist--
    (1) A transfer of assets by the transferor corporation to the 
acquiring corporation under section 361(a) in exchange for stock of the 
acquiring corporation and the assumption by the acquiring corporation of 
the transferor corporation's liabilities;
    (2) A distribution of the stock (or stock and securities) of the 
acquiring corporation by the transferor corporation to the shareholders 
(or shareholders and security holders) of the transferor corporation; 
and
    (3) An exchange by the transferor corporation's shareholders (or 
shareholders and security holders) of the stock of the transferor 
corporation for stock (or stock and securities) of the acquiring 
corporation under section 354(a).

For this purpose, it shall be immaterial that the applicable foreign or 
domestic law treats the acquiring corporation as a continuance of the 
transferor corporation.
    (g) Effective date of certain section--
    (1) In general. Except as specifically provided to the contrary 
elsewhere in these sections, Sec. Sec. 1.367(a)-1T through 1.367(a)-6T 
apply to transfers occurring after December 31, 1984.
    (2) Private rulings. The taxpayer may rely on a private ruling under 
section 367(a) received by him before June 16, 1986.
    (3) Certain indirect transfers. Sections 1.367(a)-1T(c)(2)(i) and 
(iii) and 1.367(a)-1T(c)(3) apply to transfers made after June 16, 1986. 
For transfers made before that date, see 26 CFR 1.367(a)-1(b) (revised 
as of April 1, 1986).

[T.D. 8087, 51 FR 17938, May 16, 1986, as amended at T.D. 8280, 55 FR 
1408, Jan. 16, 1990; T.D. 8770, 63 FR 33555, June 19, 1998]



Sec. 1.367(a)-2T  Exception for transfers of property for use in the 
active conduct of a trade or business (temporary).

    (a) In general. Section 367(a)(1) shall not apply to property 
transferred to a foreign corporation if--
    (1) Such property is transferred for use by that corporation in the 
active conduct of a trade or business outside of the United States; and
    (2) The U.S. person that transfers the property complies with the 
reporting requirements of section 6038B and regulations thereunder.

Where these conditions are satisifed, the foreign corporate transferee 
of the property shall be considered to be a corporation for purposes of 
determining the extent to which gain or loss is required to be 
recognized upon the transfer pursuant to section 332, 351, 354 [reserved 
as to section 355 or so much of section 356 as relates to section 355], 
356, or 361. Paragraph (b) of this section provides rules concerning the 
requirement that property be transferred for use in the active conduct 
of a trade or business outside of the United States, while paragraph (c) 
concerns the application of the requirement where the transferee itself 
re-transfers the property. In addition, Sec. 1.367(a)-3T provides rules 
concerning the treatment of stock or securities transferred to a foreign 
corporation in an exchange described in section 367(a)(1), and Sec. 
1.367(a)-4T provides special rules concerning the treatment of other 
specified types of property. Finally, Sec. Sec. 1.367(a)-5T and 
1.367(a)-6T provide rules concerning certain transfers of property that 
are subject to section

[[Page 262]]

367(a)(1) regardless of whether the property is used in the active 
conduct of a trade or business.
    (b) Active conduct of a trade or business outside the United 
States--(1) In general. Property qualifies for the exception provided by 
this section if it is transferred to a foreign corporation for use in 
the active conduct of a trade or business outside of the United States. 
Therefore, to determine whether property is subject to the exception 
provided by this section, four factual determinations must be made:
    (i) What is the trade or business of the transferee;
    (ii) Do the activities of the transferee constitute the active 
conduct of that trade or business;
    (iii) Is the trade or business conducted outside of the United 
States; and
    (iv) Is the transferred property used or held for use in the trade 
or business?

Rules concerning these four determinations are provided in paragraphs 
(b)(2), (3), (4), and (5) of this section.
    (2) Trade or business. Whether the activities of a foreign 
corporation constitute a trade or business must be determined under all 
the facts and circumstances. In general, a trade or business is a 
specific unified group of activities that constitute (or could 
constitute) an independent economic enterprise carried on for profit. 
For example, the activities of a foreign selling subsidiary could 
constitute a trade or business if they could be independently carried on 
for profit, even though the subsidiary acts exclusively on behalf of, 
and has operations fully integrated with, its parent corporation. To 
constitute a trade or business, a group of activities must ordinarily 
include every operation which forms a part of, or a step in, a process 
by which an enterprise may earn income or profit. In this regard, one or 
more of such activities may be carried on by independent contractors 
under the direct control of the foreign corporation. (However, see 
paragraph (b)(3) of this section.) The group of activities must 
ordinarily include the collection of income and the payment of expenses. 
If the activities of a foreign corporation do not constitute a trade or 
business, then the exception provided by this section does not apply, 
regardless of the level of activities carried on by the corporation. The 
following activities are not considered to constitute by themselves a 
trade or business for purposes of this section:
    (i) Any activity giving rise to expenses that would be deductible 
only under section 212 if the activities were carried on by an 
individual; or
    (ii) The holding for one's own account of investments in stock, 
securities, land, or other property, including casual sales thereof.
    (3) Active conduct. Whether a trade or business is actively 
conducted must be determined under all the facts and circumstances. In 
general, a corporation actively conducts a trade or business only if the 
officers and employees of the corporation carry out substantial 
managerial and operational activities. A corporation may be engaged in 
the active conduct of a trade or business even though incidental 
activities of the trade or business are carried out on behalf of the 
corporation by independent contractors. In determining whether the 
officers and employees of the corporation carry out substantial 
managerial and operational activities, however, the activities of 
independent contractors shall be disregarded. On the other hand, the 
officers and employees of the corporation are considered to include the 
officers and employees of related entities who are made available to and 
supervised on a day-to-day basis by, and whose salaries are paid by (or 
reimbursed to the lending related entity by), the transferee foreign 
corporation. Whether a trade or business that produces rents or 
royalties is actively conducted shall be determined under the principles 
of Sec. 1.954-2(d)(1) (but without regard to whether the rents or 
royalties are received from an unrelated person). The rule of this 
paragraph (b)(3) is illustrated by the following example.

    Example. X, a domestic corporation, and Y, a foreign corporation not 
related to X, transfer property to Z, a newly formed foreign corporation 
organized for the purpose of combining the research activities of X and 
Y. Z contracts all of its operational and research activities to Y for 
an arm's-length fee. Z's activities do not constitute the active conduct 
of a trade or business.


[[Page 263]]


    (4) Outside of the United States. Whether a foreign corporation 
conducts a trade or business outside of the United States must be 
determined under all the facts and circumstances. Generally, the primary 
managerial and operational activities of the trade or business must be 
conducted outside the United States and immediately after the transfer 
the transferred assets must be located outside the United States. Thus, 
the exception provided by this section would not apply to the transfer 
of the assets of a domestic business to a foreign corporation if the 
domestic business continued to operate in the United States after the 
transfer. In such a case, the primary operational activities of the 
business would continue to be conducted in the United States. Moreover, 
the transferred assets would be located in the United States. However, 
it is not necessary that every item of property transferred be used 
outside of the United States. As long as the primary managerial and 
operational activities of the trade or business are conducted outside of 
the United States and substantially all of the transferred assets are 
located outside the United States, incidental items of transferred 
property located in the United States may be considered to have been 
transferred for use in the active conduct of a trade or business outside 
of the United States.
    (5) Use in the trade or business. Whether property is used or held 
for use in a trade or business must be determined under all the facts 
and circumstances. In general, property is used or held for use in a 
foreign corporation's trade or business if it is--
    (i) Held for the principal purpose of promoting the present conduct 
of the trade or business;
    (ii) Acquired and held in the ordinary course of the trade or 
business; or
    (iii) Otherwise held in a direct relationship to the trade or 
business. Property is considered held in a direct relationship to a 
trade or business if it is held to meet the present needs of that trade 
or business and not its anticipated future needs.

Thus, property will not be considered to be held in a direct 
relationship to a trade or business if it is held for the purpose of 
providing for future diversification into a new trade or business, 
future expansion of trade or business activities, future plant 
replacement, or future business contingencies.
    (c) Property transferred by transferee corporation--(1) General 
rule. If a foreign corporation receives property in an exchange 
described in section 367(a)(1) and as part of the same transaction 
transfers the property to another person, then the exception provided by 
this section shall not apply to the initial transfer. For purposes of 
the preceding sentence, a subsequent transfer within six months of the 
initial transfer shall be considered to be part of the same transaction, 
and a subsequent transfer more than six months after the initial 
transfer may be considered to be part of the same transaction upon the 
application of step-transaction principles.
    (2) Exception. Notwithstanding paragraph (c)(1) of this section, the 
active conduct exception provided by this section shall apply to the 
initial transfer if--
    (i) The initial transfer is followed by one or more subsequent 
transfers described in section 351 or 721; and
    (ii) Each subsequent transferee is either a partnership in which the 
preceding transferor is a general partner or a corporation in which the 
preceding transferor owns common stock; and
    (iii) The ultimate transferee uses the property in the active 
conduct of a trade or business outside the United States.
    (d) Transitional rule. Notwithstanding any other provision of this 
section, property shall be considered to have been transferred for use 
in the active conduct of a trade or business outside of the United 
States, if--
    (1) The property was transferred after December 31, 1984, and before 
June 16, 1986;
    (2) The property was, or would have been, considered to be 
transferred for use by the transferee foreign corporation in the active 
conduct, in any foreign country, or a trade or business, under the 
principles of section 3.02(1) of Revenue Procedure 68-23, 1968-1 C.B. 
821; and
    (3) Based on all of the facts and circumstances, it was, or would 
have been, determined under section 2.02 of

[[Page 264]]

Revenue Procedure 68-23 that tax avoidance was not one of the principal 
purposes of the transaction.

[T.D. 8087, 51 FR 17942, May 16, 1986]



Sec. 1.367(a)-3  Treatment of transfers of stock or securities to 
foreign corporations.

    (a) In general. This section provides rules concerning the transfer 
of stock or securities by a U.S. person to a foreign corporation in an 
exchange described in section 367(a). In general, a transfer of stock or 
securities by a U.S. person to a foreign corporation that is described 
in section 351, 354 (including a reorganization described in section 
368(a)(1)(B) and including an indirect stock transfer described in 
paragraph (d) of this section), 356 or section 361(a) or (b) is subject 
to section 367(a)(1) and, therefore, is treated as a taxable exchange, 
unless one of the exceptions set forth in paragraph (b) of this section 
(regarding transfers of foreign stock or securities) or paragraph (c) of 
this section (regarding transfers of domestic stock or securities) 
applies. However, if, pursuant to section 304(a)(1), a U.S. person is 
treated as transferring stock of a domestic or foreign corporation to a 
foreign corporation in exchange for stock of such foreign corporation in 
a transaction to which section 351(a) applies, such deemed section 351 
exchange is not a transfer to a foreign corporation subject to section 
367(a). In addition, if, in an exchange described in section 354 or 356, 
a U.S. person exchanges stock or securities of a foreign corporation in 
a reorganization described in section 368(a)(1)(E), or a U.S. person 
exchanges stock or securities of a domestic or foreign corporation 
pursuant to an asset reorganization that is not treated as an indirect 
stock transfer under paragraph (d) of this section, such section 354 or 
356 exchange is not a transfer to a foreign corporation subject to 
section 367(a). See paragraph (d)(3) Example 16 of this section. For 
purposes of this section, an asset reorganization is defined as a 
reorganization described in section 368(a)(1) involving a transfer of 
assets under section 361. If, in a transfer described in section 361, a 
domestic merging corporation transfers stock of a controlling 
corporation to a foreign surviving corporation in a reorganization 
described in sections 368(a)(1)(A) and (a)(2)(E), such section 361 
transfer is not subject to section 367(a) if the stock of the 
controlling corporation is provided to the merging corporation by the 
controlling corporation pursuant to the plan of reorganization; a 
section 361 transfer of other property, including stock of the 
controlling corporation not provided by the controlling corporation 
pursuant to the plan of reorganization, by the domestic merging 
corporation to the foreign surviving corporation pursuant to such a 
reorganization is subject to section 367(a). For special basis and 
holding period rules involving foreign corporations that are parties to 
certain triangular reorganizations under section 368(a)(1), see Sec. 
1.367(b)-13. For additional rules relating to an exchange involving a 
foreign corporation in connection with which there is a transfer of 
stock, see section 367(b) and the regulations under that section. For 
additional rules regarding a transfer of stock or securities in an 
exchange described in section 361(a) or (b), see section 367(a)(5) and 
any regulations under that section. For rules regarding reporting 
requirements with respect to transfers described under section 367(a), 
see section 6038B and the regulations thereunder. For rules related to 
expatriated entities, see section 7874 and the regulations thereunder.
    (b) Transfers by U.S. persons of stock or securities of foreign 
corporations to foreign corporations--(1) General rule. Except as 
provided in section 367(a)(5), a transfer of stock or securities of a 
foreign corporation by a U.S. person to a foreign corporation that would 
otherwise be subject to section 367(a)(1) under paragraph (a) of this 
section shall not be subject to section 367(a)(1) if either--
    (i) Less than 5-percent shareholder. The U.S. person owns less than 
five percent (applying the attribution rules of section 318, as modified 
by section 958(b)) of both the total voting power and the total value of 
the stock of the transferee foreign corporation immediately after the 
transfer; or
    (ii) 5-percent shareholder. The U.S. person enters into a five-year 
gain recognition agreement with respect to the

[[Page 265]]

transferred stock or securities as provided in Sec. 1.367(a)-8.
    (2) Certain transfers subject to sections 367(a) and (b)--(i)In 
general. A transfer of foreign stock or securities described in section 
367(a) or the regulations thereunder as well as in section 367(b) or the 
regulations thereunder shall be subject concurrently to sections 367(a) 
and (b) and the regulations thereunder, except as provided in paragraph 
(b)(2)(i)(A) or (B) of this section. See paragraph (d)(3) Examples 11 
and 14 of this section.
    (A) Section 367(b) and the regulations thereunder shall not apply if 
a foreign corporation is not treated as a corporation under section 
367(a)(1). See the example in paragraph (b)(2)(ii) of this section and 
paragraph (d)(3) Example 14 of this section.
    (B) If a foreign corporation transfers assets to a domestic 
corporation in a transaction to which Sec. 1.367(b)-3(a) and (b) and 
the indirect stock transfer rules of paragraph (d) of this section 
apply, and all the earnings and profits amount attributable to the stock 
of an exchanging shareholder under Sec. 1.367(b)-3(b) is greater than 
the amount of gain in such stock subject to section 367(a) pursuant to 
the indirect stock transfer rules of paragraph (d) of this section, then 
the rules of section 367(b), and not the rules of section 367(a), shall 
apply to the exchange. See paragraph (d)(3) Example 15 of this section.
    (ii) Example. The following example illustrates the provisions of 
this paragraph (b)(2):

    Example. (i) Facts. DC, a domestic corporation, owns all of the 
stock of FC1, a controlled foreign corporation within the meaning of 
section 957(a). DC's basis in the stock of FC1 is $50, and the value of 
such stock is $100. The section 1248 amount with respect to such stock 
is $30. FC2, also a foreign corporation, is owned entirely by foreign 
individuals who are not related to DC or FC1. In a reorganization 
described in section 368(a)(1)(B), FC2 acquires all of the stock of FC1 
from DC in exchange for 20 percent of the voting stock of FC2. FC2 is 
not a controlled foreign corporation after the reorganization.
    (ii) Result without gain recognition agreement. Under the provisions 
of this paragraph (b), if DC fails to enter into a gain recognition 
agreement, DC is required to recognize in the year of the transfer the 
$50 of gain that it realized upon the transfer, $30 of which will be 
treated as a dividend under section 1248.
    (iii) Result with gain recognition agreement. If DC enters into a 
gain recognition agreement under Sec. 1.367(a)-8 with respect to the 
transfer of FC1 stock, the exchange will also be subject to the 
provisions of section 367(b) and the regulations thereunder to the 
extent that it is not subject to tax under section 367(a)(1). In such 
case, DC will be required to recognize the section 1248 amount of $30 on 
the exchange of FC1 for FC2 stock. See Sec. 1.367(b)-4(b). The deemed 
dividend of $30 recognized by DC will increase its basis in the FC1 
stock exchanged in the transaction and, therefore, the basis of the FC2 
stock received in the transaction. The remaining gain of $20 realized by 
DC (otherwise recognizable under section 367(a)) in the exchange of FC1 
stock will not be recognized if DC enters into a gain recognition 
agreement with respect to the transfer. (The result would be unchanged 
if, for example, the exchange of FC1 stock for FC2 stock qualified as a 
section 351 exchange, or as an exchange described in both sections 351 
and 368(a)(1)(B).)
    (c) Transfers by U.S. persons of stock or securities of domestic 
corporations to foreign corporations--(1) In general. Except as provided 
in section 367(a)(5), a transfer of stock or securities of a domestic 
corporation by a U.S. person to a foreign corporation that would 
otherwise be subject to section 367(a)(1) under paragraph (a) of this 
section shall not be subject to section 367(a)(1) if the domestic 
corporation the stock or securities of which are transferred (referred 
to as the U.S. target company) complies with the reporting requirements 
in paragraph (c)(6) of this section and if each of the following four 
conditions is met:
    (i) Fifty percent or less of both the total voting power and the 
total value of the stock of the transferee foreign corporation is 
received in the transaction, in the aggregate, by U.S. transferors 
(i.e., the amount of stock received does not exceed the 50-percent 
ownership threshold).
    (ii) Fifty percent or less of each of the total voting power and the 
total value of the stock of the transferee foreign corporation is owned, 
in the aggregate, immediately after the transfer by U.S. persons that 
are either officers or directors of the U.S. target company or that are 
five-percent target shareholders (as defined in paragraph (c)(5)(iii) of 
this section) (i.e., there is

[[Page 266]]

no control group). For purposes of this paragraph (c)(1)(ii), any stock 
of the transferee foreign corporation owned by U.S. persons immediately 
after the transfer will be taken into account, whether or not it was 
received in the exchange for stock or securities of the U.S. target 
company.
    (iii) Either--
    (A) The U.S. person is not a five-percent transferee shareholder (as 
defined in paragraph (c)(5)(ii) of this section); or
    (B) The U.S. person is a five-percent transferee shareholder and 
enters into a five-year agreement to recognize gain with respect to the 
U.S. target company stock or securities it exchanged in the form 
provided in Sec. 1.367(a)-8; and
    (iv) The active trade or business test (as defined in paragraph 
(c)(3) of this section) is satisfied.
    (2) Ownership presumption. For purposes of paragraph (c)(1) of this 
section, persons who transfer stock or securities of the U.S. target 
company in exchange for stock of the transferee foreign corporation are 
presumed to be U.S. persons. This presumption may be rebutted in 
accordance with paragraph (c)(7) of this section.
    (3) Active trade or business test--(i) In general. The tests of this 
paragraph (c)(3), collectively referred to as the active trade or 
business test, are satisfied if:
    (A) The transferee foreign corporation or any qualified subsidiary 
(as defined in paragraph (c)(5)(vii) of this section) or any qualified 
partnership (as defined in paragraph (c)(5)(viii) of this section) is 
engaged in an active trade or business outside the United States, within 
the meaning of Sec. 1.367(a)-2T(b)(2) and (3), for the entire 36-month 
period immediately before the transfer;
    (B) At the time of the transfer, neither the transferors nor the 
transferee foreign corporation (and, if applicable, the qualified 
subsidiary or qualified partnership engaged in the active trade or 
business) have an intention to substantially dispose of or discontinue 
such trade or business; and
    (C) The substantiality test (as defined in paragraph (c)(3)(iii) of 
this section) is satisfied.
    (ii) Special rules. For purposes of paragraphs (c)(3)(i)(A) and (B) 
of this section, the following special rules apply:
    (A) The transferee foreign corporation, a qualified subsidiary, or a 
qualified partnership will be considered to be engaged in an active 
trade or business for the entire 36-month period preceding the exchange 
if it acquires at the time of, or any time prior to, the exchange a 
trade or business that has been active throughout the entire 36-month 
period preceding the exchange. This special rule shall not apply, 
however, if the acquired active trade or business assets were owned by 
the U.S. target company or any affiliate (within the meaning of section 
1504(a) but excluding the exceptions contained in section 1504(b) and 
substituting ``50 percent'' for ``80 percent'' where it appears therein) 
at any time during the 36-month period prior to the acquisition. Nor 
will this special rule apply if the principal purpose of such 
acquisition is to satisfy the active trade or business test.
    (B) An active trade or business does not include the making or 
managing of investments for the account of the transferee foreign 
corporation or any affiliate (within the meaning of section 1504(a) but 
excluding the exceptions contained in section 1504(b) and substituting 
``50 percent'' for ``80 percent'' where it appears therein). (This 
paragraph (c)(3)(ii)(B) shall not create any inference as to the scope 
of Sec. 1.367(a)-2T(b)(2) and (3) for other purposes.)
    (iii) Substantiality test--(A) General rule. A transferee foreign 
corporation will be deemed to satisfy the substantiality test if, at the 
time of the transfer, the fair market value of the transferee foreign 
corporation is at least equal to the fair market value of the U.S. 
target company.
    (B) Special rules. (1) For purposes of paragraph (c)(3)(iii)(A) of 
this section, the value of the transferee foreign corporation shall 
include assets acquired outside the ordinary course of business by the 
transferee foreign corporation within the 36-month period preceding the 
exchange only if either--
    (i) Both--
    (A) At the time of the exchange, such assets or, as applicable, the 
proceeds thereof, do not produce, and are not

[[Page 267]]

held for the production of, passive income as defined in section 
1296(b); and
    (B) Such assets are not acquired for the principal purpose of 
satisfying the substantiality test; or
    (ii) Such assets consist of the stock of a qualified subsidiary or 
an interest in a qualified partnership. See paragraph (c)(3)(iii)(B)(2) 
of this section.
    (2) For purposes of paragraph (c)(3)(iii)(A) of this section, the 
value of the transferee foreign corporation shall not include the value 
of the stock of any qualified subsidiary or the value of any interest in 
a qualified partnership, held directly or indirectly, to the extent that 
such value is attributable to assets acquired by such qualified 
subsidiary or partnership outside the ordinary course of business and 
within the 36-month period preceding the exchange unless those assets 
satisfy the requirements in paragraph (c)(3)(iii)(B)(1) of this section.
    (3) For purposes of paragraph (c)(3)(iii)(A) of this section, the 
value of the transferee foreign corporation shall not include the value 
of assets received within the 36-month period prior to the acquisition, 
notwithstanding the special rule in paragraph (c)(3)(iii)(B)(1) of this 
section, if such assets were owned by the U.S. target company or an 
affiliate (within the meaning of section 1504(a) but without the 
exceptions under section 1504(b) and substituting ``50 percent'' for 
``80 percent'' where it appears therein) at any time during the 36-month 
period prior to the transaction.
    (4) Special rules--(i) Treatment of partnerships. For purposes of 
this paragraph (c), if a partnership (whether domestic or foreign) owns 
stock or securities in the U.S. target company or the transferee foreign 
corporation, or transfers stock or securities in an exchange described 
in section 367(a), each partner in the partnership, and not the 
partnership itself, is treated as owning and as having transferred, or 
as owning, a proportionate share of the stock or securities. See Sec. 
1.367(a)-1T(c)(3).
    (ii) Treatment of options. For purposes of this paragraph (c), one 
or more options (or an interest similar to an option) will be treated as 
exercised and thus will be counted as stock for purposes of determining 
whether the 50-percent threshold is exceeded or whether a control group 
exists if a principal purpose of the issuance or the acquisition of the 
option (or other interest) was the avoidance of the general rule 
contained in section 367(a)(1).
    (iii) U.S. target has a vestigial ownership interest in transferee 
foreign corporation. In cases where, immediately after the transfer, the 
U.S. target company owns, directly or indirectly (applying the 
attribution rules of sections 267(c)(1) and (5)), stock of the 
transferee foreign corporation, that stock will not in any way be taken 
into account (and, thus, will not be treated as outstanding) in 
determining whether the 50-percent threshold under paragraph (c)(1)(i) 
of this section is exceeded or whether a control group under paragraph 
(c)(1)(ii) of this section exists.
    (iv) Attribution rule. Except as otherwise provided in this section, 
the rules of section 318, as modified by the rules of section 958(b) 
shall apply for purposes of determining the ownership or receipt of 
stock, securities or other property under this paragraph (c).
    (5) Definitions--(i) Ownership statement. An ownership statement is 
a statement, signed under penalties of perjury, stating--
    (A) The identity and taxpayer identification number, if any, of the 
person making the statement;
    (B) That the person making the statement is not a U.S. person (as 
defined in paragraph (c)(5)(iv) of this section);
    (C) That the person making the statement either--
    (1) Owns less than 1 percent of the total voting power and total 
value of a U.S. target company the stock of which is described in Rule 
13d-1(d) of Regulation 13D (17 CFR 240.13d-1(d)) (or any rule or 
regulation to generally the same effect) promulgated by the Securities 
and Exchange Commission under the Securities and Exchange Act of 1934 
(15 USC 78m), and such person did not acquire the stock with a principal 
purpose to enable the U.S. transferors to satisfy the requirement 
contained in paragraph (c)(1)(i) of this section; or
    (2) Is not related to any U.S. person to whom the stock or 
securities owned by the person making the statement

[[Page 268]]

are attributable under the rules of section 958(b), and did not acquire 
the stock with a principal purpose to enable the U.S. transferors to 
satisfy the requirement contained in paragraph (c)(1)(i) of this 
section;
    (D) The citizenship, permanent residence, home address, and U.S. 
address, if any, of the person making the statement; and
    (E) The ownership such person has (by voting power and by value) in 
the U.S. target company prior to the exchange and the amount of stock of 
the transferee foreign corporation (by voting power and value) received 
by such person in the exchange.
    (ii) Five-percent transferee shareholder. A five-percent transferee 
shareholder is a person that owns at least five percent of either the 
total voting power or the total value of the stock of the transferee 
foreign corporation immediately after the transfer described in section 
367(a)(1). For special rules involving cases in which stock is held by a 
partnership, see paragraph (c)(4)(i) of this section.
    (iii) Five-percent target shareholder and certain other 5-percent 
shareholders. A five-percent target shareholder is a person that owns at 
least five percent of either the total voting power or the total value 
of the stock of the U.S. target company immediately prior to the 
transfer described in section 367(a)(1). If the stock of the U.S. target 
company (or any company through which stock of the U.S. target company 
is owned indirectly or constructively) is described in Rule 13d-1(d) of 
Regulation 13D (17 CFR 240.13d-1(d)) (or any rule or regulation to 
generally the same effect), promulgated by the Securities and Exchange 
Commission under the Securities Exchange Act of 1934 (15 USC 78m), then, 
in the absence of actual knowledge to the contrary, the existence or 
absence of filings of Schedule 13-D or 13-G (or any similar schedules) 
may be relied upon for purposes of identifying five-percent target 
shareholders (or a five-percent shareholder of a corporation which 
itself is a five-percent shareholder of the U.S. target company). For 
special rules involving cases in which U.S. target company stock is held 
by a partnership, see paragraph (c)(4)(i) of this section.
    (iv) U.S. Person. For purposes of this section, a U.S. person is 
defined by reference to Sec. 1.367(a)-1T(d)(1). For application of the 
rules of this section to stock or securities owned or transferred by a 
partnership that is a U.S. person, however, see paragraph (c)(4)(i) of 
this section.
    (v) U.S. Transferor. A U.S. transferor is a U.S. person (as defined 
in paragraph (c)(5)(iv) of this section) that transfers stock or 
securities of one or more U.S. target companies in exchange for stock of 
the transferee foreign corporation in an exchange described in section 
367.
    (vi) Transferee foreign corporation. Except as provided in paragraph 
(d)(2)(i)(B) of this section, a transferee foreign corporation is the 
foreign corporation whose stock is received in the exchange by U.S. 
persons.
    (vii) Qualified Subsidiary. A qualified subsidiary is a foreign 
corporation whose stock is at least 80-percent owned (by total voting 
power and total value), directly or indirectly, by the transferee 
foreign corporation. However, a corporation will not be treated as a 
qualified subsidiary if it was affiliated with the U.S. target company 
(within the meaning of section 1504(a) but without the exceptions under 
section 1504(b) and substituting ``50 percent'' for ``80 percent'' where 
it appears therein) at any time during the 36-month period prior to the 
transfer. Nor will a corporation be treated as a qualified subsidiary if 
it was acquired by the transferee foreign corporation at any time during 
the 36-month period prior to the transfer for the principal purpose of 
satisfying the active trade or business test, including the 
substantiality test.
    (viii) Qualified partnership. (A) Except as provided in paragraph 
(c)(5)(viii)(B) or (C) of this section, a qualified partnership is a 
partnership in which the transferee foreign corporation--
    (1) Has active and substantial management functions as a partner 
with regard to the partnership business; or -
    (2) Has an interest representing a 25 percent or greater interest in 
the partnership's capital and profits.
    (B) A partnership is not a qualified partnership if the U.S. target 
company

[[Page 269]]

or any affiliate of the U.S. target company (within the meaning of 
section 1504(a) but without the exceptions under section 1504(b) and 
substituting ``50 percent'' for ``80 percent'' where it appears therein) 
held a 5 percent or greater interest in the partnership's capital and 
profits at any time during the 36-month period prior to the transfer.
    (C) A partnership is not a qualified partnership if the transferee 
foreign corporation's interest was acquired by that corporation at any 
time during the 36-month period prior to the transfer for the principal 
purpose of satisfying the active trade or business test, including the 
substantiality test.
    (6) Reporting requirements of U.S. target company. (i) In order for 
a U.S. person that transfers stock or securities of a domestic 
corporation to qualify for the exception provided by this paragraph (c) 
to the general rule under section 367(a)(1), in cases where 10 percent 
or more of the total voting power or the total value of the stock of the 
U.S. target company is transferred by U.S. persons in the transaction, 
the U.S. target company must comply with the reporting requirements 
contained in this paragraph (c)(6). The U.S. target company must attach 
to its timely filed U.S. income tax return for the taxable year in which 
the transfer occurs a statement titled ``Section 367(a)--Reporting of 
Cross-Border Transfer Under Reg. Sec. 1.367(a)-3(c)(6),'' signed under 
penalties of perjury by an officer of the corporation to the best of the 
officer's knowledge and belief, disclosing the following information--
    (A) A description of the transaction in which a U.S. person or 
persons transferred stock or securities in the U.S. target company to 
the transferee foreign corporation in a transfer otherwise subject to 
section 367(a)(1);
    (B) The amount (specified as to the percentage of the total voting 
power and the total value) of stock of the transferee foreign 
corporation received in the transaction, in the aggregate, by persons 
who transferred stock or securities of the U.S. target company. For 
additional information that may be required to rebut the ownership 
presumption of paragraph (c)(2) of this section in cases where more than 
50 percent of either the total voting power or the total value of the 
stock of the transferee foreign corporation is received in the 
transaction, in the aggregate, by persons who transferred stock or 
securities of the U.S. target company, see paragraph (c)(7) of this 
section;
    (C) The amount (if any) of transferee foreign corporation stock 
owned directly or indirectly (applying the attribution rules of sections 
267(c)(1) and (5)) immediately after the exchange by the U.S. target 
company;
    (D) A statement that there is no control group within the meaning of 
paragraph (c)(1)(ii) of this section;
    (E) A list of U.S. persons who are officers, directors or five-
percent target shareholders and the percentage of the total voting power 
and the total value of the stock of the transferee foreign corporation 
owned by such persons both immediately before and immediately after the 
transaction; and
    (F) A statement that includes the following--
    (1) A statement that the active trade or business test described in 
paragraph (c)(3) of this section is satisfied by the transferee foreign 
corporation and a description of such business;
    (2) A statement that on the day of the transaction, there was no 
intent on the part of the transferee foreign corporation (or its 
qualified subsidiary, if relevant) or the transferors of the transferee 
foreign corporation (or qualified subsidiary, if relevant) to 
substantially discontinue its active trade or business; and
    (3) A statement that the substantiality test described in paragraph 
(c)(3)(iii) of this section is satisfied, and documentation that such 
test is satisfied, including the value of the transferee foreign 
corporation and the value of the U.S. target company on the day of the 
transfer, and either one of the following--
    (i) A statement demonstrating that the value of the transferee 
foreign corporation 36 months prior to the acquisition, plus the value 
of any assets described in paragraph (c)(3)(iii)(B) of this section 
(including stock) acquired by the transferee foreign corporation within 
the 36-month period, less the amount of any liabilities acquired during 
that period, exceeds the value of

[[Page 270]]

the U.S. target company on the acquisition date; or
    (ii) A statement demonstrating that the value of the transferee 
foreign corporation on the date of the acquisition, reduced by the value 
of any assets not described in paragraph (c)(3)(iii)(B) of this section 
(including stock) acquired by the transferee foreign corporation within 
the 36-month period, exceeds the value of the U.S. target company on the 
date of the acquisition.
    (ii) For purposes of this paragraph (c)(6), an income tax return 
will be considered timely filed if such return is filed, together with 
the statement required by this paragraph (c)(6), on or before the last 
date for filing a Federal income tax return (taking into account any 
extensions of time therefor) for the taxable year in which the transfer 
occurs. If a return is not timely filed within the meaning of this 
paragraph (c)(6), the District Director may make a determination, based 
on all facts and circumstances, that the taxpayer had reasonable cause 
for its failure to file a timely filed return and, if such a 
determination is made, the requirement contained in this paragraph 
(c)(6) shall be waived.
    (7) Ownership statements. To rebut the ownership presumption of 
paragraph (c)(2) of this section, the U.S. target company must obtain 
ownership statements (described in paragraph (c)(5)(i) of this section) 
from a sufficient number of persons that transfer U.S. target company 
stock or securities in the transaction that are not U.S. persons to 
demonstrate that the 50-percent threshold of paragraph (c)(1)(i) of this 
section is not exceeded. In addition, the U.S. target company must 
attach to its timely filed U.S. income tax return (as described in 
paragraph (c)(6)(ii) of this section) for the taxable year in which the 
transfer occurs a statement, titled ``Section 367(a)--Compilation of 
Ownership Statements Under Reg. Sec. 1.367(a)-3(c),'' signed under 
penalties of perjury by an officer of the corporation, disclosing the 
following information:
    (i) The amount (specified as to the percentage of the total voting 
power and the total value) of stock of the transferee foreign 
corporation received, in the aggregate, by U.S. transferors;
    (ii) The amount (specified as to the percentage of total voting 
power and total value) of stock of the transferee foreign corporation 
received, in the aggregate, by foreign persons that filed ownership 
statements;
    (iii) A summary of the information tabulated from the ownership 
statements, including--
    (A) The names of the persons that filed ownership statements stating 
that they are not U.S. persons;
    (B) The countries of residence and citizenship of such persons; and
    (C) Each of such person's ownership (by voting power and by value) 
in the U.S. target company prior to the exchange and the amount of stock 
of the transferee foreign corporation (by voting power and value) 
received by such persons in the exchange.
    (8) Certain transfers in connection with performance of services. 
Section 367(a)(1) shall not apply to a domestic corporation's transfer 
of its own stock or securities in connection with the performance of 
services, if the transfer is considered to be to a foreign corporation 
solely by reason of Sec. 1.83-6(d)(1). The transfer may still, however, 
be reportable under section 6038B. See Sec. 1.6038B-1(b)(2)(i)(A)(4) 
and (b)(2)(i)(B)(4).
    (9) Private letter ruling option. The Internal Revenue Service may, 
in limited circumstances, issue a private letter ruling to permit the 
taxpayer to qualify for an exception to the general rule under section 
367(a)(1) if--
    (i) A taxpayer is unable to satisfy all of the requirements of 
paragraph (c)(3) of this section relating to the active trade or 
business test of paragraph (c)(1)(iv) of this section, but such taxpayer 
meets all of the other requirements contained in paragraphs (c)(1)(i) 
through (c)(1)(iii) of this section, and such taxpayer is substantially 
in compliance with the rules set forth in paragraph (c)(3) of this 
section; or
    (ii) A taxpayer is unable to satisfy any requirement of paragraph 
(c)(1) of this section due to the application of paragraph (c)(4)(iv) of 
this section. Notwithstanding the preceding sentence, in no event will 
the Internal Revenue Service rule on the issue of

[[Page 271]]

whether the principal purpose of an acquisition was to satisfy the 
active trade or business test, including the substantiality test.
    (10) Examples. This paragraph (c) may be illustrated by the 
following examples:

    Example 1. Ownership presumption. (i) FC, a foreign corporation, 
issues 51 percent of its stock to the shareholders of S, a domestic 
corporation, in exchange for their S stock, in a transaction described 
in section 367(a)(1).
    (ii) Under paragraph (c)(2) of this section, all shareholders of S 
who receive stock of FC in the exchange are presumed to be U.S. persons. 
Unless this ownership presumption is rebutted, the condition set forth 
in paragraph (c)(1)(i) of this section will not be satisfied, and the 
exception in paragraph (c)(1) of this section will not be available. As 
a result, all U.S. persons that transferred S stock will recognize gain 
on the exchange. To rebut the ownership presumption, S must comply with 
the reporting requirements contained in paragraph (c)(6) of this 
section, obtaining ownership statements (described in paragraph 
(c)(5)(i) of this section) from a sufficient number of non-U.S. persons 
who received FC stock in the exchange to demonstrate that the amount of 
FC stock received by U.S. persons in the exchange does not exceed 50 
percent.
    Example 2. Filing of Gain Recognition Agreement. (i) The facts are 
the same as in Example 1, except that FC issues only 40 percent of its 
stock to the shareholders of S in the exchange. FC satisfies the active 
trade or business test of paragraph (c)(1)(iv) of this section. A, a 
U.S. person, owns 10 percent of S's stock immediately before the 
transfer. All other shareholders of S own less than five percent of its 
stock. None of S's officers or directors owns any stock in FC 
immediately after the transfer. A will own 15 percent of the stock of FC 
immediately after the transfer, 4 percent received in the exchange, and 
the balance being stock in FC that A owned prior to and independent of 
the transaction. No S shareholder besides A owns five percent or more of 
FC immediately after the transfer. The reporting requirements under 
paragraph (c)(6) of this section are satisfied.
    (ii) The condition set forth in paragraph (c)(1)(i) of this section 
is satisfied because, even after application of the presumption in 
paragraph (c)(2) of this section, U.S. transferors could not receive 
more than 50 percent of FC's stock in the transaction. There is no 
control group because five-percent target shareholders and officers and 
directors of S do not, in the aggregate, own more than 50 percent of the 
stock of FC immediately after the transfer (A, the sole five-percent 
target shareholder, owns 15 percent of the stock of FC immediately after 
the transfer, and no officers or directors of S own any stock of FC 
immediately after the transfer). Therefore, the condition set forth in 
paragraph (c)(1)(ii) of this section is satisfied. The facts assume that 
the condition set forth in paragraph (c)(1)(iv) of this section is 
satisfied. Thus, U.S. persons that are not five-percent transferee 
shareholders will not recognize gain on the exchange of S shares for FC 
shares. A, a five-percent transferee shareholder, will not be required 
to include in income any gain realized on the exchange in the year of 
the transfer if he files a 5-year gain recognition agreement (GRA) and 
complies with section 6038B.
    Example 3. Control Group. (i) The facts are the same as in Example 
2, except that B, another U.S. person, is a 5-percent target 
shareholder, owning 25 percent of S's stock immediately before the 
transfer. B owns 40 percent of the stock of FC immediately after the 
transfer, 10 percent received in the exchange, and the balance being 
stock in FC that B owned prior to and independent of the transaction.
    (ii) A control group exists because A and B, each a five-percent 
target shareholder within the meaning of paragraph (c)(5)(iii) of this 
section, together own more than 50 percent of FC immediately after the 
transfer (counting both stock received in the exchange and stock owned 
prior to and independent of the exchange). As a result, the condition 
set forth in paragraph (c)(1)(ii) of this section is not satisfied, and 
all U.S. persons (not merely A and B) who transferred S stock will 
recognize gain on the exchange.
    Example 4. Partnerships. (i) The facts are the same as in Example 3, 
except that B is a partnership (domestic or foreign) that has five equal 
partners, only two of whom, X and Y, are U.S. persons. Under paragraph 
(c)(4)(i) of this section, X and Y are treated as the owners and 
transferors of 5 percent each of the S stock owned and transferred by B 
and as owners of 8 percent each of the FC stock owned by B immediately 
after the transfer. U.S. persons that are five-percent target 
shareholders thus own a total of 31 percent of the stock of FC 
immediately after the transfer (A's 15 percent, plus X's 8 percent, plus 
Y's 8 percent).
    (ii) Because no control group exists, the condition in paragraph 
(c)(1)(ii) of this section is satisfied. The conditions in paragraphs 
(c)(1)(i) and (iv) of this section also are satisfied. Thus, U.S. 
persons that are not five-percent transferee shareholders will not 
recognize gain on the exchange of S shares for FC shares. A, X, and Y, 
each a five-percent transferee shareholder, will not be required to 
include in income in the year of the transfer any gain realized on the 
exchange if they file 5-year GRAs and comply with section 6038B.


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    (11) Effective date. This paragraph (c) applies to transfers 
occurring after January 29, 1997. However, taxpayers may elect to apply 
this section in its entirety to all transfers occurring after April 17, 
1994, provided that the statute of limitations of the affected tax year 
or years is open.
    (d) Indirect stock transfers in certain nonrecognition transfers--
(1) In general. For purposes of this section, a U.S. person who 
exchanges, under section 354 (or section 356) stock or securities in a 
domestic or foreign corporation for stock or securities in a foreign 
corporation (or in a domestic corporation in control of a foreign 
acquiring corporation in a triangular section 368(a)(1)(B) 
reorganization) in connection with a transaction described in paragraphs 
(d)(1)(i) through (v) of this section (or who is deemed to make such an 
exchange under paragraph (d)(1)(vi) of this section) shall, except as 
provided in paragraph (d)(2)(vii) of this section, be treated as having 
made an indirect transfer of such stock or securities to a foreign 
corporation that is subject to the rules of this section, including, for 
example, the requirement, where applicable, that the U.S. transferor 
enter into a gain recognition agreement to preserve nonrecognition 
treatment under section 367(a). If the U.S. person exchanges stock or 
securities of a foreign corporation, see also section 367(b) and the 
regulations thereunder. For examples of the concurrent application of 
the indirect stock transfer rules under section 367(a) and the rules of 
section 367(b), see paragraph (d)(3) Examples 14 and 15 of this section. 
For purposes of this paragraph (d), if a corporation acquiring assets in 
an asset reorganization transfers all or a portion of such assets to a 
corporation controlled (within the meaning of section 368(c)) by the 
acquiring corporation as part of the same transaction, the subsequent 
transfer of assets to the controlled corporation will be referred to as 
a controlled asset transfer. See section 368(a)(2)(C).
    (i) Mergers described in sections 368(a)(1)(A) and (a)(2)(D) and 
reorganizations described in sections 368(a)(1)(G) and (a)(2)(D). A U.S. 
person exchanges stock or securities of a corporation (the acquired 
corporation) for stock or securities of a foreign corporation that 
controls the acquiring corporation in a reorganization described in 
either sections 368(a)(1)(A) and (a)(2)(D), or in sections 368(a)(1)(G) 
and (a)(2)(D). See paragraph (d)(3) Example 1 of this section for an 
example of a reorganization described in sections 368(a)(1)(A) and 
(a)(2)(D) involving domestic acquired and acquiring corporations, and 
see paragraph (d)(3) Example 10 of this section for an example involving 
a domestic acquired corporation and a foreign acquiring corporation.
    (ii) Mergers described in sections 368(a)(1)(A) and (a)(2)(E). A 
U.S. person exchanges stock or securities of a corporation (the 
acquiring corporation) for stock or securities in a foreign corporation 
that controls the acquired corporation in a reorganization described in 
sections 368(a)(1)(A) and (a)(2)(E). See paragraph (d)(3) Example 2 of 
this section for an example of a reorganization described in sections 
368(a)(1)(A) and (a)(2)(E) involving domestic acquired and acquiring 
corporations, and see paragraph (d)(3) Example 11 of this section for an 
example involving a domestic acquired corporation and a foreign 
acquiring corporation.
    (iii) Triangular reorganizations described in section 368(a)(1)(B)--
(A) A U.S. person exchanges stock or securities of the acquired 
corporation for voting stock or securities of a foreign corporation that 
is in control (as defined in section 368(c)) of the acquiring 
corporation in a reorganization described in section 368(a)(1)(B). See 
paragraph (d)(3) Example 5 of this section.
    (B) A U.S. person exchanges stock or securities of the acquired 
corporation for voting stock or securities of a domestic corporation 
that is in control (as defined in section 368(c)) of a foreign acquiring 
corporation in a reorganization described in section 368(a)(1)(B). See 
paragraph (d)(3) Example 5A of this section.
    (iv) Triangular reorganizations described in section 368(a)(1)(C). A 
U.S. person exchanges stock or securities of a corporation (the acquired 
corporation) for voting stock or securities of a foreign corporation 
that controls the acquiring corporation in a reorganization described in 
section 368(a)(1)(C). See,

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e.g., paragraph (d)(3) Example 6 of this section (for an example of a 
triangular section 368(a)(1)(C) reorganization involving domestic 
acquired and acquiring corporations), and paragraph (d)(3) Example 8 of 
this section (for an example involving a domestic acquired corporation 
and a foreign acquiring corporation). If the acquired corporation is a 
foreign corporation, see paragraph (d)(3) Example 14 of this section, 
and section 367(b) and the regulations thereunder.
    (v) Transfers of assets to subsidiaries in certain section 368(a)(1) 
reorganizations. A U.S. person exchanges stock or securities of a 
corporation (the acquired corporation) for stock or securities of a 
foreign acquiring corporation in an asset reorganization (other than a 
triangular section 368(a)(1)(C) reorganization described in paragraph 
(d)(1)(iv) of this section, a reorganization described in sections 
368(a)(1)(A) and (a)(2)(D) or sections 368(a)(1)(G) and (a)(2)(D) 
described in paragraph (d)(1)(i) of this section, a reorganization 
described in sections 368(a)(1)(A) and (a)(2)(E) described in paragraph 
(d)(1)(ii) of this section, or a same-country section 368(a)(1)(F) 
reorganization) that is followed by a controlled asset transfer. For 
purposes of this section, a same-country section 368(a)(1)(F) 
reorganization is a reorganization described in section 368(a)(1)(F) in 
which both the acquired corporation and the acquiring corporation are 
foreign corporations and are created or organized under the laws of the 
same foreign country. In the case of a transaction described in this 
paragraph (d)(1)(v) in which some but not all of the assets of the 
acquired corporation are transferred in a controlled asset transfer, the 
transaction shall be considered to be an indirect transfer of stock or 
securities subject to this paragraph (d) only to the extent of the 
assets so transferred. The remaining assets shall be treated as having 
been transferred by the acquired corporation in an asset transfer rather 
than an indirect stock transfer, and, if the acquired corporation is a 
domestic corporation, such asset transfer shall be subject to the other 
provisions of section 367, including sections 367(a)(1), (3), and (5), 
and (d). See paragraph (d)(3) Examples 6A and 6B of this section.
    (vi) Successive transfers of property to which section 351 applies. 
A U.S. person transfers property (other than stock or securities) to a 
foreign corporation in an exchange described in section 351, and all or 
a portion of such assets transferred to the foreign corporation by such 
person are, in connection with the same transaction, transferred to a 
second corporation that is controlled by the foreign corporation in one 
or more exchanges described in section 351. For purposes of this 
paragraph (d)(1) and Sec. 1.367(a)-8, the initial transfer by the U.S. 
person shall be deemed to be a transfer of stock described in section 
354. (Any assets transferred to the foreign corporation that are not 
transferred by the foreign corporation to a second corporation shall be 
treated as a transfer of assets subject to the general rules of section 
367, including sections 367(a)(1), (3), (5) and (d), and not as an 
indirect stock transfer under the rules of this paragraph (d).) See, 
e.g., paragraph (d)(3) Example 13 and Example 13A of this section.
    (2) Special rules for indirect transfers. If a U.S. person is 
considered to make an indirect transfer of stock or securities described 
in paragraph (d)(1) of this section, the rules of this section and Sec. 
1.367(a)-8 shall apply to the transfer. For purposes of applying the 
rules of this section and Sec. 1.367(a)-8:
    (i) Transferee foreign corporation--(A) General rule. Except as 
provided in paragraph (d)(2)(i)(B) of this section, the transferee 
foreign corporation shall be the foreign corporation that issues stock 
or securities to the U.S. person in the exchange.
    (B) Special rule for triangular reorganizations described in 
paragraph (d)(1)(iii)(B) of this section. In the case of a triangular 
reorganization described in paragraph (d)(1)(iii)(B) of this section, 
the transferee foreign corporation shall be the foreign acquiring 
corporation. See paragraph (d)(3) Example 5A of this section.
    (ii) Transferred corporation. The transferred corporation shall be 
the acquiring corporation, except as provided in this paragraph 
(d)(2)(ii). In the case of a triangular section 368(a)(1)(B) 
reorganization described in paragraph (d)(1)(iii) of this section, the 
transferred corporation shall be the acquired

[[Page 274]]

corporation. In the case of an indirect stock transfer described in 
paragraph (d)(1)(i), (ii), or (iv) of this section followed by a 
controlled asset transfer, or an indirect stock transfer described in 
paragraph (d)(1)(v) of this section, the transferred corporation shall 
be the controlled corporation to which the assets are transferred. In 
the case of successive section 351 transfers described in paragraph 
(d)(1)(vi) of this section, the transferred corporation shall be the 
corporation to which the assets are transferred in the final section 351 
transfer. The transferred property shall be the stock or securities of 
the transferred corporation, as appropriate under the circumstances.
    (iii) Amount of gain. The amount of gain that a U.S. person is 
required to include in income in the event of a disposition (or a deemed 
disposition) of some or all of the stock or securities of the 
transferred corporation shall be the proportionate share (as determined 
under Sec. 1.367(a)-8(e)) of the U.S. person's gain realized but not 
recognized in the initial exchange (or deemed exchange) of stock or 
securities under section 354.
    (iv) Gain recognition agreements involving multiple parties. The 
U.S. transferor's agreement to recognize gain, as provided in Sec. 
1.367(a)-8, shall include appropriate provisions consistent with the 
principles of these rules, including a requirement that the transferor 
recognize gain in the event of a direct or indirect disposition of the 
stock or assets of the transferred corporation. For example, in the case 
of a triangular section 368(a)(1)(B) reorganization described in 
paragraph (d)(1)(iii)(A) of this section, a disposition of the 
transferred stock or securities requiring the U.S. transferor to 
recognize gain shall include a direct or indirect disposition of such 
stock or securities by the transferee foreign corporation, such as a 
disposition of such stock or securities by a foreign acquiring 
corporation or a disposition of the stock of the acquiring corporation 
(either foreign or domestic) by the transferee foreign corporation. In 
the case of a triangular section 368(a)(1)(B) reorganization described 
in paragraph (d)(1)(iii)(B) of this section, a disposition of the 
transferred stock or securities requiring the U.S. transferor to 
recognize gain shall occur, for example, upon the disposition of such 
stock or securities by the acquiring corporation. Moreover, a 
disposition of the stock of the acquiring corporation by the domestic 
issuing corporation in a taxable transaction shall, for example, 
terminate the gain recognition agreement. See Sec. 1.367(a)-8(h)(1) and 
paragraph (d)(3) Examples 5 and 5A of this section.
    (v) Determination of whether the transferred corporation disposed of 
substantially all of its assets. For purposes of applying Sec. 
1.367(a)-8(e)(3)(i) to determine whether the transferred corporation has 
disposed of substantially all of its assets, the following assets shall 
be taken into account (but only if such assets are not fully taxable 
under section 367 in the taxable year that includes the indirect 
transfer)--
    (A) In the case of a reorganization described in paragraph (d)(1)(i) 
of this section (a reorganization described in sections 368(a)(1)(A) and 
(a)(2)(D) or sections 368(a)(1)(G) and (a)(2)(D)) or a reorganization 
described in section (d)(1)(iv) of this section (a triangular section 
368(a)(1)(C) reorganization), the assets of the acquired corporation;
    (B) In the case of a sections 368(a)(1)(A) and (a)(2)(E) 
reorganization described in paragraph (d)(1)(ii) of this section, the 
assets of the acquiring corporation immediately prior to the 
transaction;
    (C) In the case of an asset reorganization followed by a controlled 
asset transfer, as described in paragraph (d)(1)(v) of this section, the 
assets of the acquired corporation that are transferred to the 
corporation controlled by the acquiring corporation;
    (D) In the case of a triangular reorganization described in section 
368(a)(1)(C) followed by a controlled asset transfer, a reorganization 
described in sections 368(a)(1)(A) and (a)(2)(D) followed by a 
controlled asset transfer, or a reorganization described in sections 
368(a)(1)(G) and (a)(2)(D) followed by a controlled asset transfer, the 
assets of the acquired corporation including those transferred to the 
corporation controlled by the acquiring corporation;
    (E) In the case of a reorganization described in sections 
368(a)(1)(A) and

[[Page 275]]

(a)(2)(E) followed by a controlled asset transfer, the assets of the 
acquiring corporation including those transferred to the corporation 
controlled by the acquiring corporation; and
    (F) In the case of successive section 351 exchanges described in 
paragraph (d)(1)(vi) of this section, the assets that are both 
transferred initially to the foreign corporation, and transferred by the 
foreign corporation to a second corporation.
    (vi) Coordination between asset transfer rules and indirect stock 
transfer rules--(A) General rule. Except as otherwise provided in this 
paragraph (d)(2)(vi), if, pursuant to any of the transactions described 
in paragraph (d)(1) of this section, a U.S. person transfers (or is 
deemed to transfer) assets to a foreign corporation in an exchange 
described in section 351 or section 361, the rules of section 367, 
including sections 367(a)(1), (a)(3), and (a)(5), as well as section 
367(d), and the regulations thereunder shall apply prior to the 
application of the rules of this section.
    (B) Exceptions. (1) If a transaction is described in paragraph 
(d)(2)(vi)(A) of this section, sections 367(a) and (d) shall not apply 
to the extent a domestic corporation (domestic acquired corporation) 
transfers its assets to a foreign corporation (foreign acquiring 
corporation) in an asset reorganization, and such assets (re-transferred 
assets) are transferred to a domestic corporation (domestic controlled 
corporation) in a controlled asset transfer, provided that the domestic 
controlled corporation's basis in such assets is no greater than the 
basis that the domestic acquired corporation had in such assets and the 
conditions contained in either of the following paragraphs are 
satisfied:
    (i) The domestic acquired corporation is controlled (within the 
meaning of section 368(c)) by 5 or fewer domestic corporations, 
appropriate basis adjustments as provided in section 367(a)(5) are made 
to the stock of the foreign acquiring corporation, and any other 
conditions as provided in regulations under section 367(a)(5) are 
satisfied. For purposes of determining whether the domestic acquired 
corporation is controlled by 5 or fewer domestic corporations, all 
members of the same affiliated group within the meaning of section 1504 
shall be treated as 1 corporation.
    (ii) The requirements of paragraphs (c)(1)(i), (ii), and (iv), and 
(c)(6) of this section are satisfied with respect to the indirect 
transfer of stock in the domestic acquired corporation, and the domestic 
acquired corporation attaches a statement described in paragraph 
(d)(2)(vi)(C) of this section to its U.S. income tax return for the 
taxable year of the transfer.
    (2) Sections 367(a) and (d) shall not apply to transfers described 
in paragraph (d)(1)(vi) of this section where a U.S. person transfers 
assets to a foreign corporation in a section 351 exchange, to the extent 
that such assets are transferred by such foreign corporation to a 
domestic corporation in another section 351 exchange, but only if the 
domestic transferee's basis in the assets is no greater than the basis 
that the U.S. transferor had in such assets.
    (C) Required statement. The statement required by paragraph 
(d)(2)(vi)(B)(1)(ii) of this section shall be entitled ``Required 
Statement under Sec. 1.367(a)-3(d) for Assets Transferred to a Domestic 
Corporation'' and shall be signed under penalties of perjury by an 
authorized officer of the domestic acquired corporation and by an 
authorized officer of the foreign acquiring corporation. The required 
statement shall contain a certification that, if the foreign acquiring 
corporation disposes of any stock of the domestic controlled corporation 
in a transaction described in paragraph (d)(2)(vi)(D) of this section, 
the domestic acquired corporation shall recognize gain as described in 
paragraph (d)(2)(vi)(E) of this section. The domestic acquired 
corporation (or the foreign acquiring corporation on behalf of the 
domestic acquired corporation) shall file a U.S. income tax return (or 
an amended U.S. tax return, as the case may be) for the year of the 
transfer reporting such gain.
    (D) Gain recognition transaction. (1) A transaction described in 
this paragraph (d)(2)(vi)(D) is one where a principal purpose of the 
transfer by the domestic acquired corporation is the avoidance of U.S. 
tax that would have been imposed on the domestic acquired corporation on 
the disposition of the re-

[[Page 276]]

transferred assets. A transfer may have a principal purpose of tax 
avoidance even though the tax avoidance purpose is outweighed by other 
purposes when taken together.
    (2) For purposes of paragraph (d)(2)(vi)(D)(1) of this section, a 
transaction is deemed to have a principal purpose of tax avoidance if 
the foreign acquiring corporation disposes of any stock of the domestic 
controlled corporation (whether in a recognition or non-recognition 
transaction) within 2 years of the transfer described in paragraph 
(d)(2)(vi)(A) of this section. The rule in this paragraph 
(d)(2)(vi)(D)(2) shall not apply if the domestic acquired corporation 
(or the foreign acquiring corporation on behalf of the domestic acquired 
corporation) demonstrates to the satisfaction of the Commissioner that 
the avoidance of U.S. tax was not a principal purpose of the 
transaction.
    (E) Amount of gain recognized and other matters. (1) In the case of 
a transaction described in paragraph (d)(2)(vi)(D) of this section, 
solely for purposes of this paragraph (d)(2)(vi)(E), the domestic 
acquired corporation shall be treated as if, immediately prior to the 
transfer described in paragraph (d)(2)(vi)(A) of this section, it 
transferred the re-transferred assets, including any intangible assets, 
directly to a domestic corporation in exchange for stock of such 
domestic corporation in a transaction that is treated as a section 351 
exchange, and immediately sold such stock to an unrelated party for its 
fair market value in a sale in which it shall recognize gain, if any 
(but not loss). Any gain recognized by the domestic acquired corporation 
pursuant to this paragraph (d)(2)(vi)(E) will increase the basis that 
the foreign acquiring corporation has in the stock of the domestic 
controlled corporation immediately before the transaction described in 
paragraph (d)(2)(vi)(D) of this section, but will not increase the basis 
of the re-transferred assets held by the domestic controlled 
corporation. Section 1.367(d)-1T(g)(6) shall not apply with respect to 
any intangible property included in the re-transferred assets described 
in this paragraph.
    (2) If additional tax is required to be paid as a result of a 
transaction described in paragraph (d)(2)(vi)(D) of this section, then 
interest must be paid on that amount at rates determined under section 
6621 with respect to the period between the date prescribed for filing 
the domestic acquired corporation's income tax return for the year of 
the transfer and the date on which the additional tax for that year is 
paid.
    (F) Examples. For illustrations of the rules in paragraph (d)(2)(vi) 
of this section, see paragraph (d)(3) Examples 6B, 6C, 9, and 13A of 
this section.
    (vii) Change in status of a domestic acquired corporation to a 
foreign corporation. (A) A U.S. person that exchanges stock or 
securities of a domestic corporation for stock or securities of a 
foreign corporation under section 354 (or section 356) will be treated 
for purposes of this section as having made an indirect stock transfer 
of the stock or securities of a foreign corporation (and not of a 
domestic corporation) to a foreign corporation under paragraph (b) of 
this section (but not paragraph (c) of this section), if the acquired 
domestic corporation is a subsidiary member (within the meaning of Sec. 
1.1502-1(c)) of a consolidated group (within the meaning of Sec. 
1.1502-1(h)) immediately before the transaction, and if the transaction 
is either of the following:
    (1) Described in paragraph (d)(1)(i) or (iv) of this section, but 
only if the acquiring corporation is foreign. See paragraph (d)(3) 
Examples 8, 9, 10 and 12 of this section.
    (2) Described in paragraph (d)(1)(v) of this section, but only to 
the extent the controlled asset transfer is to a foreign corporation. 
See paragraph (d)(3) Example 6A of this section.
    (B) The rules of paragraph (d)(2)(vii)(A) of this section will not 
apply to the extent assets transferred to the foreign acquiring 
corporation in a transaction described in paragraph (d)(2)(vii)(A)(1) of 
this section, or assets transferred to a foreign corporation in a 
controlled asset transfer in a transaction described in paragraph 
(d)(2)(vii)(A)(2) of this section, are retransferred to a domestic 
controlled corporation in one or more successive transfers as part of 
the same transaction. See paragraph (d)(3) Example 9 of this section.

[[Page 277]]

    (3) Examples. The rules of this paragraph (d) and Sec. 1.367(a)-8 
are illustrated by the following examples. For purposes of these 
examples, assume section 7874 does not apply.

    Example 1. Section 368(a)(1)(A)/(a)(2)(D) reorganization--(i) Facts. 
F, a foreign corporation, owns all the stock of Newco, a domestic 
corporation. A, a domestic corporation, owns all of the stock of W, also 
a domestic corporation. A and W file a consolidated Federal income tax 
return. A does not own any stock in F (applying the attribution rules of 
section 318, as modified by section 958(b)). In a reorganization 
described in sections 368(a)(1)(A) and (a)(2)(D), Newco acquires all of 
the assets of W, and A receives 40% of the stock of F in an exchange 
described in section 354.
    (ii) Result. Pursuant to paragraph (d)(1)(i) of this section, the 
reorganization is subject to the indirect stock transfer rules. F is 
treated as the transferee foreign corporation, and Newco is treated as 
the transferred corporation. Provided that the requirements of paragraph 
(c)(1) of this section are satisfied, including the requirement that A 
enter into a five-year gain recognition agreement as described in Sec. 
1.367(a)-8, A's exchange of W stock for F stock under section 354 will 
not be subject to section 367(a)(1). If F disposes (within the meaning 
of Sec. 1.367(a)-8(e)) of all (or a portion) of Newco's stock within 
the five-year term of the agreement (and A has not made a valid election 
under Sec. 1.367(a)-8(b)(1)(vii)), A is required to file an amended 
return for the year of the transfer and include in income, with 
interest, the gain realized but not recognized on the initial section 
354 exchange. If A has made a valid election under Sec. 1.367(a)-
8(b)(1)(vii) to include the amount subject to the gain recognition 
agreement in the year of the triggering event, A would instead include 
the gain on its tax return for the taxable year that includes the 
triggering event, together with interest.
    Example 1A. Transferor is a subsidiary in consolidated group--(i) 
Facts. The facts are the same as in Example 1, except that A is owned by 
P, a domestic corporation, and for the taxable year in which the 
transaction occurred, P, A and W filed a consolidated Federal income tax 
return.
    (ii) Result. Even though A is the U.S. transferor, P is required 
under Sec. 1.367(a)-8(a)(3) to enter into the gain recognition 
agreement and comply with the requirements under Sec. 1.367(a)-8. In 
the event that A leaves the P group, A would make the annual 
certifications required under Sec. 1.367(a)-8(b)(5)(ii). P would remain 
liable with A under the gain recognition agreement.
    Example 2. Section 368(a)(1)(A)/(a)(2)(E) reorganization--(i) Facts. 
The facts are the same as in Example 1, except that Newco merges into W 
and Newco receives stock of W which it distributes to F in a 
reorganization described in sections 368(a)(1)(A) and (a)(2)(E). 
Pursuant to the reorganization, A receives 40 percent of the stock of F 
in an exchange described in section 354.
    (ii) Result. The consequences of the transfer are similar to those 
described in Example 1. Pursuant to paragraph (d)(1)(ii) of this 
section, A is considered to have transferred its W stock to F pursuant 
to the indirect stock transfer rules. F is treated as the transferee 
foreign corporation, and W is treated as the transferred corporation. 
Provided that the requirements of paragraph (c)(1) of this section are 
satisfied, including the requirement that A enter into a five-year gain 
recognition agreement as described in Sec. 1.367(a)-8, A's exchange of 
W stock for F stock under section 354 will not be subject to section 
367(a)(1).
    Example 3. Taxable transaction pursuant to indirect stock transfer 
rules--(i) Facts. The facts are the same as in Example 1, except that A 
receives 55 percent of either the total voting power or the total value 
of the stock of F in the transaction.
    (ii) Result. A is required to include in income in the year of the 
exchange the amount of gain realized on such exchange. See paragraph 
(c)(1)(i) of this section. If A fails to include the income on its 
timely-filed return, A will also be liable for the penalty under section 
6038B (together with interest and other applicable penalties) unless A's 
failure to include the income is due to reasonable cause and not willful 
neglect. See Sec. 1.6038B-1(f).
    Example 4. Disposition by U.S. transferred corporation of 
substantially all of its assets--(i) Facts. The facts are the same as in 
Example 1, except that, during the third year of the gain recognition 
agreement, Newco disposes of substantially all (as described in Sec. 
1.367(a)-8(e)(3)(i)) of the assets described in paragraph (d)(2)(v)(A) 
of this section for cash and recognizes currently all of the gain 
realized on the disposition.
    (ii) Result. Under Sec. 1.367(a)-8(e)(3)(i), the gain recognition 
agreement is generally triggered when the transferred corporation 
disposes of substantially all of its assets. However, under the special 
rule contained in Sec. 1.367(a)-8(h)(2), because A and W filed a 
consolidated Federal income tax return prior to the transaction, and 
Newco, the transferred corporation, is a domestic corporation, the gain 
recognition agreement is terminated and has no further effect.
    Example 5. Triangular section 368(a)(1)(B) reorganization--(i) 
Facts. F, a foreign corporation, owns all the stock of S, a domestic 
corporation. U, a domestic corporation, owns all of the stock of Y, also 
a domestic corporation. U does not own any of the stock of F (applying 
the attribution rules of section

[[Page 278]]

318, as modified by section 958(b)). In a triangular reorganization 
described in section 368(a)(1)(B) and paragraph (d)(1)(iii)(A) of this 
section, S acquires all the stock of Y, and U receives 10% of the voting 
stock of F.
    (ii) Result. U's exchange of Y stock for F stock will not be subject 
to section 367(a)(1), provided that all of the requirements of paragraph 
(c)(1) are satisfied, including the requirement that U enter into a 
five-year gain recognition agreement. For purposes of this section, F is 
treated as the transferee foreign corporation and Y is treated as the 
transferred corporation. See paragraphs (d)(2)(i) and (ii) of this 
section. Under paragraph (d)(2)(iv) of this section, the gain 
recognition agreement would be triggered if F sold all or a portion of 
the stock of S.
    Example 5A. Triangular section 368(a)(1)(B) reorganization--(i) 
Facts. The facts are the same as in Example 5, except that F is a 
domestic corporation and S is a foreign corporation.
    (ii) Result. U's exchange of Y stock for stock of F, a domestic 
corporation in control of S, the foreign acquiring corporation, is 
treated as an indirect transfer of Y stock to a foreign corporation 
under paragraph (d)(1)(iii)(B) of this section. U's exchange of Y stock 
for F stock will not be subject to section 367(a)(1) provided that all 
of the requirements of paragraph (c)(1) of this section are satisfied, 
including the requirement that U enter into a five-year gain recognition 
agreement. In satisfying the 50 percent or less ownership requirements 
of paragraphs (c)(1)(i) and (ii) of this section, U's indirect ownership 
of S stock (through its direct ownership of F) will determine whether 
the requirement of paragraph (c)(1)(i) of this section is satisfied and 
will be taken into account in determining whether the requirement of 
paragraph (c)(1)(ii) of this section is satisfied. See paragraph 
(c)(4)(iv) of this section. For purposes of this section, S is treated 
as the transferee foreign corporation (see paragraph (d)(2)(i)(B) of 
this section). The gain recognition agreement would be triggered, for 
example, if S sold all or a portion of the stock of Y, or if Y sold 
substantially all of its assets (within the meaning of section 
368(a)(1)(C)). In addition, if F disposed of the stock of S in a taxable 
transaction the gain recognition agreement would be terminated.
    Example 6. Triangular section 368(a)(1)(C) reorganization--(i) 
Facts. F, a foreign corporation, owns all of the stock of R, a domestic 
corporation that operates an historical business. V, a domestic 
corporation, owns all of the stock of Z, also a domestic corporation. V 
does not own any of the stock of F (applying the attribution rules of 
section 318 as modified by section 958(b)). In a triangular 
reorganization described in section 368(a)(1)(C) (and paragraph 
(d)(1)(iv) of this section), R acquires all of the assets of Z, and V 
receives 30% of the voting stock of F.
    (ii) Result. The consequences of the transfer are similar to those 
described in Example 1; V is required to enter into a 5-year gain 
recognition agreement under Sec. 1.367(a)-8 to secure nonrecognition 
treatment under section 367(a). Under paragraphs (d)(2)(i) and (ii) of 
this section, F is treated as the transferee foreign corporation and R 
is treated as the transferred corporation. In determining whether, in a 
later transaction, R has disposed of substantially all of its assets 
under Sec. 1.367(a)-8(e)(3)(i), see paragraph (d)(2)(v)(A) of this 
section.
    Example 6A. Section 368(a)(1)(C) reorganization followed by section 
368(a)(2)(C) exchange--(i) Facts. The facts are the same as in Example 
6, except that the transaction is structured as a section 368(a)(1)(C) 
reorganization with Z transferring its assets to F, followed by a 
controlled asset transfer, and R is a foreign corporation. The following 
additional facts are present. Z has 3 businesses: Business A with a 
basis of $10 and a value of $50, Business B with a basis of $10 and a 
value of $40, and Business C with a basis of $10 and a value of $30. V 
and Z file a consolidated Federal income tax return and V has a basis of 
$30 in the Z stock, which has a value of $120. Assume that Businesses A 
and B consist solely of assets that will satisfy the section 367(a)(3) 
active trade or business exception; none of Business C's assets will 
satisfy the exception. Z transfers all 3 businesses to F in exchange for 
30 percent of the F stock, which Z distributes to V pursuant to a 
section 368(a)(1)(C) reorganization. F then contributes Businesses B and 
C to R in a controlled asset transfer.
    (ii) Result. The transfer of the Business A assets by Z to F does 
not constitute an indirect stock transfer under paragraph (d) of this 
section, and, subject to section 367(a)(5), the Business A assets 
qualify for the section 367(a)(3) active trade or business exception and 
are not subject to section 367(a). The transfer by Z of the Business B 
and C assets to F must first be tested under sections 367(a)(1), (3) and 
(5). Z recognizes $20 of gain on the outbound transfer of the Business C 
assets, as such assets do not qualify for an exception to section 
367(a)(1). Subject to section 367(a)(5), the Business B assets may 
qualify for the exception under section 367(a)(3) and Sec. 1.367(a)-
2T(c)(2) for assets that will be used by R in an active trade or 
business outside the United States. Pursuant to paragraphs (d)(1) and 
(d)(2)(vii)(A)(2) of this section, V is deemed to transfer the stock of 
a foreign corporation to F in a section 354 exchange subject to the 
rules of paragraphs (b) and (d) of this section. V must enter into the 
gain recognition agreement in the amount of $30 to preserve Z's 
nonrecognition treatment with respect to its transfer of Business B 
assets. Under paragraphs (d)(2)(i) and (ii) of

[[Page 279]]

this section, F is the transferee foreign corporation and R is the 
transferred corporation.
    Example 6B. Section 368(a)(1)(C) reorganization followed by a 
controlled asset transfer to a domestic controlled corporation--(i) 
Facts. The facts are the same as in Example 6A, except that R is a 
domestic corporation.
    (ii) Result. As in Example 6A, the outbound transfer of the Business 
A assets to F is not affected by the rules of this paragraph (d) and is 
subject to the general rules under section 367. However, subject to 
section 367(a)(5), the Business A assets qualify for the section 
367(a)(3) active trade or business exception and are not subject to 
section 367(a). The Business B and C assets are part of an indirect 
stock transfer under this paragraph (d) but must first be tested under 
section 367(a) and (d). The Business B assets qualify for the active 
trade or business exception under section 367(a)(3); the Business C 
assets do not. However, pursuant to paragraph (d)(2)(vi)(B) of this 
section, the Business B and C assets are not subject to section 367(a) 
or (d), provided that the basis of the Business B and C assets in the 
hands of R is no greater than the basis of the assets in the hands of Z, 
and appropriate basis adjustments are made pursuant to section 367(a)(5) 
to the stock of F held by V. V also is deemed to make an indirect 
transfer of Z stock under the rules of paragraph (d) of this section to 
the extent the assets are transferred to R. To preserve non-recognition 
treatment under section 367(a), and assuming the other requirements of 
paragraph (c) of this section are satisfied, V must enter into a 5-year 
gain recognition agreement in the amount of $50, the amount of the 
appreciation in the Business B and C assets, as the transfer of such 
assets by Z was not taxable under section 367(a)(1) and constituted an 
indirect stock transfer.
    Example 6C. Section 368(a)(1)(C) reorganization followed by a 
controlled asset transfer to a domestic controlled corporation--(i) 
Facts. The facts are the same as in Example 6B, except that Z is owned 
by U.S. individuals, none of whom qualify as five-percent target 
shareholders with respect to Z within the meaning of paragraph 
(c)(5)(iii) of this section. The following additional facts are present. 
No U.S. persons that are either officers or directors of Z own any stock 
of F immediately after the transfer. F is engaged in an active trade or 
business outside the United States that satisfies the test set forth in 
paragraph (c)(3) of this section.
    (ii) Result. The Business A assets transferred to F are not re-
transferred to R and therefore Z's transfer of these assets is not 
subject to the rules of paragraph (d) of this section. However, the 
transfer of such assets is subject to gain recognition under section 
367(a)(1), because the section 367(a)(3) active trade or business 
exception is inapplicable pursuant to section 367(a)(5). The Business B 
and C assets are part of an indirect stock transfer under this paragraph 
(d) but must first be tested with respect to Z under section 367(a) and 
(d), as provided in paragraph (d)(2)(vi) of this section. The transfer 
of the Business B assets (which otherwise would satisfy the section 
367(a)(3) active trade or business exception) generally is subject to 
section 367(a)(1) pursuant to section 367(a)(5). The transfer of the 
Business C assets generally is subject to section 367(a)(1) because 
these assets do not qualify for the active trade or business exception 
under section 367(a)(3). However, pursuant to paragraph (d)(2)(vi)(B) of 
this section, the transfer of the Business B and C assets is not subject 
to sections 367(a)(1) and (d), provided the basis of the Business B and 
C assets in the hands of R is no greater than the basis in the hands of 
Z and certain other requirements are satisfied. Even though Z is not 
controlled within the meaning of section 368(c) by 5 or fewer domestic 
corporations, Z may avoid immediate gain recognition under section 
367(a) and (d) on the transfers of the Business B and Business C assets 
to F if, pursuant to paragraph (d)(3)(vi)(B) of this section, the 
indirect transfer of Z stock satisfies the requirements of paragraphs 
(c)(1)(i), (ii), and (iv), and (c)(6) of this section, and Z attaches a 
statement described in paragraph (d)(2)(vi)(C) of this section to its 
U.S. income tax return for the taxable year of the transfer. In general, 
the statement must contain a certification that, if F disposes of the 
stock of R (in a recognition or nonrecognition transaction) and a 
principal purpose of the transfer is the avoidance of U.S. tax that 
would have been imposed on Z on the disposition of the Business B and C 
assets transferred to R, then Z (or F on behalf of Z) will file a return 
(or amended return as the case may be) recognizing gain ($50), as if, 
immediately prior to the reorganization, Z transferred the Business B 
and C assets to a domestic corporation in exchange for stock in a 
transaction treated as a section 351 exchange and immediately sold such 
stock to an unrelated party for its fair market value. A transaction is 
deemed to have a principal purpose of U.S. tax avoidance if F disposes 
of R stock within two years of the transfer, unless Z (or F on behalf of 
Z) can rebut the presumption to the satisfaction of the Commissioner. 
See paragraph (d)(2)(vi)(D)(2) of this section. With respect to the 
indirect transfer of Z stock, assume the requirements of paragraphs 
(c)(1)(i), (ii), and (iv) of this section are satisfied. Thus, assuming 
Z attaches the statement described in paragraph (d)(2)(vi)(C) of this 
section to its U.S. income tax return and satisfies the reporting 
requirements of (c)(6) of this section, the transfer of Business B and C 
assets is not subject to immediate gain recognition under section 367(a) 
or (d).

[[Page 280]]

    Example 7. Triangular section 368(a)(1)(C) reorganization followed 
by 351 exchange--(i) Facts. The facts are the same as in Example 6, 
except that, during the fourth year of the gain recognition agreement, R 
transfers substantially all of the assets received from Z to K, a 
wholly-owned domestic subsidiary of R, in an exchange described in 
section 351.
    (ii) Result. The disposition by R, the transferred corporation, of 
substantially all of its assets would trigger the gain recognition 
agreement if the assets were disposed of in a taxable transaction. 
However, because the assets were transferred in a nonrecognition 
transaction, such transfer does not trigger the gain recognition 
agreement if V satisfies the reporting requirements contained in Sec. 
1.367(a)-8(g)(3) (which includes the requirement that V amend its gain 
recognition agreement to reflect the transaction). See also paragraph 
(d)(2)(iv) of this section. To determine whether substantially all of 
the assets are disposed of, any assets of Z that were transferred by Z 
to R and then contributed by R to K are taken into account.
    Example 7A. Triangular section 368(a)(1)(C) reorganization followed 
by section 351 exchange with foreign transferee--(i) Facts. The facts 
are the same as in Example 7 except that K is a foreign corporation.
    (ii) Result. This transfer of assets by R to K must be analyzed to 
determine its effect upon the gain recognition agreement, and such 
transfer is also an outbound transfer of assets that is taxable under 
section 367(a)(1) unless the active trade or business exception under 
section 367(a)(3) applies. If the transfer is fully taxable under 
section 367(a)(1), the transfer is treated as if the transferred 
company, R, sold substantially all of its assets. Thus, the gain 
recognition agreement would be triggered (but see Sec. 1.367(a)-
8(b)(3)(ii) for potential offsets to the gain to be recognized). If each 
asset transferred qualifies for nonrecognition treatment under section 
367(a)(3) and the regulations thereunder (which require, under Sec. 
1.367(a)-2T(a)(2), the transferor to comply with the reporting 
requirements under section 6038B), the result is the same as in Example 
7. If a portion of the assets transferred qualify for nonrecognition 
treatment under section 367(a)(3) and a portion are taxable under 
section 367(a)(1) (but such portion does not result in the disposition 
of substantially all of the assets), the gain recognition agreement will 
not be triggered if such information is reported as required under Sec. 
1.367(a)-8(b)(5) and (e)(3)(i).
    Example 8. Concurrent application of asset transfer and indirect 
stock transfer rules in consolidated return setting--(i) Facts. Assume 
the same facts as in Example 6, except that R is a foreign corporation 
and V and Z file a consolidated return for Federal income tax purposes. 
The properties of Z consist of Business A assets, with an adjusted basis 
of $50 and fair market value of $90, and Business B assets, with an 
adjusted basis of $50 and a fair market value of $110. Assume that the 
Business A assets do not qualify for the active trade or business 
exception under section 367(a)(3), but that the Business B assets do 
qualify for the exception. V's basis in the Z stock is $100, and the 
value of such stock is $200.
    (ii) Result. Under paragraph (d)(2)(vi), the assets of Businesses A 
and B that are transferred to R must be tested under sections 367(a)(3) 
and (a)(5) prior to consideration of the indirect stock transfer rules 
of this paragraph (d). Thus, Z must recognize $40 of income under 
section 367(a)(1) on the outbound transfer of Business A assets. Under 
Sec. 1.1502-32, because V and Z file a consolidated return, V's basis 
in its Z stock increases from $100 to $140 as a result of Z's $40 gain. 
Pursuant to paragraphs (d)(1) and (d)(2)(vii)(A)(1) of this section, V 
is deemed to transfer the stock of a foreign corporation to F in a 
section 354 exchange subject to the rules of paragraphs (b) and (d) of 
this section, and therefore must enter into a gain recognition agreement 
in the amount of $60 (the gain realized but not recognized by V in the 
stock of Z after the $40 basis adjustment). If F sells a portion of its 
stock in R during the term of the agreement, V will be required to 
recognize a portion of the $60 gain subject to the agreement. To 
determine whether R disposes of substantially all of its assets (under 
Sec. 1.367(a)-8(e)(3)(i)), only the Business B assets will be 
considered (because the transfer of the Business A assets was taxable to 
Z under section 367). See paragraph (d)(2)(v)(A) of this section.
    Example 8A. Concurrent application without consolidated returns--(i) 
Facts. The facts are the same as in Example 8, except that V and Z do 
not file consolidated income tax returns.
    (ii) Result. Z would still recognize $40 of gain on the transfer of 
its Business A assets, and the Business B assets would still qualify for 
the active trade or business exception under section 367(a)(3). However, 
V's basis in its stock of Z would not be increased by the amount of Z's 
gain. V's indirect transfer of stock will be taxable unless V enters 
into a gain recognition agreement (as described in Sec. 1.367(a)-8) for 
the $100 of gain realized but not recognized with respect to the stock 
of Z.
    Example 8B. Concurrent application with individual U.S. 
shareholder--(i) Facts. The facts are the same as in Example 8, except 
that V is an individual U.S. citizen.
    (ii) Result. Section 367(a)(5) would prevent the application of the 
active trade or business exception under section 367(a)(3). Thus, Z's 
transfer of assets to R would be fully taxable under section 367(a)(1). 
Z would recognize $100 of income. V's basis in its stock of Z is not 
increased by this amount. V is taxable with respect to its indirect 
transfer of

[[Page 281]]

its Z stock unless V enters into a gain recognition agreement in the 
amount of the $100, the gain realized but not recognized with respect to 
its Z stock.
    Example 8C. Concurrent application with nonresident alien 
shareholder--(i) Facts. The facts are the same as in Example 8, except 
that V is a nonresident alien.
    (ii) Result. Pursuant to section 367(a)(5), the active trade or 
business exception under section 367(a)(3) is not available with respect 
to Z's transfer of assets to R. Thus, Z has $100 of gain with respect to 
the Business A and B assets. Because V is a nonresident alien, however, 
V is not subject to section 367(a) with respect to its indirect transfer 
of Z stock.
    Example 9. Indirect stock transfer by reason of a controlled asset 
transfer--(i) Facts. The facts are the same as in Example 8, except that 
R transfers the Business A assets to M, a wholly owned domestic 
subsidiary of R, in a controlled asset transfer. In addition, V's basis 
in its Z stock is $90.
    (ii) Result. Pursuant to paragraph (d)(2)(vi)(B) of this section, 
sections 367(a) and (d) do not apply to Z's transfer of the Business A 
assets to R, because such assets are re-transferred to M, a domestic 
corporation, provided that the basis of the Business A assets in the 
hands of M is no greater than the basis of the assets in the hands of Z, 
and certain other requirements are satisfied. Because Z is controlled 
(within the meaning of section 368(c)) by V, a domestic corporation, 
appropriate basis adjustments must be made pursuant to section 367(a)(5) 
to the stock of F held by V. Section 367(a)(1) does not apply to Z's 
transfer of its Business B assets to R (which are not re-transferred to 
M) because such assets qualify for an exception to gain recognition 
under section 367(a)(3), subject to section 367(a)(5). Pursuant to 
paragraphs (d)(1) and (d)(2)(vii)(A)(1) of this section, V is generally 
deemed to transfer the stock of a foreign corporation to F in a section 
354 exchange subject to the rules of paragraphs (b) and (d) of this 
section, including the requirement that V enter into a 5-year gain 
recognition agreement and comply with the requirements of Sec. 
1.367(a)-8. However, pursuant to paragraph (d)(2)(vii)(B) of this 
section, paragraph (d)(2)(vii)(A)(1) of this section does not apply to 
the extent of the transfer of business A assets by R to M, a domestic 
corporation. As a result, to the extent of the business A assets 
transferred by R to M, V is deemed to transfer the stock of Z (a 
domestic corporation) to F in a section 354 exchange subject to the 
rules of paragraphs (c) and (d) of this section. Thus, with respect to 
V's indirect transfer of Z stock to F, such transfer is not subject to 
gain recognition under section 367(a)(1) if the requirements of 
paragraph (c) of this section are satisfied, including the requirement 
that V enter into a 5-year gain recognition agreement and comply with 
the requirements of Sec. 1.367(a)-8. Under paragraphs (d)(2)(i) and 
(ii) of this section, the transferee foreign corporation is F and the 
transferred corporation is M. Pursuant to paragraph (d)(2)(iv) of this 
section, a disposition by F of the stock of R, or a disposition by R of 
the stock of M, will trigger the gain recognition agreement. To 
determine whether an asset disposition constitutes a deemed disposition 
of the transferred corporation's stock under the rules of Sec. 
1.367(a)-8(e)(3)(i), both the Business A assets in M and the Business B 
assets in R must be considered.
    Example 10. Concurrent application of direct stock transfer and 
indirect stock transfer rules in section 368(a)(1)(A)/(a)(2)(D) 
reorganization--(i) Facts. The facts are the same as in Example 8, 
except that R acquires all of the assets of Z in a reorganization 
described in sections 368(a)(1)(A) and (a)(2)(D). Pursuant to the 
reorganization, V receives 30 percent of the stock of F in a section 354 
exchange.
    (ii) Result. The consequences of the transaction are similar to 
those in Example 8. The assets of Businesses A and B that are 
transferred to R must be tested under section 367(a) and (d) prior to 
the consideration of the indirect stock transfer rules of this paragraph 
(d). The Business B assets qualify for the active trade or business 
exception under section 367(a)(3), subject to section 367(a)(5). Because 
the Business A assets do not qualify for the exception, Z must recognize 
$40 of gain under section 367(a) on the transfer of Business A assets to 
R. Further, because V and Z file a consolidated return, V's basis in the 
stock of Z is increased from $100 to $140 as a result of Z's $40 gain. 
Pursuant to paragraphs (d)(1) and (d)(2)(vii)(A)(1) of this section, V 
is deemed to transfer the stock of a foreign corporation to F in a 
section 354 exchange subject to the rules of paragraphs (b) and (d) of 
this section. V's indirect transfer of foreign stock will be taxable 
under section 367(a) unless V enters into a gain recognition agreement 
in the amount of $60 ($200 value of Z stock less $140 adjusted basis).
    Example 11. Concurrent application of section 367(a) and (b) in 
section 368(a)(1)(A)/(a)(2)(E) reorganization--(i) Facts. F, a foreign 
corporation, owns all the stock of D, a domestic corporation. V, a 
domestic corporation, owns all the stock of Z, a foreign corporation. V 
has a basis of $100 in the stock of Z which has a fair market value of 
$200. D is an operating corporation with assets valued at $100 with a 
basis of $60. In a reorganization described in sections 368(a)(1)(A) and 
(a)(2)(E), D merges into Z, and V exchanges its Z stock for 55 percent 
of the outstanding F stock.
    (ii) Result. Under paragraph (d)(1)(ii) of this section, V is 
treated as making an indirect transfer of Z stock to F. V's exchange of 
Z

[[Page 282]]

stock for F stock will be taxable under section 367(a) (and section 1248 
will be applicable) if V fails to enter into a 5-year gain recognition 
agreement in accordance with the requirements of Sec. 1.367(a)-8. Under 
paragraph (b)(2) of this section, if V enters into a gain recognition 
agreement, the exchange will be subject to the provisions of section 
367(b) and the regulations thereunder as well as section 367(a). Under 
Sec. 1.367(b)-4(b), however, no income inclusion is required because 
both F and Z are controlled foreign corporations with respect to which V 
is a section 1248 shareholder immediately after the exchange. Under 
paragraphs (d)(2)(i) and (ii) of this section, the transferee foreign 
corporation is F, and the transferred corporation is Z (the acquiring 
corporation). If F disposes (within the meaning of Sec. 1.367(a)-8(e)) 
of all (or a portion) of Z stock within the 5-year term of the agreement 
(and V has not made a valid election under Sec. 1.367(a)-8(b)(1)(vii)), 
V is required to file an amended return for the year of the transfer and 
include in income, with interest, the gain realized but not recognized 
on the initial section 354 exchange. To determine whether Z (the 
transferred corporation) disposes of substantially all of its assets, 
only the assets of Z immediately prior to the transaction are taken into 
account, pursuant to paragraph (d)(2)(v)(B) of this section. Because D 
is owned by F, a foreign corporation, section 367(a)(5) precludes any 
assets of D from qualifying for nonrecognition under section 367(a)(3). 
Thus, D recognizes $40 of gain on the transfer of its assets to Z under 
section 367(a)(1).
    Example 12. Concurrent application of direct and indirect stock 
transfer rules--(i) Facts. F, a foreign corporation, owns all of the 
stock of O, also a foreign corporation. D, a domestic corporation, owns 
all of the stock of E, also a domestic corporation, which owns all of 
the stock of N, also a domestic corporation. Prior to the transactions 
described in this Example 12, D, E and N filed a consolidated income tax 
return. D has a basis of $100 in the stock of E, which has a fair market 
value of $160. The N stock has a fair market value of $100, and E has a 
basis of $60 in such stock. In addition to the stock of N, E owns the 
assets of Business X. The assets of Business X have a fair market value 
of $60, and E has a basis of $50 in such assets. Assume that the 
Business X assets qualify for nonrecognition treatment under section 
367(a)(3). D does not own any stock in F (applying the attribution rules 
of section 318 as modified by section 958(b)). In a triangular 
reorganization described in section 368(a)(1)(C) and paragraph 
(d)(1)(iv) of this section, O acquires all of the assets of E, and D 
exchanges its stock in E for 40% of the voting stock of F.
    (ii) Result. E's transfer of its assets, including the N stock, must 
be tested under the general rules of section 367(a) before consideration 
of D's indirect transfer of the stock of E. E's transfer of the assets 
of Business X qualify for nonrecognition under section 367(a)(3). E 
could qualify for nonrecognition treatment with respect to its transfer 
of N stock if it enters into a gain recognition agreement (and all of 
the requirements of paragraph (c)(1)(i) of this section are satisfied); 
however under Sec. 1.367(a)-8(f)(2)(i), D, the parent of the 
consolidated group, must enter into the agreement. O is the transferee 
foreign corporation; N is the transferred corporation. Pursuant to 
paragraphs (d)(1) and (d)(2)(vii)(A)(1) of this section, D is deemed to 
transfer the stock of a foreign corporation to F in a section 354 
exchange subject to the rules of paragraphs (b) and (d) of this section, 
and therefore may enter into a gain recognition agreement for such 
indirect stock transfer as provided in paragraph (b) of this section and 
Sec. 1.367(a)-8. As to this transfer, F is the transferee foreign 
corporation; O is the transferred corporation. The amount of the gain 
recognition agreement is $60. See also section 367(a)(5) and any 
regulations issued thereunder.
    Example 13. Successive section 351 exchanges--(i) Facts. D, a 
domestic corporation, owns all the stock of X, a controlled foreign 
corporation that operates an historical business, which owns all the 
stock of Y, a controlled foreign corporation that also operates an 
historical business. The properties of D consist of Business A assets, 
with an adjusted basis of $50 and a fair market value of $90, and 
Business B assets, with an adjusted basis of $50 and a fair market value 
of $110. Assume that the Business B assets qualify for the exception 
under section 367(a)(3) and Sec. 1.367(a)-2T(c)(2), but that the 
Business A assets do not qualify for the exception. In an exchange 
described in section 351, D transfers the assets of Businesses A and B 
to X, and, in connection with the same transaction, X transfers the 
assets of Business B to Y in another exchange described in section 351.
    (ii) Result. Under paragraph (d)(1)(vi) of this section, this 
transaction is treated as an indirect stock transfer for purposes of 
section 367(a), but the transaction is not recharacterized for purposes 
of section 367(b). Moreover, under paragraph (d)(2)(vi) of this section, 
the assets of Businesses A and B that are transferred to X must be 
tested under section 367(a)(3). The Business A assets, which were not 
transferred to Y, are subject to the general rules of section 367(a), 
and not the indirect stock transfer rules described in this paragraph 
(d). D must recognize $40 of income on the outbound transfer of Business 
A assets. The transfer of the Business B assets is subject to both the 
asset transfer rules (under section 367(a)(3)) and the indirect stock 
transfer rules of this paragraph (d) and Sec. 1.367(a)-8. Thus, D's 
transfer of the Business B assets will not be subject

[[Page 283]]

to section 367(a)(1) if D enters into a five-year gain recognition 
agreement with respect to the stock of Y. Under paragraphs (d)(2)(i) and 
(ii) of this section, X will be treated as the transferee foreign 
corporation and Y will be treated as the transferred corporation for 
purposes of applying the terms of the agreement. If X sells all or a 
portion of the stock of Y during the term of the agreement, D will be 
required to recognize a proportionate amount of the $60 gain that was 
realized by D on the initial transfer of the Business B assets.
    Example 13A. Successive section 351 exchanges with ultimate domestic 
transferee--(i) Facts. The facts are the same as in Example 13, except 
that Y is a domestic corporation.
    (ii) Result. As in Example 13, D must recognize $40 of income on the 
outbound transfer of the Business A assets. Although the Business B 
assets qualify for the exception under section 367(a)(3) (and end up in 
U.S. corporate solution, in Y), the $60 of gain realized on the Business 
B assets is nevertheless taxable under paragraphs (c)(1) and (d)(1)(vi) 
of this section because the transaction is considered to be a transfer 
by D of stock of a domestic corporation, Y, in which D receives more 
than 50 percent of the stock of the transferee foreign corporation, X. A 
gain recognition agreement is not permitted.
    Example 14. Concurrent application of indirect stock transfer rules 
and section 367(b)--(i) Facts. F, a foreign corporation, owns all of the 
stock of Newco, which is also a foreign corporation. P, a domestic 
corporation, owns all of the stock of S, a foreign corporation that is a 
controlled foreign corporation within the meaning of section 957(a). P's 
basis in the stock of S is $50 and the value of S is $100. The section 
1248 amount with respect to S stock is $30. In a reorganization 
described in section 368(a)(1)(C) (and paragraph (d)(1)(iv) of this 
section), Newco acquires all of the properties of S, and P exchanges its 
stock in S for 49 percent of the stock of F.
    (ii) Result. P's exchange of S stock for F stock under section 354 
will be taxable under section 367(a) (and section 1248 will be 
applicable) if P fails to enter into a 5-year gain recognition agreement 
in accordance with Sec. 1.367(a)-8. Under paragraph (b)(2) of this 
section, if P enters into a gain recognition agreement, the exchange 
will be subject to the provisions of section 367(b) and the regulations 
thereunder as well as section 367(a). Under Sec. 1.367(b)-4(b), P must 
recognize the section 1248 amount of $30 because P exchanged stock of a 
controlled foreign corporation, S, for stock of a foreign corporation 
that is not a controlled foreign corporation, F. The indirect stock 
transfer rules do not apply with respect to section 367(b). The deemed 
dividend of $30 recognized by P will increase P's basis in the F stock 
received in the transaction, and F's basis in the Newco stock. Thus, the 
amount of the gain recognition agreement is $20 ($50 gain realized on 
the transfer less the $30 inclusion under section 367(b)). Under 
paragraphs (d)(2)(i) and (ii) of this section, F is treated as the 
transferee foreign corporation and Newco is the transferred corporation.
    Example 14A. Triangular section 368(a)(1)(C) reorganization 
involving foreign acquired corporation--(i) Facts. Assume the same facts 
as in Example 14, except that P receives 51 percent of the stock of F.
    (ii) Result. Assuming Sec. 1.367(b)-4(b) does not apply, there is 
no income inclusion under section 367(b), and the amount of the gain 
recognition agreement is $50.
    Example 15. Concurrent application of indirect stock transfer rules 
and section 367(b)--(i) Facts. F, a foreign corporation, owns all of the 
stock of Newco, a domestic corporation. P, a domestic corporation, owns 
all of the stock of FC, a foreign corporation. P's basis in the stock of 
FC is $50 and the value of FC stock is $100. The all earnings and 
profits amount with respect to the FC stock held by P is $60. See Sec. 
1.367(b)-2(d). In a reorganization described in sections 368(a)(1)(A) 
and (a)(2)(D) (and paragraph (d)(1)(i) of this section), Newco acquires 
all of the properties of FC, and P exchanges its stock in FC for 20 
percent of the stock in F.
    (ii) Result. P's section 354 exchange is considered an indirect 
stock transfer under paragraph (d)(1)(i) of this section. Further, 
because the assets of FC were acquired by Newco, a domestic corporation, 
in an asset reorganization, the transaction is within Sec. 1.367(b)-
3(a) and (b). Because the transaction is subject to Sec. 1.367(b)-3 and 
the indirect stock rules of paragraph (d) of this section, and because 
the all earnings and profits amount with respect to the FC stock 
exchanged by P ($60) is greater than the gain in such stock subject to 
section 367(a) ($50), the section 367(b) rules (and not the section 
367(a) rules) apply to the exchange. See Sec. 1.367(a)-3(b)(2)(i)(B). 
Under the rules of section 367(b), P must include in income the all 
earnings and profits amount of $60 with respect to its FC stock. See 
Sec. 1.367(b)-3. Alternatively, if P's all earnings and profits amount 
with respect to its FC stock were $30 (which is less than the gain in 
such stock subject to section 367(a) ($50)), section 367(b) and the 
regulations thereunder would not apply if there is gain recognition 
under section 367(a). Thus, if P failed to enter into a 5-year gain 
recognition agreement in accordance with Sec. 1.367(a)-8, then P would 
recognize $50 of gain under section 367(a) and there would be no income 
inclusion under section 367(b). If, instead, P enters into a 5-year gain 
recognition agreement under Sec. 1.367(a)-8, thereby avoiding immediate 
gain recognition on the entire $50 of section 367(a) gain, P is required 
to include in income the all earnings and profits amount of $30. In such 
a

[[Page 284]]

case, P will adjust its basis in the FC stock pursuant to Sec. 
1.367(b)-2(e)(3)(ii) and enter into a gain recognition agreement in the 
amount of $20.
    Example 16. Direct asset reorganization not subject to stock 
transfer rules--(i) Facts. D is a domestic corporation that owns all the 
stock of F1 and F2, both foreign corporations. In a reorganization 
described in section 368(a)(1)(D), F2 acquires all of the assets of F1, 
and D receives 30 percent of the stock of F2 in an exchange described in 
section 354.
    (ii) Result. The section 368(a)(1)(D) reorganization is not an 
indirect stock transfer described in paragraph (d) of this section. 
Moreover, the section 354 exchange by D of F1 stock for F2 stock is not 
an exchange described under section 367(a). See paragraph (a) of this 
section.

    (e) Effective dates--(1) Rules of applicability--(A) Except as 
otherwise provided in this paragraph (e), the rules in paragraphs (a), 
(b), and (d) of this section apply to transfers occurring on or after 
July 20, 1998.
    (B) The following rules apply to transactions occurring on or after 
January 23, 2006--
    (1) The rules in paragraphs (a) and (d) of this section, as they 
apply to section 368(a)(1)(A) reorganizations (including reorganizations 
described in section 368(a)(2)(D) or (E)) involving a foreign acquiring 
or foreign acquired corporation;
    (2) The rules in paragraph (b)(2)(i)(B) of this section;
    (3) The rules in paragraph (d) of this section, as they apply to 
section 368(a)(1)(G) reorganizations (including reorganizations 
described in section 368(a)(2)(D));
    (4) The rules of paragraph (d)(1) and (d)(2)(iv), as they relate to 
exchanges by a U.S. person of securities of an acquired corporation for 
voting stock or securities of a foreign corporation in control of the 
acquiring corporation in a triangular section 368(a)(1)(B) 
reorganization;
    (5) The rules in paragraph (d)(1) and (d)(2)(iv) of this section, as 
they relate to exchanges by a U.S. person of stock or securities of an 
acquired corporation for voting stock or securities of a domestic 
corporation in control of the foreign acquiring corporation in a 
triangular section 368(a)(1)(B) reorganization; and
    (6) The rules in paragraph (d)(2)(vii) of this section.
    (C) The rules of paragraph (a) of this section that apply to 
transfers of securities in a section 354 or 356 exchange (pursuant to a 
section 368(a)(1)(E) reorganization or an asset reorganization that is 
not treated as an indirect stock transfer) that is not subject to 
section 367(a) apply only to transfers occurring after January 5, 2005 
(although taxpayers may apply such provision to transfers of securities 
occurring on or after July 20, 1998, and on or before January 5, 2005, 
if done consistently to all transactions).
    (D) The rules in paragraph (d)(1)(v) of this section apply to:
    (1) A reorganization described in section 368(a)(1)(C) followed by a 
controlled asset transfer if such reorganization occurs on or after July 
20, 1998;
    (2) A reorganization described in section 368(a)(1)(D) followed by a 
controlled asset transfer if such reorganization occurs after December 
9, 2002 (for additional guidance concerning such reorganizations that 
occur on or after July 20, 1998 and on or before December 9, 2002, see 
Rev. Rul. 2002-85 (2002-2 C.B. 986) and Sec. 601.601(d)(2) of this 
chapter); and
    (3) A reorganization described in section 368(a)(1)(A), (F), or (G) 
followed by a controlled asset transfer if such reorganization occurs on 
or after January 23, 2006.
    (E) The rules of paragraph (d)(2)(vi) of this section apply only to 
transactions occurring on or after January 23, 2006. See Sec. 1.367(a)-
3(d)(2)(vi), as contained in 26 CFR part 1 revised as of April 1, 2005, 
for transactions occurring on or after July 20, 1998 and before January 
23, 2006.
    (F) With respect to certain transfers of domestic stock or 
securities, the rules in paragraph (c) of this section are generally 
applicable for transfers occurring after January 29, 1997. See Sec. 
1.367(a)-3(c)(11). For transition rules regarding certain transfers of 
domestic stock or securities after December 16, 1987, and before January 
30, 1997, and transfers of foreign stock or securities after December 
16, 1987, and before July 20, 1998, see paragraph (g) of this section.
    (2) Election. Notwithstanding paragraphs (e)(1) and (g) of this 
section,

[[Page 285]]

taxpayers may, by timely filing an original or amended return, elect to 
apply paragraphs (b) and (d) of this section to all transfers of foreign 
stock or securities occurring after December 16, 1987, and before July 
20, 1998, except to the extent that a gain recognition agreement has 
been triggered prior to July 20, 1998. If an election is made under this 
paragraph (e)(2), the provisions of Sec. 1.367(a)-3T(g) (see 26 CFR 
part 1, revised April 1, 1998) shall apply, and, for this purpose, the 
term substantial portion under Sec. 1.367(a)-3T(g)(3)(iii) (see 26 CFR 
part 1, revised April 1, 1998) shall be interpreted to mean 
substantially all as defined in section 368(a)(1)(C). In addition, if 
such an election is made, the taxpayer must apply the rules under 
section 367(b) and the regulations thereunder to any transfers occurring 
within that period as if the election to apply Sec. 1.367(a)-3(b) and 
(d) to transfers occurring within that period had not been made, except 
that in the case of an exchange described in section 351 the taxpayer 
must apply section 367(b) and the regulations thereunder as if the 
exchange was described in Sec. 7.367(b)-7 of this chapter (as in effect 
before February 23, 2000; see 26 CFR part 1, revised as of April 1, 
1999). For example, if a U.S. person, pursuant to a section 351 
exchange, transfers stock of a controlled foreign corporation in which 
it is a United States shareholder but does not receive back stock of a 
controlled foreign corporation in which it is a United States 
shareholder, the U.S. person must include in income under Sec. 
7.367(b)-7 of this chapter (as in effect before February 23, 2000; see 
26 CFR part 1, revised as of April 1, 1999) the section 1248 amount 
attributable to the stock exchanged (to the extent that the fair market 
value of the stock exchanged exceeds its adjusted basis). Such inclusion 
is required even though Sec. 7.367(b)-7 of this chapter (as in effect 
before February 23, 2000; see 26 CFR part 1, revised as of April 1, 
1999), by its terms, did not apply to section 351 exchanges.
    (G) Except as otherwise provided in this paragraph (e)(1)(G), the 
third sentence of paragraph (a) of this section shall apply to section 
304(a)(1) transactions occurring on or after February 21, 2006. However, 
taxpayers may rely on the third sentence of paragraph (a) of this 
section for all section 304(a)(1) transactions occurring in open tax 
years; in such cases any gain recognition agreements filed pursuant to 
Sec. 1.367(a)-8 with respect to such transactions shall terminate and 
have no further effect.
    (f) Former 10-year gain recognition agreements. If a taxpayer elects 
to apply the rules of this section to all prior transfers occurring 
after December 16, 1987, any 10-year gain recognition agreement that 
remains in effect (has not been triggered in full) on July 20, 1998 will 
be considered by the Internal Revenue Service to be a 5-year gain 
recognition agreement with a duration of five full taxable years 
following the close of the taxable year of the initial transfer.
    (g) Transition rules regarding certain transfers of domestic or 
foreign stock or securities after December 16, 1987, and prior to July 
20, 1998--(1) Scope. Transfers of domestic stock or securities described 
under section 367(a) that occurred after December 16, 1987, and prior to 
April 17, 1994, and transfers of foreign stock or securities described 
under section 367(a) that occur after December 16, 1987, and prior to 
July 20, 1998 are subject to the rules contained in section 367(a) and 
the regulations thereunder, as modified by the rules contained in 
paragraph (g)(2) of this section. For transfers of domestic stock or 
securities described under section 367(a) that occurred after April 17, 
1994 and before January 30, 1997, see Temporary Income Regulations under 
section 367(a) in effect at the time of the transfer (Sec. 1.367(a)-
3T(a) and (c), 26 CFR part 1, revised April 1, 1996) and paragraph 
(c)(11) of this section. For transfers of domestic stock or securities 
described under section 367(a) that occur after January 29, 1997, see 
Sec. 1.367(a)-3(c).
    (2) Transfers of domestic or foreign stock or securities: Additional 
substantive rules--(i) Rule for less than 5-percent shareholders. Unless 
paragraph (g)(2)(iii) of this section applies (in the case of domestic 
stock or securities) or paragraph (g)(2)(iv) of this section applies (in 
the case of foreign stock or securities), a U.S. transferor that 
transfers stock or securities of a domestic or

[[Page 286]]

foreign corporation in an exchange described in section 367(a) and owns 
less than 5 percent of both the total voting power and the total value 
of the stock of the transferee foreign corporation immediately after the 
transfer (taking into account the attribution rules of section 958) is 
not subject to section 367(a)(1) and is not required to enter into a 
gain recognition agreement.
    (ii) Rule for 5-percent shareholders. Unless paragraph (g)(2)(iii) 
or (iv) of this section applies, a U.S. transferor that transfers 
domestic or foreign stock or securities in an exchange described in 
section 367(a) and owns at least 5 percent of either the total voting 
power or the total value of the stock of the transferee foreign 
corporation immediately after the transfer (taking into account the 
attribution rules under section 958) may qualify for nonrecognition 
treatment by filing a gain recognition agreement in accordance with 
Sec. 1.367(a)-3T(g) in effect prior to July 20, 1998 (see 26 CFR part 
1, revised April 1, 1998) for a duration of 5 or 10 years. The duration 
is 5 years if the U.S. transferor (5-percent shareholder) determines 
that all U.S. transferors, in the aggregate, own less than 50 percent of 
both the total voting power and the total value of the transferee 
foreign corporation immediately after the transfer. The duration is 10 
years in all other cases. See, however, Sec. 1.367(a)-3(f). If a 5-
percent shareholder fails to properly enter into a gain recognition 
agreement, the exchange is taxable to such shareholder under section 
367(a)(1).
    (iii) Gain recognition agreement option not available to controlling 
U.S. transferor if U.S. stock or securities are transferred. 
Notwithstanding the provisions of paragraph (g)(2)(ii) of this section, 
in no event will any exception to section 367(a)(1) apply to the 
transfer of stock or securities of a domestic corporation where the U.S. 
transferor owns (applying the attribution rules of section 958) more 
than 50 percent of either the total voting power or the total value of 
the stock of the transferee foreign corporation immediately after the 
transfer (i.e., the use of a gain recognition agreement to qualify for 
nonrecognition treatment is unavailable in this case).
    (iv) Loss of United States shareholder status in the case of a 
transfer of foreign stock. Notwithstanding the provisions of paragraphs 
(g)(2)(i) and (ii) of this section, in no event will any exception to 
section 367(a)(1) apply to the transfer of stock of a foreign 
corporation in which the U.S. transferor is a United States shareholder 
(as defined in Sec. 7.367(b)-2(b) of this chapter (as in effect before 
February 23, 2000; see 26 CFR part 1, revised as of April 1, 1999) or 
section 953(c)) unless the U.S. transferor receives back stock in a 
controlled foreign corporation (as defined in section 953(c), section 
957(a) or section 957(b)) as to which the U.S. transferor is a United 
States shareholder immediately after the transfer.

[T.D. 8702, 61 FR 68637, Dec. 30, 1996, as amended by T.D. 8770, 63 FR 
33556, June 19, 1998; 64 FR 15687, Apr. 1, 1999; T.D. 8850, 64 FR 72550, 
Dec. 28, 1999; T.D. 8862, 65 FR 3596, Jan. 24, 2000; T.D. 9243, 71 FR 
4282, Jan. 26, 2006; T.D. 9250, 71 FR 8804, Feb. 21, 2006]



Sec. 1.367(a)-4T  Special rules applicable to specified transfers of 
property (temporary).

    (a) In general. This section provides special rules for determining 
the applicability of section 367(a)(1) to specified transfers of 
property. Paragraph (b) of this section provides a special rule 
requiring the recapture of depreciation upon the transfer abroad of 
property previously used in the United States. Paragraphs (c) through 
(f) of this section provide rules for determining whether certain types 
of property are transferred for use in the active conduct of a trade or 
business outside of the United States. Paragraph (g) excepts certain 
transfers to FSCs from the operation of section 367(a)(1). The treatment 
of any transfer of property described in this section shall be 
determined exclusively under the rules of this section.
    (b) Depreciated property used in the U.S.--(1) In general. If a U.S. 
person transfers U.S. depreciated property (as defined in paragraph 
(b)(2) of this section) to a foreign corporation in an exchange 
described in section 367(a)(1), then that person shall include in its 
gross income for the taxable year in which the transfer occurs ordinary 
income equal to the gain realized that

[[Page 287]]

would have been includible in the transferor's gross income as ordinary 
income under section 617(d)(1), 1245(a), 1250(a), 1252(a), or 1254(a), 
whichever is applicable, if at the time of the transfer the transferor 
had sold the property at its fair market value. Recapture of 
depreciation under this paragraph (b) shall be required regardless of 
whether any exception to section 367(a)(1) (such as the exception for 
property transferred for use in the active conduct of a foreign trade or 
business) would otherwise apply to the transfer. However, any applicable 
exception shall apply with respect to realized gain that is not included 
in ordinary income pursuant to this paragraph (b).
    (2) U.S. depreciated property. U.S. depreciated property subject to 
the rules of this paragraph (b) is any property that--
    (i) Is either mining property (as defined in section 617(f)(2)), 
section 1245 property (as defined in section 1245(a)(3)), section 1250 
property (as defined in section 1250(c)), farm land (as defined in 
section 1252(a)(2)), or oil, gas, or geothermal property (as defined in 
section 1254(a)(3)); and
    (ii) Has been used in the United States or has qualified as section 
38 property by virtue of section 48(a)(2)(B) prior to its transfer.
    (3) Property used within and without the U.S. If U.S. depreciated 
property has been used partly within and partly without the United 
States, then the amount required to be included in ordinary income 
pursuant to this paragraph (b) shall be reduced to an amount determined 
in accordance with the following formula:

 
                                                                          U.S. use
                                            Full recapture amount    X -------------
                                                                         Total use
----------------------------------------------------------------------------------------------------------------
 


For purposes of the above fraction, the full recapture amount is the 
amount that would otherwise be included in the transferor's income under 
paragraph (b)(1) of this section. U.S. use is the number of months that 
the property either was used within the United States or qualified as 
section 38 property by virtue of section 48(a)(2)(B), and was subject to 
depreciation by the transferor or a related person. Total use is the 
total number of months that the property was used (or available for 
use), and subject to depreciation, by the transferor or a related 
person. For purposes of this paragraph (b)(3), property shall not be 
considered to have been in use outside of the United States during any 
period in which such property was, for purposes of section 48 or 168, 
treated as property not used predominantly outside the United States 
pursuant to the provisions of section 48(a)(2)(B). For purposes of this 
paragraph (b)(3) the term related person shall have the meaning set 
forth in Sec. 1.367(d)-1T(h).
    (4) [Reserved]
    (5) Effective date. This paragraph (b) applies to transfers 
occurring on or after June 16, 1986.
    (c) Property to be leased--(1) Leasing business of transferee. 
Tangible property transferred to a foreign corporation that will be 
leased to other persons by the foreign corporation shall be considered 
to be transferred for use in the active conduct of a trade or business 
outside of the United States only if--
    (i) The transferee's leasing of the property constitutes the active 
conduct of a leasing business;
    (ii) The lessee of the property is not expected to, and does not, 
use the property in the United States; and
    (iii) The transferee has need for substantial investment in assets 
of the type transferred.

The active conduct of a leasing business requires that the employees of 
the foreign corporation perform substantial marketing, customer service, 
repair and maintenance, and other substantial operational activities 
with respect to the transferred property outside of the United States. 
Tangible property subject to the rules of this paragraph (c) includes 
real property located outside of the United States. The rules of Sec. 
1.367(a)-5T(b) shall apply to transfers of property described in that 
section regardless of satisfaction of the rules of this paragraph (c).
    (2) De minimis leasing by transferee. Tangible property transferred 
to a foreign corporation that will be leased to other persons by the 
foreign corporation and that does not satisfy the conditions of 
paragraph (b)(1) of this section shall, nevertheless, be considered

[[Page 288]]

to be transferred for use in the active conduct of a trade or business 
if either--
    (i) The property transferred will be used by the transferee foreign 
corporation in the active conduct of a trade or business but will be 
leased during occasional brief periods when the property would otherwise 
be idle, such as an airplane leased during periods of excess capacity; 
or
    (ii) The property transferred is real property located outside the 
United States and--
    (A) The property will be used primarily in the active conduct of a 
trade or business of the transferee foreign corporation; and
    (B) Not more than ten percent of the square footage of the property 
will be leased to others.
    (d) Property to be sold. Property shall not be considered to be 
transferred for use in the active conduct of a trade or business and a 
transfer of stock or securities shall not be excepted from section 
367(a)(1) under the rules of Sec. 1.367(a)-3T if, at the time of the 
transfer, it is reasonable to believe that, in the reasonably 
foreseeable future, the transferee will sell or otherwise dispose of any 
material portion of the transferred stock, securities, or other property 
other than in the ordinary course of business.
    (e) Oil and gas working interests--(1) In general. A working 
interest in oil and gas properties shall be considered to be transferred 
for use in the active conduct of a trade or business if--
    (i) The transfer satisfies the conditions of paragraph (e)(2) of 
this section;
    (ii) At the time of the transfer, the transferee has no intention to 
farmout or otherwise transfer any part of the transferred working 
interest; and
    (iii) During the first three years after the transfer there are no 
farmouts or other transfers of any part of the transferred working 
interest as a result of which the transferee retains less than a 50 
percent share of the transferred working interest.
    (2) Active use of working interest. Working interests in oil and gas 
properties shall be considered to be transferred for use in the active 
conduct of a trade or business if--
    (i) The transferor is regularly and substantially engaged in 
exploration for and extraction of minerals, either directly or through 
working interests in joint ventures, other than by reason of the 
property that is transferred;
    (ii) The terms of the working interest transferred were actively 
negotiated among the joint venturers;
    (iii) The working interest transferred constitutes at least a five 
percent working interest;
    (iv) Prior to and at the time of the transfer, through its own 
employees or officers, the transferor was regularly and actively engaged 
in--
    (A) Operating the working interest, or
    (B) Analyzing technical data relating to the activities of the 
venture;
    (v) Prior to and at the time of the transfer, through its own 
employees or officers, the transferor was regularly and actively 
involved in decisionmaking with respect to the operations of the 
venture, including decisions relating to exploration, development, 
production, and marketing; and
    (vi) After the transfer, the transferee foreign corporation will for 
the foreseeable future satisfy the requirements of subdivisions (iv) and 
(v) of this paragraph (d)(2).
    (3) Start-up operations. Working interests in oil and gas properties 
that do not satisfy the requirements of paragraph (e)(2) of this section 
shall, nevertheless, be considered to be transferred for use in the 
active conduct of a trade or business if--
    (i) The working interest was acquired by the transferor immediately 
prior to the transfer and for the specific purpose of transferring it to 
the transferee foreign corporation;
    (ii) The requirements of paragraph (e)(2)(ii) and (iii) of this 
section are satisfied; and
    (iii) The transferee foreign corporation will for the foreseeable 
future satisfy the requirements of paragraph (e)(2)(iv) and (v) of this 
section.
    (4) Other applicable rules. Oil and gas interests not described in 
this paragraph (e) may nonetheless qualify for the exception to section 
367(a)(1) contained in Sec. 1.367(a)-2T, relating to

[[Page 289]]

transfers of property for use in the active conduct of a trade or 
business outside of the United States. However, a mere royalty interest 
in oil and gas properties will not be treated as transferred for use in 
the active conduct of a trade or business outside the United States. 
Moreover, a royalty or similar interest that constitutes intangible 
property will be subject to the rules of Sec. 1.367(d)-1T, relating to 
transfers of intangible property.
    (f) Compulsory transfers. Property shall be presumed to be 
transferred for use in the active conduct of a trade or business outside 
of the United States, if--
    (1) The property was previously in use in the country in which the 
transferee foreign corporation is organized; and
    (2) The transfer is either:
    (i) Legally required by the foreign government as a necessary 
condition of doing business in that country; or
    (ii) Compelled by a genuine threat of immediate expropriation by the 
foreign government.
    (g) Relationship to other sections. The rules of Sec. Sec. 
1.367(a)-5T, 1.367(a)-6T, and 1.367(d)-1T apply to transfers of property 
whether or not the property is transferred for use in the active conduct 
of a trade or business outside the United States. See Sec. 1.367(d)-
1T(g)(2)(ii) for a special election with respect to compulsory transfers 
of intangible property.
    (h) Transfers of certain property to FSCs--(1) In general. The 
provisions of section 367 (a) and (d) and the regulations thereunder 
shall not apply to a transfer of property by a U.S. person to a foreign 
corporation that constitutes a FSC, as defined in section 922(a), if--
    (i) The transferee FSC uses the property to generate exempt foreign 
trade income, as defined in section 923(a);
    (ii) The property is not excluded property, as defined in section 
927(a)(2); and
    (iii) The property consists of a corporate name or tangible property 
that is appropriate for use in the operation of a FSC office.
    (2) Exception. The general rule in paragraph (g)(1) of this section 
shall not apply if, within three years after the original transfer, the 
original transferee FSC (or a subsequent transferee FSC) disposes of the 
property other than in the ordinary course of business or through a 
transfer to another FSC. Thus, the U.S. transferor may recognize gain in 
the taxable year in which the original transfer occurred through the 
application of section 367 and the regulations thereunder.

[T.D. 8087, 51 FR 17947, May 16, 1986, as amended by T.D. 8515, 59 FR 
2960, Jan. 20, 1994]



Sec. 1.367(a)-5T  Property subject to section 367(a)(1) regardless of 
use in trade or business (temporary).

    (a) In general. Section 367(a)(1) shall apply to a transfer of 
property described in this section regardless of whether the property is 
transferred for use in the active conduct of a trade or business. 
Certain exceptions to the operation of this rule are provided in this 
section, and a special gain limitation rule is provided in paragraph 
(e). A transfer of property described in this section is subject to 
section 367(a)(1) even if the transfer is a compulsory transfer 
described in Sec. 1.367(a)-4T(f).
    (b) Inventory, etc. Regardless of use in an active trade or 
business, section 367(a)(1) shall apply to the transfer of--
    (1) Stock in trade of the taxpayer or other property of a kind which 
would properly be included in the inventory of the taxpayer if on hand 
at the close of the taxable year, or property held by the taxpayer 
primarily for sale to customers in the ordinary course of its trade or 
business; and
    (2) A copyright, a literary, musical, or artistic composition, a 
letter or memorandum, or similar property, held by--
    (i) A taxpayer whose personal efforts created such property;
    (ii) In the case of a letter, memorandum, or similar property, a 
taxpayer from whom such property was prepared or produced; or
    (iii) A taxpayer in whose hands the basis of such property is 
determined, for purposes of determining gain from a sale or exchange, in 
whole or part by reference to the basis of such property in the hands of 
a taxpayer described in subdivision (i) or (ii) of this paragraph 
(b)(2).

[[Page 290]]


For purposes of this section, the term inventory includes raw materials 
and supplies, partially completed goods, and finished products.
    (c) Installment obligations, etc. Regardless of use in an active 
trade or business, section 367(a)(1) shall apply to the transfer of 
installment obligations, accounts receivable, or similar property, but 
only to the extent that the principal amount of any such obligation has 
not previously been included by the taxpayer in its taxable income.
    (d) Foreign currency, etc.--(1) In general. Regardless of use in an 
active trade or business, section 367(a)(1) shall apply to the transfer 
of foreign currency or other property denominated in foreign currency, 
including installment obligations, futures contracts, forward contracts, 
accounts receivable, or any other obligation entitling its payee to 
receive payment in a currency other than U.S. dollars.
    (2) Exception for certain obligations. If transferred property 
denominated in a foreign currency--
    (i) Is denominated in the currency of the country in which the 
transferee foreign corporation is organized; and
    (ii) Was acquired in the ordinary course of the business of the 
transferor that will be carried on by the transferee foreign 
corporation,

then section 367(a)(1) shall apply to the transfer only to the extent 
that gain is required to be recognized with respect to previously 
realized income reflected in installment obligations subject to 
paragraph (c) of this section. The rule of this paragraph (d)(2) shall 
not apply to transfers of foreign currency.
    (3) Limitation of gain required to be recognized. If section 
367(a)(1) applies to a transfer of property described in this paragraph, 
then the gain required to be recognized shall be limited to--
    (i) The gain realized upon the transfer of property described in 
this paragraph (d), minus
    (ii) Any loss realized as part of the same transaction upon the 
transfer of property described in this paragraph (d).

This limitation applies in lieu of the rule in Sec. 1.367(a)-1T(b)(1). 
No loss shall be recognized with respect to property described in this 
paragraph (d).
    (e) Intangible property. Regardless of use in an active trade or 
business, a transfer of intangible property pursuant to section 332 
shall be subject to section 367(a)(1), unless it constitutes foreign 
goodwill or going concern value, as defined in Sec. 1.367(a)-
1T(d)(5)(iii). For rules concerning transfers of intangible property 
pursuant to section 351 or 361, see section 367(d) and Sec. 1.367(d)-
1T.
    (f) Leased tangible property. Regardless of use in an active trade 
or business, section 367(a)(1) shall apply to a transfer of tangible 
property with respect to which the transferor is a lessor at the time of 
the transfer, unless--
    (1) With respect to property that will not be leased by the 
transferee to third persons, the transferee was the lessee of the 
property at the time of the transfer; or
    (2) With respect to property that will be leased by the transferee 
to third persons, the transferee satisfies the conditions set forth in 
Sec. 1.367(a)-4T(c)(1) or (2).

[T.D. 8087, 51 FR 17949, May 16, 1986]



Sec. 1.367(a)-6T  Transfer of foreign branch with previously deducted 
losses (temporary).

    (a) In general. This section provides special rules relating to the 
transfer of the assets of a foreign branch with previously deducted 
losses. Paragraph (b) of this section provides generally that such 
losses must be recaptured by the recognition of the gain realized on the 
transfer. Paragraph (c) of this section sets forth rules concerning the 
character of, and limitations on, the gain required to be recognized. 
Paragraph (d) of this section defines the term previously deducted 
losses. Paragraph (e) of this section describes certain reductions that 
are made to the previously deducted losses before they are taken into 
income under this section. Finally, paragraph (g) of this section 
defines the term foreign branch.
    (b) Recognition of gain required--(1) In general. If a U.S. person 
transfers any assets of a foreign branch to a foreign corporation in an 
exchange described in section 367(a)(1), then the transferor shall 
recognize gain equal to--

[[Page 291]]

    (i) The sum of the previously deducted branch ordinary losses as 
defined and reduced in paragraphs (d) and (e) of this section; and
    (ii) The sum of the previously deducted branch capital losses as 
defined and reduced in paragraphs (d) and (e) of this section.
    (2) No active conduct exception. The rules of this paragraph (b) 
shall apply regardless of whether the assets of the foreign branch are 
transferred for use in the active conduct of a trade or business outside 
the United States.
    (c) Special rules concerning gain recognized--(1) Character and 
source of gain. The gain described in paragraph (b)(1)(i) of this 
section shall be treated as ordinary income of the transferor, and the 
gain described in paragraph (b)(1)(ii) of this section shall be treated 
as long-term capital gain of the transferor. Gain that is recognized 
pursuant to the rules of this section shall be treated as income from 
sources outside the United States. Such recognized gain shall be treated 
as foreign oil and gas extraction income (as defined in section 907) in 
the same proportion that previously deducted foreign oil and gas 
extraction losses bore to the total amount of previously deducted 
losses.
    (2) Gain limitation. For a rule limiting the amount of gain required 
to be recognized under section 367(a) upon any transfer of property to a 
foreign corporation, including the transfer of assets of a foreign 
branch with previously deducted losses, see Sec. 1.367(a)-1T(b)(3).
    (3) Foreign goodwill and going concern value. For purposes of this 
section, the assets of a foreign branch shall include foreign goodwill 
and going concern value related to the business of the foreign branch, 
as defined in Sec. 1.367(a)-1T(d)(5)(iii). Thus, gain realized upon the 
transfer of the foreign goodwill or going concern value of a foreign 
branch to a foreign corporation will be taken into account in computing 
the limitation on loss recapture under paragraph (c)(2) of this section.
    (4) Transfers of certain intangible property. Gain realized on the 
transfer of intangible property (computed with reference to the fair 
market value of the intangible property as of the date of the transfer) 
that is an asset of a foreign branch shall be taken into account in 
computing the limitation on loss recapture under paragraph (c)(2) of 
this section. For rules relating to the crediting of gain recognized 
under this section against income deemed to arise by operation of 
section 367(d), see Sec. 1.367(d)-1T(g)(3).
    (d) Previously deducted losses--(1) In general. This paragraph (d) 
provides rules for determining, for purposes of paragraph (b)(1) of this 
section, the previously deducted losses of a foreign branch any of whose 
assets are transferred to a foreign corporation in an exchange described 
in section 367(a)(1). Initially, the two previously deducted losses of a 
foreign branch for a taxable year are the total ordinary loss 
(``previously deducted branch ordinary loss'') and the total capital 
loss (``previously deducted branch capital loss'') that were realized by 
the foreign branch in that taxable year (a ``branch loss year'') prior 
to the transfer and that were or will be reflected on a U.S. income tax 
return of the transferor. The previously deducted branch ordinary loss 
for each branch loss year is reduced by expired net ordinary losses 
under paragraph (d)(2) of this section, while the previously deducted 
capital loss for each loss year is reduced by expired net capital losses 
under paragraph (d)(3) of this section. For each branch loss year, the 
remaining previously deducted branch ordinary loss and the remaining 
previously deducted branch capital loss are then reduced, proceeding 
from the first branch loss year to the last branch loss year, to reflect 
expired foreign tax credits under paragraph (d)(4) of this section. The 
reductions are made in the order of the taxable years in which the 
foreign tax credits arose. Finally, similar reductions are made to 
reflect expired investment credits under paragraph (d)(5) of this 
section.
    (2) Reduction by expired net ordinary loss--(i) In general. The 
previously deducted branch ordinary loss for each branch loss year shall 
be reduced under this paragraph (d)(2) by the amount of any expired net 
ordinary loss with respect to that branch loss year. Expired net 
ordinary losses arising in years other than the branch loss year shall 
reduce the previously deducted branch

[[Page 292]]

ordinary loss for the branch loss year only to the extent that the 
previously deducted branch ordinary loss exceeds the net operating loss, 
if any, incurred by the transferor in the branch loss year. The 
previously deducted branch ordinary losses shall be reduced proceeding 
from the first branch loss year to the last branch loss year. For each 
branch loss year, expired net operating losses shall be applied to 
reduce the previously deducted branch ordinary loss for that year in the 
order in which the expired net ordinary losses arose.
    (ii) Existence of expired net ordinary loss. An expired net ordinary 
loss exists with respect to a branch loss year to the extent that--
    (A) The transferor incurred a net operating loss (within the meaning 
of section 172(c));
    (B) That net operating loss arose in the branch loss year or was 
available for carryover or carryback to the branch loss year under 
section 172(b)(1);
    (C) That net operating loss has neither given rise to a net 
operating loss deduction (within the meaning of section 172(a)) for any 
taxable year prior to the year of the transfer, nor given rise to a 
reduction of any previously deducted branch ordinary loss (pursuant to 
paragraph (d)(2) of this section) of any foreign branch of the 
transferor upon a previous transfer to a foreign corporation; and
    (D) The period during which the transferor may claim a net operating 
loss deduction with respect to that net operating loss has expired.
    (3) Reduction by expired net capital loss--(i) In general. The 
previously deducted branch capital loss for each branch loss year shall 
be reduced under this paragraph (d)(3) by the amount of any expired net 
capital loss with respect to that branch loss year. Expired net capital 
losses arising in years other than the branch loss year shall reduce the 
previously deducted branch capital loss for the branch loss year only to 
the extent that the previously deducted branch capital loss exceeds the 
net capital loss, if any, incurred by the transferor in the branch loss 
year. The previously deducted branch capital losses shall be reduced 
proceeding from the first branch loss year to the last branch loss year. 
For each branch loss year, expired net capital losses shall be applied 
to reduce the previously deducted branch capital loss for that year in 
the order in which the expired net capital losses arose.
    (ii) Existence of expired net capital loss. An expired net capital 
loss exists with respect to a branch loss year to the extent that--
    (A) The transferor incurred a net capital loss (within the meaning 
of section 1222(10));
    (B) That net capital loss arose in the branch loss year or was 
available for carryover or carryback to the branch loss year under 
section 1212;
    (C) That net capital loss has neither been allowed for any taxable 
year prior to the year of the transfer, nor given rise to a reduction of 
any previously deducted branch capital loss (pursuant to paragraph 
(c)(3) of this section) of any foreign branch of the transferor upon any 
previous transfer to a foreign corporation; and
    (D) The period during which the transferor may claim a capital loss 
deduction with respect to that net capital loss has expired.
    (4) Reduction for expired foreign tax credit--(i) In general. The 
previously deducted branch ordinary loss and the previously deducted 
branch capital loss for each branch loss year remaining after the 
reductions described in paragraph (d)(2) and (3) of this section shall 
be further reduced under this paragraph (d)(4) proportionately by the 
amount of any expired foreign tax credit loss equivalent with respect to 
that branch loss year. The previously deducted branch losses shall be 
reduced proceeding from the first branch loss year to the last branch 
loss year. For each branch loss year, expired foreign tax credit loss 
equivalents shall be applied to reduce the previously deducted branch 
loss for that year in the order in which the expired foreign tax credits 
arose.
    (ii) Existence of foreign tax credit loss equivalent. A foreign tax 
credit loss equivalent exists with respect to a branch loss year if--
    (A) The transferor paid, accrued, or is deemed under section 902 or 
960 to have paid creditable foreign taxes in a taxable year;

[[Page 293]]

    (B) The creditable foreign taxes were paid, accrued, or deemed paid 
in the branch loss year or were available for carryover or carryback to 
the branch loss year under section 904(c);
    (C) No foreign tax credit with respect to the foreign taxes paid, 
accrued, or deemed paid has been taken because of the operation of 
section 904(a) or similar limitations provided by the Code or an 
applicable treaty, and such taxes have not given rise to a reduction 
(pursuant to this paragraph (d)(5)) of any previously deducted branch 
loss of the foreign branch for a prior taxable year or of any previously 
deducted branch losses of any foreign branch of the transferor upon a 
prior transfer to a foreign corporation; and
    (D) The period during which the transferor may claim a foreign tax 
credit for the foreign taxes paid, accrued, or deemed paid has expired.
    (iii) Amount of foreign tax credit loss equivalent. The amount of 
the foreign tax credit loss equivalent for the branch loss year with 
respect to the creditable foreign taxes described in paragraph 
(d)(4)(ii) of this section is the amount of those creditable foreign 
taxes divided by the highest rate of tax to which the transferor was 
subject in the loss year.
    (5) Reduction for expired investment credits--(i) In general. The 
previously deducted branch ordinary loss and the previously deducted 
branch capital loss for each branch loss year shall be further reduced 
under this paragraph (d)(5) proportionately by the amount of any expired 
investment credit loss equivalent with respect to that branch year. The 
previously deducted branch losses shall be reduced proceeding from the 
first branch loss year to the last branch loss year. For each branch 
loss year, expired investment credit loss equivalents shall be applied 
to reduce the previously deducted branch loss for that year in the order 
in which the expired investment credits were earned.
    (ii) Existence of investment credit loss equivalent. An investment 
credit loss equivalent exists with respect to a branch loss year if--
    (A) The transferor earned an investment credit (within the meaning 
of section 46(a)) in a taxable year;
    (B) The investment credit was earned in the branch loss year or was 
available for carryover or carryback to the branch loss year under 
section 39;
    (C) The investment credit earned by the transferor in the credit 
year has been denied by section 38(a) or by similar provisions of the 
Code and has not given rise to a reduction (pursuant to this paragraph 
(d)(5)) of any previously deducted branch loss of the foreign branch for 
a preceding taxable year or of the previously deducted losses of any 
foreign branch of the transferor upon any previous transfer to a foreign 
corporation; and
    (D) The period during which the transferor may claim the investment 
credit has expired.
    (iii) Amount of investment tax credit loss equivalent. The amount of 
the investment credit loss equivalent for the branch loss year with 
respect to the investment credit described in paragraph (d)(5)(ii) of 
this section is 85 percent of the amount of that investment credit 
divided by the highest rate of tax to which the transferor was subject 
in the loss year.
    (e) Amounts that reduce previously deducted losses subject to 
recapture--(1) In general. This paragraph (e) describes five amounts 
that reduce the sum of the previously deducted branch ordinary losses 
and the sum of the previously deducted branch capital losses before they 
are taken into income under paragraph (b) of this section. Amounts 
representing ordinary income shall be applied to reduce first the sum of 
the previously deducted branch ordinary losses to the extent thereof, 
and then the sum of the previously deducted branch capital losses to the 
extent thereof. Similarly, amounts representing capital gains shall be 
applied to reduce first the sum of the previously deducted branch 
capital losses and then the sum of the previously deducted branch 
ordinary losses.
    (2) Taxable income. The previously deducted losses shall be reduced 
by any taxable income of the foreign branch recognized through the close 
of the taxable year of the transfer, whether before or after any taxable 
year in which losses were incurred.

[[Page 294]]

    (3) Amounts currently recaptured under section 904(f)(3). The 
previously deducted losses shall be reduced by the amount recognized 
under section 904(f)(3) on account of the transfer.
    (4) Gain recognized under section 367(a). The previously deducted 
branch losses shall be reduced by any gain recognized pursuant to 
section 367(a)(1) (other than by reason of the provisions of this 
section) upon the transfer of the assets of the foreign branch to the 
foreign corporation.
    (5) Amounts previously recaptured under section 904(f)(3)--(i) In 
general. The previously deducted branch losses shall be reduced by the 
portion of any amount recognized under section 904(f)(3) upon a previous 
transfer of property that was attributable to the losses of the foreign 
branch, provided that the amount did not reduce any gain otherwise 
required to be recognized under section 367(a)(3)(C) and this section 
(or Revenue Ruling 78-201, 1978-1 C.B. 91).
    (ii) Portion attributable to the losses of the foreign branch--(A) 
Branch property. The full amount recognized under section 904(f)(3) upon 
a previous transfer of property of the branch shall be treated as 
attributable to the losses of the foreign branch.
    (B) Non-branch property. The portion of the amount previously 
recognized under section 904(f)(3) upon a transfer of non-branch 
property that was attributable to the losses of the foreign branch shall 
be the sum, over the taxable years in which the transferor sustained an 
overall foreign loss some portion of which was recaptured on the 
disposition, of the recaptured portions of those overall foreign losses 
after multiplication by the following fraction:

 
                                          Losses of the foreign branch for the year
                                       -----------------------------------------------
                                               All foreign losses for the year
----------------------------------------------------------------------------------------------------------------
 


For purposes of this fraction, the term losses of the foreign branch for 
the year means the losses of the foreign branch that were taken into 
account under section 904(f)(2) in determining the amount of the 
transferor's overall foreign loss for the year, and the term all foreign 
losses for the year means all of the losses of the transferor that were 
taken into account under section 904(f)(2).
    (6) Amounts previously recognized under the rules of this section. 
The previously deducted losses shall be reduced by the amounts 
previously recognized under the rules of this section upon a previous 
transfer of assets of the foreign branch.
    (f) Example. The rules of paragraphs (b) through (e) of this section 
are illustrated by the following example.

    Example. (i) Facts. X, a U.S. corporation, is a calendar year 
taxpayer. On January 1, 1981, X established a branch in foreign country 
A to manufacture and sell X's products in country A. On July 1, 1986, X 
organized corporation Y, a country A subsidiary, and transferred to Y 
all of the assets of its country A branch, including goodwill and going 
concern value. During the period from January 1, 1981, through July 1, 
1986, X's country A branch earned income and incurred losses in the 
following amounts:

                            Country A Branch
------------------------------------------------------------------------
                                                      Ordinary   Capital
                        Year                           income     gain
                                                       (loss)    (loss)
------------------------------------------------------------------------
1981................................................     (200)        0
1982................................................     (300)     (100)
1983................................................     (400)        0
1984................................................     (200)        0
1985................................................     (100)        0
1986................................................       50         0
------------------------------------------------------------------------

    At the time of the transfer of X's country A branch assets to Y, 
those assets had a fair market value of $2,500 and an adjusted basis of 
$1,000. For each of the assets, fair market value exceeded adjusted 
basis. X had no net capital loss or unused investment credit during any 
taxable year relevant to the transfer. In 1984, X incurred a net 
operating loss of $400, $200 of which was carried back to prior years. 
An additional $50 of the 1984 net operating loss was carried over to 
1985. The remaining $150 of the 1984 net operating loss was not used in 
any year prior to the transfer. In 1979, X paid creditable foreign taxes 
of $330 that could not be claimed as a credit in that year or any 
earlier year because of section 904. Of those foreign taxes, $100 were 
carried over and claimed as a credit in 1983, but the remaining $230 
were not used in any year prior to the transfer. X was not required to 
recognize any gain under section 904(f)(3) on account of the 1986 
transfer or any prior transfer. X was not required to recognize gain 
upon the transfer under section 367(a) (other than by reason of the 
provisions of this section).

[[Page 295]]

    (ii) Previously deducted losses. The previously deducted losses of 
X's country A branch are $575 of ordinary losses and $25 of capital 
losses, computed as follows: Initially, the branch has previously 
deducted ordinary losses of $1,000 ($200+$300+$400+$100), and previously 
deducted capital losses of $100. (See paragraph (d)(1) of this section.)
    (iii) Expired losses and credits. Under the facts of this example, 
there are no reductions for expired net ordinary losses or expired net 
capital losses under paragraph (d)(2) or (3) of this section. However, 
the previously deducted losses are reduced proceeding from the first 
branch loss year to the last branch loss year to reflect the expired 
foreign tax credit from 1979. The amount of the foreign tax credit loss 
equivalent with respect to 1981 is $500 ($230/.46). It reduces the 
previously deducted losses for 1981 proportionately. Thus, the 
previously deducted ordinary loss for 1981 is reduced from $200 to $0. 
(See paragraph (d)(4) of this section.) The amount of the foreign tax 
credit loss equivalent with respect to 1982 is $300 ($500-$200, i.e., 
$138/.46). (See paragraph (d)(4)(ii)(C) of this section.) It reduces the 
previously deducted losses for 1982 proportionately. Thus, the 
previously deducted ordinary loss for 1982 is reduced from $300 to $75, 
and the previously deducted capital loss for 1982 is reduced from $100 
to $25.
    (iv) Further reductions. The previously deducted ordinary losses of 
$575 and the previously deducted capital losses of $25 are reduced by 
the taxable income earned by the branch prior to the date of the 
transfer ($250). (See paragraph (e)(2) of this section.) Since that 
income was ordinary income, it is applied first to reduce the previously 
deducted ordinary losses of $575 to $325. (See paragraph (e)(1) of this 
section.)
    (v) Recapture. Since the gain realized by X upon its transfer of the 
branch assets to Y exceeds the sum of the previously deducted branch 
losses as defined and reduced above $325+$25), the limitation in 
paragraph (c)(2) of this section does not apply. Thus, X is required to 
recognize $325 of ordinary income and $25 of long-term capital gain upon 
the transfer. (See paragraph (b) and (c)(1) of this section.)

    (g) Definition of foreign branch--(1) In general. For purposes of 
this section, the term foreign branch means an integral business 
operation carried on by a U.S. person outside the United States. Whether 
the activities of a U.S. person outside the United States constitute a 
foreign branch operation must be determined under all the facts and 
circumstances. Evidence of the existence of a foreign branch includes, 
but is not limited to, the existence of a separate set of books and 
records, and the existence of an office or other fixed place of business 
used by employees or officers of the U.S. person in carrying out 
business activities outside the United States. Activities outside the 
United States shall be deemed to constitute a foreign branch for 
purposes of this section if the activities constitute a permanent 
establishment under the terms of a treaty between the United States and 
the country in which the activities are carried out. Any U.S. person may 
be treated as having a foreign branch for purposes of this section, 
whether that person is a corporation, partnership, trust, estate, or 
individual.
    (2) More than one branch. If a U.S. person carries on more than one 
branch operation outside the United States, then the rules of this 
section must be separately applied with respect to each foreign branch 
that is transferred to a foreign corporation. Thus, the previously 
deducted losses of one branch may not be offset, for purposes of 
determining the gain required to be recognized under the rules of this 
section, by the income of another branch that is also transferred to a 
foreign corporation. Similarly, the losses of one branch shall not be 
recaptured upon a transfer of the assets of a separate branch. Whether 
the foreign activities of a U.S. person are carried out through more 
than one branch must be determined under all of the facts and 
circumstances. In general, a separate branch exists if a particular 
group of activities is sufficiently integrated to constitute a single 
business that could be operated as an independent enterprise. For 
purposes of determining the combination of activities that constitute a 
branch operation as defined in this paragraph (g), the nominal 
relationship among those activities shall not be controlling. Factors 
suggesting that nominally separate business operations constitute a 
single foreign branch include a substantial identity of products, 
customers, operational facilities, operational processes, accounting and 
record-keeping functions, management, employees, distribution channels, 
or sales and purchasing forces. For examples of the application of the 
principles of this paragraph (g)(2), see Revenue Ruling 81-82, 1981-1 
C.B. 127.

[[Page 296]]

    (3) Consolidated group. For purposes of this section, the activities 
of each of two domestic corporations outside the United States will be 
considered to constitute a single foreign branch if--
    (i) The two corporations are members of the same consolidated group 
of corporations; and
    (ii) The activities of the two corporations in the aggregate would 
constitute a single foreign branch if conducted by a single corporation.

Notwithstanding the preceding rule of this paragraph (g)(3), gains of a 
foreign branch of a domestic corporation arising in a year in which that 
corporation did not file a consolidated return with a second domestic 
corporation shall not be applied to reduce the previously deducted 
losses of a foreign branch of the second corporation (but may be applied 
to reduce such losses of the foreign branch of the first corporation) 
upon the transfer of the two branches to a foreign corporation, even 
though the two domestic corporations file a consolidated return for the 
year in which the transfer occurs and the two branches are considered at 
that time to constitute a single foreign branch. For an example of the 
application of the principles of this paragraph (g)(3), see Revenue 
Ruling 81-89, 1981-1 C.B. 129.
    (4) Property not transferred. A U.S. transferor's failure to 
transfer any property of a foreign branch shall be irrelevant to the 
determination of the previously deducted losses of the branch subject to 
recapture under the rules of this section. Thus, if the activities with 
respect to untransferred property constituted a part of the branch 
operation under the rules of this paragraph (g), then the losses 
generated by those activities shall be subject to recapture, 
notwithstanding the failure to transfer the property. For an example of 
the application of the principles of this paragraph (g)(4), see Revenue 
Ruling 80-247, 1980-2 C.B. 127, relating to property abandoned by the 
U.S. transferor.
    (h) Anti-abuse rule. If--
    (1) A U.S. person transfers property of a foreign branch to a 
domestic corporation for a principal purpose of avoiding the effect of 
this section; and
    (2) The domestic corporation thereafter transfers the property of 
the foreign branch to a foreign corporation,

Then, solely for purposes of this section, that U.S. person shall be 
treated as having transferred the property of the branch directly to the 
foreign corporation. A U.S. person shall be presumed to have transferred 
property of a foreign branch for a principal purpose of avoiding the 
effect of this section if the property is transferred to the domestic 
corporation less than two years prior to the domestic corporation's 
transfer of the property to a foreign corporation. This presumption may 
be rebutted by clear evidence that the subsequent transfer of the 
property was not contemplated at the time of the initial transfer to the 
domestic corporation and that avoidance of the effect of this section 
was not a principal purpose for the transaction. A transfer may have 
more than one principal purpose.
    (i) Basis adjustments. Basis adjustments reflecting gain recognized 
pursuant to this section shall be made as described in Sec. 1.367(a)-
1T(b)(4)(ii).

[T.D. 8087, 51 FR 17950, May 16, 1986]



Sec. 1.367(a)-8  Gain recognition agreement requirements.

    (a) In general. This section specifies the general terms and 
conditions for an agreement to recognize gain entered into pursuant to 
Sec. 1.367(a)-3(b) or (c) to qualify for nonrecognition treatment under 
section 367(a).
    (1) Filing requirements. A transferor's agreement to recognize gain 
(described in paragraph (b) of this section) must be attached to, and 
filed by the due date (including extensions) of, the transferor's income 
tax return for the taxable year that includes the date of the transfer.
    (2) Gain recognition agreement forms. Any agreement, certification, 
or other document required to be filed pursuant to the provisions of 
this section shall be submitted on such forms as may be prescribed 
therefor by the Commissioner (or similar statements providing the same 
information that is required on such forms). Until such time as forms 
are prescribed, all necessary filings may be accomplished by providing

[[Page 297]]

the required information to the Internal Revenue Service in accordance 
with the rules of this section.
    (3) Who must sign. The agreement to recognize gain must be signed 
under penalties of perjury by a responsible officer in the case of a 
corporate transferor, except that if the transferor is a member but not 
the parent of an affiliated group (within the meaning of section 
1504(a)(1)), that files a consolidated Federal income tax return for the 
taxable year in which the transfer was made, the agreement must be 
entered into by the parent corporation and signed by a responsible 
officer of such parent corporation; by the individual, in the case of an 
individual transferor (including a partner who is treated as a 
transferor by virtue of Sec. 1.367(a)-1T(c)(3)); by a trustee, 
executor, or equivalent fiduciary in the case of a transferor that is a 
trust or estate; and by a debtor in possession or trustee in a 
bankruptcy case under Title 11, United States Code. An agreement may 
also be signed by an agent authorized to do so under a general or 
specific power of attorney.
    (b) Agreement to recognize gain--(1) Contents. The agreement must 
set forth the following information, with the heading ``GAIN RECOGNITION 
AGREEMENT UNDER Sec. 1.367(a)-8'', and with paragraphs labeled to 
correspond with the numbers set forth as follows--
    (i) A statement that the document submitted constitutes the 
transferor's agreement to recognize gain in accordance with the 
requirements of this section;
    (ii) A description of the property transferred as described in 
paragraph (b)(2) of this section;
    (iii) The transferor's agreement to recognize gain, as described in 
paragraph (b)(3) of this section;
    (iv) A waiver of the period of limitations as described in paragraph 
(b)(4) of this section;
    (v) An agreement to file with the transferor's tax returns for the 5 
full taxable years following the year of the transfer a certification as 
described in paragraph (b)(5) of this section;
    (vi) A statement that arrangements have been made in connection with 
the transferred property to ensure that the transferor will be informed 
of any subsequent disposition of any property that would require the 
recognition of gain under the agreement; and
    (vii) A statement as to whether, in the event all or a portion of 
the gain recognition agreement is triggered under paragraph (e) of this 
section, the taxpayer elects to include the required amount in the year 
of the triggering event rather than in the year of the initial transfer. 
If the taxpayer elects to include the required amount in the year of the 
triggering event, such statement must be included with all of the other 
information required under this paragraph (b), and filed by the due date 
(including extensions) of the transferor's income tax return for the 
taxable year that includes the date of the transfer.
    (2) Description of property transferred--(i) The agreement shall 
include a description of each property transferred by the transferor, an 
estimate of the fair market value of the property as of the date of the 
transfer, a statement of the cost or other basis of the property and any 
adjustments thereto, and the date on which the property was acquired by 
the transferor.
    (ii) If the transferred property is stock or securities, the 
transferor must provide the information contained in paragraphs 
(b)(2)(ii)(A) through (F) of this section as follows--
    (A) The type or class, amount, and characteristics of the stock or 
securities transferred, as well as the name, address, and place of 
incorporation of the issuer of the stock or securities, and the 
percentage (by voting power and value) that the stock (if any) 
represents of the total stock outstanding of the issuing corporation;
    (B) The name, address and place of incorporation of the transferee 
foreign corporation, and the percentage of stock (by voting power and 
value) that the U.S. transferor received or will receive in the 
transaction;
    (C) If stock or securities are transferred in an exchange described 
in section 361(a) or (b), a statement that the conditions set forth in 
the second sentence of section 367(a)(5) and any regulations under that 
section have been satisfied, and an explanation of any

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basis or other adjustments made pursuant to section 367(a)(5) and any 
regulations thereunder;
    (D) If the property transferred is stock or securities of a domestic 
corporation, the taxpayer identification number of the domestic 
corporation whose stock or securities were transferred, together with a 
statement that all of the requirements of Sec. 1.367(a)-3(c)(1) are 
satisfied;
    (E) If the property transferred is stock or securities of a foreign 
corporation, a statement as to whether the U.S. transferor was a United 
States shareholder (a U.S. transferor that satisfies the ownership 
requirements of section 1248(a)(2) or (c)(2)) of the corporation whose 
stock was exchanged, and, if so, a statement as to whether the U.S. 
transferor is a United States shareholder with respect to the stock 
received, and whether any reporting requirements contained in 
regulations under section 367(b) are applicable, and, if so, whether 
they have been satisfied; and
    (F) If the transaction involved the transfer of assets other than 
stock or securities and the transaction was subject to the indirect 
stock transfer rules of Sec. 1.367(a)-3(d), a statement as to whether 
the reporting requirements under section 6038B have been satisfied with 
respect to the transfer of property other than stock or securities, and 
an explanation of whether gain was recognized under section 367(a)(1) 
and whether section 367(d) was applicable to the transfer of such 
assets, or whether any tangible assets qualified for nonrecognition 
treatment under section 367(a)(3) (as limited by section 367(a)(5) and 
Sec. Sec. 1.367(a)-4T, 1.367(a)-5T and 1.367(a)-6T).
    (3) Terms of agreement--(i) General rule. If prior to the close of 
the fifth full taxable year (i.e., not less than 60 months) following 
the close of the taxable year of the initial transfer, the transferee 
foreign corporation disposes of the transferred property in whole or in 
part (as described in paragraphs (e)(1) and (2) of this section), or is 
deemed to have disposed of the transferred property (under paragraph 
(e)(3) of this section), then, unless an election is made in paragraph 
(b)(1)(vii) of this section, by the 90th day thereafter the U.S. 
transferor must file an amended return for the year of the transfer and 
recognize thereon the gain realized but not recognized upon the initial 
transfer, with interest. If an election under paragraph (b)(1)(vii) of 
this section was made, then, if a disposition occurs, the U.S. 
transferor must include the gain realized but not recognized on the 
initial transfer in income on its Federal income tax return for the 
period that includes the date of the triggering event. In accordance 
with paragraph (b)(3)(iii) of this section, interest must be paid on any 
additional tax due. (If a taxpayer properly makes the election under 
paragraph (b)(1)(vii) of this section but later fails to include the 
gain realized in income, the Commissioner may, in his discretion, 
include the gain in the taxpayer's income in the year of the initial 
transfer.)
    (ii) Offsets. No special limitations apply with respect to net 
operating losses, capital losses, credits against tax, or similar items.
    (iii) Interest. If additional tax is required to be paid, then 
interest must be paid on that amount at the rates determined under 
section 6621 with respect to the period between the date that was 
prescribed for filing the transferor's income tax return for the year of 
the initial transfer and the date on which the additional tax for that 
year is paid. If the election in paragraph (b)(1)(vii) of this section 
is made, taxpayers should enter the amount of interest due, labelled as 
``sec. 367 interest'' at the bottom right margin of page 1 of the 
Federal income tax return for the period that includes the date of the 
triggering event (page 2 if the taxpayer files a Form 1040), and include 
the amount of interest in their payment (or reduce the amount of any 
refund due by the amount of the interest). If the election in paragraph 
(b)(1)(vii) of this section is made, taxpayers should, as a matter of 
course, include the amount of gain as taxable income on their Federal 
income tax returns (together with other income or loss items). The 
amount of tax relating to the gain should be separately stated at the 
bottom right margin of page 1 of the Federal income tax return (page 2 
if the taxpayer files a Form 1040), labelled as ``sec. 367 tax.''

[[Page 299]]

    (iv) Basis adjustments--(A) Transferee. If a U.S. transferor is 
required to recognize gain under this section on the disposition by the 
transferee foreign corporation of the transferred property, then in 
determining for U.S. income tax purposes any gain or loss recognized by 
the transferee foreign corporation upon its disposition of such 
property, the transferee foreign corporation's basis in such property 
shall be increased (as of the date of the initial transfer) by the 
amount of gain required to be recognized (but not by any tax or interest 
required to be paid on such amount) by the U.S. transferor. In the case 
of a deemed disposition of the stock of the transferred corporation 
described in paragraph (e)(3)(i) of this section, the transferee foreign 
corporation's basis in the transferred stock deemed disposed of shall be 
increased by the amount of gain required to be recognized by the U.S. 
transferor.
    (B) Transferor. If a U.S. transferor is required to recognize gain 
under this section, then the U.S. transferor's basis in the stock of the 
transferee foreign corporation shall be increased by the amount of gain 
required to be recognized (but not by any tax or interest required to be 
paid on such amount).
    (C) Other adjustments. Other appropriate adjustments to basis that 
are consistent with the principles of this paragraph (b)(3)(iv) may be 
made if the U.S. transferor is required to recognize gain under this 
section.
    (D) Example. The principles of this paragraph (b)(3) are illustrated 
by the following example:

    Example. (i) Facts. D, a domestic corporation owning 100 percent of 
the stock of S, a foreign corporation, transfers all of the S stock to 
F, a foreign corporation, in an exchange described in section 
368(a)(1)(B). The section 1248 amount with respect to the S stock is $0. 
In the exchange, D receives 20 percent of the voting stock of F. All of 
the requirements of Sec. 1.367(a)-3(c)(1) are satisfied, and D enters 
into a five-year gain recognition agreement to qualify for 
nonrecognition treatment and does not make the election contained in 
paragraph (b)(1)(vii) of this section. One year after the initial 
transfer, F transfers all of the S stock to F1 in an exchange described 
in section 351, and D complies with the requirements of paragraph (g)(2) 
of this section. Two years after the initial transfer, D transfers its 
entire 20 percent interest in F's voting stock to a domestic partnership 
in exchange for an interest in the partnership. Three years after the 
initial exchange, S disposes of substantially all (as described in 
paragraph (e)(3)(i) of this section) of its assets in a transaction that 
would be taxable under U.S. income tax principles, and D is required by 
the terms of the gain recognition agreement to recognize all the gain 
that it realized on the initial transfer of the stock of S.
    (ii) Result. As a result of this gain recognition and paragraph 
(b)(3)(iv) of this section, D is permitted to increase its basis in the 
partnership interest by the amount of gain required to be recognized 
(but not by any tax or interest required to be paid on such amount), the 
partnership is permitted to increase its basis in the 20 percent voting 
stock of F, F is permitted to increase its basis in the stock of F1, and 
F1 is permitted to increase its basis in the stock of S. S, however, is 
not permitted to increase its basis in its assets for purposes of 
determining the direct or indirect U.S. tax results, if any, on the sale 
of its assets.

    (4) Waiver of period of limitation. The U.S. transferor must file, 
with the agreement to recognize gain, a waiver of the period of 
limitation on assessment of tax upon the gain realized on the transfer. 
The waiver shall be executed on Form 8838 (Consent to Extend the Time to 
Assess Tax Under Section 367--Gain Recognition Agreement) and shall 
extend the period for assessment of such tax to a date not earlier than 
the eighth full taxable year following the taxable year of the transfer. 
Such waiver shall also contain such other terms with respect to 
assessment as may be considered necessary by the Commissioner to ensure 
the assessment and collection of the correct tax liability for each year 
for which the waiver is required. The waiver must be signed by a person 
who would be authorized to sign the agreement pursuant to the provisions 
of paragraph (a)(3) of this section.
    (5) Annual certification--(i) In general. The U.S. transferor must 
file with its income tax return for each of the five full taxable years 
following the taxable year of the transfer a certification that the 
property transferred has not been disposed of by the transferee in a 
transaction that is considered to be a disposition for purposes of this 
section, including a disposition described in paragraph (e)(3) of this 
section. The U.S. transferor must include with its

[[Page 300]]

annual certification a statement describing any taxable dispositions of 
assets by the transferred corporation that are not in the ordinary 
course of business. The annual certification pursuant to this paragraph 
(b)(5) must be signed under penalties of perjury by a person who would 
be authorized to sign the agreement pursuant to the provisions of 
paragraph (a)(3) of this section.
    (ii) Special rule when U.S. transferor leaves its affiliated group. 
If, at the time of the initial transfer, the U.S. transferor was a 
member of an affiliated group (within the meaning of section 1504(a)(1)) 
filing a consolidated Federal income tax return but not the parent of 
such group, the U.S. transferor will file the annual certification (and 
provide a copy to the parent corporation) if it leaves the group during 
the term of the gain recognition agreement, notwithstanding the fact 
that the parent entered into the gain recognition agreement, extended 
the statute of limitations pursuant to this section, and remains liable 
(with other corporations that were members of the group at the time of 
the initial transfer) under the gain recognition agreement in the case 
of a triggering event.
    (c) Failure to comply--(1) General rule. If a person that is 
required to file an agreement under paragraph (b) of this section fails 
to file the agreement in a timely manner, or if a person that has 
entered into an agreement under paragraph (b) of this section fails at 
any time to comply in any material respect with the requirements of this 
section or with the terms of an agreement submitted pursuant hereto, 
then the initial transfer of property is described in section 367(a)(1) 
(unless otherwise excepted under the rules of this section) and will be 
treated as a taxable exchange in the year of the initial transfer (or in 
the year of the failure to comply if the agreement was filed with a 
timely-filed (including extensions) original (not amended) return and an 
election under paragraph (b)(1)(vii) of this section was made). Such a 
material failure to comply shall extend the period for assessment of tax 
until three years after the date on which the Internal Revenue Service 
receives actual notice of the failure to comply.
    (2) Reasonable cause exception. If a person that is permitted under 
Sec. 1.367(a)-3(b) or (c) to enter into an agreement (described in 
paragraph (b) of this section) fails to file the agreement in a timely 
manner, as provided in paragraph (a)(1) of this section, or fails to 
comply in any material respect with the requirements of this section or 
with the terms of an agreement submitted pursuant hereto, the provisions 
of paragraph (c)(1) of this section shall not apply if the person is 
able to show that such failure was due to reasonable cause and not 
willful neglect and if the person files the agreement or reaches 
compliance as soon as he becomes aware of the failure. Whether a failure 
to file in a timely manner, or materially comply, was due to reasonable 
cause shall be determined by the Director of Field Operations under all 
the facts and circumstances.
    (d) Use of security. The U.S. transferor may be required to furnish 
a bond or other security that satisfies the requirements of Sec. 
301.7101-1 of this chapter if the Director of Field Operations 
determines that such security is necessary to ensure the payment of any 
tax on the gain realized but not recognized upon the initial transfer. 
Such bond or security will generally be required only if the stock or 
securities transferred are a principal asset of the transferor and the 
director has reason to believe that a disposition of the stock or 
securities may be contemplated.
    (e) Disposition (in whole or in part) of stock of transferred 
corporation--(1) In general--(i) Definition of disposition. For purposes 
of this section, a disposition of the stock of the transferred 
corporation that triggers gain under the gain recognition agreement 
includes any taxable sale or any disposition treated as an exchange 
under this subtitle, (e.g., under sections 301(c)(3)(A), 302(a), 311, 
336, 351(b) or section 356(a)(1)), as well as any deemed disposition 
described under paragraph (e)(3) of this section. It also includes an 
indirect disposition of the stock of the transferred corporation as 
described in Sec. 1.367(a)-3(d)(2)(iv). It does not include a 
disposition that is not treated as an exchange, (e.g., under section 
302(d) or 356(a)(2)). A disposition of all or a portion of the

[[Page 301]]

stock of the transferred corporation by installment sale is treated as a 
disposition of such stock in the year of the installment sale. A 
disposition of the stock of the transferred corporation does not include 
certain transfers treated as nonrecognition transfers (under paragraph 
(g) of this section) in which the gain recognition agreement is retained 
but modified, or certain transfers (under paragraph (h) of this section) 
in which the gain recognition agreement is terminated and has no further 
effect.
    (ii) Example. The provisions of this paragraph (e) are illustrated 
by the following example:

    Example. Interaction between trigger of gain recognition agreement 
and subpart F rules--(i) Facts. A U.S. corporation (USP) owns all of the 
stock of two foreign corporations, CFC1 and CFC2. USP's section 1248 
amount with respect to CFC2 is $30. USP has a basis of $50 in its stock 
of CFC2; CFC2 has a value of $100. In a transaction described in section 
351 and 368(a)(1)(B), USP transfers the stock of CFC2 in exchange for 
additional stock of CFC1. The transaction is subject to both sections 
367 (a) and (b). See Sec. Sec. 1.367(a)-3(b) and 1.367(b)-1(a). To 
qualify for nonrecognition treatment under section 367(a), USP enters 
into a 5-year gain recognition agreement for $50 under this section. No 
election under paragraph 8(b)(1)(vii) of this section is made. USP also 
complies with the notice requirement under Sec. 1.367(b)-1(c).
    (ii) Trigger of gain recognition agreement with no election. Assume 
that in year 2, CFC1 sells the stock of CFC2 for $120, and that there 
were no distributions by CFC2 prior to the sale. USP must amend its 
return for the year of the initial transfer and include $50 in income 
(with interest), $30 of which will be recharacterized as a dividend 
pursuant to section 1248. As a result, CFC1 has a basis of $100 in CFC2. 
As a result of the sale of CFC2 stock by CFC1, USP will have $20 of 
subpart F foreign personal holding company income. See section 951, et. 
seq., and the regulations thereunder.
    (iii) Trigger of gain recognition agreement with election. Assume 
the same facts as in paragraphs (i) and (ii) of this Example, except 
that when USP attached the gain recognition agreement to its timely 
filed Federal income tax return for the year of the initial transfer, it 
elected under paragraph (b)(1)(vii) of this section to include the 
amount of gain realized but not recognized on the initial transfer, $50, 
in the year of the triggering event rather than in the year of the 
initial transfer. In such case, the result is the same as in paragraph 
(e)(1)(ii)(B) of this section, except that USP will include the $50 of 
gain on its year 2 return, together with interest. For purposes of 
determining the dividend component, if any, of the $50 inclusion, USP 
will take into account the section 1248 amount of CFC2 at the time of 
the disposition in Year 2.

    (2) Partial disposition. If the transferee foreign corporation 
disposes of (or is deemed to dispose of) only a portion of the 
transferred stock or securities, then the U.S. transferor is required to 
recognize only a proportionate amount of the gain realized but not 
recognized upon the initial transfer of the transferred property. The 
proportion required to be recognized shall be determined by reference to 
the relative fair market values of the transferred stock or securities 
disposed of and retained. Solely for purposes of determining whether the 
U.S. transferor must recognize income under the agreement described in 
paragraph (b) of this section, in the case of transferred property 
(including stock or securities) that is fungible with other property 
owned by the transferee foreign corporation, a disposition by such 
corporation of any such property shall be deemed to be a disposition of 
no less than a ratable portion of the transferred property.
    (3) Deemed dispositions of stock of transferred corporation--(i) 
Disposition by transferred corporation of substantially all of its 
assets--(A) In general. Unless an exception applies (as described in 
paragraph (e)(3)(i)(B) of this section), a transferee foreign 
corporation will be treated as having disposed of the stock or 
securities of the transferred corporation if, within the term of the 
gain recognition agreement, the transferred corporation makes a 
disposition of substantially all (within the meaning of section 
368(a)(1)(C)) of its assets (including stock in a subsidiary corporation 
or an interest in a partnership). If the initial transfer that 
necessitated the gain recognition agreement was an indirect stock 
transfer, see Sec. 1.367(a)-3(d)(2)(v). If the transferred corporation 
is a U.S. corporation, see paragraph (h)(2) of this section.
    (B) The transferee foreign corporation will not be deemed to have 
disposed of the stock of the transferred corporation if the transferred 
corporation is liquidated into the transferee foreign corporation under 
sections 337

[[Page 302]]

and 332, provided that the transferee foreign corporation does not 
dispose of substantially all of the assets formerly held by the 
transferred corporation (and considered for purposes of the 
substantially all determination) within the remaining period during 
which the gain recognition agreement is in effect. A nonrecognition 
transfer is not counted for purposes of the substantially all 
determination as a disposition if the transfer satisfies the 
requirements of paragraph (g)(3) of this section. A disposition does not 
include a compulsory transfer as described in Sec. 1.367(a)-4T(f) that 
was not reasonably forseeable by the U.S. transferor at the time of the 
initial transfer.
    (ii) U.S. transferor becomes a non-citizen nonresident. If a U.S. 
transferor loses U.S. citizenship or a long-term resident ceases to be 
taxed as a lawful permanent resident (as defined in section 877(e)(2)), 
then immediately prior to the date that the U.S. transferor loses U.S. 
citizenship or ceases to be taxed as a long-term resident, the gain 
recognition agreement will be triggered as if the transferee foreign 
corporation disposed of all of the stock of the transferred corporation 
in a taxable transaction on such date. No additional inclusion is 
required under section 877, and a gain recognition agreement under 
section 877 may not be used to avoid taxation under section 367(a) 
resulting from the trigger of the section 367(a) gain recognition 
agreement.
    (f) Effect on gain recognition agreement if U.S. transferor goes out 
of existence--(1) In general. If an individual transferor that has 
entered into an agreement under under paragraph (b) of this section 
dies, or if a U.S. trust or estate that has entered into an agreement 
under paragraph (b) of this section goes out of existence and is not 
required to recognize gain as a consequence thereof with respect to all 
of the stock of the transferee foreign corporation received in the 
initial transfer and not previously disposed of, then the gain 
recognition agreement will be triggered unless one of the following 
requirements is met--
    (i) The person winding up the affairs of the transferor retains, for 
the duration of the waiver of the statute of limitations relating to the 
gain recognition agreement, assets to meet any possible liability of the 
transferor under the duration of the agreement;
    (ii) The person winding up the affairs of the transferor provides 
security as provided under paragraph (d) of this section for any 
possible liability of the transferor under the agreement; or
    (iii) The transferor obtains a ruling from the Internal Revenue 
Service providing for successors to the transferor under the gain 
recognition agreement.
    (2) Special rule when U.S. transferor is a corporation--(i) U.S. 
transferor goes out of existence pursuant to the transaction. If the 
transferor is a U.S. corporation that goes out of existence in a 
transaction in which the transferor's gain would have qualified for 
nonrecognition treatment under Sec. 1.367(a)-3(b) or (c) had the U.S. 
transferor remained in existence and entered into a gain recognition 
agreement, then the gain may generally qualify for nonrecognition 
treatment only if the U.S. transferor is owned by a single U.S. parent 
corporation and the U.S. transferor and its parent corporation file a 
consolidated Federal income tax return for the taxable year that 
includes the transfer, and the parent of the consolidated group enters 
into the gain recognition agreement. However, notwithstanding the 
preceding sentence, a U.S. transferor that was controlled (within the 
meaning of section 368(c)) by five or fewer domestic corporations may 
request a ruling that, if certain conditions prescribed by the Internal 
Revenue Service are satisfied, the transaction may qualify for 
nonrecognition treatment.
    (ii) U.S. corporate transferor is liquidated after gain recognition 
agreement is filed. If a U.S. transferor files a gain recognition 
agreement but is liquidated during the term of the gain recognition 
agreement, such agreement will be terminated if the liquidation does not 
qualify as a tax-free liquidation under sections 337 and 332 and the 
U.S. transferor includes in income any gain from the liquidation. If the 
liquidation qualifies for nonrecognition treatment under sections 337 
and 332, the gain recognition agreement will be triggered unless the 
U.S. parent corporation and the U.S. transferor file a consolidated 
Federal income tax return

[[Page 303]]

for the taxable year that includes the dates of the initial transfer and 
the liquidation of the U.S. transferor, and the U.S. parent enters into 
a new gain recognition agreement and complies with reporting 
requirements similar to those contained in paragraph (g)(2) of this 
section.
    (g) Effect on gain recognition agreement of certain nonrecognition 
transactions--(1) Certain nonrecognition transfers of stock or 
securities of the transferee foreign corporation by the U.S. transferor. 
If the U.S. transferor disposes of any stock of the transferee foreign 
corporation in a nonrecognition transfer and the U.S. transferor 
complies with reporting requirements similar to those contained in 
paragraph (g)(2) of this section, the U.S. transferor shall continue to 
be subject to the terms of the gain recognition agreement in its 
entirety.
    (2) Certain nonrecognition transfers of stock or securities of the 
transferred corporation by the transferee foreign corporation. (i) If, 
during the period the gain recognition agreement is in effect, the 
transferee foreign corporation disposes of all or a portion of the stock 
of the transferred corporation in a transaction in which gain or loss 
would not be required to be recognized by the transferee foreign 
corporation under U.S. income tax principles, such disposition will not 
be treated as a disposition within the meaning of paragraph (e) of this 
section if the transferee foreign corporation receives (or is deemed to 
receive), in exchange for the property disposed of, stock in a 
corporation, or an interest in a partnership, that acquired the 
transferred property (or receives stock in a corporation that controls 
the corporation acquiring the transferred property); and the U.S. 
transferor complies with the requirements of paragraphs (g)(2)(ii) 
through (iv) of this section.
    (ii) The U.S. transferor must provide a notice of the transfer with 
its next annual certification under paragraph (b)(5) of this section, 
setting forth--
    (A) A description of the transfer;
    (B) The applicable nonrecognition provision; and
    (C) The name, address, and taxpayer identification number (if any) 
of the new transferee of the transferred property.
    (iii) The U.S. transferor must provide with its next annual 
certification a new agreement to recognize gain (in accordance with the 
rules of paragraph (b) of this section) if, prior to the close of the 
fifth full taxable year following the taxable year of the initial 
transfer, either--
    (A) The initial transferee foreign corporation disposes of the 
interest (if any) which it received in exchange for the transferred 
property (other than in a disposition which itself qualifies under the 
rules of this paragraph (g)(2)); or
    (B) The corporation or partnership that acquired the property 
disposes of such property (other than in a disposition which itself 
qualifies under the rules of this paragraph (g)(2)); or
    (C) There is any other disposition that has the effect of an 
indirect disposition of the transferred property.
    (iv) If the U.S. transferor is required to enter into a new gain 
recognition agreement, as provided in paragraph (g)(2)(iii) of this 
section, the U.S. transferor must provide with its next annual 
certification (described in paragraph (b)(5) of this section) a 
statement that arrangements have been made, in connection with the 
nonrecognition transfer, ensuring that the U.S. transferor will be 
informed of any subsequent disposition of property with respect to which 
recognition of gain would be required under the agreement.
    (3) Certain nonrecognition transfers of assets by the transferred 
corporation. A disposition by the transferred corporation of all or a 
portion of its assets in a transaction in which gain or loss would not 
be required to be recognized by the transferred corporation under U.S. 
income tax principles, will not be treated as a disposition within the 
meaning of paragraph (e)(3) of this section if the transferred 
corporation receives in exchange stock or securities in a corporation or 
an interest in a partnership that acquired the assets of the transferred 
corporation (or receives stock in a corporation that controls the 
corporation acquiring the assets). If the transaction would be treated 
as a disposition of substantially all of the transferred corporation's 
assets, the preceding sentence shall only apply if

[[Page 304]]

the U.S. transferor complies with reporting requirements comparable to 
those of paragraphs (g)(2)(ii) through (iv) of this section, providing 
for notice, an agreement to recognize gain in the case of a direct or 
indirect disposition of the assets previously held by the transferred 
corporation, and an assurance that necessary information will be 
provided to appropriate parties.
    (h) Transactions that terminate the gain recognition agreement--(1) 
Taxable disposition of stock or securities of transferee foreign 
corporation by U.S. transferor. (i) If the U.S. transferor disposes of 
all of the stock of the transferee foreign corporation that it received 
in the initial transfer in a transaction in which all realized gain (if 
any) is recognized currently, then the gain recognition agreement shall 
terminate and have no further effect. If the transferor disposes of a 
portion of the stock of the transferee foreign corporation that it 
received in the initial transfer in a taxable transaction, then in the 
event that the gain recognition agreement is later triggered, the 
transferor shall be required to recognize only a proportionate amount of 
the gain subject to the gain recognition agreement that would otherwise 
be required to be recognized on a subsequent disposition of the 
transferred property under the rules of paragraph (b)(2) of this 
section. The proportion required to be recognized shall be determined by 
reference to the percentage of stock (by value) of the transferee 
foreign corporation received in the initial transfer that is retained by 
the United States transferor.
    (ii) The rule of this paragraph (h) is illustrated by the following 
example:

    Example. A, a United States citizen, owns 100 percent of the 
outstanding stock of foreign corporation X. In a transaction described 
in section 351, A exchanges his stock in X (and other assets) for 100 
percent of the outstanding voting and nonvoting stock of foreign 
corporation Y. A submits an agreement under the rules of this section to 
recognize gain upon a later disposition. In the following year, A 
disposes of 60 percent of the fair market value of the stock of Y, thus 
terminating 60 percent of the gain recognition agreement. One year 
thereafter, Y disposes of 50 percent of the fair market value of the 
stock of X. A is required to include in his income in the year of the 
later disposition 20 percent (40 percent interest in Y multiplied by a 
50 percent disposition of X) of the gain that A realized but did not 
recognize on his initial transfer of X stock to Y.

    (2) Certain dispositions by a domestic transferred corporation of 
substantially all of its assets. If the transferred corporation is a 
domestic corporation and the U.S. transferor and the transferred 
corporation filed a consolidated Federal income tax return at the time 
of the transfer, the gain recognition agreement shall terminate and 
cease to have effect if, during the term of such agreement, the 
transferred corporation disposes of substantially all of its assets in a 
transaction in which all realized gain is recognized currently. If an 
indirect stock transfer necessitated the filing of the gain recognition 
agreement, such agreement shall terminate if, immediately prior to the 
indirect transfer, the U.S. transferor and the acquired corporation 
filed a consolidated return (or, in the case of a section 368(a)(1)(A) 
and (a)(2)(E) reorganization described in Sec. 1.367(a)-3(d)(1)(ii), 
the U.S. transferor and the acquiring corporation filed a consolidated 
return) and the transferred corporation disposes of substantially all of 
its assets (taking into account Sec. 1.367(a)-3(d)(2)(v)) in a 
transaction in which all realized gain is recognized currently.
    (3) Distribution by transferee foreign corporation of stock of 
transferred corporation that qualifies under section 355 or section 337. 
If, during the term of the gain recognition agreement, the transferee 
foreign corporation distributes to the U.S. transferor, in a transaction 
that qualifies under section 355, or in a liquidating distribution that 
qualifies under sections 332 and 337, the stock that initially 
necessitated the filing of the gain recognition agreement (and any 
additional stock received after the initial transfer), the gain 
recognition agreement shall terminate and have no further effect, 
provided that immediately after the section 355 distribution or section 
332 liquidation, the U.S. transferor's basis in the transferred stock is 
less than or equal to the basis that it had in the transferred stock 
immediately prior to the initial transfer that necessitated the GRA.
    (i) Effective date. The rules of this section shall apply to 
transfers that occur on or after July 20, 1998. For matters

[[Page 305]]

covered in this section for periods before July 20, 1998, the 
corresponding rules of Sec. 1.367(a)-3T(g) (see 26 CFR part 1, revised 
April 1, 1998) and Notice 87-85 ((1987-2 C.B. 395); see Sec. 
601.601(d)(2)(ii) of this chapter) apply. In addition, if a U.S. 
transferor entered into a gain recognition agreement for transfers prior 
to July 20, 1998, then the rules of Sec. 1.367(a)-3T(g) (see 26 CFR 
part 1, revised April 1, 1998) shall continue to apply in lieu of this 
section in the event of any direct or indirect nonrecognition transfer 
of the same property. See, also, Sec. 1.367(a)-3(f).

[T.D. 8770, 63 FR 33562, June 19, 1998, as amended by T.D. 9243, 71 FR 
4288, Jan. 26, 2006]



Sec. 1.367(b)-0  Table of contents.

    This section lists the paragraphs contained in Sec. Sec. 1.367(b)-1 
through 1.367(b)-6 and 1.367(b)-12.

                    Sec. 1.367(b)-1 Other transfers.

    (a) Scope.
    (b) General rules.
    (1) Rules.
    (2) Example.
    (c) Notice required.
    (1) In general.
    (2) Persons subject to section 367(b) notice.
    (3) Time and manner for filing notice.
    (i) United States persons described in Sec. 1.367(b)-1(c)(2).
    (ii) Foreign corporations described in Sec. 1.367(b)-1(c)(2).
    (4) Information required.
    (5) Abbreviated notice provision for shareholders that make the 
election described in Sec. 1.367(b)-3(c)(3).
    (6) Supplemental published guidance.

             Sec. 1.367(b)-2 Definitions and special rules.

    (a) Controlled foreign corporation.
    (b) Section 1248 shareholder.
    (c) Section 1248 amount.
    (1) Rule.
    (2) Examples.
    (d) All earnings and profits amount.
    (1) General rule.
    (2) Rules for determining earnings and profits.
    (i) Domestic rules generally applicable.
    (ii) Certain adjustments to earnings and profits.
    (iii) Effect of section 332 liquidating distribution.
    (3) Amount attributable to a block of stock.
    (i) Application of section 1248 principles.
    (A) In general.
    (1) Rule.
    (2) Example.
    (B) Foreign shareholders.
    (ii) Limitation on amounts attributable to holding periods 
determined under section 1223.
    (A) Rule.
    (B) Example.
    (iii) Exclusion of lower-tier earnings.
    (e) Treatment of deemed dividends.
    (1) In general.
    (2) Consequences of dividend characterization.
    (3) Ordering rules.
    (4) Examples.
    (f) Deemed asset transfer and closing of taxable year in certain 
section 368(a)(1)(F) reorganizations.
    (1) Scope.
    (2) Deemed asset transfer.
    (3) Other applicable rules.
    (4) Closing of taxable year.
    (g) Stapled stock under section 269B.
    (h) Section 953(d) domestication elections.
    (1) Effect of election.
    (2) Post-election exchanges.
    (i) Section 1504(d) elections.
    (j) Sections 985 through 989.
    (1) Change in functional currency of a qualified business unit.
    (i) Rule.
    (ii) Example.
    (2) Previously taxed earnings and profits.
    (i) Exchanging shareholder that is a United States person.
    (ii) Exchanging shareholder that is a foreign corporation.
    (3) Other rules.
    (k) Partnerships, trusts and estates.

  Sec. 1.367(b)-3 Repatriation of foreign corporate assets in certain 
                      nonrecognition transactions.

    (a) Scope.
    (b) Exchange of stock owned directly by a United States shareholder 
or by certain foreign corporate shareholders.
    (1) Scope.
    (2) United States shareholder.
    (3) Income inclusion.
    (i) Inclusion of all earnings and profits amount.
    (ii) Examples.
    (iii)Recognition of exchange gain or loss with respect to capital. 
[Reserved]
    (4) [Reserved]
    (c) Exchange of stock owned by a United States person that is not a 
United States shareholder.
    (1) Scope.
    (2) Requirement to recognize gain.
    (3) Election to include all earnings and profits amount.
    (4) De minimis exception.
    (5) Examples.
    (d) Carryover of certain foreign taxes.
    (1) Rule.
    (2) Example.

[[Page 306]]

 Sec. 1.367(b)-4 Acquisition of foreign corporate stock or assets by a 
       foreign corporation in certain nonrecognition transactions.

    (a) Scope.
    (b) Income inclusion.
    (1) Exchange that results in loss of status as section 1248 
shareholder.
    (i) Rule.
    (ii) Examples.
    (2) Receipt by exchanging shareholder of preferred or other stock in 
certain instances.
    (i) Rule.
    (ii) Examples.
    (3) Certain recapitalizations.
    (c) Exclusion of deemed dividend from foreign personal holding 
company income.
    (1) Rule.
    (2) Example.
    (d) Rules for subsequent exchanges.
    (1) In general.
    (2) Subsequent dispositions by a foreign acquiring corporation.
    (3) Examples.

    Sec. 1.367(b)-5 Distributions of stock described in section 355.

    (a) In general.
    (1) Scope.
    (2) Treatment of distributees as exchanging shareholders.
    (b) Distribution by a domestic corporation.
    (1) General rule.
    (2) Section 367(e) transactions.
    (3) Determining whether distributees are individuals.
    (4) Applicable cross-references.
    (c) Pro rata distribution by a controlled foreign corporation.
    (1) Scope.
    (2) Adjustment to basis in stock and income inclusion.
    (3) Interaction with Sec. 1.367(b)-2(e)(3)(ii).
    (4) Basis redistribution.
    (d) Non-pro rata distribution by a controlled foreign corporation.
    (1) Scope.
    (2) Treatment of certain shareholders as distributees.
    (3) Inclusion of excess section 1248 amount by exchanging 
shareholder.
    (4) Interaction with Sec. 1.367(b)-2(e)(3)(ii).
    (i) Limited application.
    (ii) Interaction with predistribution amount.
    (e) Definitions.
    (1) Predistribution amount.
    (2) Postdistribution amount.
    (f) Exclusion of deemed dividend from foreign personal holding 
company income.
    (g) Examples.

        Sec. 1.367(b)-6 Effective dates and coordination rules.

    (a) Effective date.
    (1) In general.
    (2) Exception.
    (b) Certain recapitalizations described in Sec. 1.367(b)-4(b)(3).
    (c) Use of reasonable method to comply with prior published 
guidance.
    (1) Prior exchanges.
    (2) Future exchanges.
    (d) Effect of removal of attribution rules.

Sec. 1.367(b)-12 Subsequent treatment of amounts attributed or included 
                               in income.

    (a) In general.
    (b) Applicable rules.
    (c) Effective date.

[T.D. 8862, 65 FR 3596, Jan. 24, 2000; 65 FR 66501, Nov. 6, 2000, as 
amended by T.D. 8937, 66 FR 2257, Jan. 11, 2001]



Sec. 1.367(b)-1  Other transfers.

    (a) Scope. The regulations promulgated under section 367(b) (the 
section 367(b) regulations) set forth rules regarding the proper 
inclusions and adjustments that must be made as a result of an exchange 
described in section 367(b) (a section 367(b) exchange). A section 
367(b) exchange is any exchange described in section 332, 351, 354, 355, 
356 or 361, with respect to which the status of a foreign corporation as 
a corporation is relevant for determining the extent to which income 
shall be recognized or for determining the effect of the transaction on 
earnings and profits, basis of stock or securities, basis of assets, or 
other relevant tax attributes. For rules coordinating the concurrent 
application of sections 367(a) and (b), see Sec. 1.367(a)-3(b)(2).
    (b) General rules--(1) Rules. The following general rules apply 
under the section 367(b) regulations--
    (i) A foreign corporation in a section 367(b) exchange is considered 
to be a corporation and, as a result, all of the related provisions 
(e.g., section 381) shall apply, except to the extent provided in the 
section 367(b) regulations; and
    (ii) Nothing in the section 367(b) regulations shall permit--
    (A) The nonrecognition of income that would otherwise be required to 
be recognized under another provision of the Internal Revenue Code or 
the regulations thereunder; or
    (B) The recognition of a loss or deduction that would otherwise not 
be recognized under another provision of the Internal Revenue Code or 
the regulations thereunder.

[[Page 307]]

    (2) Example. The following example illustrates the rules of this 
paragraph (b):

    Example. (i) Facts. DC, a domestic corporation, owns 90 percent of 
P, a partnership. The remaining 10 percent of P is owned by a person 
unrelated to DC. P owns all of the outstanding stock of FC, a controlled 
foreign corporation. FC liquidates into P.
    (ii) Result. FC's liquidation is not a transaction described in 
section 332. Nothing in the section 367(b) regulations, including Sec. 
1.367(b)-2(k), permits FC's liquidation to qualify as a liquidation 
described in section 332.

    (c) Notice Required--(1) In general. A notice under this paragraph 
(c) (section 367(b) notice) must be filed with regard to any person 
described in paragraph (c)(2) of this section. A section 367(b) notice 
must be filed in the time and manner described in paragraph (c)(3) of 
this section and must include the information described in paragraph 
(c)(4) of this section.
    (2) Persons subject to section 367(b) notice. The following persons 
are described in this paragraph (c)(2)--
    (i) A shareholder described in Sec. 1.367(b)-3(b)(1) that realizes 
income in a transaction described in Sec. 1.367(b)-3(a);
    (ii) A shareholder that makes the election described in Sec. 
1.367(b)-3(c)(3);
    (iii) A shareholder described in Sec. 1.367(b)-4(b)(1)(i)(A)(1) or 
(2) that realizes income in a transaction described in Sec. 1.367(b)-
4(a); and
    (iv) A shareholder that realizes income in a transaction described 
in Sec. 1.367(b)-5(c) or 1.367(b)-5(d) and that is either--
    (A) A section 1248 shareholder of the distributing or controlled 
corporation; or
    (B) A foreign corporation with one or more shareholders that are 
described in paragraph (c)(2)(iv)(A) of this section.
    (3) Time and manner for filing notice--(i) United States persons 
described in Sec. 1.367(b)-1(c)(2). A United States person described in 
paragraph (c)(2) of this section must file a section 367(b) notice 
attached to a timely filed Federal tax return (including extensions) for 
the person's taxable year in which income is realized in the section 
367(b) exchange. In the case of a shareholder that makes the election 
described in Sec. 1.367(b)-3(c)(3), notification of such election must 
be sent to the foreign acquired corporation (or its successor in 
interest) on or before the date the section 367(b) notice is filed, so 
that appropriate corresponding adjustments can be made in accordance 
with the rules of Sec. 1.367(b)-2(e).
    (ii) Foreign corporations described in Sec. 1.367(b)-1(c)(2). Each 
United States person listed in this paragraph (c)(3)(ii) must file a 
section 367(b) notice with regard to a foreign corporation described in 
paragraph (c)(2) of this section. Such notice must be attached to a 
timely filed Federal tax return (including extensions) for the United 
States person's taxable year in which income is realized in the section 
367(b) exchange and, if the United States person is required to file a 
Form 5471 (Information Return of U.S. Persons With Respect to Certain 
Foreign Corporations), the section 367(b) notice must be attached to the 
Form 5471. The following persons are listed in this paragraph 
(c)(3)(ii)--
    (A) United States shareholders (as defined in Sec. 1.367(b)-
3(b)(2)) of foreign corporations described in paragraph (c)(2)(i) of 
this section; and
    (B) Section 1248 shareholders of foreign corporations described in 
paragraph (c)(2)(iii) or (iv) of this section.
    (4) Information required. Except as provided in paragraph (c)(5) of 
this section, a section 367(b) notice shall include the following 
information--
    (i) A statement that the exchange is a section 367(b) exchange;
    (ii) A complete description of the exchange;
    (iii) A description of any stock, securities or other consideration 
transferred or received in the exchange;
    (iv) A statement that describes any amount required, under the 
section 367(b) regulations, to be taken into account as income or loss 
or as an adjustment to basis, earnings and profits, or other tax 
attributes as a result of the exchange;
    (v) Any information that is or would be required to be furnished 
with a Federal income tax return pursuant to regulations under section 
332, 351, 354, 355, 356, 361 or 368 (whether or not a Federal income tax 
return is required to be

[[Page 308]]

filed), if such information has not otherwise been provided by the 
person filing the section 367(b) notice;
    (vi) Any information required to be furnished with respect to the 
exchange under sections 6038, 6038A, 6038B, 6038C or 6046, or the 
regulations under those sections, if such information has not otherwise 
been provided by the person filing the section 367(b) notice; and
    (vii) If applicable, a statement that the shareholder is making the 
election described in Sec. 1.367(b)-3(c)(3). This statement must 
include--
    (A) A copy of the information the shareholder received from the 
foreign acquired corporation (or its successor in interest) establishing 
and substantiating the shareholder's all earnings and profits amount 
with respect to the shareholder's stock in the foreign acquired 
corporation; and
    (B) A representation that the shareholder has notified the foreign 
acquired corporation (or its successor in interest) that the shareholder 
is making the election described in Sec. 1.367(b)-3(c)(3).
    (5) Abbreviated notice provision for shareholders that make the 
election described in Sec. 1.367(b)-3(c)(3). In the case of a foreign 
acquired corporation that has never had earnings and profits that would 
result in any shareholder having an all earnings and profits amount, a 
shareholder making the election described in Sec. 1.367(b)-3(c)(3) may 
satisfy the information requirements of paragraph (c)(4) of this section 
by filing a section 367(b) notice that includes--
    (i) A statement from the foreign acquired corporation (or its 
successor in interest) that the foreign acquired corporation has never 
had any earnings and profits that would result in any shareholder having 
an all earnings and profits amount; and
    (ii) The information described in paragraphs (c)(4) (i) through 
(iii) of this section.
    (6) Supplemental published guidance. The section 367(b) notice 
requirements may be updated or amended by revenue procedure or other 
published guidance.

[T.D. 8862, 65 FR 3597, Jan. 24, 2000; 65 FR 66501, Nov. 6, 2000, as 
amended by T.D. 9243, 71 FR 4288, Jan. 26, 2006]



Sec. 1.367(b)-2  Definitions and special rules.

    (a) Controlled foreign corporation. The term controlled foreign 
corporation means a controlled foreign corporation as defined in section 
957 (taking into account section 953(c)).
    (b) Section 1248 shareholder. The term section 1248 shareholder 
means any United States person that satisfies the ownership requirements 
of section 1248 (a)(2) or (c)(2) with respect to a foreign corporation.
    (c) Section 1248 amount--(1) Rule. The term section 1248 amount with 
respect to stock in a foreign corporation means the net positive 
earnings and profits (if any) that would have been attributable to such 
stock and includible in income as a dividend under section 1248 and the 
regulations thereunder if the stock were sold by the shareholder. In the 
case of a transaction in which the shareholder is a foreign corporation 
(foreign shareholder), the following additional rules shall apply--
    (i) The foreign shareholder shall be deemed to be a United States 
person for purposes of this paragraph (c), except that the foreign 
shareholder shall not be considered a United States person for purposes 
of determining whether the stock owned by the foreign shareholder is 
stock of a controlled foreign corporation; and
    (ii) The foreign shareholder's holding period in the stock of the 
foreign corporation shall be determined by reference to the period that 
the foreign shareholder's section 1248 shareholders held (directly or 
indirectly) an interest in the foreign corporation. This paragraph 
(c)(1)(ii) applies in addition to the section 1248 regulations' 
incorporation of section 1223 holding periods, as modified by Sec. 
1.367(b)-4(d) (as applicable).
    (2) Examples. The following examples illustrate the rules of this 
paragraph (c):

    Example 1. (i) Facts. DC, a domestic corporation, owns all of the 
outstanding stock of FC1, a controlled foreign corporation (CFC). FC1 
owns all of the outstanding stock of FC2, a CFC. DC has always owned all 
of the stock of FC1, and FC1 has always owned all of the stock of FC2.
    (ii) Result. Under this paragraph (c), DC's section 1248 amount with 
respect to its FC1

[[Page 309]]

stock is computed by reference to all of FC1's and FC2's earnings and 
profits. See section 1248(c)(2). Because FC1's section 1248 shareholder 
(DC) always indirectly held all of the stock of FC2, FC1's section 1248 
amount with respect to its FC2 stock is computed by reference to all of 
FC2's earnings and profits.
    Example 2. (i) Facts. DC, a domestic corporation, owns 40 percent of 
the outstanding stock of FC1, a foreign corporation. The other 60 
percent of FC1 stock is owned (directly and indirectly) by foreign 
persons that are unrelated to DC. FC1 owns all of the outstanding stock 
of FC2, a foreign corporation. On January 1, 2001, DC purchases the 
remaining 60 percent of FC1 stock.
    (ii) Result. Under this paragraph (c), DC's section 1248 amount with 
respect to its FC1 stock is computed by reference to FC1's and FC2's 
earnings and profits that accumulated on or after January 1, 2001, the 
date FC1 and FC2 became controlled foreign corporations (CFCs). See 
section 1248(a). Because FC1 is not considered a United States person 
for purposes of determining whether FC2 is a CFC, FC1's section 1248 
amount with respect to its FC2 stock is computed by reference to FC2's 
earnings and profits that accumulated on or after January 1, 2001, the 
date FC2 became an actual CFC.
    Example 3. (i) Facts. FC1, a foreign corporation, owns all of the 
outstanding stock of FC2, a foreign corporation. DC is a domestic 
corporation that is unrelated to FC1, FC2, and their direct and indirect 
owners. On January 1, 2001, DC purchases all of the outstanding stock of 
FC1.
    (ii) Result. Under this paragraph (c), DC's section 1248 amount with 
respect to its FC1 stock is computed by reference to FC1's and FC2's 
earnings and profits that accumulated on or after January 1, 2001, the 
first day DC held the stock of FC1. See section 1248(a). FC1's section 
1248 amount with respect to its FC2 stock is computed by reference to 
FC2's earnings and profits that accumulated on or after January 1, 2001, 
the first day FC1's section 1248 shareholder (DC) indirectly held the 
stock of FC2.
    Example 4. (i) Facts. DC, a domestic corporation, directly owns all 
of the outstanding stock of FC1 and FC2, controlled foreign 
corporations. DC has always owned all of the stock of FC1 and FC2. On 
January 1, 2001, DC contributes all of the stock of FC2 to FC1 in a 
nonrecognition exchange that does not require an income inclusion under 
the section 367(a) or 367(b) regulations. See Sec. Sec. 1.367(a)-8 and 
1.367(b)-4.
    (ii) Result. Under this paragraph (c), DC's section 1248 amount with 
respect to its FC1 stock is computed by reference to all of FC1's and 
FC2's earnings and profits. See section 1248(c)(2). Because FC1's 
section 1248 shareholder (DC) always held (directly or indirectly) all 
of the stock of FC2, FC1's section 1248 amount with respect to its FC2 
stock is computed by reference to all of FC2's earnings and profits.

    (d) All earnings and profits amount--(1) General rule. The term all 
earnings and profits amount with respect to stock in a foreign 
corporation means the net positive earnings and profits (if any) 
determined as provided under paragraph (d)(2) of this section and 
attributable to such stock as provided under paragraph (d)(3) of this 
section. The all earnings and profits amount shall be determined without 
regard to the amount of gain that would be realized on a sale or 
exchange of the stock of the foreign corporation.
    (2) Rules for determining earnings and profits--(i) Domestic rules 
generally applicable. For purposes of this paragraph (d), except as 
provided in sections 312(k)(4) and (n)(8), 964 and 986, the earnings and 
profits of a foreign corporation for any taxable year shall be 
determined according to principles substantially similar to those 
applicable to domestic corporations.
    (ii) Certain adjustments to earnings and profits. Notwithstanding 
paragraph (d)(2)(i) of this section, for purposes of this paragraph (d), 
the earnings and profits of a foreign corporation for any taxable year 
shall not include the amounts specified in section 1248(d). In the case 
of amounts specified in section 1248(d)(4), the preceding sentence 
requires that the earnings and profits for any taxable year be decreased 
by the net positive amount (if any) of earnings and profits attributable 
to activities described in section 1248(d)(4), and increased by the net 
reduction (if any) in earnings and profits attributable to activities 
described in section 1248(d)(4).
    (iii) Effect of section 332 liquidating distribution. The all 
earnings and profits amount with respect to stock of a corporation that 
distributes all of its property in a liquidation described in section 
332 shall be determined without regard to the adjustments prescribed by 
section 312(a) and (b) resulting from the distribution of such property 
in liquidation, except that gain or loss realized by the corporation on 
the distribution shall be taken into account to the extent provided in 
section 312(f)(1). See Sec. 1.367(b)-3(b)(3)(ii) Example 3.

[[Page 310]]

    (3) Amount attributable to a block of stock--(i) Application of 
section 1248 principles--(A) In general--(1) Rule. The all earnings and 
profits amount with respect to stock of a foreign corporation is 
determined according to the attribution principles of section 1248 and 
the regulations thereunder. The attribution principles of section 1248 
shall apply without regard to the requirements of section 1248 that are 
not relevant to the determination of a shareholder's pro rata portion of 
earnings and profits. Thus, for example, the all earnings and profits 
amount is determined without regard to whether the foreign corporation 
was a controlled foreign corporation at any time during the five years 
preceding the section 367(b) exchange in question, without regard to 
whether the shareholder owned a 10 percent or greater interest in the 
stock, and without regard to whether the earnings and profits of the 
foreign corporation were accumulated in post-1962 taxable years or while 
the corporation was a controlled foreign corporation.
    (2) Example. The following example illustrates the rules of this 
paragraph (d)(3)(i)(A):

    Example. (i) Facts. On January 1, 2001, DC, a domestic corporation, 
purchases 9 percent of the outstanding stock of FC, a foreign 
corporation. On January 1, 2002, DC purchases an additional 1 percent of 
FC stock. On January 1, 2003, DC exchanges its stock in FC in a section 
367(b) exchange in which DC is required to include the all earnings and 
profits amount in income. FC was not a controlled foreign corporation 
during the entire period DC held its FC stock.
    (ii) Result. The all earnings and profits amount with respect to 
DC's stock in FC is computed by reference to 9 percent of FC's earnings 
and profits from January 1, 2001, through December 31, 2001, and by 
reference to 10 percent of FC's earnings and profits from January 1, 
2002, through January 1, 2003.

    (B) Foreign shareholders. In the case of a transaction in which the 
exchanging shareholder is a foreign corporation (foreign shareholder), 
the following additional rules shall apply--
    (1) The attribution principles of section 1248 shall apply without 
regard to whether the person directly owning the stock is a United 
States person; and
    (2) The foreign shareholder's holding period in the stock of the 
foreign acquired corporation shall be determined by reference to the 
period that the foreign shareholder's United States shareholders (as 
defined in Sec. 1.367(b)-3(b)(2)) held (directly or indirectly) an 
interest in the foreign acquired corporation. This paragraph 
(d)(3)(i)(B)(2) applies in addition to the section 1248 regulations' 
incorporation of section 1223 holding periods, as modified by paragraph 
(d)(3)(ii) of this section and Sec. 1.367(b)-4(d) (as applicable).
    (ii) Limitation on amounts attributable to holding periods 
determined under section 1223--(A) Rule. In applying the attribution 
principles of section 1248 and the regulations thereunder to determine 
the all earnings and profits amount with respect to the stock of a 
foreign corporation, earnings and profits attributable to a section 
1223(2) holding period that relates to a period of direct ownership of 
the stock of the foreign corporation by a non-United States person shall 
not be included, except to the extent of earnings and profits 
attributable to a period when the stock of the foreign corporation was 
indirectly owned by United States shareholders (as defined in Sec. 
1.367(b)-3(b)(2)).
    (B) Example. The following example illustrates the rules of this 
paragraph (d)(3)(ii):

    Example. (i) Facts. (A) FC1 is a foreign corporation. The 
outstanding stock of FC1 is directly owned by the following unrelated 
persons: 20 percent by DP, a domestic partnership; 20 percent by DC, a 
domestic corporation; 20 percent by FC, a foreign corporation that is 
directly and indirectly owned by foreign persons; 20 percent by FP, a 
foreign partnership that is equally owned by 2 partners, DI, a United 
States citizen, and FI, a nonresident alien; and 20 percent by a variety 
of minority shareholders, none of whom owns, applying the ownership 
rules of section 958, 10 percent or more of the outstanding stock of FC 
(the small shareholders).
    (B) FC1 owns all of the outstanding stock of FC2, a foreign 
corporation that is not a controlled foreign corporation subject to the 
rules of section 953(c). FC2 has net positive earnings and profits. In a 
reorganization described in section 368(a)(1)(B), DA, a domestic 
corporation, acquires all of the stock of FC2 from FC1 in exchange for 
DA voting stock.
    (ii) Result. (A) Under section 1223(2), DA holds the stock of FC2 
with a holding period

[[Page 311]]

that includes the period that FC2 was held by FC1. As a result, the 
rules of this paragraph (d)(3)(ii) apply for purposes of computing DA's 
all earnings and profits amount.
    (B) In applying the attribution principles of section 1248, earnings 
and profits attributable to a section 1223(2) holding period that refers 
to a period of direct ownership of the stock of a foreign corporation by 
a non-United States person are not included, except to the extent the 
stock of the foreign corporation was indirectly owned by United States 
shareholders as defined in Sec. 1.367(b)-3(b)(2). Accordingly, DA's all 
earnings and profits amount does not include the FC2 earnings and 
profits attributable to FC, FI, and the small shareholders. DA's all 
earnings and profits amount does include the FC2 earnings and profits 
attributable to DP, DC, and DI. See Sec. 1.367(b)-2(k) for rules 
concerning the treatment of partnerships under the section 367(b) 
regulations.
    (iii) Exclusion of lower-tier earnings. In applying the attribution 
principles of section 1248 and the regulations thereunder to determine 
the all earnings and profits amount with respect to stock of a foreign 
corporation, the earnings and profits of subsidiaries of the foreign 
corporation shall not be taken into account notwithstanding section 
1248(c)(2).

    (e) Treatment of deemed dividends--(1) In general. In certain 
circumstances these regulations provide that an exchanging shareholder 
shall include an amount in income as a deemed dividend. This paragraph 
provides rules for the treatment of the deemed dividend.
    (2) Consequences of dividend characterization. A deemed dividend 
described in paragraph (e)(1) of this section shall be treated as a 
dividend for purposes of the Internal Revenue Code. The deemed dividend 
shall be considered as paid out of the earnings and profits with respect 
to which the amount of the deemed dividend was determined. Thus, for 
example, a deemed dividend that is determined by reference to the all 
earnings and profits amount or the section 1248 amount will never be 
considered as paid out of (and therefore will never reduce) earnings and 
profits specified in section 1248(d), because such earnings and profits 
are excluded in computing the all earnings and profits amount (under 
paragraph (d)(2)(ii) of this section) and the section 1248 amount (under 
section 1248(d) and paragraph (c)(1) of this section). If the deemed 
dividend is determined by reference to the earnings and profits of a 
foreign corporation that is owned indirectly (i.e., through one or more 
tiers of intermediate owners) by the person that is required to include 
the deemed dividend in income, the deemed dividend shall be considered 
as having been paid by such corporation to such person through the 
intermediate owners, rather than directly to such person.
    (3) Ordering rules. In the case of an exchange of stock in which the 
exchanging shareholder is treated as receiving a deemed dividend from a 
foreign corporation, the following ordering rules concerning the timing, 
treatment, and effect of such a deemed dividend shall apply. See also 
paragraph (j)(2) of this section.
    (i) For purposes of the section 367(b) regulations, the gain 
realized by an exchanging shareholder shall be determined before 
increasing (as provided in paragraph (e)(3)(ii) of this section) the 
basis in the stock of the foreign corporation by the amount of the 
deemed dividend.
    (ii) Except as provided in paragraph (e)(3)(i) of this section, the 
deemed dividend shall be considered to be received immediately before 
the exchanging shareholder's receipt of consideration for its stock in 
the foreign corporation, and the shareholder's basis in the stock 
exchanged shall be increased by the amount of the deemed dividend. Such 
basis increase shall be taken into account before determining the gain 
otherwise recognized on the exchange (for example, under section 356), 
the basis that the exchanging shareholder takes in the property that it 
receives in the exchange (under section 358(a)(1)), and the basis that 
the transferee otherwise takes in the transferred stock (under section 
362).
    (iii) Except as provided in paragraph (e)(3)(i) of this section, the 
earnings and profits of the appropriate foreign corporation shall be 
reduced by the deemed dividend amount before determining the 
consequences of the recognition of gain in excess of the deemed dividend 
amount (for example, under section 356(a)(2) or sections 356(a)(1) and 
1248).
    (4) Examples. The following examples illustrate the rules of this 
paragraph (e):


[[Page 312]]


    Example 1. DC, a domestic corporation, exchanges stock in FC, a 
foreign corporation, in a section 367(b) exchange in which DC includes 
the all earnings and profits amount in income as a deemed dividend. 
Under paragraph (e)(2) of this section, a deemed dividend is treated as 
a dividend for purposes of the Internal Revenue Code. As a result, if 
the requirements of section 902 are met, DC may qualify for a deemed 
paid foreign tax credit with respect to the deemed dividend that it 
receives from FC.
    Example 2. DC, a domestic corporation, exchanges stock in FC1, a 
foreign corporation that is a controlled foreign corporation, in a 
transaction in which DC is required to include the section 1248 amount 
in income as a deemed dividend. A portion of the section 1248 amount is 
determined by reference to the earnings and profits of FC1 (the upper-
tier portion of the section 1248 amount), and the remainder of the 
section 1248 amount is determined by reference to the earnings and 
profits of FC2, which is a wholly owned foreign subsidiary of FC1 (the 
lower-tier portion of the section 1248 amount). Under paragraph (e)(2) 
of this section, DC computes its deemed paid foreign tax credit as if 
the lower-tier portion of the section 1248 amount were distributed as a 
dividend by FC2 to FC1, and as if such portion and the upper-tier 
portion of the section 1248 amount were then distributed as a dividend 
by FC1 to DC.
    Example 3. DC, a domestic corporation, exchanges stock in FC, a 
foreign corporation that is a controlled foreign corporation, in a 
transaction in which DC realizes gain of $100 (prior to the application 
of the section 367(b) regulations). In connection with the transaction, 
DC is required to include $40 in income as a deemed dividend under the 
section 367(b) regulations. In addition to receiving property permitted 
to be received under section 354 without the recognition of gain, DC 
also receives cash in the amount of $70. Under paragraph (e)(3) of this 
section, the $40 deemed dividend increases DC's basis in its FC stock 
before determining the gain to be recognized under section 356. Thus, in 
applying section 356, DC is considered to realize $60 of gain on the 
exchange, all of which is recognized under section 356(a)(1).

    (f) Deemed asset transfer and closing of taxable year in certain 
section 368(a)(1)(F) reorganizations--(1) Scope. This paragraph applies 
to a reorganization described in section 368(a)(1)(F) in which the 
transferor corporation is a foreign corporation.
    (2) Deemed asset transfer. In a reorganization described in 
paragraph (f)(1) of this section, there is considered to exist--
    (i) A transfer of assets by the foreign transferor corporation to 
the acquiring corporation in exchange for stock (or stock and 
securities) of the acquiring corporation and the assumption by the 
acquiring corporation of the foreign transferor corporation's 
liabilities;
    (ii) A distribution of such stock (or stock and securities) by the 
foreign transferor corporation to its shareholders (or shareholders and 
security holders); and
    (iii) An exchange by the foreign transferor corporation's 
shareholders (or shareholders and security holders) of their stock (or 
stock and securities) for stock (or stock and securities) of the 
acquiring corporation.
    (3) Other applicable rules. For purposes of this paragraph (f), it 
is immaterial that the applicable foreign or domestic law treats the 
acquiring corporation as a continuation of the foreign transferor 
corporation.
    (4) Closing of taxable year. In a reorganization described in 
paragraph (f)(1) of this section, the taxable year of the foreign 
transferor corporation shall end with the close of the date of the 
transfer and, except as otherwise required under the Internal Revenue 
Code (e.g. section 1502 and the regulations thereunder), the taxable 
year of the acquiring corporation shall end with the close of the date 
on which the transferor's taxable year would have ended but for the 
occurrence of the reorganization if--
    (i) The acquiring corporation is a domestic corporation; or
    (ii) The foreign transferor corporation has effectively connected 
earnings and profits (as defined in section 884(d)) or accumulated 
effectively connected earnings and profits (as defined in section 
884(b)(2)(B)(ii)).
    (g) Stapled stock under section 269B. For rules addressing the 
deemed conversion of a foreign corporation to a domestic corporation 
under section 269B, see Sec. 1.269B-1(c).
    (h) Section 953(d) domestication elections--(1) Effect of election. 
A foreign corporation that elects under section 953(d) to be treated as 
a domestic corporation shall be treated for purposes of section 367(b) 
as transferring, as of the first day of the first taxable year for which 
the election is effective, all of its assets to a domestic corporation 
in a reorganization described in section

[[Page 313]]

368(a)(1)(F). Notwithstanding paragraph (d) of this section, for 
purposes of determining the consequences of the reorganization under 
Sec. 1.367(b)-3, the all earnings and profits amount shall not be 
considered to include earnings and profits accumulated in taxable years 
beginning before January 1, 1988.
    (2) Post-election exchanges. For purposes of applying section 367(b) 
to post-election exchanges with respect to a corporation that has made a 
valid election under section 953(d) to be treated as a domestic 
corporation, such corporation shall be treated as a domestic corporation 
as to earnings and profits that were taken into account at the time of 
the section 953(d) election or which accrue after such election, and 
shall be treated as a foreign corporation as to earnings and profits 
accumulated in taxable years beginning before January 1, 1988. Thus, for 
example, if the section 953(d) corporation subsequently transfers its 
assets to a domestic corporation (other than another section 953(d) 
corporation) in a transaction described in section 381(a), the rules of 
Sec. 1.367(b)-3 shall apply to such transaction to the extent of the 
section 953(d) corporation's earnings and profits accumulated in taxable 
years beginning before January 1, 1988.
    (i) Section 1504(d) elections. An election under section 1504(d), 
which permits certain foreign corporations to be treated as domestic 
corporations, is treated as a transfer of property to a domestic 
corporation and will generally constitute a reorganization described in 
section 368(a)(1)(F). However, if an election under section 1504(d) is 
made with respect to a foreign corporation from the first day of the 
foreign corporation's existence, then the foreign corporation shall be 
treated as a domestic corporation, and the section 367(b) regulations 
will not apply.
    (j) Sections 985 through 989--(1) Change in functional currency of a 
qualified business unit--(i) Rule. If, as a result of a transaction 
described in section 381(a), a qualified business unit (as defined in 
section 989(a)) (QBU) has a different functional currency determined 
under the rules of section 985(b) than it used prior to the transaction, 
then the QBU shall be deemed to have automatically changed its 
functional currency immediately prior to the transaction. A QBU that is 
deemed to change its functional currency pursuant to this paragraph (j) 
must make the adjustments described in Sec. 1.985-5.
    (ii) Example. The following example illustrates the rule of this 
paragraph (j)(1):

    Example. (i) Facts. DC, a domestic corporation, owns 100 percent of 
FC1, a foreign corporation. FC1 owns and operates a qualified business 
unit (QBU) (B1) in France, whose functional currency is the euro. FC2, 
an unrelated foreign corporation, owns and operates a QBU (B2) in 
France, whose functional currency is the dollar. FC2 acquires FC1's 
assets (including B1) in a reorganization described in section 
368(a)(1)(C). As a part of the reorganization, B1 and B2 combine their 
operations into one QBU. Applying the rules of section 985(b), the 
functional currency of the combined operations of B1 and B2 is the euro.
    (ii) Result. FC2's acquisition of FC1's assets is a section 367(b) 
exchange that is described in section 381(a). Because the functional 
currency of the combined operations of B1 and B2 after the exchange is 
the euro, B2 is deemed to have automatically changed its functional 
currency to the euro immediately prior to the section 367(b) exchange. 
B2 must make the adjustments described in Sec. 1.985-5.

    (2) Previously taxed earnings and profits--(i) Exchanging 
shareholder that is a United States person. If an exchanging shareholder 
that is a United States person is required to include in income either 
the all earnings and profits amount or the section 1248 amount under the 
provisions of Sec. 1.367(b)-3 or 1.367(b)-4, then immediately prior to 
the exchange, and solely for the purpose of computing exchange gain or 
loss under section 986(c), the exchanging shareholder shall be treated 
as receiving a distribution of previously taxed earnings and profits 
from the appropriate foreign corporation that is attributable (under the 
principles of section 1248) to the exchanged stock. If an exchanging 
shareholder that is a United States person is a distributee in an 
exchange described in Sec. 1.367(b)-5(c) or (d), then immediately prior 
to the exchange, and solely for the purpose of computing exchange gain 
or loss under section 986(c), the exchanging shareholder shall be 
treated as receiving a distribution of previously taxed earnings and 
profits from the appropriate foreign corporation to the extent such

[[Page 314]]

shareholder has a diminished interest in such previously taxed earnings 
and profits after the exchange. The exchange gain or loss recognized 
under this paragraph (j)(2)(i) will increase or decrease the exchanging 
shareholder's adjusted basis in the stock of the foreign corporation, 
including for purposes of computing gain or loss realized with respect 
to the stock on the transaction. The exchanging shareholder's dollar 
basis with respect to each account of previously taxed income shall be 
increased or decreased by the exchange gain or loss recognized.
    (ii) Exchanging shareholder that is a foreign corporation. If an 
exchanging shareholder that is a foreign corporation is required to 
include in income either the all earnings and profits amount or the 
section 1248 amount under the provisions of Sec. 1.367(b)-3 or 
1.367(b)-4, then, immediately prior to the exchange, the exchanging 
shareholder shall be treated as receiving a distribution of previously 
taxed earnings and profits from the appropriate foreign corporation that 
is attributable (under the principles of section 1248) to the exchanged 
stock. If an exchanging shareholder that is a foreign corporation is a 
distributee in an exchange described in Sec. 1.367(b)-5(c) or (d), then 
the exchanging shareholder shall be treated as receiving (immediately 
prior to the exchange) a distribution of previously taxed earnings and 
profits from the appropriate foreign corporation. Such distribution 
shall be measured by the extent to which the exchanging shareholder's 
direct or indirect United States shareholders (as defined in section 
951(b)) have a diminished interest in such previously taxed earnings and 
profits after the exchange.
    (3) Other rules. See sections 985 through 989 for other currency 
rules that may apply in connection with a section 367(b) exchange.
    (k) Partnerships, trusts and estates. In applying the section 367(b) 
regulations, stock of a corporation that is owned by a foreign 
partnership, trust or estate shall be considered as owned 
proportionately by its partners, owners, or beneficiaries under the 
principles of Sec. 1.367(e)-1(b)(2). Stock owned by an entity that is 
disregarded as an entity separate from its owner under Sec. 301.7701-3 
is owned directly by the owner of such entity. In applying Sec. 
1.367(b)-5(b), the principles of Sec. 1.367(e)-1(b)(2) shall also apply 
to a domestic partnership, trust or estate.

[T.D. 8862, 65 FR 3598, Jan. 24, 2000; 65 FR 66501, Nov. 6, 2000, as 
amended by T.D. 9216, 70 FR 43760, July 29, 2005]



Sec. 1.367(b)-3  Repatriation of foreign corporate assets in certain 
nonrecognition transactions.

    (a) Scope. This section applies to an acquisition by a domestic 
corporation (the domestic acquiring corporation) of the assets of a 
foreign corporation (the foreign acquired corporation) in a liquidation 
described in section 332 or an asset acquisition described in section 
368(a)(1).
    (b) Exchange of stock owned directly by a United States shareholder 
or by certain foreign corporate shareholders--(1) Scope. This paragraph 
(b) applies in the case of an exchanging shareholder that is either--
    (i) A United States shareholder of the foreign acquired corporation; 
or
    (ii) A foreign corporation with respect to which there are one or 
more United States shareholders.
    (2) United States shareholder. For purposes of this section (and for 
purposes of the other section 367(b) regulation provisions that 
specifically refer to this paragraph (b)(2)), the term United States 
shareholder means any shareholder described in section 951(b) (without 
regard to whether the foreign corporation is a controlled foreign 
corporation), and also any shareholder described in section 953(c)(1)(A) 
(but only if the foreign corporation is a controlled foreign corporation 
as defined in section 953(c)(1)(B) subject to the rules of section 
953(c)).
    (3) Income inclusion--(i) Inclusion of all earnings and profits 
amount. An exchanging shareholder shall include in income as a deemed 
dividend the all earnings and profits amount with respect to its stock 
in the foreign acquired corporation. For the consequences of the deemed 
dividend, see Sec. 1.367(b)-2(e). Notwithstanding Sec. 1.367(b)-2(e), 
however, a deemed dividend from the foreign acquired corporation to an 
exchanging foreign corporate shareholder shall not qualify for

[[Page 315]]

the exception from foreign personal holding company income provided by 
section 954(c)(3)(A)(i), although it may qualify for the look-through 
treatment provided by section 904(d)(3) if the requirements of that 
section are met with respect to the deemed dividend.
    (ii) Examples. The following examples illustrate the rules of 
paragraph (b)(3)(i) of this section:
    Example 1-- (i) Facts. DC, a domestic corporation, owns all of the 
outstanding stock of FC, a foreign corporation. The stock of FC has a 
value of $100, and DC has a basis of $30 in such stock. The all earnings 
and profits amount attributable to the FC stock owned by DC is $20, of 
which $15 is described in section 1248(a) and the remaining $5 is not 
(for example, because it accumulated prior to 1963). FC has a basis of 
$50 in its assets. In a liquidation described in section 332, FC 
distributes all of its property to DC, and the FC stock held by DC is 
canceled.
    (ii) Result. Under paragraph (b)(3)(i) of this section, DC must 
include $20 in income as a deemed dividend from FC. Under section 337(a) 
FC does not recognize gain or loss in the assets that it distributes to 
DC, and under section 334(b), DC takes a basis of $50 in such assets. 
Because the requirements of section 902 are met, DC qualifies for a 
deemed paid foreign tax credit with respect to the deemed dividend that 
it receives from FC.
    Example 2-- (i) Facts. DC, a domestic corporation, owns all of the 
outstanding stock of FC, a foreign corporation. The stock of FC has a 
value of $100, and DC has a basis of $30 in such stock. The all earnings 
and profits amount attributable to the FC stock owned by DC is $75. FC 
has a basis of $50 in its assets. In a liquidation described in section 
332, FC distributes all of its property to DC, and the FC stock held by 
DC is canceled.
    (ii) Result. Under paragraph (b)(3)(i) of this section, DC must 
include $75 in income as a deemed dividend from FC. Under section 337(a) 
FC does not recognize gain or loss in the assets that it distributes to 
DC, and under section 334(b), DC takes a basis of $50 in such assets. 
Because the requirements of section 902 are met, DC qualifies for a 
deemed paid foreign tax credit with respect to the deemed dividend that 
it receives from FC.
    Example 3-- (i) Facts. DC, a domestic corporation, owns 80 percent 
of the outstanding stock of FC, a foreign corporation. DC has owned its 
80 percent interest in FC since FC was incorporated. The remaining 20 
percent of the outstanding stock of FC is owned by a person unrelated to 
DC (the minority shareholder). The stock of FC owned by DC has a value 
of $80, and DC has a basis of $24 in such stock. The stock of FC owned 
by the minority shareholder has a value of $20, and the minority 
shareholder has a basis of $18 in such stock. FC's only asset is land 
having a value of $100, and FC has a basis of $50 in the land. Gain on 
the land would not generate earnings and profits qualifying under 
section 1248(d) for an exclusion from earnings and profits for purposes 
of section 1248. FC has earnings and profits of $20 (determined under 
the rules of Sec. 1.367(b)-2(d)(2) (i) and (ii)), $16 of which is 
attributable to the stock owned by DC under the rules of Sec. 1.367(b)-
2(d)(3). FC subdivides the land and distributes to the minority 
shareholder land with a value of $20 and a basis of $10. As part of the 
same transaction, in a liquidation described in section 332, FC 
distributes the remainder of its land to DC, and the FC stock held by DC 
and the minority shareholder is canceled.
    (ii) Result. Under section 336, FC must recognize the $10 of gain it 
realizes in the land it distributes to the minority shareholder, and 
under section 331 the minority shareholder recognizes its gain of $2 in 
the stock of FC. Such gain is included in income by the minority 
shareholder as a dividend to the extent provided in section 1248 if the 
minority shareholder is a United States person that is described in 
section 1248(a)(2). Under Sec. 1.367(b)-2(d)(2)(iii), the $10 of gain 
recognized by FC increases its earnings and profits for purposes of 
computing the all earnings and profits amount and, as a result, $8 of 
such increase (80 percent of $10) is considered to be attributable to 
the FC stock owned by DC under Sec. 1.367(b)-2(d)(3)(i)(A)(1). DC's all 
earnings and profits amount with respect to its stock in FC is $24 (the 
$16 of initial all earnings and profits amount with respect to the FC 
stock held by DC, plus the $8 addition to such amount that results from 
FC's recognition of gain on the distribution to the minority 
shareholder). Under paragraph (b)(3)(i) of this section, DC must include 
the $24 all earnings and profits amount in income as a deemed dividend 
from FC.
    Example 4-- (i) Facts. DC1, a domestic corporation, owns all of the 
outstanding stock of DC2, a domestic corporation. DC1 also owns all of 
the outstanding stock of FC, a foreign corporation. The stock of FC has 
a value of $100, and DC1 has a basis of $30 in such stock. The assets of 
FC have a value of $100. The all earnings and profits amount with 
respect to the FC stock owned by DC1 is $20. In a reorganization 
described in section 368(a)(1)(D), DC2 acquires all of the assets of FC 
solely in exchange for DC2 stock. FC distributes the DC2 stock to DC1, 
and the FC stock held by DC1 is canceled.
    (ii) Result. DC1 must include $20 in income as a deemed dividend 
from FC under paragraph (b)(3)(i) of this section. Under section 361, FC 
does not recognize gain or loss in the assets that it transfers to DC2 
or in the DC2 stock that it distributes to DC1, and under section 362(b) 
DC2 takes a basis in the assets

[[Page 316]]

that it acquires from FC equal to the basis that FC had therein. Under 
Sec. 1.367(b)-2(e)(3)(ii) and section 358(a)(1), DC1 takes a basis of 
$50 (its $30 basis in the stock of FC, plus the $20 that was treated as 
a deemed dividend to DC1) in the stock of DC2 that it receives in 
exchange for the stock of FC. Under Sec. 1.367(b)-2(e)(3)(iii) and 
section 312(a), the earnings and profits of FC are reduced by the $20 
deemed dividend.
    Example 5-- (i) Facts. DC1, a domestic corporation, owns all of the 
outstanding stock of FC1, a foreign corporation. FC1 owns all of the 
outstanding stock of FC2, a foreign corporation. The all earnings and 
profits amount with respect to the FC2 stock owned by FC1 is $20. In a 
reorganization described in section 368(a)(1)(A), DC2, a domestic 
corporation unrelated to FC1 or FC2, acquires all of the assets and 
liabilities of FC2 pursuant to a State W merger. FC2 receives DC2 stock 
and distributes such stock to FC1. The FC2 stock held by FC1 is 
canceled, and FC2 ceases its separate legal existence.
    (ii) Result. FC1 must include $20 in income as a deemed dividend 
from FC2 under paragraph (b)(3)(i) of this section. The deemed dividend 
is treated as a dividend for purposes of the Internal Revenue Code as 
provided in Sec. 1.367(b)-2(e)(2); however, under paragraph (b)(3)(i) 
of this section the deemed dividend cannot qualify for the exception 
from foreign personal holding company income provided by section 
954(c)(3)(A)(i), even if the provisions of that section would otherwise 
have been met in the case of an actual dividend.
    Example 6-- (i) Facts. DC1, a domestic corporation, owns 99 percent 
of USP, a domestic partnership. The remaining 1 percent of USP is owned 
by a person unrelated to DC1. DC1 and USP each directly own 9 percent of 
the outstanding stock of FC, a foreign corporation that is not a 
controlled foreign corporation subject to the rule of section 953(c). In 
a reorganization described in section 368(a)(1)(C), DC2, a domestic 
corporation, acquires all of the assets and liabilities of FC in 
exchange for DC2 stock. FC distributes to its shareholders DC2 stock, 
and the FC stock held by its shareholders is canceled.
    (ii) Result. (A) DC1 and USP are United States persons that are 
exchanging shareholders in a transaction described in paragraph (a) of 
this section. As a result, DC1 and USP are subject to the rules of 
paragraph (b) of this section if they qualify as United States 
shareholders as defined in paragraph (b)(2) of this section. 
Alternatively, if they do not qualify as United States shareholders as 
defined in paragraph (b)(2) of this section, DC1 and USP are subject to 
the rules of paragraph (c) of this section. Paragraph (b)(2) of this 
section defines the term United States shareholder to include any 
shareholder described in section 951(b) (without regard to whether the 
foreign corporation is a controlled foreign corporation). A shareholder 
described in section 951(b) is a United States person that is considered 
to own, applying the rules of section 958(a) and 958(b), 10 percent or 
more of the total combined voting power of all classes of stock entitled 
to vote of a foreign corporation. Under section 958(b), the rules of 
section 318(a), as modified by section 958(b) and the regulations 
thereunder, apply so that, in general, stock owned directly or 
indirectly by a partnership is considered as owned proportionately by 
its partners, and stock owned directly or indirectly by a partner is 
considered as owned by the partnership. Thus, under section 958(b), DC1 
is treated as owning its proportionate share of FC stock held by USP, 
and USP is treated as owning all of the FC stock held by DC1.
    (B) Accordingly, for purposes of determining whether DC1 is a United 
States shareholder under paragraph (b)(2) of this section, DC1 is 
considered as owning 99 percent of the 9 percent of FC stock held by 
USP. Because DC1 also owns 9 percent of FC stock directly, DC1 is 
considered as owning more than 10 percent of FC stock. DC1 is thus a 
United States shareholder of FC under paragraph (b)(2) of this section 
and, as a result, is subject to the rules of paragraph (b) of this 
section. However, for purposes of determining DC1's all earnings and 
profits amount, DC1 is not treated as owning the FC stock held by USP. 
Under Sec. 1.367(b)-2(d)(3), DC1's all earnings and profits amount is 
determined by reference to the 9 percent of FC stock that it directly 
owns.
    (C) For purposes of determining whether USP is a United States 
shareholder under paragraph (b)(2) of this section, USP is considered as 
owning the 9 percent of FC stock held by DC1. Because USP also owns 9 
percent of FC stock directly, USP is considered as owning more than 10 
percent of FC stock. USP is thus a United States shareholder of FC under 
paragraph (b)(2) of this section and, as a result, is subject to the 
rules of paragraph (b) of this section. However, for purposes of 
determining USP's all earnings and profits amount, USP is not treated as 
owning the FC shares held by DC1. Under Sec. 1.367(b)-2(d)(3), USP's 
all earnings and profits amount is determined by reference to the 9 
percent of FC stock that it directly owns.
    (iii) Recognition of exchange gain or loss with respect to capital. 
[Reserved]
    (4) Reserved. For further guidance concerning section 367(b) 
exchanges occurring before February 23, 2001, see Sec. 1.367(b)-
3T(b)(4).
    (c) Exchange of stock owned by a United States person that is not a 
United States shareholder--(1) Scope. This paragraph (c) applies in the 
case of an exchanging shareholder that is a United

[[Page 317]]

States person not described in paragraph (b)(1)(i) of this section 
(i.e., a United States person that is not a United States shareholder of 
the foreign acquired corporation).
    (2) Requirement to recognize gain. An exchanging shareholder 
described in paragraph (c)(1) of this section shall recognize realized 
gain (but not loss) with respect to the stock of the foreign acquired 
corporation.
    (3) Election to include all earnings and profits amount. In lieu of 
the treatment prescribed by paragraph (c)(2) of this section, an 
exchanging shareholder described in paragraph (c)(1) of this section may 
instead elect to include in income as a deemed dividend the all earnings 
and profits amount with respect to its stock in the foreign acquired 
corporation. For the consequences of a deemed dividend, see Sec. 
1.367(b)-2(e). Such election may be made only if--
    (i) The foreign acquired corporation (or its successor in interest) 
has provided the exchanging shareholder information to substantiate the 
exchanging shareholder's all earnings and profits amount with respect to 
its stock in the foreign acquired corporation; and
    (ii) The exchanging shareholder complies with the section 367(b) 
notice requirement described in Sec. 1.367(b)-1(c), including the 
specific rules contained therein concerning the time and manner for 
electing to apply the rules of this paragraph (c)(3).
    (4) De minimis exception. This paragraph (c) shall not apply in the 
case of an exchanging shareholder whose stock in the foreign acquired 
corporation has a fair market value of less than $50,000 on the date of 
the section 367(b) exchange.
    (5) Examples. The following examples illustrate the rules of this 
paragraph (c):
    Example 1-- (i) Facts. DC1, a domestic corporation, owns 5 percent 
of the outstanding stock of FC, a foreign corporation that is not a 
controlled foreign corporation subject to the rule of section 953(c). 
Persons unrelated to DC1 own the remaining 95 percent of the outstanding 
stock of FC. DC1 has owned its 5 percent interest in FC since FC was 
incorporated. DC1's stock in FC has a basis of $40,000 and a value of 
$100,000. The all earnings and profits amount with respect to DC1's 
stock in FC is $50,000. In a reorganization described in section 
368(a)(1)(C), DC2, a domestic corporation, acquires all of the assets 
and liabilities of FC in exchange for DC2 stock. FC distributes DC2 
stock to its shareholders, and the FC stock held by its shareholders is 
canceled.
    (ii) Alternate result 1. If DC1 does not make the election described 
in paragraph (c)(3) of this section, then the general rule of paragraph 
(c)(2) of this section applies and DC1 must recognize its $60,000 gain 
in the FC stock. Under section 358(a)(1), DC1 has a $100,000 basis (its 
$40,000 basis in the FC stock, plus the $60,000 recognized gain) in the 
DC2 stock that it receives in exchange for its FC stock. Because DC1 is 
not a shareholder described in section 1248(a)(2), section 1248 does not 
apply to recharacterize any of DC1's gain as a dividend.
    (iii) Alternate result 2. If DC1 makes a valid election under 
paragraph (c)(3) of this section, then DC1 must include in income as a 
deemed dividend the $50,000 all earnings and profits amount with respect 
to its FC stock. Under Sec. 1.367(b)-2(e)(3) and section 358(a)(1), DC1 
has a $90,000 basis (its $40,000 basis in the FC stock, plus the $50,000 
that was treated as a deemed dividend to DC1) in the DC2 stock that it 
receives in exchange for its FC stock. Because DC1 owns less than 10 
percent of the voting stock of FC, DC1 does not qualify for a deemed 
paid foreign tax credit under section 902.
    Example 2-- (i) Facts. The facts are the same as in Example 1, 
except that DC1's stock in FC has a fair market value of $48,000 on the 
date DC1 receives the DC2 stock.
    (ii) Result. Because DC1's stock in FC has a fair market value of 
less than $50,000 on the date of the section 367(b) exchange, the de 
minimis exception of paragraph (c)(4) of this section applies. As a 
result, DC1 is not subject to the gain or income inclusion requirements 
of this paragraph (c).
    (d) Carryover of certain foreign taxes--(1) Rule. Excess foreign 
taxes under section 904(c) allowable to the foreign acquired corporation 
under section 906 shall carry over to the domestic acquiring corporation 
and become allowable under section 901, subject to the limitations 
prescribed by the Internal Revenue Code (for example, sections 383, 904 
and 907). The domestic acquiring corporation shall not succeed to any 
other foreign taxes paid or incurred by the foreign acquired 
corporation.
    (2) Example. The following example illustrates the rules of this 
paragraph (d):
    Example-- (i) Facts. DC, a domestic corporation owns 100 percent of 
the outstanding stock of FC, a foreign corporation. FC has net positive 
earnings and profits, none of which are attributable to DC's FC stock

[[Page 318]]

under Sec. 1.367(b)-2(d)(3). FC has paid foreign taxes that are not 
eligible for credit under section 906. In a liquidation described in 
section 332, FC distributes all of its property to DC, and the FC stock 
held by DC is canceled.
    (ii) Result. The liquidation of FC into DC is a section 367(b) 
exchange. Thus, DC is subject to the section 367(b) regulations, and 
must file a section 367(b) notice pursuant to Sec. 1.367(b)-1(c). 
Pursuant to the provisions of paragraph (d)(1) of this section, the 
foreign taxes paid by FC do not carryover to DC because FC's foreign 
taxes are not eligible for credit under section 906.

[T.D. 8862, 65 FR 3601, Jan. 24, 2000; 65 FR 66501, Nov. 6, 2000, as 
amended by T.D. 9243, 71 FR 4288, Jan. 26, 2006]



Sec. 1.367(b)-3T  Repatriation of foreign corporate assets in certain 
nonrecognition transactions (temporary).

    (a)-(b)(3). [Reserved]. For further guidance, see Sec. 1.367(b)-
3(a) through (b)(3).
    (4) Election of taxable exchange treatment--(i) Rules--(A) In 
general. In lieu of the treatment prescribed by Sec. 1.367(b)-
3(b)(3)(i), an exchanging shareholder described in Sec. 1.367(b)-
3(b)(1) may instead elect to recognize the gain (but not loss) that it 
realizes in the exchange (taxable exchange election). To make a taxable 
exchange election, the following requirements must be satisfied--
    (1) The exchanging shareholder (and its direct or indirect owners 
that would be affected by the election, in the case of an exchanging 
shareholder that is a foreign corporation) reports the exchange in a 
manner consistent therewith (see, e.g., sections 954(c)(1)(B)(i), 1001 
and 1248);
    (2) The notification requirements of paragraph (b)(4)(i)(C) of this 
section are satisfied; and
    (3) The adjustments described in paragraph (b)(4)(i)(B) of this 
section are made when the following circumstances are present--
    (i) The transaction is described in section 332 or is an asset 
acquisition described in section 368(a)(1), with regard to which one 
U.S. person owns (directly or indirectly) 100 percent of the foreign 
acquired corporation; and
    (ii) The all earnings and profits amount described in Sec. 
1.367(b)-3(b)(3)(i) with respect to the exchange exceeds the gain 
recognized by the exchanging shareholder.
    (B) Attribute reduction--(1) Reduction of NOL carryovers. The amount 
by which the all earnings and profits amount exceeds the gain recognized 
by the exchanging shareholder (the excess earnings and profits amount) 
shall be applied to reduce the net operating loss carryovers (if any) of 
the foreign acquired corporation to which the domestic acquiring 
corporation would otherwise succeed under section 381(a) and (c)(1). See 
also Rev. Rul. 72-421 (1972-2 C.B. 166) (see Sec. 601.601(d)(2) of this 
chapter).
    (2) Reduction of capital loss carryovers. After the application of 
paragraph (b)(4)(i)(B)(1) of this section, any remaining excess earnings 
and profits amount shall be applied to reduce the capital loss 
carryovers (if any) of the foreign acquired corporation to which the 
domestic acquiring corporation would otherwise succeed under section 
381(a) and (c)(3).
    (3) Reduction of basis. After the application of paragraph 
(b)(4)(i)(B)(2) of this section, any remaining excess earnings and 
profits amount shall be applied to reduce (but not below zero) the basis 
of the assets (other than dollar-denominated money) of the foreign 
acquired corporation that are acquired by the domestic acquiring 
corporation. Such remaining excess earnings and profits amount shall be 
applied to reduce the basis of such assets in the following order: 
first, tangible depreciable or depletable assets, according to their 
class lives (beginning with those assets with the shortest class life); 
second, other non-inventory tangible assets; third, intangible assets 
that are amortizable; and finally, the remaining assets of the foreign 
acquired corporation that are acquired by the domestic acquiring 
corporation. Within each of these categories, if the total basis of all 
assets in the category is greater than the excess earnings and profits 
amount to be applied against such basis, the taxpayer may choose to 
which specific assets in the category the basis reduction first applies.
    (C) Notification. The exchanging shareholder shall elect to apply 
the rules of this paragraph (b)(4)(i) by attaching a statement of its 
election to

[[Page 319]]

its section 367(b) notice. See Sec. 1.367(b)-1(c) For the rules 
concerning filing a section 367(b) notice.
    (D) Example. The following example illustrates the rules of this 
paragraph (b)(4)(i):
    Example-- (i) Facts. DC, a domestic corporation, owns all of the 
outstanding stock of FC, a foreign corporation. The stock of FC has a 
value of $100, and DC has a basis of $80 in such stock. The assets of FC 
are one parcel of land with a value of $60 and a basis of $30, and 
tangible depreciable assets with a value of $40 and a basis of $80. FC 
has no net operating loss carryovers or capital loss carryovers. The all 
earnings and profits amount with respect to the FC stock owned by DC is 
$30, of which $19 is described in section 1248(a) and the remaining $11 
is not (for example, because it was earned prior to 1963). In a 
liquidation described in section 332, FC distributes all of its property 
to DC, and the FC stock held by DC is canceled. Rather than including in 
income as a deemed dividend the all earnings and profits amount of $30 
as provided in Sec. 1.367(b)-3(b)(3)(i), DC instead elects taxable 
exchange treatment under paragraph (b)(4)(i)(A) of this section.
    (ii) Result. DC recognizes the $20 of gain it realizes on its stock 
in FC. Of this $20 amount, $19 is included in income by DC as a dividend 
pursuant to section 1248(a). (For the source of the remaining $1 of gain 
recognized by DC, see section 865. For the treatment of the $1 for 
purposes of the foreign tax credit limitation, see generally section 
904(d)(2)(A)(i).) Because the transaction is described in section 332 
and because the all earnings and profits amount with respect to the FC 
stock held by DC ($30) exceeds by $10 the income recognized by DC ($20), 
the attribute reduction rules of paragraph (b)(4)(i)(B) of this section 
apply. Accordingly, the $10 excess earnings and profits amount is 
applied to reduce the basis of the tangible depreciable assets of FC, 
beginning with those assets with the shortest class lives. Under section 
337(a) FC does not recognize gain or loss in the assets that it 
distributes to DC, and under section 334(b) (which is applied taking 
into account the basis reduction prescribed by paragraph (b)(4)(i)(A)(3) 
of this section) DC takes a basis of $30 in the land and $70 in the 
tangible depreciable assets that it receives from FC.
    (ii) Effective date. This paragraph (b)(4) applies for section 
367(b) exchanges that occur between February 23, 2000, and February 23, 
2001.
    (c)-(d) [Reserved]. For further guidance, see Sec. 1.367(b)-3(c) 
through (d).

[T.D. 8863, 65 FR 3588, Jan. 24, 2000, as amended by T.D. 9243, 71 FR 
4288, Jan. 26, 2006]



Sec. 1.367(b)-4  Acquisition of foreign corporate stock or assets by 
a foreign corporation in certain nonrecognition transactions.

    (a) Scope. This section applies to an acquisition by a foreign 
corporation (the foreign acquiring corporation) of the stock or assets 
of a foreign corporation (the foreign acquired corporation) in an 
exchange described in section 351 or a reorganization described in 
section 368(a)(1). However, if pursuant to section 304(a)(1), a foreign 
acquiring corporation is treated as acquiring the stock of a foreign 
acquired corporation in a transaction to which section 351(a) applies, 
such deemed section 351 exchange is not an acquisition subject to 
section 367(b). In the case of a reorganization described in sections 
368(a)(1)(A) and (a)(2)(E), this section applies if stock of the foreign 
surviving corporation is exchanged for stock of a foreign corporation in 
control of the merging corporation; in such a case, the foreign 
surviving corporation is treated as a foreign acquired corporation for 
purposes of this section. A foreign corporation that undergoes a 
reorganization described in section 368(a)(1)(E) is treated as both the 
foreign acquired corporation and the foreign acquiring corporation for 
purposes of this section. See Sec. 1.367(a)-3(b)(2) for transactions 
subject to the concurrent application of this section and section 
367(a).
    (b) Income inclusion. If an exchange is described in paragraph 
(b)(1)(i), (2)(i) or (3) of this section, the exchanging shareholder 
shall include in income as a deemed dividend the section 1248 amount 
attributable to the stock that it exchanges.
    (1) Exchange that results in loss of status as section 1248 
shareholder--(i) General rule. Except as provided in paragraph 
(b)(1)(ii) of this section, an exchange is described in this paragraph 
(b)(1)(i) if--
    (A) Immediately before the exchange, the exchanging shareholder is--
    (1) A United States person that is a section 1248 shareholder with 
respect to the foreign acquired corporation; or
    (2) A foreign corporation, and a United States person is a section 
1248

[[Page 320]]

shareholder with respect to such foreign corporation and with respect to 
the foreign acquired corporation; and
    (B) Either of the following conditions is satisfied--
    (1) Immediately after the exchange, the stock received in the 
exchange is not stock in a corporation that is a controlled foreign 
corporation as to which the United States person described in paragraph 
(b)(1)(i)(A) of this section is a section 1248 shareholder; or
    (2) Immediately after the exchange, the foreign acquiring 
corporation or the foreign acquired corporation (if any, such as in a 
transaction described in section 368(a)(1)(B) and/or section 351), is 
not a controlled foreign corporation as to which the United States 
person described in paragraph (b)(1)(i)(A) of this section is a section 
1248 shareholder.
    (ii) Exception. In the case of a triangular reorganization described 
in Sec. 1.358-6(b)(2), or a reorganization described in sections 
368(a)(1)(G) and (a)(2)(D), an exchange is not described in paragraph 
(b)(1)(i) of this section if the stock received in the exchange is stock 
of a domestic corporation and, immediately after the exchange, such 
domestic corporation is a section 1248 shareholder of the acquired 
corporation (in the case of a triangular B reorganization) or the 
surviving corporation (in the case of a triangular C reorganization, a 
forward triangular merger, a reorganization described in sections 
368(a)(1)(G) and (a)(2)(D), or a reverse triangular merger) and such 
acquired or surviving corporation is a controlled foreign corporation. 
See Sec. 1.367(b)-13(c) for rules regarding such domestic corporation's 
basis in the stock of the surviving corporation. See paragraph 
(b)(1)(iii) of this section, Example 3B for an illustration of this 
rule.
    (iii) Examples. The following examples illustrate the rules of this 
paragraph (b)(1):
    Example 1-- (i) Facts. FC1 is a foreign corporation that is owned, 
directly and indirectly (applying the ownership rules of section 958), 
solely by foreign persons. DC is a domestic corporation that is 
unrelated to FC1. DC owns all of the outstanding stock of FC2, a foreign 
corporation. Thus, under Sec. 1.367(b)-2(a) and (b), DC is a section 
1248 shareholder with respect to FC2, and FC2 is a controlled foreign 
corporation. Under Sec. 1.367(b)-2(c)(1), the section 1248 amount 
attributable to the stock of FC2 held by DC is $20. In a reorganization 
described in section 368(a)(1)(C), FC1 acquires all of the assets and 
assumes all of the liabilities of FC2 in exchange for FC1 voting stock. 
The FC1 voting stock received does not represent more than 50 percent of 
the voting power or value of FC1's stock. FC2 distributes the FC1 stock 
to DC, and the FC2 stock held by DC is canceled.
    (ii) Result. FC1 is not a controlled foreign corporation immediately 
after the exchange. As a result, the exchange is described in paragraph 
(b)(1)(i) of this section. Under paragraph (b) of this section, DC must 
include in income, as a deemed dividend from FC2, the section 1248 
amount ($20) attributable to the FC2 stock that DC exchanged.
    Example 2-- (i) Facts. The facts are the same as in Example 1, 
except that the voting stock of FC1, which is received by FC2 in 
exchange for its assets and distributed by FC2 to DC, represents more 
than 50 percent of the voting power of FC1's stock under the rules of 
section 957(a).
    (ii) Result. Paragraph (b)(1)(i) of this section does not apply to 
require inclusion in income of the section 1248 amount, because FC1 is a 
controlled foreign corporation as to which DC is a section 1248 
shareholder immediately after the exchange.
    Example 3-- (i) Facts. The facts are the same as in Example 1, 
except that FC2 receives and distributes voting stock of FP, a foreign 
corporation that is in control (within the meaning of section 368(c)) of 
FC1, instead of receiving and distributing voting stock of FC1.
    (ii) Result. For purposes of section 367(a), the transfer is an 
indirect stock transfer subject to section 367(a). See Sec. 1.367(a)-
3(d)(1)(iv). Accordingly, DC's exchange of FC2 stock for FP stock under 
section 354 will be taxable under section 367(a) (and section 1248 will 
be applicable) if DC fails to enter into a gain recognition agreement in 
accordance with Sec. 1.367(a)-8. Under Sec. 1.367(a)-3(b)(2), if DC 
enters into a gain recognition agreement, the exchange will be subject 
to the provisions of section 367(b) and the regulations thereunder, as 
well as section 367(a). If FP and FC1 are controlled foreign 
corporations as to which DC is a (direct or indirect) section 1248 
shareholder immediately after the reorganization, then the section 
367(b) result is the same as in Example 2--that is, paragraph (b)(1)(i) 
of this section does not apply to require inclusion in income of the 
section 1248 amount. Under these circumstances, the amount of the gain 
recognition agreement would equal the amount of the gain realized on the 
indirect stock transfer. If FP or FC1 is not a controlled foreign 
corporation as to which DC is a (direct or indirect) section 1248 
shareholder immediately after the exchange, then the section 367(b) 
result is the same as

[[Page 321]]

in Example 1--that is, DC must include in income, as a deemed dividend 
from FC2, the section 1248 amount ($20) attributable to the FC2 stock 
that DC exchanged. Under these circumstances, the amount of the gain 
recognition agreement would equal the amount of the gain realized on the 
indirect stock transfer, less the $20 section 1248 amount inclusion.
    Example 3A. (i) Facts. The facts are the same as in Example 3, 
except that FC1 merges into FC2 in a reorganization described in 
sections 368(a)(1)(A) and (a)(2)(E). Pursuant to the reorganization, DC 
exchanges its FC2 stock for stock of FP.
    (ii) Result. The result is similar to the result in Example 3. The 
transfer is an indirect stock transfer subject to section 367(a). See 
Sec. 1.367(a)-3(d)(1)(ii). Accordingly, DC's exchange of FC2 stock for 
FP stock will be taxable under section 367(a) (and section 1248 will be 
applicable) if DC fails to enter into a gain recognition agreement. If 
DC enters into a gain recognition agreement, the exchange will be 
subject to the provisions of section 367(b) and the regulations 
thereunder, as well as section 367(a). If FP and FC2 are controlled 
foreign corporations as to which DC is a section 1248 shareholder 
immediately after the reorganization, then paragraph (b)(1)(i) of this 
section does not apply to require DC to include in income the section 
1248 amount attributable to the FC2 stock that was exchanged and the 
amount of the gain recognition agreement is the amount of gain realized 
on the indirect stock transfer. If FP or FC2 is not a controlled foreign 
corporation as to which DC is a section 1248 shareholder immediately 
after the exchange, then DC must include in income as a deemed dividend 
from FC2 the section 1248 amount ($20) attributable to the FC2 stock 
that DC exchanged. Under these circumstances, the gain recognition 
agreement would be the amount of gain realized on the indirect transfer, 
less the $20 section 1248 amount inclusion.
    Example 3B. (i) Facts. The facts are the same as Example 3, except 
that USP, a domestic corporation, owns the controlling interest (within 
the meaning of section 368(c)) in FC1 stock. In addition, FC2 merges 
into FC1 in a reorganization described in sections 368(a)(1)(A) and 
(a)(2)(D). Pursuant to the reorganization, DC exchanges its FC2 stock 
for USP stock.
    (ii) Result. Because DC receives stock of a domestic corporation, 
USP, in the section 354 exchange, the transfer is not an indirect stock 
transfer subject to section 367(a). Accordingly, the exchange will be 
subject only to the provisions of section 367(b) and the regulations 
thereunder. Under paragraph (b)(1)(ii) of this section, because the 
stock received is stock of a domestic corporation (USP) and, immediately 
after the exchange, USP is a section 1248 shareholder of FC1 (the 
surviving corporation) and FC1 is a controlled foreign corporation, the 
exchange is not described in paragraph (b)(1)(i) of this section and DC 
is not required to include in income the section 1248 amount 
attributable to the FC2 stock that was exchanged. See Sec. 1.367(b)-
13(c) for the basis and holding period rules applicable to this 
transaction, which cause USP's adjusted basis and holding period in the 
stock of FC1 after the transaction to reflect the basis and holding 
period that DC had in its FC2 stock.
    Example 4-- (i) Facts. DC1, a domestic corporation, owns all of the 
outstanding stock of DC2, a domestic corporation. DC2 owns various 
assets including all of the outstanding stock of FC2, a foreign 
corporation. The stock of FC2 has a value of $100, and DC2 has a basis 
of $30 in such stock. The section 1248 amount attributable to the FC2 
stock held by DC2 is $20. DC2 does not own any other stock in a foreign 
corporation. FC1 is a foreign corporation that is unrelated to DC1, DC2 
and FC2. In a reorganization described in section 368(a)(1)(C), FC1 
acquires all of the assets and liabilities of DC2 in exchange for FC1 
voting stock that represents 20 percent of the outstanding voting stock 
of FC1. DC2 distributes the FC1 stock to DC1, and the DC2 stock held by 
DC1 is canceled. DC1 properly files a gain recognition agreement under 
Sec. 1.367(a)-8 to qualify for nonrecognition treatment under section 
367(a) with respect to DC2's transfer of the FC2 stock to FC1. See Sec. 
1.367(a)-8(f)(2).
    (ii) Result. Pursuant to paragraph (b)(1)(i)(A) of this section, DC2 
is the exchanging shareholder that is a section 1248 shareholder with 
respect to FC2, the foreign acquired corporation. Immediately after the 
exchange, DC2 is not a section 1248 shareholder with respect to FC1, the 
corporation whose stock is received in the exchange (because the DC2 
stock is canceled). Thus, paragraph (b)(1)(i)(B) of this section is 
satisfied and, as a result, paragraph (b)(1)(i) of this section applies 
to DC2's section 361 exchange of FC2 stock. Accordingly, under paragraph 
(b) of this section, DC2 must include in income, as a deemed dividend 
from FC2, the section 1248 amount ($20) attributable to the FC2 stock 
that DC2 exchanges. This result arises without regard to whether FC1 and 
FC2 are controlled foreign corporations immediately after the exchange. 
For the tax treatment of DC2's transfer of assets (other than stock) to 
FC1, see sections 367(a)(1) and (a)(3), and the regulations thereunder. 
Because the exchange is also described in section 361(a) or (b), see 
section 367(a)(5) and any regulations thereunder. If any of the assets 
transferred are intangible assets, see section 367(d) and the 
regulations thereunder.

[[Page 322]]

    (2) Receipt by exchanging shareholder of preferred or other stock in 
certain instances--(i) Rule. An exchange is described in this paragraph 
(b)(2)(i) if--
    (A) Immediately before the exchange, the foreign acquired 
corporation and the foreign acquiring corporations are not members of 
the same affiliated group (within the meaning of section 1504(a), but 
without regard to the exceptions set forth in section 1504(b), and 
substituting the words ``more than 50'' in place of the words ``at least 
80'' in sections 1504(a)(2)(A) and (B));
    (B) Immediately after the exchange, a domestic corporation meets the 
ownership threshold specified by section 902(a) or (b) such that it may 
qualify for a deemed paid foreign tax credit if it receives a 
distribution from the foreign acquiring corporation (directly or through 
tiers); and
    (C) The exchanging shareholder receives preferred stock (other than 
preferred stock that is fully participating with respect to dividends, 
redemptions and corporate growth) in consideration for common stock or 
preferred stock that is fully participating with respect to dividends, 
redemptions and corporate growth, or, in the discretion of the 
Commissioner or the Commissioner's delegate (and without regard to 
whether the stock exchanged is common stock or preferred stock), 
receives stock that entitles it to participate (through dividends, 
redemption payments or otherwise) disproportionately in the earnings 
generated by particular assets of the foreign acquired corporation or 
foreign acquiring corporation.
    (ii) Examples. The following examples illustrate the rules of this 
paragraph (b)(2):
    Example 1-- (i) Facts. FC1 is a foreign corporation. DC is a 
domestic corporation that is unrelated to FC1. DC owns all of the 
outstanding stock of FC2, a foreign corporation, and FC2 has no 
outstanding preferred stock. The value of FC2 is $100 and DC has a basis 
of $50 in the stock of FC2. Under Sec. 1.367(b)-2(c)(1), the section 
1248 amount attributable to the stock of FC2 held by DC is $20. In a 
reorganization described in section 368(a)(1)(B), FC1 acquires all of 
the stock of FC2 and, in exchange, DC receives FC1 voting preferred 
stock that constitutes 10 percent of the voting stock of FC1 for 
purposes of section 902(a). Immediately after the exchange, FC1 and FC2 
are controlled foreign corporations and DC is a section 1248 shareholder 
of FC1 and FC2, so paragraph (b)(1)(i) of this section does not require 
inclusion in income of the section 1248 amount.
    (ii) Result. Pursuant to Sec. 1.367(a)-3(b)(2), the transfer is 
subject to both section 367(a) and section 367(b). Under Sec. 1.367(a)-
3(b)(1), DC will not be subject to tax under section 367(a)(1) if it 
enters into a gain recognition agreement in accordance with Sec. 
1.367(a)-8. Even though paragraph (b)(1)(i) of this section does not 
apply to require inclusion in income by DC of the section 1248 amount, 
DC must nevertheless include the $20 section 1248 amount in income as a 
deemed dividend from FC2 under paragraph (b)(2)(i) of this section. 
Thus, if DC enters into a gain recognition agreement, the amount is $30 
(the $50 gain realized less the $20 recognized under section 367(b)). If 
DC fails to enter into a gain recognition agreement, it must include in 
income under section 367(a)(1) the $50 of gain realized ($20 of which is 
treated as a dividend under section 1248). Section 367(b) does not apply 
in such case.
    Example 2-- (i) Facts. The facts are the same as in Example 1, 
except that DC owns all of the outstanding stock of FC1 immediately 
before the transaction.
    (ii) Result. Both section 367(a) and section 367(b) apply to the 
transfer. Paragraph (b)(2)(i) of this section does not apply to require 
inclusion of the section 1248 amount. Under paragraph (b)(2)(i)(A) of 
this section, the transaction is outside the scope of paragraph 
(b)(2)(i) of this section because FC1 and FC2 are, immediately before 
the transaction, members of the same affiliated group (within the 
meaning of such paragraph). Thus, if DC enters into a gain recognition 
agreement in accordance with Sec. 1.367(a)-8, the amount of such 
agreement is $50. As in Example 1, if DC fails to enter into a gain 
recognition agreement, it must include in income $50, $20 of which will 
be treated as a dividend under section 1248.
    Example 3-- (i) Facts. FC1 is a foreign corporation. DC is a 
domestic corporation that is unrelated to FC1. DC owns all of the 
outstanding stock of FC2, a foreign corporation. The section 1248 amount 
attributable to the stock of FC2 held by DC is $20. In a reorganization 
described in section 368(a)(1)(B), FC1 acquires all of the stock of FC2 
in exchange for FC1 voting stock that constitutes 10 percent of the 
voting stock of FC1 for purposes of section 902(a). The FC1 voting stock 
received by DC in the exchange carries voting rights in FC1, but by 
agreement of the parties the shares entitle the holder to dividends, 
amounts to be paid on redemption, and amounts to be paid on liquidation, 
that are to be determined by reference to the earnings or value of FC2 
as of the date of such event, and that are affected by the earnings or 
value of FC1 only if FC1 becomes insolvent or has insufficient capital 
surplus to pay dividends.

[[Page 323]]

    (ii) Result. Under Sec. 1.367(a)-3(b)(1), DC will not be subject to 
tax under section 367(a)(1) if it enters into a gain recognition 
agreement with respect to the transfer of FC2 stock to FC1. Under Sec. 
1.367(a)-3(b)(2), the exchange will be subject to the provisions of 
section 367(b) and the regulations thereunder to the extent that it is 
not subject to tax under section 367(a)(1). Furthermore, even if DC 
would not otherwise be required to recognize income under this section, 
the Commissioner or the Commissioner's delegate may nevertheless require 
that DC include the $20 section 1248 amount in income as a deemed 
dividend from FC2 under paragraph (b)(2)(i) of this section.
    (3) Certain recapitalizations. An exchange pursuant to a 
recapitalization under section 368(a)(1)(E) shall be deemed to be an 
exchange described in this paragraph (b)(3) if the following conditions 
are satisfied--
    (i) During the 24-month period immediately preceding or following 
the date of the recapitalization, the corporation that undergoes the 
recapitalization (or a predecessor of, or successor to, such 
corporation) also engages in a transaction that would be described in 
paragraph (b)(2)(i) of this section but for paragraph (b)(2)(i)(C) of 
this section, either as the foreign acquired corporation or the foreign 
acquiring corporation; and
    (ii) The exchange in the recapitalization is described in paragraph 
(b)(2)(i)(C) of this section.
    (c) Exclusion of deemed dividend from foreign personal holding 
company income--(1) Rule. In the event the section 1248 amount is 
included in income as a deemed dividend by a foreign corporation under 
paragraph (b) of this section, such deemed dividend shall not be 
included as foreign personal holding company income under section 
954(c).
    (2) Example. The following example illustrates the rule of this 
paragraph (c):

    Example-- (i) Facts. FC1 is a foreign corporation that is owned, 
directly and indirectly (applying the ownership rules of section 958), 
solely by foreign persons. DC is a domestic corporation that is 
unrelated to FC1. DC owns all of the outstanding stock of FC2, a foreign 
corporation. FC2 owns all of the outstanding stock of FC3, a foreign 
corporation. Under Sec. 1.367(b)-2(c)(1), the section 1248 amount 
attributable to the stock of FC3 held by FC2 is $20. In a reorganization 
described in section 368(a)(1)(B), FC1 acquires from FC2 all of the 
stock of FC3 in exchange for FC1 voting stock. The FC1 voting stock 
received by FC2 does not represent more than 50 percent of the voting 
power or value of FC1's stock.
    (ii) Result. FC1 is not a controlled foreign corporation immediately 
after the exchange. Under paragraph (b)(1) of this section, FC2 must 
include in income, as a deemed dividend from FC3, the section 1248 
amount ($20) attributable to the FC3 stock that FC2 exchanged. The 
deemed dividend is treated as a dividend for purposes of the Internal 
Revenue Code as provided in Sec. 1.367(b)-2(e)(2); however, under this 
paragraph (c) the deemed dividend is not foreign personal holding 
company income to FC2.

    (d) Rules for subsequent exchanges--(1) In general. If income is not 
required to be included under paragraph (b) of this section in a section 
367(b) exchange described in paragraph (a) of this section (non-
inclusion exchange) then, for purposes of applying section 367(b) or 
1248 to subsequent exchanges and subject to the limitation of Sec. 
1.367(b)-2(d)(3)(iii) (in the case of a transaction described in Sec. 
1.367(b)-3), the determination of the earnings and profits attributable 
to an exchanging shareholder's stock received in the non-inclusion 
exchange shall include a computation that refers to the exchanging 
shareholder's pro rata interest in the earnings and profits of the 
foreign acquiring corporation (and, in the case of a stock transfer, the 
foreign acquired corporation) that accumulate after the non-inclusion 
exchange, as well as its pro rata interest in the earnings and profits 
of the foreign acquired corporation that accumulated before the non-
inclusion exchange. See also section 1248(c)(2)(D)(ii). The earnings and 
profits attributable to the stock received by an exchanging shareholder 
in the non-inclusion exchange shall not include any earnings and profits 
of the foreign acquiring corporation that accumulated before the non-
inclusion exchange. In the case of a non-inclusion exchange in which the 
exchanging shareholder is a foreign corporation, this paragraph (d)(1) 
shall also apply for purposes of determining the earnings and profits 
attributable to the exchanging foreign corporation's shareholders, as 
well as for purposes of determining the earnings and profits 
attributable to the exchanging foreign corporation when applying section 
964(e) to subsequent sales or exchanges

[[Page 324]]

of the stock of the foreign acquiring corporation.
    (2) Subsequent dispositions by a foreign acquiring corporation. In 
the case of an exchange by a foreign acquiring corporation that is 
subject to section 367(b) or 964(e) and that follows a non-inclusion 
exchange (as defined in paragraph (d)(1) of this section), the rules of 
paragraph (d)(1) of this section shall not apply. However, as a result 
of such a subsequent exchange, proportionate reductions shall be made to 
the earnings and profits that accumulated before the non-inclusion 
exchange and that were attributed under paragraph (d)(1) of this 
section. Such reductions shall be made without regard to whether gain is 
recognized on the subsequent sale or exchange.
    (3) Examples. The following examples illustrate the rules of this 
section:
    Example 1-- (i) Facts. DC1, a domestic corporation, owns all of the 
outstanding stock of FC1, a foreign corporation. DC1 has owned all of 
the stock of FC1 since FC1's formation. FC1 has $20 of earnings and 
profits, all of which is eligible for inclusion in the section 1248 
amount attributable to DC1's stock in FC1. DC2, a domestic corporation, 
owns all of the outstanding stock of FC2, a foreign corporation. DC2 has 
owned all of the stock of FC2 since FC2's formation. FC2 has $40 of 
earnings and profits, all of which is eligible for inclusion in the 
section 1248 amount attributable to DC2's stock in FC2. DC1 and DC2 are 
unrelated. In a reorganization described in section 368(a)(1)(B), DC1 
transfers all of the stock of FC1 to FC2 in exchange for 40 percent of 
FC2 stock. DC1 enters into a five-year gain recognition agreement under 
the provisions of Sec. Sec. 1.367(a)-3(b) and 1.367(a)-8 with respect 
to its transfer of FC1 stock to FC2.
    (ii) Result. (A) DC1's transfer of FC1 to FC2 is not described in 
paragraph (b)(1)(i), (2)(i), or (3) of this section. As a result, DC1 is 
not required to include in income the section 1248 amount attributable 
to its FC1 stock and the rules of paragraph (d)(1) of this section 
apply. Thus, for purposes of applying section 367(b) or 1248 to 
subsequent exchanges of FC2 stock, the determination of the earnings and 
profits attributable to DC1's stock in FC2 will include a computation 
that refers to 40 percent of the post-reorganization earnings and 
profits of FC1 and FC2, and that refers to 100 percent of the $20 of 
pre-reorganization earnings and profits of FC1. The earnings and profits 
attributable to DC1's stock in FC2 will not include any of the $40 of 
earnings and profits accumulated by FC2 prior to the transaction. Those 
earnings and profits are attributable to DC2 under section 1248. 
However, paragraph (d)(1) of this section does not apply for purposes of 
applying section 367(b) or 964(e) to subsequent exchanges of FC1 stock 
by FC2. For these purposes, the determination of the earnings and 
profits attributable to FC2's stock in FC1 is made under the principles 
of section 1248 and, as a result, includes a computation that refers to 
the $20 of earnings and profits attributable to FC2's section 1223(2) 
holding period in the FC1 stock.
    (B) In the event FC2 exchanges FC1 stock in a transaction that is 
subject to section 367(b) or 964(e), a proportionate reduction must be 
made to the $20 of earnings and profits that was previously attributed 
under paragraph (d)(1) of this section to DC1's stock in FC2. Thus, for 
example, if FC2 sells 50 percent of its FC1 stock (at a time when there 
have been no other reductions that affect the $20 of FC1 earnings and 
profits), paragraph (d)(2) of this section requires DC1 to 
proportionately reduce the $20 of earnings and profits that was 
previously attributed to its FC2 stock (to $10). This reduction occurs 
without regard to whether FC2 recognizes gain on its sale of FC1 stock.
    Example 2-- (i) Facts. The facts are the same as in Example 1, 
except that in a reorganization described in section 368(a)(1)(C), FC1 
transfers all of its assets to FC2 in exchange for 40 percent of FC2 
stock. FC1 then distributes the stock of FC2 to DC1, and the FC1 stock 
held by DC1 is canceled. None of FC1's assets include stock.
    (ii) Result. FC2's acquisition of FC1 is not described in paragraph 
(b)(1)(i), (2)(i), or (3) of this section. As a result, DC1 is not 
required to include in income the section 1248 amount attributable to 
its FC1 stock and the rules of paragraph (d)(1) of this section apply. 
Thus, for purposes of applying section 367(b) or 1248 to subsequent 
exchanges, the determination of the earnings and profits attributable to 
DC1's stock in FC2 will include a computation that refers to 40 percent 
of the post-reorganization earnings and profits of FC2, and that refers 
to 100 percent of the pre-reorganization earnings and profits of FC1. 
The earnings and profits attributable to DC1's stock in FC2 will not 
include any of the $40 of earnings and profits accumulated by FC2 prior 
to the transaction. Those earnings and profits are attributable to DC2 
under section 1248.
    Example 3-- (i) Facts. DC1, a domestic corporation, owns all of the 
outstanding stock of FC1, a foreign corporation. FC1 owns all of the 
outstanding stock of FC3, a foreign corporation. DC1 has owned all of 
the stock of FC1 since FC1's formation, and FC1 has owned all of the 
stock of FC3 since FC3's formation. FC3 has $20 of earnings and profits, 
all of which is eligible for inclusion in the section 1248 amount 
attributable to DC1's stock in FC1 and in the section 1248 amount 
attributable to FC1's stock in FC3. Such

[[Page 325]]

earnings and profits are similarly eligible for inclusion as a dividend 
attributable to FC1's stock in FC3 under section 964(e). DC2, a domestic 
corporation, owns all of the outstanding stock of FC2, a foreign 
corporation. DC2 has owned all of the stock of FC2 since FC2's 
formation. FC2 has $40 of earnings and profits, all of which is eligible 
for inclusion in the section 1248 amount attributable to DC2's stock in 
FC2. DC1 and DC2 are unrelated. In a reorganization described in section 
368(a)(1)(B), FC1 transfers all of the stock of FC3 to FC2 in exchange 
for 40 percent of FC2 stock.
    (ii) Result. (A) FC1's transfer of FC3 to FC2 is not described in 
paragraph (b)(1)(i), (2)(i), or (3) of this section. As a result, FC1 is 
not required to include in income the section 1248 amount attributable 
to its FC3 stock and the rules of paragraph (d)(1) of this section 
apply. Thus, for purposes of applying section 367(b) or 1248 to 
subsequent exchanges of FC1 stock, the determination of the earnings and 
profits attributable to DC1's stock in FC1 will include a computation 
that refers to 40 percent of the post-reorganization earnings and 
profits of FC2 and FC3, and that refers to 100 percent of the $20 of 
pre-reorganization earnings and profits of FC3. The earnings and profits 
attributable to FC1's stock in FC2 will not include any of the $40 of 
earnings and profits accumulated by FC2 prior to the transaction. Those 
earnings and profits are attributable to DC2 under section 1248. For 
purposes of applying section 367(b) or 964(e) to subsequent exchanges of 
FC2 stock, the determination of the earnings and profits attributable to 
FC1's stock in FC2 will include a computation that refers to 40 percent 
of the post-reorganization earnings and profits of FC2 and FC3, and that 
refers to 100 percent of the $20 of pre-reorganization earnings and 
profits of FC3. The earnings and profits attributable to FC1's interest 
in FC2 do not include any of the $40 of earnings and profits accumulated 
by FC2 prior to the transaction. However, paragraph (d)(1) of this 
section does not apply for purposes of applying section 367(b) or 964(e) 
to subsequent exchanges of FC3 stock by FC2. For these purposes, the 
determination of the earnings and profits attributable to FC2's stock in 
FC3 is made under the principles of section 1248 and, as a result, 
includes a computation that refers to the $20 of earnings and profits 
attributable to FC2's section 1223(2) holding period in the FC3 stock.
    (B) In the event FC2 exchanges FC3 stock in a transaction that is 
subject to section 367(b) or 964(e), a proportionate reduction must be 
made to the $20 of earnings and profits that was previously attributed 
under paragraph (d)(1) of this section to DC1's stock in FC1 (for 
purposes of subsequent application of section 367(b) or 1248) as well as 
to FC1's stock in FC2 (for purposes of subsequent application of section 
367(b) or 964(e)). Thus, for example, if FC2 sells 50 percent of its FC3 
stock (at a time when there have been no other reductions that affect 
the $20 of FC3 earnings and profits), paragraph (d)(2) of this section 
requires DC1 and FC1 to proportionately reduce the $20 of earnings and 
profits that was previously attributed to their FC1 and FC2 stock, 
respectively (to $10). These reductions occur without regard to whether 
FC2 recognizes gain on its sale of FC3 stock.

[T.D. 8862, 65 FR 3603, Jan. 24, 2000; 65 FR 66501, Nov. 6, 2000, as 
amended by T.D. 9243, 71 FR 4288, Jan. 26, 2006; T.D. 9250, 71 FR 8804, 
Feb. 21, 2006]



Sec. 1.367(b)-5  Distributions of stock described in section 355.

    (a) In general--(1) Scope. This section provides rules relating to a 
distribution described in section 355 (or so much of section 356 as 
relates to section 355) and to which section 367(b) applies. For 
purposes of this section, the terms distributing corporation, controlled 
corporation, and distributee have the same meaning as used in section 
355 and the regulations thereunder.
    (2) Treatment of distributees as exchanging shareholders. For 
purposes of the section 367(b) regulations, all distributees in a 
transaction described in paragraph (b), (c), or (d) of this section 
shall be treated as exchanging shareholders that realize income in a 
section 367(b) exchange.
    (b) Distribution by a domestic corporation--(1) General rule. In a 
distribution described in section 355, if the distributing corporation 
is a domestic corporation and the controlled corporation is a foreign 
corporation, the following general rules shall apply--
    (i) If the distributee is a corporation, then the controlled 
corporation shall be considered to be a corporation; and
    (ii) If the distributee is an individual, then, solely for purposes 
of determining the gain recognized by the distributing corporation, the 
controlled corporation shall not be considered to be a corporation, and 
the distributing corporation shall recognize any gain (but not loss) 
realized on the distribution.
    (2) Section 367(e) transactions. The rules of paragraph (b)(1) of 
this section shall not apply to a foreign distributee to the extent gain 
is recognized under

[[Page 326]]

section 367(e)(1) and the regulations thereunder.
    (3) Determining whether distributees are individuals. All 
distributees in a distribution described in paragraph (b)(1) of this 
section are presumed to be individuals. However, the shareholder 
identification principles of Sec. 1.367(e)-1(d) (including the 
reporting procedures in Sec. 1.367(e)-1(d)(2) and (3)) shall apply for 
purposes of rebutting this presumption.
    (4) Applicable cross-references. For rules with respect to a 
distributee that is a partnership, trust or estate, see Sec. 1.367(b)-
2(k). For additional rules relating to a distribution of stock of a 
foreign corporation by a domestic corporation, see section 1248(f) and 
the regulations thereunder. For additional rules relating to a 
distribution described in section 355 by a domestic corporation to a 
foreign distributee, see section 367(e)(1) and the regulations 
thereunder.
    (c) Pro rata distribution by a controlled foreign corporation--(1) 
Scope. This paragraph (c) applies to a distribution described in section 
355 in which the distributing corporation is a controlled foreign 
corporation and in which the stock of the controlled corporation is 
distributed pro rata to each of the distributing corporation's 
shareholders.
    (2) Adjustment to basis in stock and income inclusion. If the 
distributee's postdistribution amount (as defined in paragraph (e)(2) of 
this section) with respect to the distributing or controlled corporation 
is less than the distributee's predistribution amount (as defined in 
paragraph (e)(1) of this section) with respect to such corporation, then 
the distributee's basis in such stock immediately after the distribution 
(determined under the normal principles of section 358) shall be reduced 
by the amount of the difference. However, the distributee's basis in 
such stock shall not be reduced below zero, and to the extent the 
foregoing reduction would have reduced basis below zero, the distributee 
shall instead include such amount in income as a deemed dividend from 
such corporation.
    (3) Interaction with Sec. 1.367(b)-2(e)(3)(ii). The basis increase 
provided in Sec. 1.367(b)-2(e)(3)(ii) shall not apply to a deemed 
dividend that is included in income pursuant to paragraph (c)(2) of this 
section.
    (4) Basis redistribution. If a distributee reduces the basis in the 
stock of the distributing or controlled corporation (or has an inclusion 
with respect to such stock) under paragraph (c)(2) of this section, the 
distributee shall increase its basis in the stock of the other 
corporation by the amount of the basis decrease (or deemed dividend 
inclusion) required by paragraph (c)(2) of this section. However, the 
distributee's basis in such stock shall not be increased above the fair 
market value of such stock and shall not be increased to the extent the 
increase diminishes the distributee's postdistribution amount with 
respect to such corporation.
    (d) Non-pro rata distribution by a controlled foreign corporation--
(1) Scope. This paragraph (d) applies to a distribution described in 
section 355 in which the distributing corporation is a controlled 
foreign corporation and in which the stock of the controlled corporation 
is not distributed pro rata to each of the distributing corporation's 
shareholders.
    (2) Treatment of certain shareholders as distributees. For purposes 
of the section 367(b) regulations, all persons owning stock of the 
distributing corporation immediately after a transaction described in 
paragraph (d)(1) of this section shall be treated as distributees of 
such stock. For other applicable rules, see paragraph (a)(2) of this 
section.
    (3) Inclusion of excess section 1248 amount by exchanging 
shareholder. If the distributee's postdistribution amount (as defined in 
paragraph (e)(2) of this section) with respect to the distributing or 
controlled corporation is less than the distributee's predistribution 
amount (as defined in paragraph (e)(1) of this section) with respect to 
such corporation, then the distributee shall include in income as a 
deemed dividend the amount of the difference. For purposes of this 
paragraph (d)(3), if a distributee owns no stock in the distributing or 
controlled corporation immediately after the distribution, the 
distributee's postdistribution amount with respect to such corporation 
shall be zero.

[[Page 327]]

    (4) Interaction with Sec. 1.367(b)--2(e)(3)(ii)--(i) Limited 
application. The basis increase provided in Sec. 1.367(b)--2(e)(3)(ii) 
shall apply to a deemed dividend that is included in income pursuant to 
paragraph (d)(3) of this section only to the extent that such basis 
increase does not increase the distributee's basis above the fair market 
value of such stock and does not diminish the distributee's 
postdistribution amount with respect to such corporation.
    (ii) Interaction with predistribution amount. For purposes of this 
paragraph (d), the distributee's predistribution amount (as defined in 
paragraph (e)(1) of this section) shall be determined without regard to 
any basis increase permitted under paragraph (d)(4)(i) of this section.
    (e) Definitions--(1) Predistribution amount. For purposes of this 
section, the predistribution amount with respect to a distributing or 
controlled corporation is the distributee's section 1248 amount (as 
defined in Sec. 1.367(b)--2(c)(1)) computed immediately before the 
distribution (and after any section 368(a)(1)(D) transfer connected with 
the section 355 distribution), but only to the extent that such amount 
is attributable to the distributing corporation and any corporations 
controlled by it immediately before the distribution (the distributing 
group) or the controlled corporation and any corporations controlled by 
it immediately before the distribution (the controlled group), as the 
case may be, under the principles of Sec. Sec. 1.1248-1(d)(3), 1.1248-2 
and 1.1248-3. However, the predistribution amount with regard to the 
distributing group shall be computed without taking into account the 
distributee's predistribution amount with respect to the controlled 
group.
    (2) Postdistribution amount. For purposes of this section, the 
postdistribution amount with respect to a distributing or controlled 
corporation is the distributee's section 1248 amount (as defined in 
Sec. 1.367(b)-2(c)(1)) with respect to such stock, computed immediately 
after the distribution (but without regard to paragraph (c) or (d) of 
this section (whichever is applicable)). The postdistribution amount 
under this paragraph (e)(2) shall be computed before taking into account 
the effect (if any) of any inclusion under section 356(a) or (b).
    (f) Exclusion of deemed dividend from foreign personal holding 
company income. In the event an amount is included in income as a deemed 
dividend by a foreign corporation under paragraph (c) or (d) of this 
section (including amounts received as an intermediate owner under the 
rule of Sec. 1.367(b)-2(e)(2)), such deemed dividend shall not be 
included as foreign personal holding company income under section 
954(c).
    (g) Examples. The following examples illustrate the rules of this 
section:
    Example 1-- (i) Facts. USS, a domestic corporation, owns 40 percent 
of the outstanding stock of FD, a controlled foreign corporation (CFC). 
USS has owned the stock since FD was incorporated, and FD has always 
been a CFC. USS has a basis of $80 in its FD stock, which has a fair 
market value of $200. FD owns 100 percent of the outstanding stock of 
FC, a foreign corporation. FD has owned the stock since FC was 
incorporated. Neither FD nor FC own stock in any other corporation. FD 
has earnings and profits of $0 and a fair market value of $250 (not 
considering its ownership of FC). FC has earnings and profits of $300, 
none of which is described in section 1248(d), and a fair market value 
of $250. In a pro rata distribution described in section 355, FD 
distributes to USS stock in FC worth $100; thereafter, USS's FD stock is 
worth $100 as well.
    (ii) Result--(A) FD's distribution is a transaction described in 
paragraph (c)(1) of this section. Under paragraph (c)(2) of this 
section, USS must compare its predistribution amounts with respect to FD 
and FC to its respective postdistribution amounts. Under paragraph 
(e)(1) of this section, USS's predistribution amount with respect to FD 
or FC is its section 1248 amount computed immediately before the 
distribution, but only to the extent such amount is attributable to FD 
or FC. Under Sec. 1.367(b)-2(c)(1), USS's section 1248 amount computed 
immediately before the distribution is $120, all of which is 
attributable to FC. Thus, USS's predistribution amount with respect to 
FD is $0, and its predistribution amount with respect to FC is $120. 
These amounts are computed as follows: If USS had sold its FD stock 
immediately before the transaction, it would have recognized $120 of 
gain ($200 fair market value $80 basis). All of the gain would have been 
treated as a dividend under section 1248, and all of the section 1248 
amount would have been attributable to FC (based on USS's pro rata share 
of FC's earnings and profits (40 percent x $300)).
    (B) Under paragraph (e)(2) of this section, USS's postdistribution 
amount with respect

[[Page 328]]

to FD or FC is its section 1248 amount with respect to such corporation, 
computed immediately after the distribution (but without regard to 
paragraph (c) of this section). Under Sec. 1.367(b)-2(c)(1), USS's 
section 1248 amounts computed immediately after the distribution with 
respect to FD and FC are $0 and $60, respectively. These amounts, which 
are USS's postdistribution amounts, are computed as follows: Under the 
normal principles of section 358, USS allocates its $80 predistribution 
basis in FD between FD and FC according to the stock blocks' relative 
values, yielding a $40 basis in each block. If USS sold its FD stock 
immediately after the distribution, none of the resulting gain would be 
treated as a dividend under section 1248. If USS sold its FC stock 
immediately after the distribution, it would have a $60 gain ($100 fair 
market value--$40 basis), all of which would be treated as a dividend 
under section 1248.
    (C) The basis adjustment and income inclusion rules of paragraph 
(c)(2) of this section apply to the extent of any difference between 
USS's postdistribution and predistribution amounts. In the case of FD, 
there is no difference between the two amounts and, as a result, no 
adjustment or income inclusion is required. In the case of FC, USS's 
postdistribution amount is $60 less than its predistribution amount. 
Accordingly, under paragraph (c)(2) of this section, USS is required to 
reduce its basis in its FC stock from $40 to $0 and include $20 in 
income as a deemed dividend. Under Sec. 1.367(b)-2(e)(2), the $20 
deemed dividend is considered as having been paid by FC to FD, and by FD 
to USS, immediately prior to the distribution. Under paragraph (f) of 
this section, the deemed dividend is not included by FD as foreign 
personal holding company income under section 954(c). Under paragraph 
(c)(3) of this section, the basis increase provided in Sec. 1.367(b)-
2(e)(3)(ii) does not apply with regard to the $20 deemed dividend. Under 
the rules of paragraph (c)(4) of this section, USS increases its basis 
in FD by the amount by which it decreased its basis in FC, as well as by 
the amount of its deemed dividend inclusion ($40 + $40 + $20 = $100).
    Example 2-- (i) Facts. USS1 and USS2, domestic corporations, each 
own 50 percent of the outstanding stock of FD, a controlled foreign 
corporation (CFC). USS1 and USS2 have owned their FD stock since it was 
incorporated, and FD has always been a CFC. USS1 and USS2 each have a 
basis of $500 in their FD stock, and the fair market value of each block 
of FD stock is $750. FD owns 100 percent of the outstanding stock of FC, 
a foreign corporation. FD owned the stock since FC was incorporated. 
Neither FD nor FC own stock in any other corporation. FD has earnings 
and profits of $0 and a fair market value of $750 (not considering its 
ownership of FC). FC has earnings and profits of $500, none of which is 
described in section 1248(d), and a fair market value of $750. In a non-
pro rata distribution described in section 355, FD distributes all of 
the stock of FC to USS2 in exchange for USS2's FD stock.
    (ii) Result--(A) FD's distribution is a transaction described in 
paragraph (d)(1) of this section. Under paragraph (d)(2) of this 
section, USS1 is considered a distributee of FD stock. Under paragraph 
(d)(3) of this section, USS1 and USS2 must compare their predistribution 
amounts with respect to FD and FC stock to their respective 
postdistribution amounts. Under paragraph (e)(1) of this section, USS1's 
predistribution amount with respect to FD or FC is USS1's section 1248 
amount computed immediately before the distribution, but only to the 
extent such amount is attributable to FD or FC. USS2's predistribution 
amount is determined in the same manner. Under Sec. 1.367(b)-2(c)(1), 
USS1 and USS2 each have a section 1248 amount computed immediately 
before the distribution of $250, all of which is attributable to FC. 
Thus, USS1 and USS2 each have a predistribution amount with respect to 
FD of $0, and each have a predistribution amount with respect to FC of 
$250. These amounts are computed as follows: If either USS1 or USS2 had 
sold its FD stock immediately before the transaction, it would have 
recognized $250 of gain ($750 fair market value--$500 basis). All of the 
gain would have been treated as a dividend under section 1248, and all 
of the section 1248 amount would have been attributable to FC (based on 
USS1's and USS2's pro rata shares of FC's earnings and profits (50 
percent x $500)).
    (B) Under paragraph (d)(3) of this section, a distributee that owns 
no stock in the distributing or controlled corporation immediately after 
the distribution has a postdistribution amount with regard to that stock 
of zero. Accordingly, USS2 has a postdistribution amount of $0 with 
respect to FD and USS1 has a postdistribution amount of $0 with respect 
to FC. Under paragraph (e)(2) of this section, USS1's postdistribution 
amount with respect to FD is its section 1248 amount with respect to 
such corporation, computed immediately after the distribution (but 
without regard to paragraph (d) of this section). USS2's 
postdistribution amount with respect to FC is determined in the same 
manner. Under Sec. 1.367(b)-2(c)(1), USS1's section 1248 amount 
computed immediately after the distribution with respect to FD is $0 and 
USS2's section 1248 amount computed immediately after the distribution 
with respect to FC is $250. These amounts, which are USS1's and USS2's 
postdistribution amounts, are computed as follows: After the non-pro 
rata distribution, USS1 owns all the stock of FD and USS2 owns all the 
stock of FC. If USS1 sold its FD stock immediately after the 
distribution, none of the resulting $250 gain ($750 fair market value 
$500 basis) would

[[Page 329]]

be treated as a dividend under section 1248. If USS2 sold its FC stock 
immediately after the distribution, it would have a $250 gain ($750 fair 
market value--$500 basis), all of which would be treated as a dividend 
under section 1248.
    (C) The income inclusion rule of paragraph (d)(3) of this section 
applies to the extent of any difference between USS1's and USS2's 
postdistribution and predistribution amounts. In the case of USS2, there 
is no difference between the two amounts with respect to either FD or FC 
and, as a result, no income inclusion is required. In the case of USS1, 
there is no difference between the two amounts with respect to its FD 
stock. However, USS1's postdistribution amount with respect to FC is 
$250 less than its predistribution amount. Accordingly, under paragraph 
(d)(3) of this section, USS1 is required to include $250 in income as a 
deemed dividend. Under Sec. 1.367(b)-2(e)(2), the $250 deemed dividend 
is considered as having been paid by FC to FD, and by FD to USS1, 
immediately prior to the distribution. This deemed dividend increases 
USS1's basis in FD ($500 + $250 = $750). Under paragraph (f) of this 
section, the deemed dividend is not included by FD as foreign personal 
holding company income under section 954(c).

[T.D. 8862, 65 FR 3606, Jan. 24, 2000; 65 FR 66502, Nov. 6, 2000]



Sec. 1.367(b)-6  Effective dates and coordination rules.

    (a) Effective date--(1) In general. Sections 1.367(b)-1 through 
1.367(b)-5, and this section, apply to section 367(b) exchanges that 
occur on or after February 23, 2000. The rules of Sec. Sec. 1.367(b)-3 
and 1.367(b)-4, as they apply to reorganizations described in section 
368(a)(1)(A) (including reorganizations described in section 
368(a)(2)(D) or (E)) involving a foreign acquiring or foreign acquired 
corporation, apply only to transfers occurring on or after January 23, 
2006. Section 1.367(b)-4(b)(1)(ii) applies to triangular B 
reorganizations occurring on or after February 23, 2000 and to all other 
triangular reorganizations and reorganizations described in section 
368(a)(1)(G) and (a)(2)(D) occurring on or after January 23, 2006. The 
second sentence of paragraph (a) in Sec. 1.367(b)-4 shall apply to 
section 304(a)(1) transactions occurring on or after February 21, 2006; 
however, taxpayers may rely on this sentence for all section 304(a)(1) 
transactions occurring in open tax years.
    (2) Exception. A taxpayer may, however, elect to have Sec. Sec. 
1.367(b)-1 through 1.367(b)-5, and this section, apply to section 367(b) 
exchanges that occur (or occurred) before February 23, 2000, if the due 
date for the taxpayer's timely filed Federal tax return (including 
extensions) for the taxable year in which the section 367(b) exchange 
occurs (or occurred) is after February 23, 2000. The election under this 
paragraph (a)(2) will be valid only if--
    (i) The electing taxpayer makes the election on a timely filed 
section 367(b) notice;
    (ii) In the case of an exchanging shareholder that is a foreign 
corporation, the election is made on the section 367(b) notice that is 
filed by each of its shareholders listed in Sec. 1.367(b)-1(c)(3)(ii); 
and
    (iii) The electing taxpayer provides notice of the election to all 
corporations (or their successors in interest) whose earnings and 
profits are affected by the election on or before the date the section 
367(b) notice is filed.
    (b) Certain recapitalizations described in Sec. 1.367(b)-4(b)(3). 
In the case of a recapitalization described in Sec. 1.367(b)-4(b)(3) 
that occurred prior to July 20, 1998, the exchanging shareholder shall 
include the section 1248 amount on its tax return for the taxable year 
that includes the exchange described in Sec. 1.367(b)-4(b)(3)(i) (and 
not in the taxable year of the recapitalization), except that no 
inclusion is required if both the recapitalization and the exchange 
described in Sec. 1.367(b)-4(b)(3)(i) occurred prior to July 20, 1998.
    (c) Use of reasonable method to comply with prior published 
guidance--(1) Prior exchanges. The taxpayer may use a reasonable method 
to comply with the following prior published guidance to the extent such 
guidance relates to section 367(b): Notice 88-71 (1988-2 C.B. 374); 
Notice 89-30 (1989-1 C.B. 670); and Notice 89-79 (1989-2 C.B. 392) (see 
Sec. 601.601(d)(2) of this chapter). This rule applies to section 
367(b) exchanges that occur (or occurred) before February 23, 2000, or, 
if a taxpayer makes the election described in paragraph (a)(2) of this 
section, for section 367(b) exchanges that occur (or occurred) before 
the date described in paragraph (a)(2) of this section. This rule also 
applies to section

[[Page 330]]

367(b) exchanges and distributions described in paragraph (d) of this 
section.
    (2) Future exchanges. Section 367(b) exchanges that occur on or 
after February 23, 2000, (or, if a taxpayer makes the election described 
in paragraph (a)(2) of this section, for section 367(b) exchanges that 
occur on or after the date described in paragraph (a)(2) of this 
section) are governed by the section 367(b) regulations and, as a 
result, paragraph (c)(1) of this section shall not apply.
    (d) Effect of removal of attribution rules. To the extent that the 
rules under Sec. Sec. 7.367(b)-9 and 7.367(b)-10(h) of this chapter, as 
in effect prior to February 23, 2000 (see 26 CFR part 1, revised as of 
April 1, 1999), attributed earnings and profits to the stock of a 
foreign corporation in connection with an exchange described in section 
351, 354, 355, or 356 before February 23, 2000, the foreign corporation 
shall continue to be subject to the rules of Sec. 7.367(b)-12 of this 
chapter in the event of any subsequent exchanges and distributions with 
respect to such stock, notwithstanding the fact that such subsequent 
exchange or distribution occurs on or after the effective date described 
in paragraph (a) of this section.

[T.D. 8862, 65 FR 3608, Jan. 24, 2000, as amended by T.D. 9243, 71 FR 
4289, Jan. 26, 2006; T.D. 9250, 71 FR 8805, Feb. 21, 2006]



Sec. 1.367(b)-12  Subsequent treatment of amounts attributed or included 
in income.

    (a) In general. This section applies to distributions with respect 
to, or a disposition of, stock--
    (1) To which, in connection with an exchange occurring before 
February 23, 2000, an amount has been attributed pursuant to Sec. 
7.367(b)-9 or 7.367(b)-10 of this chapter (as in effect prior to 
February 23, 2000, see 26 CFR part 1 revised as of April 1, 1999); or
    (2) In respect of which, before February 23, 2000, an amount has 
been included in income or added to earnings and profits pursuant to 
Sec. 7.367(b)-7 or Sec. 7.367(b)-10 of this chapter (as in effect 
prior to February 23, 2000, see 26 CFR part 1 revised as of April 1, 
1999).
    (b) Applicable rules. See Sec. 7.367(b)-12(b) through (e) of this 
chapter (as in effect prior to January 11, 2001, see 26 CFR part 1 
revised as of April 1, 2000) for purposes of applying paragraph (a) of 
this section.
    (c) Effective date. This section applies to distributions or 
dispositions that occur on or after January 11, 2001.

[T.D. 8937, 66 FR 2257, Jan. 11, 2001]



Sec. 1.367(b)-13  Special rules for determining basis and holding period.

    (a) Scope and definitions--(1) Scope. This section provides special 
basis and holding period rules to determine the basis and holding period 
of stock of certain foreign surviving corporations held by a controlling 
corporation whose stock is issued in an exchange under section 354 or 
356 in a triangular reorganization. This section applies to transactions 
that are subject to section 367(b) as well as section 367(a), including 
transactions concurrently subject to sections 367(a) and (b).
    (2) Definitions. For purposes of this section, the following 
definitions apply:
    (i) A block of stock has the meaning provided in Sec. 1.1248-2(b).
    (ii) A triangular reorganization is a reorganization described in 
Sec. 1.358-6(b)(2)(i), (ii), or (iii) or in sections 368(a)(1)(G) and 
(a)(2)(D) (a forward triangular merger, triangular C reorganization, 
reverse triangular merger, or triangular G reorganization, 
respectively). For purposes of triangular reorganizations--
    (A) P is a corporation that is a party to a reorganization that is 
in control (within the meaning of section 368(c)) of another party to 
the reorganization and whose stock is transferred pursuant to the 
reorganization;
    (B) S is a corporation that is a party to the reorganization and 
that is controlled by P; and
    (C) T is a corporation that is another party to the reorganization.
    (b) Determination of basis for exchanges of foreign stock or 
securities under section 354 or 356. For rules determining the basis of 
stock or securities in a foreign corporation received in a section 354 
or 356 exchange, see Sec. 1.358-2.
    (c) Determination of basis and holding period for triangular 
reorganizations--(1) Application. In the case of a triangular 
reorganization described in paragraph

[[Page 331]]

(a)(2)(ii) of this section, this paragraph (c) applies, if--
    (i)(A) Immediately before the transaction, either P is a section 
1248 shareholder with respect to S, or P is a foreign corporation and a 
United States person is a section 1248 shareholder with respect to both 
P and S; and
    (B) In the case of a reverse triangular merger, P's exchange of S 
stock is not described in Sec. 1.367(b)-3(a) and (b) or in Sec. 
1.367(b)-4(b)(1)(i), (2)(i), or (3); or
    (ii)(A) Immediately before the transaction, a shareholder of T is a 
section 1248 shareholder with respect to T, or a shareholder of T is a 
foreign corporation and a United States person is a section 1248 
shareholder with respect to both such foreign corporation and T; and
    (B) With respect to at least one of the exchanging shareholders 
described in paragraph (c)(1)(ii)(A) of this section, the exchange of T 
stock is not described in Sec. 1.367(b)-3(a) and (b) or in Sec. 
1.367(b)-4(b)(1)(i), (2)(i), or (3).
    (2) Basis and holding period rules. In the case of a triangular 
reorganization described in paragraph (c)(1) of this section, each share 
of stock of the surviving corporation (S or T) held by P must be divided 
into portions attributable to the S stock and the T stock immediately 
before the exchange. See paragraph (e) of this section Examples 1 
through 4 for illustrations of this rule.
    (i) Portions attributable to S stock--(A) In the case of a forward 
triangular merger, a triangular C reorganization, or a triangular G 
reorganization, the basis and holding period of the portion of each 
share of surviving corporation stock attributable to the S stock is the 
basis and holding period of such share of stock immediately before the 
exchange.
    (B) In the case of a reverse triangular merger, the basis and 
holding period of the portion of each share of surviving corporation 
stock attributable to the S stock is the basis and the holding period 
immediately before the exchange of a proportionate amount of the S stock 
to which the portion relates. If P is a shareholder described in 
paragraph (c)(1)(i)(A) of this section with respect to S, and P 
exchanges two or more blocks of S stock pursuant to the transaction, 
then each share of the surviving corporation (T) attributable to the S 
stock must be further divided into separate portions to account for the 
separate blocks of stock in S.
    (C) If the value of S stock immediately before the triangular 
reorganization is less than one percent of the value of the surviving 
corporation stock immediately after the triangular reorganization, then 
P may determine its basis in the surviving corporation stock by applying 
the rules of paragraph (c)(2)(ii) of this section to determine the basis 
and holding period of the surviving corporation stock attributable to 
the T stock, and then increasing the basis of each share of surviving 
corporation stock by the proportionate amount of P's aggregate basis in 
the S stock immediately before the exchange (without dividing the stock 
of the surviving corporation into separate portions attributable to the 
S stock).
    (ii) Portions attributable to T stock--(A) If any exchanging 
shareholder of T stock is described in paragraph (c)(1)(ii) of this 
section, the basis and holding period of the portion of each share of 
stock in the surviving corporation attributable to the T stock is the 
basis and holding period immediately before the exchange of a 
proportionate amount of the T stock to which such portion relates. If 
any exchanging shareholder of T stock is described in paragraph 
(c)(1)(ii) of this section, and such shareholder exchanges two or more 
blocks of T stock pursuant to the transaction, then each share of 
surviving corporation stock attributable to the T stock must be further 
divided into separate portions to account for the separate blocks of T 
stock.
    (B) If no exchanging shareholder of T stock is described in 
paragraph (c)(1)(ii) of this section, the rules of Sec. 1.358-6 apply 
to determine the basis of the portion of each share of the surviving 
corporation attributable to T immediately before the exchange.
    (d) Special rules applicable to divided shares of stock--(1) In 
general--(i) Shares of stock in different blocks are aggregated into one 
divided portion for basis purposes, if such shares immediately before 
the exchange are owned by one or more shareholders that are--

[[Page 332]]

    (A) Not section 1248 shareholders with respect to the corporation; 
or
    (B) Foreign corporate shareholders, provided that no United States 
persons are section 1248 shareholders with respect to both such foreign 
corporate shareholders and the corporation.
    (ii) For purposes of determining the amount of gain realized on the 
sale or exchange of stock that has a divided portion pursuant to 
paragraph (c) of this section, any amount realized on such sale or 
exchange will be allocated to each divided portion of the stock based on 
the relative fair market value of the stock to which the portion is 
attributable at the time the portions were created. See paragraph (e) 
Example 5 of this section.
    (iii) Shares of stock will no longer be required to be divided if 
section 1248 or section 964(e) would not apply to a disposition or 
exchange of such stock.
    (2) Pre-exchange earnings and profits. All earnings and profits (or 
deficits) accumulated by a foreign corporation before the reorganization 
and attributable to a share (or block) of stock for purposes of section 
1248 are attributable to the divided portion of stock with the basis and 
holding period of that share (or block). See Sec. 1.367(b)-4(d).
    (3) Post-exchange earnings and profits. Any earnings and profits (or 
deficits) accumulated by the surviving corporation subsequent to the 
reorganization are attributed to each divided share of stock pursuant to 
section 1248 and the regulations thereunder. The amount of earnings and 
profits (or deficits) attributable to a divided share of stock is 
further attributed to the divided portions of such share of stock based 
on the relative fair market value of each divided portion of stock. See 
paragraph (e) Example 5 of this section.
    (e) Examples. The rules of this section are illustrated by the 
following examples:

    Example 1. Blocks of stock exchanged in a triangular 
reorganization--(i) Facts. (A) US1, a domestic corporation, owns all the 
stock of F1, a foreign corporation. F1 owns all the stock of FT, a 
foreign corporation, with 100 shares of stock outstanding. Each share of 
FT stock is valued at $10x. Because F1 acquired the stock of FT at two 
different dates, F1 owns two blocks of FT stock for purposes of section 
1248. The first block consists of 60 shares. The shares in the first 
block have a basis of $300x ($5x per share), a holding period of 10 
years, and $240x ($4x per share) of earnings and profits attributable to 
the shares for purposes of section 1248. The second block consists of 40 
shares. The shares in the second block have a basis of $600x ($15x per 
share), a holding period of 2 years, and $80x ($2x per share) of 
earnings and profits attributable to the shares for purposes of section 
1248.
    (B) US2, a domestic corporation, owns all of the stock of FP, a 
foreign corporation, which owns all of the stock of FS, a foreign 
corporation. FP owns two blocks of FS stock. Each block consists of 10 
shares with a value of $200x ($20x per share). The shares in the first 
block have a basis of $50x ($5x per share), a holding period of 10 
years, and $50x ($5x per share) of earnings and profits attributable to 
such shares for purposes of section 1248. The shares in the second block 
had a basis of $100x ($10x per share), a holding period of 5 years, and 
$20x ($2x per share) of earnings and profits attributable to such shares 
for purposes of section 1248.
    (C) FT merges into FS, with FS surviving, and F1 receives 50 shares 
of FP stock with a value of $1,000x in exchange for its FT stock. The 
merger of FT into FS qualifies as forward triangular merger, and 
immediately after the exchange US1 is a section 1248 shareholder with 
respect to F1, the exchanging shareholder, FP and FS, all of which are 
controlled foreign corporations.
    (ii) Basis and holding period determination. (1) US1 is a section 
1248 shareholder of F1, the exchanging shareholder, and FT (both of 
which are controlled foreign corporations) immediately before the 
transaction. Moreover, F1 is not required to include amounts in income 
under Sec. 1.367(b)-3(b) or 1.367(b)-4(b) as described in paragraph 
(c)(1)(ii)(B) of this section. Accordingly, the basis and holding period 
of the FS stock held by FP immediately after the triangular 
reorganization is determined pursuant to paragraph (c) of this section.
    (2) Pursuant to paragraph (c) of this section, each share of FS 
stock is divided into portions attributable to the basis and holding 
period of the FS stock held by FP immediately before the exchange (the 
FS portion) and the FT stock held by F1 immediately before the exchange 
(the FT portion). The basis and holding period of the FS portion is the 
basis and holding period of the FS stock held by FP immediately before 
the exchange. Thus, each share of FS stock in the first block has a 
portion with a basis of $5x, a value of $20x, a holding period of 10 
years, and $5x of earnings and profits attributable to such portion for 
purposes of section 1248. Each share of FS stock in the second block has 
a portion with a basis of $10x, a value of $20x, a holding period of 5 
years, and $2x of earnings and profits attributable to such portion for 
purposes of section 1248.

[[Page 333]]

    (3) Because the exchanging shareholder of FT stock (F1) has a 
section 1248 shareholder (US1), the holding period and basis of the FT 
portion is the holding period and the proportionate amount of the basis 
of the FT stock immediately before the exchange to which such portion 
relates. Further, because F1 exchanged two blocks of FT stock, the FT 
portion must be divided into two separate portions attributable to the 
two blocks of FT stock. Thus, each share of FS stock will have a second 
portion with a basis of $15x ($300x basis / 20 shares), a value of $30x 
($600x value / 20 shares), a holding period of 10 years, and $12x of 
earnings and profits ($240x / 20 shares) attributable to such portion 
for purposes of section 1248. Each share of FS stock will have a third 
portion with a basis of $30x ($600x basis / 20 shares), a value of $20x 
($400x value / 20 shares), a holding period of 2 years, and $4x of 
earnings and profits ($80x / 20 shares) attributable to such portion for 
purposes of section 1248.
    (iii) Subsequent disposition--first block. Assume, immediately after 
the transaction, FP disposes of a share of FS stock from the first 
block. When FP disposes of any share of its FS stock, it is treated as 
disposing of each divided portion of such share. With respect to the 
first portion (attributable to the FS stock), FP recognizes a gain of 
$15x ($20x value-$5x basis), $5x of which is treated as a dividend under 
section 1248. With respect to the second portion (attributable to the 
first block of FT stock), FP recognizes a gain of $15x ($30x value-$15x 
basis), $12x of which is treated as a dividend under section 1248. With 
respect to the third portion (attributable to the second block of FT 
stock), FP recognizes a capital loss of $10x ($20x value-$30x basis).
    (iv) Subsequent disposition--second block. Assume further, 
immediately after the transaction, FP also disposes of a share of stock 
from the second block of FS stock. With respect to the first portion 
(attributable to the FS stock), FP recognizes a gain of $10x ($20x 
value-$10x basis), $2x of which is treated as a dividend under section 
1248. With respect to the second portion (attributable to the first 
block of FT stock), FP recognizes a gain of $15x ($30x value-$15x 
basis), $12x of which is treated as a dividend under section 1248. With 
respect to the third portion (attributable to the second block of FT 
stock), FP recognizes a capital loss of $10x ($20x value-$30x basis).
    Example 2. (i) Facts. The facts are the same as in Example 1, except 
that FS merges into FT with FT surviving in a reverse triangular merger. 
Pursuant to the merger, F1 receives FP stock with a value of $1,000x in 
exchange for its FT stock, and FP receives 10 shares of FT stock with a 
value of $1,000x in exchange for its FS stock. Immediately after the 
exchange, US1 is a section 1248 shareholder with respect to F1, the 
exchanging shareholder, FP, and FT, all of which are controlled foreign 
corporations.
    (ii) Basis and holding period determination--(A) The basis and 
holding period of the stock of the surviving corporation held by FP are 
the same as in Example 1, except that each share of the surviving 
corporation (FT, instead of FS) will be divided into four portions 
instead of three portions. Because FP exchanges two blocks of FS stock, 
the FS portion must be divided into two separate portions attributable 
to the two blocks of FS stock. Because F1 exchanges two blocks of FT 
stock, the FT portion must be divided into two separate portions 
attributable to the two blocks of FT stock.
    (B) Thus, each share of the surviving corporation (FT) will have a 
first portion (attributable to the first block of FS stock) with a basis 
of $5x ($50x / 10 shares), a value of $20x ($200x / 10 shares), a 
holding period of 10 years, and $5x of earnings and profits ($50x / 10 
shares) attributable to such portion for purposes of section 1248. Each 
share of FT stock will have a second portion (attributable to the second 
block of FS stock) with a basis of $10x ($100x / 10 shares), a value of 
$20x ($200x / 10 shares), a holding period of 5 years, and $2x of 
earnings and profits ($20x / 10 shares) attributable to such portion for 
purposes of section 1248. Moreover, each share of FT stock will have a 
third portion (attributable to the first block of FT stock) with a basis 
of $30x ($300x basis / 10 shares), a value of $60x ($600x value / 10 
shares), a holding period of 10 years, and $24x of earnings and profits 
($240x / 10 shares) attributable to such portion for purposes of section 
1248. Lastly, each share of FT stock will have a fourth portion 
(attributable to the second block of FT stock) with a basis of $60x 
($600x basis / 10 shares), a value of $40x ($400x value / 10 shares), a 
holding period of 2 years, and $8x of earnings and profits ($80x / 10 
shares) attributable to such portion for purposes of section 1248.
    Example 3. (i) Facts. USP, a domestic corporation, owns all the 
stock of FS, a foreign corporation with 10 shares of stock outstanding. 
Each share of FS stock has a value of $10x, a basis of $5x, a holding 
period of 10 years, and $7x of earnings and profits attributable to such 
share for purposes of section 1248. FP, a foreign corporation, owns the 
stock of FT, another foreign corporation. FP and FT do not have any 
section 1248 shareholders. FT has assets with a value of $100x, a basis 
of $50x, and no liabilities. The FT stock held by FP has a value of 
$100x and a basis of $75x. FT merges into FS with FS surviving in a 
forward triangular merger. Pursuant to the reorganization, FP receives 
USP stock with a value of $100x in exchange for its FT stock.

[[Page 334]]

    (ii) Basis and holding period determination--(A) Because USP is a 
section 1248 shareholder of FS immediately before the transaction, the 
basis and holding period of the FS stock held by USP immediately after 
the triangular reorganization is determined pursuant to paragraph (c) of 
this section.
    (B) Pursuant to paragraph (c) of this section, each share of FS 
stock is divided into portions attributable to the basis and holding 
period of the FS stock held by USP immediately before the exchange (the 
FS portion) and the FT portion immediately before the exchange. Because 
FT does not have a section 1248 shareholder immediately before the 
transaction, the rules of Sec. 1.358-6 apply to determine the basis of 
the FT portion of each share of FS stock. Those rules determine the 
basis of FS stock held by USP by reference to the basis of FT's net 
assets. The basis and holding period of the FS portion is the basis and 
holding period of the FS stock held by USP immediately before the 
exchange. Thus, each share of FS stock has a portion with a basis of 
$5x, a value of $10x, a holding period of 10 years, and $7x of earnings 
and profits attributable to such portion for section 1248 purposes. The 
basis of the FT portion is the basis of the FT assets to which such 
portion relates. Thus, each share of FS stock has a second portion with 
a basis of $5x ($50x basis in FT's assets / 10 shares) and a value of 
$10x ($100x value of FT's assets / 10 shares). All of FS's earnings and 
profits prior to the transaction ($70x) is attributed solely to the FS 
portion in each share of FS stock. As a result of each share of stock 
being divided into portions, the basis of the FS stock is not averaged 
with the basis of the FT assets to increase the section 1248 amount with 
respect to the stock of the surviving corporation (FS).
    Example 4. (i) Facts. US, a domestic corporation, owns all of the 
stock of FT, a foreign corporation. The FT stock held by US constitutes 
a single block of stock with a value of $1,000x, a basis of $600x, and 
holding period of 5 years. USP, a domestic corporation, forms FS, a 
foreign corporation, pursuant to the plan of reorganization and 
capitalizes it with $10x of cash. FS merges into FT with FT surviving in 
a reverse triangular merger and a reorganization described in section 
368(a)(1)(B). Pursuant to the reorganization, US receives USP stock with 
a value of $1,000x in exchange for its FT stock, and USP receives 10 
shares of FT stock with a value of $1,010x in exchange for its FS stock.
    (ii) Basis and holding period determination. (A) US and USP are 
section 1248 shareholders of FT and FS, respectively, immediately before 
the transaction. Neither US nor USP is required to include amounts in 
income under Sec. 1.367(b)-3(b) or 1.367(b)-4(b) as described in 
paragraph (c)(1)(i)(B) or (c)(1)(ii)(B) of this section. The basis and 
holding period of the FT stock held by USP is determined pursuant to 
paragraph (c) of this section.
    (B) Pursuant to paragraph (c) of this section, because the 
exchanging shareholder of FT stock (US) is a section 1248 shareholder of 
FT, each share of the surviving corporation (FT) has a proportionate 
amount of the basis and holding period of the FT stock immediately 
before the exchange to which such share relates. Thus, the portion of 
each share of FT stock attributable to the FT stock has a basis of $60x 
($600x basis / 10 shares), a value of $100x ($1,000x value / 10 shares), 
and a holding period of 5 years. Because the value of FS stock 
immediately before the triangular reorganization ($10x) is less than one 
percent of the value of the surviving corporation (FT) immediately after 
the triangular reorganization ($1,010x), USP may determine its basis in 
the stock of the surviving corporation (FT) attributable to its FS stock 
basis held prior to the reorganization by increasing the basis of each 
share of FT stock by the proportionate amount of USP's aggregate basis 
in the FS stock immediately before the exchange (without dividing each 
share of FT stock into separate portions to account for FS and FT). If 
USP so elects, USP's basis in each share of FT stock is increased by $1x 
($10x basis in FS stock / 10 shares). As a result, each share of FT 
stock has a basis of $61x, a value of $101x, and a holding period of 5 
years.
    Example 5. (i) Facts. US, a domestic corporation, owns all of the 
stock of F1, a foreign corporation, which owns all the stock of FT, a 
foreign corporation. The FT stock held by F1 constitutes one block of 
stock with a basis of $170x, a value of $200x, a holding period of 5 
years, and $10x of earnings and profits attributable to such stock for 
purposes of section 1248. FP, a foreign corporation, owns all the stock 
of FS, a foreign corporation. FS has 10 shares of stock outstanding. No 
United States person is a section 1248 shareholder with respect to FP or 
FS. The FS stock held by FP has a value of $100x and a basis of $50x 
($5x per share). FT merges into FS with FS surviving in a forward 
triangular merger. Pursuant to the merger, F1 receives FP stock with a 
value of $200x for its FT stock in an exchange that qualifies for non-
recognition under section 354. US is a section 1248 shareholder with 
respect to F1, the exchanging shareholder, FP, and FS (all of which are 
controlled foreign corporations) immediately after the exchange.
    (ii) Basis and holding period determination. (A) Because US is a 
section 1248 shareholder of F1, the exchanging shareholder, and FT 
immediately before the transaction, and US is a section 1248 shareholder 
of F1, FP, and FS immediately after the transactions, F1 is not required 
to include amounts in income under Sec. Sec. 1.367(b)-3(b) and 
1.367(b)-4(b) as described in paragraph (c)(1)(ii)(B) of this section. 
Thus, the basis and holding period of

[[Page 335]]

the FS stock held by FP immediately after the triangular reorganization 
is determined pursuant to paragraph (c) of this section.
    (B) Pursuant to paragraph (c) of this section, each share of FS 
stock is divided into portions attributable to the basis and holding 
period of the FS stock held by FP immediately before the exchange (the 
FS portion) and the FT stock held by F1 immediately before the exchange 
(the FT portion). The basis and holding period of the FS portion is the 
basis and holding period of the FS stock held by FP immediately before 
the exchange. Thus, each share of FS stock has a portion with a basis of 
$5x and a value of $10x. Because the exchanging shareholder of FT stock 
(F1) has a section 1248 shareholder of both F1 and FT, the basis and 
holding period of the FT portion is the proportionate amount of the 
basis and the holding period of the FT stock immediately before the 
exchange to which such portion relates. Thus, each share of FS stock 
will have a second portion with a basis of $17x ($170x basis / 10 
shares), a value of $20x ($200x value / 10 shares), a holding period of 
5 years, and $1x of earnings and profits ($10x earnings and profits / 10 
shares) attributable to such portion for purposes of section 1248.
    (iii) Subsequent disposition. (A) Several years after the merger, FP 
disposes of all of its FS stock in a transaction governed by section 
964(e). At the time of the disposition, FS stock has decreased in value 
to $210x (a post-merger reduction in value of $90x), and FS has incurred 
a post-merger deficit in earnings and profits of $30x.
    (B) Pursuant to paragraph (d)(1)(ii) of this section, for purposes 
of determining the amount of gain realized on the sale or exchange of 
stock that has a divided portion, any amount realized on such sale or 
exchange is allocated to each divided portion of the stock based on the 
relative fair market value of the stock to which the portion is 
attributable at the time the portions were created. Immediately before 
the merger, the value of the FS stock in relation to the value of both 
the FS stock and the FT stock was one-third ($100x / ($100x plus 
$200x)). Likewise, immediately before the merger, the value of the FT 
stock in relation to the value of both the FT stock and the FS stock was 
two-thirds ($200x / $100x plus $200x). Accordingly, one-third of the 
$210x amount realized is allocated to the FS portion of each share and 
two-thirds to the FT portion of each share. Thus, the amount realized 
allocated to the FS portion of each share is $7x (one-third of $210x 
divided by 10 shares). The amount realized allocated to the FT portion 
of each share is $14x (two-thirds of $210x divided by 10 shares).
    (C) Pursuant to paragraph (d)(3) of this section, any earnings and 
profits (or deficits) accumulated by the surviving corporation 
subsequent to the reorganization are attributed to the divided portions 
of shares of stock based on the relative fair market value of each 
divided portion of stock. Accordingly, one-third of the post-merger 
earnings and profits deficit of $30x is allocated to the FS portion of 
each share and two-thirds to the FT portion of each share. Thus, the 
deficit in earnings and profits allocated to the FS portion of each 
share is $1x (one-third of $30x divided by 10 shares). The deficit in 
earnings and profits allocated to the FT portion of each share is $2x 
(two-thirds of $30x divided by 10 shares).
    (D) When FP disposes of its FS stock, FP is treated as disposing of 
each divided portion of a share of stock. With respect to the FS portion 
of each share of stock, FP recognizes a gain of $2x ($7x value - $5x 
basis), which is not recharacterized as a dividend because a deficit in 
earnings and profits of $1x is attributable to such portion for purposes 
of section 1248. With respect to the FT portion of each share of stock, 
FP recognizes a loss of $3x ($14x value - $17x basis).

    (f) Effective date. This section applies to exchanges occurring on 
or after January 23, 2006.

[T.D. 9243, 71 FR 4289, Jan. 26, 2006]



Sec. 1.367(d)-1T  Transfers of intangible property to foreign 
corporations (temporary).

    (a) Purpose and scope. This section provides rules under section 
367(d) concerning transfers of intangible property by U.S. persons to 
foreign corporations pursuant to section 351 or 361. Paragraph (b) of 
this section specifies the transfers that are subject to section 367(d) 
and the rules of this section, while paragraph (c) provides rules 
concerning the consequences of such a transfer. In general, the U.S. 
transferor will be treated as receiving annual payments contingent on 
productivity or use of the transferred property, over the useful life of 
the property (regardless of whether such payments are in fact made by 
the transferee). Paragraphs (d), (e), and (f) of this section provide 
rules for cases in which there is a later direct or indirect disposition 
of the intangible property transferred. In general, deemed annual 
license payments will continue if a transfer is made to a related 
person, while gain must be recognized immediately if the transfer is to 
an unrelated person. Paragraph (g) of this section provides several 
special rules, including a rule allowing appropriate adjustments

[[Page 336]]

where deemed payments under section 367(d) are not in fact received by 
the U.S. transferor of the intangible property, and a rule providing for 
a limited election to treat certain transfers of intangible property as 
sales at fair market value (in lieu of applying the general useful life-
contingent payment rule). In addition, paragraph (g) of this section 
provides rules coordinating the application of section 367(d) with other 
relevant Code sections. Paragraph (h) of this section defines the term 
related person for purposes of this section. Finally, paragraph (i) of 
this section provides the effective date of this section. For rules 
concerning transfers of intangible property pursuant to section 332, see 
Sec. 1.367(a)-5T(e). For purposes of determining whether a U.S. person 
has made a transfer of intangible property that is subject to the rules 
of section 367(d), the rules of Sec. 1.367(a)-1T(c) shall apply.
    (b) Intangible property subject to section 367(d). Section 367(d) 
and the rules of this section shall apply to the transfer of any 
intangible property, as defined in Sec. 1.367(a)-1T(d)(5)(i). However, 
section 367(d) and the rules of this section shall not apply to the 
transfer of foreign goodwill or going concern value, as defined in 
Sec. 1.367(a)-1T(d)(5)(iii), or to the transfer of intangible property 
described in Sec. 1.367(a)-5T(b)(2). However, the transfer of those 
items to a foreign corporation is subject to the rules set forth in 
Sec. 1.367(a)-6T, and the transfer of intangible property described in 
Sec. 1.367(a)-5T(b)(2) is subject to the rules set forth in Sec. 
1.367(a)-5T. For a special rule relating to the transfer of operating 
intangibles, as defined in Sec. 1.367(a)-1T(d)(5)(ii), see paragraph 
(g)(3) of this section. Transfers of intangible property to foreign 
corporations pursuant to section 351 or 361 are subject to the rules of 
this section regardless of whether the property is to be used in the 
United States, in connection with goods to be sold or consumed in the 
United States, or in connection with a trade or business outside the 
United States.
    (c) Deemed payments upon transfer of intangible property to foreign 
corporation--(1) In general. If a U.S. person transfers intangible 
property that is subject to section 367(d) and the rules of this section 
to a foreign corporation in an exchange described in section 351 or 361, 
then such person shall be treated as having transferred that property in 
exchange for annual payments contingent on the productivity or use of 
the property. Such person shall, over the useful life of the property, 
annually include in gross income an amount that represents an 
appropriate arms-length charge for the use of the property. The 
appropriate charge shall be determined in accordance with the provisions 
of section 482 and regulations thereunder. See Sec. 1.482-2(d). The 
amount of the deemed payment thus calculated shall be reduced by any 
royalty or other periodic payment made or accrued by the transferee to 
an unrelated person during that taxable year for the right to use the 
intangible property. Amounts so included in the transferor's income 
shall be treated as ordinary income from sources within the United 
States. For purposes of computing estimated tax payments, deemed 
payments under this paragraph (c) shall be treated as received by the 
transferor on the last day of its taxable year.
    (2) Required adjustments. The following adjustments shall be made 
with respect to a U.S. person's recognition of a deemed payment for the 
use of intangible property under this paragraph (c):
    (i) For purposes of chapter 1 of the Code, the earnings and profits 
of the transferee foreign corporation shall be reduced by the amount of 
such deemed payment; and
    (ii) For purposes of subpart F of part III of subchapter N of the 
Code, the transferee foreign corporation may treat such deemed payment 
as an expense (whether or not that amount is actually paid), properly 
allocated and apportioned to gross income subject to subpart F, in 
accordance with the provisions of Sec. Sec. 1.954-1(c) and 1.861-8.

No other special adjustments to earning the profits, basis, or gross 
income shall be permitted by reason of the recognition of a deemed 
payment under this paragraph (c). However, see paragraph (g)(1) of this 
section for rules permitting the establishment of an account receivable 
with respect to

[[Page 337]]

deemed payments not actually received by the U.S. person.
    (3) Useful life. For purposes of this section, the useful life of 
intangible property is the entire period during which the property has 
value. However, in no event shall the useful life of an item of 
intangible property be considered to exceed twenty years. If intangible 
property derives its value from secrecy or from protections afforded by 
law, the useful life of such property shall terminate when the property 
is no longer secret or no longer legally protected.
    (4) Blocked income. No deemed payment included in a taxpayer's 
income under paragraph (c)(1) of this section shall be treated as 
deferrable income for purposes of applying rules relating to blocked 
foreign income. See Revenue Ruling 74-351, 1974-2 C.B. 144.
    (d) Subsequent transfer of stock of transferee foreign corporation 
to unrelated person--(1) Treatment as sale of intangible property. If a 
U.S. person transfers intangible property that is subject to section 
367(d) and the rules of this section to a foreign corporation in an 
exchange described in section 351 or 361, and within the useful life of 
the intangible property that U.S. transferor subsequently disposes of 
the stock of the transferee foreign corporation to a person that is not 
a related person (within the meaning of paragraph (h) of this section), 
then the U.S. transferor shall be treated as having simultaneously sold 
the intangible property to the person acquiring the stock of the 
transferee foreign corporation. The U.S. transferor shall be required to 
recognize gain (but not loss) from sources within the United States in 
an amount equal to the difference between the fair market value of the 
transferred intangible property on the date of the subsequent 
disposition and the U.S. transferor's former adjusted basis in that 
property (determined as of the original transfer). If the U.S. 
transferor's disposition of the stock of the transferee foreign 
corporation is subject to U.S. tax other than by reason of this 
paragraph (d), then the amount of gain otherwise required to be 
recognized with respect to the stock of the transferee foreign 
corporation shall be reduced by the amount of gain recognized with 
respect to the intangible property pursuant to this paragraph (d).
    (2) Required adjustments. If a U.S. person disposes of the stock of 
a transferee foreign corporation, and under paragraph (d)(1) of this 
section is treated as having simultaneously sold intangible property, 
then, for purposes of computing basis and earnings and profits, the 
person acquiring the stock of the transferee foreign corporation shall 
be deemed to have purchased that property at fair market value and to 
have immediately thereafter contributed it to the transferee foreign 
corporation in a transaction not covered by section 367(d). Therefore, 
for purposes of chapter 1 of the Code--
    (i) The transferee foreign corporation's basis in the intangible 
property will be equal to its fair market value (as calculated for 
purposes of determining the gain required to be recognized by the U.S. 
transferor);
    (ii) The acquiring person's basis in the stock of the transferee 
foreign corporation shall be determined as if no portion of the 
consideration given by the acquiring person for the stock is 
attributable to the intangible property; and
    (iii) The earnings and profits of the transferee foreign corporation 
will not be affected by the transfer of its stock or the deemed transfer 
to it of the intangible property.
    (e) Subsequent transfer of stock of transferee foreign corporation 
to related person--(1) Transfer to related U.S. person treated as 
disposition of intangible property. If a U.S. person transfers 
intangible property that is subject to section 367(d) and the rules of 
this section to a foreign corporation in an exchange described in 
section 351 or 361 and, within the useful life of the transferred 
intangible property, that U.S. transferor subsequently transfers the 
stock of the transferee foreign corporation to U.S. persons that are 
related to the transferor within the meaning of paragraph (h) of this 
section, then the following rules shall apply:
    (i) Each such related U.S. person shall be treated as having 
received (with the stock of the transferee foreign corporation) a right 
to receive a proportionate share of the contingent annual payments that 
would otherwise

[[Page 338]]

be deemed to be received by the U.S. transferor under paragraph (c) of 
this section.
    (ii) Each such related U.S. person shall, over the useful life of 
the property, annually include in gross income a proportionate share of 
the amount that would have been included in the income of the U.S. 
transferor pursuant to paragraph (c) of this section. Such amounts shall 
be treated as ordinary income from sources within the United States.
    (iii) The amount of income required to be recognized by the U.S. 
transferor pursuant to the rule of paragraph (d)(1) of this section 
shall be reduced to the amount determined in accordance with the 
following formula:

(d)(1) amountx(100%-(e) percentage)


For purposes of the above formula, the (d)(1) amount is the income that 
would otherwise be required to be recognized by the transferor 
corporation pursuant to paragraph (d)(1) of this section, and the (e) 
percentage is the percentage of the transferor corporation's total 
deemed rights to receive contingent annual payments under paragraph (c) 
of this section that is deemed to be transferred to related U.S. persons 
under the rules of this paragraph (e).
    (iv) The rules of paragraphs (d) and (e) of this section shall be 
reapplied in the case of any later transfer of the stock of the 
transferee foreign corporation by a related U.S. person that received 
such stock in a transfer that was subject to the rules of this paragraph 
(e). For purposes of reapplying the rules of paragraphs (d) and (e), 
each such related U.S. person shall be treated as a U.S. transferor of 
intangible property to the transferee foreign corporation (to the extent 
of the interest attributed to such person pursuant to subdivision (i) of 
this paragraph (e)(1)).
    (2) Required adjustments. If a U.S. person transfers stock of a 
transferee foreign corporation to a U.S. related person in a transaction 
that is subject to the rules of paragraph (e)(1) of this section, the 
following adjustments shall be made:
    (i) For purposes of chapter 1 of the Code, the earnings and profits 
of the transferee foreign corporation shall be reduced by the amount of 
any payment deemed to be received by a related U.S. person under 
paragraph (e)(1)(ii) of this section;
    (ii) For purposes of subpart F of part III of subchapter N of the 
Code, the transferee foreign corporation may allocate and apportion such 
deemed payments (whether or not such payments are actually made to gross 
income subject to subpart F to the extent appropriate under the 
provisions of Sec. Sec. 1.954-1(c) and 1.861-8;
    (iii) For purposes of reapplying the rules of paragraph (d) and (e) 
of this section, if the related U.S. person is deemed to have received a 
right to contingent annual payments for the use of intangible property, 
then the U.S. related person shall be deemed to have held a 
proportionate share of the property with a basis equal to a 
proportionate share of the U.S. transferor's adjusted basis plus the 
gain, if any, recognized by the U.S. transferor on the earlier transfer 
of the stock to the U.S. related person, and then to have transferred 
that proportionate share of the property to the foreign corporation in a 
transfer subject to section 367(d); and
    (iv) If the U.S. transferor is itself required to recognize gain 
upon the transfer by reason of the operation of paragraphs (d)(1) and 
(e)(1)(iii) of this section (because stock of the transferee foreign 
corporation is also transferred to unrelated persons), then those 
unrelated persons shall be deemed to have purchased a proportionate 
share of the transferred intangible property at fair market value and 
immediately contributed that property to the transferee foreign 
corporation, consistent with the general rule of paragraph (d)(2) of 
this section concerning transfers of stock to unrelated persons. 
Therefore, for purposes of chapter 1 of the Code--
    (A) Each unrelated person's basis in the stock of the transferee 
foreign corporation shall be increased to the extent of the gain 
recognized by the U.S. transferor upon the deemed purchase of intangible 
property by that person; and
    (B) The transferee foreign corporation will receive an increase in 
its basis in the transferred intangible property equal to the fair 
market value of that portion of the intangible property

[[Page 339]]

deemed to be contributed to the transferee foreign corporation by 
unrelated persons (as calculated for purposes of determining the gain 
required to be recognized by the U.S. transferor).
    (3) Transfer to related foreign person not treated as disposition of 
intangible property. If a U.S. person transfers intangible property that 
is subject to section 367(d) and the rules of this section to a foreign 
corporation in an exchange described in section 351 or 361, and within 
the useful life of the transferred intangible property, that U.S. 
transferor subsequently transfers any of the stock of the transferee 
foreign corporation to one or more foreign persons that are related to 
the transferor within the meaning of paragraph (h) of this section, then 
the U.S. transferor shall continue to include in its income the deemed 
payments described in paragraph (c) of this section in the same manner 
as if the subsequent transfer of stock had not occurred. The rule of 
this paragraph (e)(3) shall not apply with respect to the subsequent 
transfer by the U.S. person of any of the remaining stock to any related 
U.S. person or unrelated person.
    (4) Proportionate share. For purposes of this paragraph (e), any 
``proportionate share'' shall be determined by reference to the fair 
market value (at the time of the original transfer) of the stock of the 
transferee foreign corporation that was transferred by the U.S. 
transferor and the fair market value of all of the stock of the 
transferee foreign corporation originally received by the U.S. 
transferor.
    (f) Subsequent disposition of transferred intangible property by 
transferee foreign corporation--(1) In general. If a U.S. person 
transfers intangible property that is subject to section 367(d) and the 
rules of this section to a foreign corporation in an exchange described 
in section 351 or 361, and within the useful life of the intangible 
property that transferee foreign corporation subsequently disposes of 
the intangible property to an unrelated person, then--
    (i) The U.S. transferor of the intangible property (or any person 
treated as such pursuant to paragraph (e)(1) of this section) shall be 
required to recognize gain from U.S. sources (but not loss) in an amount 
equal to the difference between the fair market value of the transferred 
intangible property on the date of the subsequent disposition and the 
U.S. transferor's former adjusted basis in that property (determined as 
of the orginial transfer); and
    (ii) The U.S. transferor shall be required to recognize a deemed 
payment under paragraph (c) of this section for that part of its taxable 
year that the intangible property was held by the transferee foreign 
corporation and thereafter shall not be required to recognize any 
further deemed payments under paragraph (c) or (e)(1) of this section 
with respect to the transferred intangible property disposed of by the 
transferee foreign corporation.
    (2) Required adjustments. If a U.S. transferor is required to 
recognize gain under paragraph (f)(1) of this section, then--
    (i) For purposes of chapter 1 of the Code, the earnings and profits 
of the transferee foreign corporation shall be reduced by the amount of 
gain required to be recognized; and
    (ii) The U.S. transferor's recognition of gain will permit the 
establishment of an account receivable from the transferee foreign 
corporation, in accordance with paragraph (g)(1) of this section.
    (3) Subsequent transfer of intangible property to related person. 
The requirement that a U.S. person recognize gain under paragraph (c) or 
(e) of this section shall not be affected by the transferee foreign 
corporation's subsequent disposition of the transferred intangible 
property to a related person. For purposes of any required adjustments, 
and of any accounts receivable created under paragraph (g)(1) of this 
section, the related person that receives the intangible property shall 
be treated as the transferee foreign corporation.
    (g) Special rules--(1) Establishment of accounts receivable--(i) In 
general. If a U.S. person is required to recognize income under the 
provisions of paragraph (c), (e), or (f) of this section, and the amount 
deemed to be received is not actually paid by the transferee foreign 
corporation, then the U.S. person may establish an account receivable 
from the transferee foreign corporation equal to the amount deemed paid 
that

[[Page 340]]

was not actually paid. A separate account receivable must be established 
for each taxable year in which payments deemed to be received are not 
actually made. Payments received from the transferee foreign corporation 
must be designated as payments upon a particular account and must be 
deducted from that account. Accounts receivable under this paragraph 
(g)(1) may be established and paid without further U.S. income tax 
consequences to the U.S. transferor or the transferee foreign 
corporation. No interest shall be paid or accrued on an account 
receivable created under this paragraph (g)(1), nor shall any bad debt 
deduction be allowed under section 166 with respect to any failure to 
receive payment on an account.
    (ii) Unpaid receivable treated as contribution to capital. If any 
portion of an account receivable established under this paragraph (g)(1) 
remains unpaid as of the last day of the third taxable year following 
the taxable year to which the account relates, then--
    (A) Such portion shall be deemed to have been paid on that date; and
    (B) The U.S. person shall be deemed to have contributed an 
equivalent amount to the capital of the foreign corporation, and the 
U.S. person's basis in the stock of the foreign corporation shall, 
therefore, be increased by that amount.
    (2) Election to treat transfer as sale. A U.S. person that transfers 
intangible property to a foreign corporation in a transaction subject to 
section 367(d) may elect to recognize income in accordance with the 
rules of this paragraph (g)(2), if--
    (i) The intangible property transferred constitutes an operating 
intangible, as defined in Sec. 1.367(a)-1T(d)(5)(ii); or
    (ii) The transfer of the intangible property is either legally 
required by the government of the country in which the transferee 
corporation is organized as a condition of doing business in that 
country, or compelled by a genuine threat of immediate expropriation by 
the foreign government; or
    (iii)(A) The U.S. person transferred the intangible property to the 
foreign corporation within three months of the organization of that 
corporation and as part of the original plan of capitalization of that 
corporation;
    (B) Immediately after the transfer, the U.S. person owns at least 40 
percent but not more than 60 percent of the total voting power and total 
value of the stock of the transferee foreign corporation;
    (C) Immediately after the transfer, at least 40 percent of the total 
voting power and total value of the stock of the transferee foreign 
corporation is owned by foreign persons unrelated to the U.S. person;
    (D) Intangible property constitutes at least 50 percent of the fair 
market value of the property transferred to the foreign corporation by 
the U.S. transferor; and
    (E) The transferred intangible property will be used in the active 
conduct of a trade or business outside of the United States within the 
meaning of Sec. 1.367(a)-2T and will not be used in connection with the 
manufacture or sale of products in or for use or consumption in the 
United States.

A person that makes the election under this paragraph (g)(2) shall not 
be subject to the provisions of paragraphs (c) through (f) of this 
section. Such person shall instead recognize in the year of the transfer 
ordinary income from sources within the United States in an amount equal 
to the difference between the fair market value of the intangible 
property transferred and its adjusted basis. A U.S. person shall make an 
election under this paragraph (g)(2) by notifying the Internal Revenue 
Service of the election in accordance with the requirements of section 
6038B and regulations thereunder, and subsequently including the 
appropriate amounts in gross income in a timely filed tax return for the 
year of the transfer.
    (3) Intangible property transferred from branch with previously 
deducted losses. If income is required to be recognized under section 
904(f)(3) and the regulations thereunder or under Sec. 1.367(a)-6T upon 
the transfer of intangible property of a foreign branch that had 
previously deducted losses, then the income recognized under those 
sections with respect to that property shall be credited against amounts 
that would otherwise be required to be recognized with respect to that 
same property

[[Page 341]]

under paragraphs (c) through (f) of this section in either the current 
or future taxable years. The amount recognized under section 904(f)(3) 
or Sec. 1.367(a)-6T with respect to the transferred intangible property 
shall be determined in accordance with the following formula:
[GRAPHIC] [TIFF OMITTED] TC17OC91.001


For purposes of the above formula, the loss recapture income is the 
total amount required to be recognized by the U.S. transferor pursuant 
to section 904(f)(3) or Sec. 1.367(a)-6T. The gain from intangibles is 
the total amount of gain realized by the U.S. transferor pursuant to 
section 904(f)(3) and Sec. 1.367(a)-6T upon the transfer of items of 
intangible property that are subject to section 367(d). (``Gain from 
intangibles'' does not include gain realized upon the transfer of 
property described in Sec. 1.367(a)-5T(b)(2), foreign goodwill or going 
concern value, or intangible property with respect to which the taxpayer 
has made the election provided for in Sec. 1.367(d)-1T(g)(2).) The gain 
from all branch assets is the total amount of gain realized by the 
transferor upon the transfer of items of property of the branch in which 
gain is realized. The fraction shall not exceed 1.
    (4) Coordination with section 482--(i) In general. Section 367(d) 
and the rules of this section shall not apply in the case of an actual 
sale or license of intangible property by a U.S. person to a foreign 
corporation. If an adjustment under section 482 is required with respect 
to an actual sale or license of intangible property, then section 367(d) 
and the rules of this section shall not apply with respect to the 
required adjustment. If a U.S. person transfers intangible property to a 
related foreign corporation without consideration, or in exchange for 
stock or securities of the transferee in a transaction described in 
sections 351 or 361, no sale or license subject to adjustment under 
section 482 will be deemed to have occurred. Instead, the U.S. person 
shall be treated as having made a transfer of the intangible property 
that is subject to section 367(d).
    (ii) Sham licenses and sales. For purposes of paragraph (g)(4)(i) of 
this section, a purported sale or license of intangible property may be 
disregarded, and treated as a transfer subject to section 367(d) and the 
rules of this section, if--
    (A) The purported sale or license is made to a foreign corporation 
in which the transferor holds (or is acquiring) an interest; and
    (B) The terms of the purported sale or license differ so greatly 
from the economic substance of the transaction or the terms that would 
obtain between unrelated persons that the purported sale or license is a 
sham.

The terms of a purported sale or license, for purposes of applying the 
rule of this paragraph (g)(4)(ii), shall be determined by reference not 
only to the nominal terms of the agreement but also to the actual 
practice of the parties under that agreement. A sale or license of 
intangible property shall not be disregarded under this paragraph 
(g)(4)(ii) solely because other property of an integrated business is 
simultaneously transferred to the foreign corporation by the U.S. 
transferor in a transaction described in section 367(a)(1) or any 
statutory or regulatory exception to section 367(a)(1).
    (5) Determination of fair market value. For purposes of determining 
the gain required to be recognized immediately under paragraph (d), (f), 
or (g)(2) of this section, the fair market value of transferred property 
shall be the single payment arm's-length price that would be paid for 
the property by an unrelated purchaser determined in accordance with the 
principles of section 482 and regulations thereunder. The allocation of 
a portion of the purchase price to intangible property agreed to by the 
parties to the transaction shall not necessarily be controlling for this 
purpose.
    (6) Anti-abuse rule. If a U.S. person--

[[Page 342]]

    (i) Transfers intangible property to a domestic corporation with a 
principal purpose of avoiding the effect of section 367(d) and the rules 
of this section; and
    (ii) Thereafter transfers the stock of that domestic corporation to 
a related foreign corporation,

then solely for purposes of section 367(d) that U.S. person shall be 
treated as having transferred the intangible property directly to the 
foreign corporation. A U.S. person shall be presumed to have transferred 
intangible property for a principal purpose of avoiding the effect of 
section 367(d) if the property is transferred to the domestic 
corporation less than two years prior to the transfer of the stock of 
that domestic corporation to a foreign corporation. The presumption 
created by the previous sentence may be rebutted by clear evidence that 
the subsequent transfer of the stock of the domestic transferee 
corporation was not contemplated at the time the intangible property was 
transferred to that corporation and that avoidance of section 367(d) and 
the rules of this section was not a principal purpose of the 
transaction. A transfer may have more than one principal purpose.
    (h) Related person. For purposes of this section, persons are 
considered to be related if--
    (1) They are partners or partnerships described in section 707(b)(1) 
of the Code; or
    (2) They are related within the meaning of section 267 (b), (c), and 
(f) of the Code, except that--
    (i) ``10 percent or more'' shall be substituted for ``more than 50 
percent'' each place it appears; and
    (ii) Section 1563 shall apply (for purposes of section 267(d)), 
without regard to section 1563(b)(2).
    (i) Effective date. Except as specifically provided to the contrary 
elsewhere in this section, this section applies to transfers occurring 
after December 31, 1984.

[T.D. 8087, 51 FR 17953, May 16, 1986, as amended by T.D. 8770, 63 FR 
33568, June 19, 1998]



Sec. 1.367(e)-0  Outline of Sec. Sec. 1.367(e)-1 and 1.367(e)-2.

    This section lists captioned paragraphs contained in Sec. Sec. 
1.367(e)-1 and 1.367(e)-2 as follows:

     Sec. 1.367(e)-1 Distributions described in section 367(e)(1).

    (a) Purpose and scope.
    (b) Gain recognition.
    (1) General rule.
    (2) Stock owned through partnerships, disregarded entities, trusts, 
and estates.
    (3) Gain computation.
    (4) Treatment of distributee.
    (c) Nonrecognition of gain.
    (d) Determining whether distributees are qualified U.S. persons.
    (1) General rule--presumption of foreign status.
    (2) Non-publicly traded distributing corporations.
    (3) Publicly traded distributing corporations.
    (i) Five percent shareholders.
    (ii) Other distributees.
    (4) Qualified exchange or other market.
    (e) Reporting under section 6038B.
    (f) Effective date.

     Sec. 1.367(e)-2 Distributions described in section 367(e)(2).

    (a) Purpose and scope.
    (1) In general.
    (2) Nonapplicability of section 367(a).
    (b) Distribution by a domestic corporation.
    (1) General rule.
    (i) Recognition of gain and loss.
    (ii) Operating rules.
    (A) General rule.
    (B) Overall loss limitation.
    (1) Overall loss limitation rule.
    (2) Example.
    (C) Special rules for built-in gains and losses attributable to 
property received in liquidations and reorganizations.
    (iii) Distribution of partnership interest.
    (A) General rule.
    (B) Gain or loss calculation. [Reserved]
    (C) Basis adjustments.
    (D) Publicly traded partnerships.
    (2) Exceptions.
    (i) Distribution of property used in a U.S. trade or business.
    (A) Conditions for nonrecognition.
    (B) Qualifying property.
    (C) Required statement.
    (1) Declaration and certification.
    (2) Property description.
    (3) Distributee identification.
    (4) Treaty benefits waiver.
    (5) Statute of limitations extension.
    (D) Failure to file statement.
    (E) Operating rules.
    (1) Gain or loss recognition by the foreign distributee corporation.

[[Page 343]]

    (i) Taxable dispositions.
    (ii) Other triggering events.
    (2) Gain recognition by the domestic liquidating corporation.
    (i) General rule.
    (ii) Amended return.
    (iii) Interest.
    (iv) Joint and several liability.
    (3) Schedule for property no longer used in a U.S. trade or 
business.
    (4) Nontriggering events.
    (i) Conversions, certain exchanges, and abandonment.
    (ii) Amendment to Master Property Description
    (5) Nontriggering transfers to qualified transferees.
    (ii) Distribution of certain U.S. real property interests.
    (iii) Distribution of stock of domestic subsidiary corporations.
    (A) Conditions for nonrecognition.
    (B) Exceptions when the liquidating corporation is a U.S. real 
property holding corporation.
    (C) Anti-abuse rule.
    (D) Required statement.
    (3) Other consequences.
    (i) Distributee basis in property.
    (ii) Reporting under section 6038B.
    (iii) Other rules.
    (c) Distribution by a foreign corporation.
    (1) General rule--gain and loss not recognized.
    (2) Exceptions.
    (i) Property used in a U.S. trade or business.
    (A) General rule.
    (B) Ten-year active U.S. business exception.
    (C) Required statement.
    (D) Operating rules.
    (ii) Property formerly used in a U.S. trade or business.
    (3) Other consequences.
    (i) Distributee basis in property.
    (ii) Other rules.
    (d) Anti-abuse rule.
    (e) Effective date.

[T.D. 8834, 64 FR 43075, Aug. 9, 1999]



Sec. 1.367(e)-1  Distributions described in section 367(e)(1).

    (a) Purpose and scope. This section provides rules for recognition 
(and nonrecognition) of gain by a domestic corporation (distributing 
corporation) on a distribution of stock or securities of a corporation 
(controlled corporation) to foreign persons that is described in section 
355. Paragraph (b) of this section contains the general rule that gain 
is recognized on the distribution to the extent stock or securities of 
controlled are distributed to foreign persons. Paragraph (c) of this 
section provides an exception to the gain recognition rule for 
distributions of stock or securities of a domestic corporation. 
Paragraph (d) of this section contains rules for determining whether 
distributees of stock or securities in a section 355 distribution are 
qualified U.S. persons. Paragraph (e) of this section cross-references 
section 6038B for certain reporting obligations. Finally, paragraph (f) 
of this section specifies the effective date of this section.
    (b) Gain recognition--(1) General rule. If a domestic corporation 
makes a distribution of stock or securities of a corporation that 
qualifies for nonrecognition under section 355 to a person who is not a 
qualified U.S. person, then, except as provided in paragraph (c) of this 
section, the distributing corporation shall recognize gain (but not 
loss) on the distribution under section 367(e)(1). A distributing 
corporation shall not recognize gain under this section with respect to 
a section 355 distribution to a qualified U.S. person. For purposes of 
this section, a qualified U.S. person is--
    (A) A citizen or resident of the United States; or
    (B) A domestic corporation.
    (2) Stock owned through partnerships, disregarded entities, trusts, 
and estates. For purposes of this section, distributing corporation 
stock or securities owned by or for a partnership (whether foreign or 
domestic) are owned proportionately by its partners. A partner's 
proportionate share of the stock or securities of the distributing 
corporation shall be equal to the partner's distributive share of the 
gain that would have been recognized had the partnership sold the stock 
or securities (at a taxable gain) immediately before the distribution. 
The partner's distributive share of gain shall be determined under the 
rules and principles of sections 701 through 761 and the regulations 
thereunder. For purposes of this section, stock or securities owned by 
or for an entity that is disregarded as an entity separate from its 
owner (disregarded entity) under Sec. 301.7701-3 of this chapter are 
owned directly by the owner of such disregarded entity. For purposes of 
this section, stock or securities owned by or for a trust or estate

[[Page 344]]

(whether foreign or domestic) are owned proportionately by the persons 
who would be treated as owning such stock or securities under section 
318(a)(2)(A) and (B). In applying section 318(a)(2)(B)(i), if a trust 
includes interests that are not actuarially ascertainable, all such 
interests shall be considered to be owned by foreign persons. In a case 
where an interest holder in a partnership, a disregarded entity, trust, 
or estate that (directly or indirectly) owns stock of the distributing 
corporation is itself a partnership, disregarded entity, trust, or 
estate, the rules of this paragraph (b)(2) apply to such interest 
holder.
    (3) Gain computation. Gain recognized under paragraph (b)(1) of this 
section shall be equal to the excess of the fair market value of the 
stock or securities distributed to persons who are not qualified U.S. 
persons (determined as of the time of the distribution) over the 
distributing corporation's adjusted basis in the stock or securities 
distributed to such distributees. For purposes of the preceding 
sentence, the distributing corporation's adjusted basis in each unit of 
each class of stock or securities distributed to a distributee shall be 
equal to the distributing corporation's total adjusted basis in all of 
the units of the respective class of stock or securities owned 
immediately before the distribution, divided by the total number of 
units of the class of stock or securities owned immediately before the 
distribution.
    (4) Treatment of distributee. If the distribution otherwise 
qualifies for nonrecognition under section 355, each distributee shall 
be considered to have received stock or securities in a distribution 
qualifying for nonrecognition under section 355, even though the 
distributing corporation may recognize gain on the distribution under 
this section. Thus, the distributee shall not be considered to have 
received a distribution described in section 301 or a distribution in an 
exchange described in section 302(b) upon the receipt of the stock or 
securities of the controlled corporation, and the domestic distributing 
corporation shall have no withholding responsibilities under section 
1441. Except where section 897(e)(1) and the regulations thereunder 
cause gain to be recognized by the distributee, the basis of the 
distributed domestic or foreign corporation stock in the hands of the 
foreign distributee shall be the basis of the distributed stock 
determined under section 358 without any increase for any gain 
recognized by the domestic corporation on the distribution.
    (c) Nonrecognition of gain. A domestic distributing corporation 
shall not recognize gain under paragraph (b)(1) of this section on the 
distribution of stock or securities of a domestic corporation.
    (d) Determining whether distributees are qualified U.S. persons--(1) 
General rule--presumption of foreign status. Except as provided in 
paragraphs (d)(2) and (3) of this section, all distributions of stock or 
securities in a distribution described in section 355 in which the 
distributing corporation is domestic and the controlled corporation is 
foreign are presumed to be to persons who are not qualified U.S. 
persons, as defined in paragraph (b)(1) of this section.
    (2) Non-publicly traded distributing corporations. If the class of 
stock or securities of the distributing corporation (in respect to which 
stock or securities of the controlled corporation are distributed) is 
not regularly traded on a qualified exchange or other market (as defined 
in paragraph (d)(4) of this section), then the distributing corporation 
may only rebut the presumption contained in paragraph (d)(1) of this 
section by identifying the qualified U.S. persons to which controlled 
corporation stock or securities were distributed and by certifying the 
amount of stock or securities that were distributed to the qualified 
U.S. persons.
    (3) Publicly traded distributing corporations. If the class of stock 
or securities of the distributing corporation (in respect to which stock 
or securities of the controlled corporation are distributed) is 
regularly traded on a qualified exchange or other market (as defined in 
paragraph (d)(4) of this section), then the distributing corporation may 
only rebut the presumption contained in paragraph (d)(1) of this section 
as described in this paragraph (d)(3).
    (i) Five percent shareholders. A publicly traded distributing 
corporation

[[Page 345]]

may only rebut the presumption contained in paragraph (d)(1) of this 
section with respect to distributees that are five percent shareholders 
of the class of stock or securities of the distributing corporation (in 
respect to which stock or securities of the controlled corporation are 
distributed) by identifying the qualified U.S. persons to which 
controlled corporation stock or securities were distributed and by 
certifying the amount of stock or securities that were distributed to 
the qualified U.S. persons. A five percent shareholder is a distributee 
who is required under U.S. securities laws to file with the Securities 
and Exchange Commission (SEC) a Schedule 13D or 13G under 17 CFR 
240.13d-1 or 17 CFR 240.13d-2, and provide a copy of same to the 
distributing corporation under 17 CFR 240.13d-7.
    (ii) Other distributees. A distributing corporation that has made a 
distribution described in paragraph (d)(3) of this section may rebut the 
presumption contained in paragraph (d)(1) of this section with respect 
to distributees that are not five percent shareholders (as defined in 
this paragraph (d)(3)) by relying on and providing a reasonable analysis 
of shareholder records and other relevant information that demonstrates 
a number of distributees that are qualified U.S. persons. Taxpayers may 
rely on such analysis, unless it is subsequently determined that there 
are actually fewer distributees who are qualified U.S. persons than were 
demonstrated in the analysis.
    (4) Qualified exchange or other market. For purposes of paragraph 
(d) of this section, the term qualified exchange or other market means, 
for any taxable year--
    (i) A national securities exchange which is registered with the SEC 
or the national market system established pursuant to section 11A of the 
Securities Exchange Act of 1934 (15 U.S.C. 78f); or
    (ii) A foreign securities exchange that is regulated or supervised 
by a governmental authority of the country in which the market is 
located and which has the following characteristics--
    (A) The exchange has trading volume, listing, financial disclosure, 
and other requirements designed to prevent fraudulent and manipulative 
acts and practices, to remove impediments to and perfect the mechanism 
of a free and open market, and to protect investors; and the laws of the 
country in which the exchange is located and the rules of the exchange 
ensure that such requirements are actually enforced; and
    (B) The rules of the exchange ensure active trading of listed 
stocks.
    (e) Reporting under section 6038B. See the regulations under section 
6038B for reporting requirements for distributions under this section.
    (f) Effective date. This section shall be applicable to 
distributions occurring in taxable years ending after August 8, 1999.

[T.D. 8834, 64 FR 43076, Aug. 9, 1999; 65 FR 14467, Mar. 3, 2000]



Sec. 1.367(e)-2  Distributions described in section 367(e)(2).

    (a) Purpose and scope--(1) In general. This section provides rules 
requiring gain and loss recognition by a corporation on its distribution 
of property to a foreign corporation in a complete liquidation described 
in section 332. Paragraph (b)(1) of this section contains the general 
rule that gain and loss are recognized when a domestic corporation makes 
a distribution of property in complete liquidation under section 332 to 
a foreign corporation that meets the stock ownership requirements of 
section 332(b) with respect to stock in the domestic corporation. 
Paragraph (b)(2) of this section provides the only exceptions to the 
gain and loss recognition rule of paragraph (b)(1) of this section. 
Paragraph (b)(3) of this section refers to other consequences of 
distributions described in paragraphs (b)(1) and (2) of this section. 
Paragraph (c)(1) of this section contains the general rule that gain and 
loss are not recognized when a foreign corporation makes a distribution 
of property in complete liquidation under section 332 to a foreign 
corporation that meets the stock ownership requirements of section 
332(b) with respect to stock in the foreign liquidating corporation. 
Paragraph (c)(2) of

[[Page 346]]

this section provides the only exceptions to the nonrecognition rule of 
paragraph (c)(1) of this section. Paragraph (c)(3) of this section 
refers to other consequences of distributions described in paragraphs 
(c)(1) and (2) of this section. Paragraph (d) of this section contains 
an anti-abuse rule. Finally, paragraph (e) of this section specifies the 
effective date for the rules of this section. The rules of this section 
are issued pursuant to the authority conferred by section 367(e)(2).
    (2) Nonapplicability of section 367(a). Section 367(a) shall not 
apply to a complete liquidation described in section 332 by a domestic 
liquidating corporation into a foreign corporation that meets the stock 
ownership requirements of section 332(b).
    (b) Distribution by a domestic corporation--(1) General rule--(i) 
Recognition of gain and loss. If a domestic corporation (domestic 
liquidating) makes a distribution of property in complete liquidation 
under section 332 to a foreign corporation (foreign distributee) that 
meets the stock ownership requirements of section 332(b) with respect to 
stock in the domestic liquidating corporation, then--
    (A) Pursuant to section 367(e)(2), section 337(a) and (b)(1) shall 
not apply; and
    (B) The domestic liquidating corporation shall recognize gain or 
loss on the distribution of property to the foreign distributee, except 
as provided in paragraph (b)(2) of this section.
    (ii) Operating rules--(A) General rule. Except as provided in 
paragraphs (b)(1)(ii) (B) and (C) of this section, the rules contained 
in section 336 will apply to the gain and loss recognized pursuant to 
this section.
    (B) Overall loss limitation--(1) Overall loss limitation rule. Loss 
in excess of gain from the distribution shall not be recognized. If 
realized losses exceed recognized losses, the losses shall be recognized 
on a pro rata basis with respect to the realized loss attributable to 
each distributed loss asset in the category of assets (i.e., capital or 
ordinary) to which the realized but unrecognized loss relates. For 
additional limitations on the recognition of losses, see, e.g., section 
1211.
    (2) Example. The following example illustrates the overall loss 
limitation rule, the pro rata loss allocation method, and the general 
capital loss limitation rule in section 1211(a):

    Example. F, a foreign corporation, owns all stock of US1, a domestic 
corporation. US1 owns the following capital assets: Asset A, which has a 
fair market value of $100 and an adjusted basis of $40; Asset B, which 
has a fair market value of $60 and an adjusted basis of $80; and, Asset 
C, which has a fair market value of $40 and an adjusted basis of $100. 
US1 also owns the following business assets that will generate ordinary 
income (or loss) upon disposition: Asset D, which has a fair market 
value of $100 and an adjusted basis of $40; Asset E, which has a fair 
market value of $60 and an adjusted basis of $100; and, Asset F, which 
has a fair market value of $40 and an adjusted basis of $80. US1 
liquidates into F and distributes all assets to F in liquidation. None 
of the assets qualify for nonrecognition under paragraph (b)(2) of this 
section. US1's total realized capital loss is $80, but it may only 
recognize $60 of that loss. See section 1211(a). US1's total realized 
ordinary loss is $80, but it may only recognize $60 of that loss. See 
paragraph (b)(1)(ii)(B)(1) of this section. US1 will allocate $15 (60 X 
.25) of the recognized capital loss to Asset B and will allocate the 
remaining $45 (60 X .75) of recognized capital loss to Asset C. See 
paragraph (b)(1)(ii)(B)(1) of this section. US1 will allocate $30 (60 X 
.50) of the recognized ordinary loss to Asset E and will allocate the 
remaining $30 (60 X .50) to Asset F. See paragraph (b)(1)(ii)(B)(1) of 
this section.

    (C) Special rules for built-in gains and losses attributable to 
property received in liquidations and reorganizations. Built-in losses 
attributable to property received in a transaction described in sections 
332 or 361 (during the two-year period ending on the date of the 
distribution in liquidation covered by this section) shall not offset 
gain from property not received in the same transaction. Built-in gains 
attributable to property received in a transaction described in sections 
332 or 361 (during the two-year period ending on the date of the 
distribution in liquidation covered by this section) shall not be offset 
by a loss from property not received in the same transaction. Built-in 
gain or loss is that amount of gain or loss on property that existed at 
the time the domestic liquidating corporation acquired such property. 
See sections 336(d) and 382 for

[[Page 347]]

additional limitations on the recognition of losses.
    (iii) Distribution of partnership interest--(A) General rule. If a 
domestic corporation distributes a partnership interest (whether foreign 
or domestic) in a distribution described in paragraph (b)(1)(i) of this 
section, then for purposes of applying this section the domestic 
liquidating corporation shall be treated as having distributed a 
proportionate share of partnership property. Accordingly, the 
applicability of the recognition rules of paragraphs (b)(1) (i) and (ii) 
of this section, and of any exception to recognition provided in this 
section shall be determined with reference to the partnership property, 
rather than to the partnership interest itself. Where the partnership 
property includes an interest in a lower-tier partnership, the 
applicability of any exception with respect to the interest in the 
lower-tier partnership shall be determined with reference to the lower-
tier partnership property. In the case of multiple tiers of 
partnerships, the applicability of an exception shall be determined with 
reference to the property of each partnership, applying the rule 
contained in the preceding sentence. A domestic liquidating 
corporation's proportionate share of partnership property shall be 
determined under the rules and principles of sections 701 through 761 
and the regulations thereunder.
    (B) Gain or loss calculation. [Reserved]
    (C) Basis adjustments. The foreign distributee corporation's basis 
in the distributed partnership interest shall be equal to the domestic 
liquidating corporation's basis in such partnership interest immediately 
prior to the distribution, increased by the amount of gain and reduced 
by the amount of loss recognized by the domestic liquidating corporation 
on the distribution of the partnership interest. Solely for purposes of 
sections 743 and 754, the foreign distributee corporation shall be 
treated as having purchased the partnership interest for an amount equal 
to the foreign corporation's adjusted basis therein.
    (D) Publicly traded partnerships. The distribution by a domestic 
liquidating corporation of an interest in a publicly traded partnership 
that is treated as a corporation for U.S. income tax purposes under 
section 7704(a) shall not be subject to the rules of paragraphs 
(b)(1)(iii) (A) and (B) of this section. Instead, the distribution of 
such an interest shall be treated in the same manner as a distribution 
of stock. Thus, a transfer of an interest in a publicly traded 
partnership that is treated as a U.S. corporation for U.S. income tax 
purposes shall be treated in the same manner as stock in a domestic 
corporation, and a transfer of an interest in a publicly traded 
partnership that is treated as a foreign corporation for U.S. income tax 
purposes shall be treated in the same manner as stock in a foreign 
corporation.
    (2) Exceptions--(i) Distribution of property used in a U.S. trade or 
business--(A) Conditions for nonrecognition. A domestic liquidating 
corporation shall not recognize gain or loss under paragraph (b)(1) of 
this section on its distribution of property (including inventory) used 
by the domestic liquidating corporation in the conduct of a trade or 
business within United States, if--
    (1) The foreign distributee corporation, immediately thereafter and 
for the ten-year period beginning on the date of the distribution of 
such property, uses the property in the conduct of a trade or business 
within the United States;
    (2) The domestic liquidating corporation attaches the statement 
described in paragraph (b)(2)(i)(C) of this section to its U.S. income 
tax returns for the taxable years that include the distributions in 
liquidation; and
    (3) The foreign distributee corporation attaches a copy of the 
property description contained in paragraph (b)(2)(i)(C)(2) of this 
section to its U.S. income tax return for the tax year that includes the 
date of distribution.
    (B) Qualifying property. Property is used by the foreign distributee 
corporation in the conduct of a trade or business in the United States 
within the meaning of this paragraph (b)(2)(i) only if all income from 
the use of the property and all income or gain from the sale or exchange 
of the property would be subject to taxation under section 882(a) as 
effectively connected income. Also, stock held by a dealer as inventory 
or for sale in the ordinary course

[[Page 348]]

of its trade or business shall be treated as inventory and not as stock 
in the hands of both the domestic liquidating corporation and the 
distributee foreign corporation. Notwithstanding the foregoing, the 
exception provided in this paragraph (b)(2)(i) shall not apply to 
intangibles described in section 936(h)(3)(B).
    (C) Required statement. The statement required by paragraph 
(b)(2)(i)(A) of this section shall be entitled ``Required Statement 
under Sec. 1.367(e)-2(b)(2)(i)'' and shall be prepared by the domestic 
liquidating corporation and signed under penalties of perjury by an 
authorized officer of the domestic liquidating corporation and by an 
authorized officer of the foreign distributee corporation. The statement 
shall contain the following items:
    (1) Declaration and certification. A declaration that the 
distribution to the foreign distributee corporation is one to which the 
rules of this paragraph (b)(2)(i) apply and a certification that the 
domestic liquidating corporation and the foreign distributee corporation 
agree to all of the terms and conditions set forth in this paragraph 
(b)(2)(i).
    (2) Property description. A description of all property distributed 
by the domestic liquidating corporation (irrespective of whether the 
property qualifies for nonrecognition). Such description shall be 
entitled ``Master Property Description'' and shall identify the property 
that continues to be used by the foreign distributee corporation in the 
conduct of a trade or business within the United States, including the 
location, adjusted basis, estimated fair market value, a summary of the 
method (including appraisals if any) used for determining such value, 
and the date of distribution of such items of property. The description 
shall also identify the property excepted from gain recognition under 
paragraphs (b)(2)(ii) and (iii) of this section.
    (3) Distributee identification. An identification of the foreign 
distributee corporation, including its name and address, taxpayer 
identification number, residence, and place of incorporation.
    (4) Treaty benefits waiver. With respect to property entitled to 
nonrecognition pursuant to this paragraph (b)(2)(i), a declaration by 
the foreign distributee corporation that it irrevocably waives any right 
under any treaty (whether or not currently in force at the time of the 
liquidation) to sell or exchange any item of such property without U.S. 
income taxation or at a reduced rate of taxation, or to derive income 
from the use of any item of such property without U.S. income taxation 
or at a reduced rate of taxation.
    (5) Statute of limitations extension. An agreement by the domestic 
liquidating corporation and the foreign distributee corporation to 
extend the statute of limitations on assessments and collections (under 
section 6501) with respect to the domestic liquidating corporation on 
the distribution of each item of property until three years after the 
date on which all such items of property have ceased to be used in a 
trade or business within the United States, but in no event shall the 
extension be for a period longer than 13 years from the filing of the 
original U.S. income tax return for the taxable year of the last 
distribution of any such item of property. The agreement to extend the 
statute of limitation shall be executed on a Form 8838, ``Consent to 
Extend the Time to Assess Tax Under Section 367--Gain Recognition 
Agreement.''
    (D) Failure to file statement. If a domestic liquidating corporation 
that would otherwise qualify for nonrecognition on the distribution of 
property under this paragraph (b)(2)(i) fails to file the statement 
described in paragraph (b)(2)(i)(C) of this section or files a statement 
that does not comply with the requirements of paragraph (b)(2)(i)(C) of 
this section, the Commissioner may treat the domestic liquidating 
corporation as if it had claimed nonrecognition under this paragraph 
(b)(2)(i) and met all the requirements of paragraph (b)(2)(i)(C) of this 
section, if such treatment is necessary to prevent the domestic 
liquidating corporation or the foreign distributee corporation from 
otherwise deriving a tax benefit by such failure.
    (E) Operating rules. By the domestic liquidating corporation's 
claiming nonrecognition under this paragraph (b)(2)(i) and filing a 
statement described in paragraph (b)(2)(i)(C) of this section, the 
domestic liquidating corporation and the foreign distributee

[[Page 349]]

corporation agree to be subject to the rules of this paragraph 
(b)(2)(i)(E).
    (1) Gain or loss recognition by the foreign distributee 
corporation--(i) Taxable dispositions. If, within the ten-year period 
from the date of a distribution of qualifying property, the foreign 
distributee corporation disposes of any qualifying property in a 
transaction subject to tax under section 882(a), then the foreign 
distributee corporation shall recognize such gain (or loss) and properly 
report it on a timely filed U.S. income tax return. If the foreign 
distributee corporation recognizes gain (or loss) under this paragraph 
(b)(2)(i)(E)(1)(i) and properly reports such gain (or loss) on its U.S. 
income tax return, then the domestic liquidating corporation shall not 
recognize gain attributable to such property under paragraph 
(b)(2)(i)(E)(2) of this section.
    (ii) Other triggering events. If, within the ten-year period from 
the date of distribution, any qualifying property ceases to be used by 
the foreign distributee corporation in the conduct of a trade or 
business in the United States (other than by reason of a taxable 
disposition described in paragraph (b)(2)(i)(E)(1)(i) of this section, a 
nontriggering event described in paragraph (b)(2)(i)(E)(4) of this 
section, or a nontriggering transfer described in paragraph 
(b)(2)(i)(E)(5) of this section), then the foreign distributee 
corporation shall recognize gain (but not loss) attributable to such 
property and properly report it on a timely filed U.S. income tax 
return. If the foreign distributee corporation properly reports gain 
under this paragraph (or if such qualified property is not gain property 
on the date that it ceases to be used in the foreign distributee 
corporation's U.S. trade or business), then the domestic liquidating 
corporation shall not recognize gain attributable to such property under 
paragraph (b)(2)(i)(E)(2) of this section. The gain recognized under 
this paragraph (b)(2)(i)(E)(1)(ii) shall be an amount equal to the fair 
market value of the property on the date it ceases to be used in the 
foreign distributee corporation's U.S. trade or business less the 
foreign distributee corporation's adjusted basis in such property.
    (2) Gain recognition by the domestic liquidating corporation--(i) 
General rule. If, within the ten-year period from the date of 
distribution, any qualifying property described in paragraph 
(b)(2)(i)(B) of this section ceases to be used by the foreign 
distributee corporation (or a qualifying transferee described in 
paragraph (b)(2)(i)(E)(5) of this section) in the conduct of a trade or 
business in the United States for any reason (including but not limited 
to the sale or exchange of such property or the removal of the property 
from conduct of the trade or business), then, except to the extent gain 
(or loss) is recognized under paragraph (b)(1)(i)(E)(1) of this section, 
the domestic liquidating corporation shall recognize the gain (but not 
loss) realized but not recognized upon the initial distribution of such 
item of property. The domestic liquidating corporation shall recognize 
gain pursuant to this paragraph (b)(2)(i)(E)(2)(i) on the amended U.S. 
income tax return described in paragraph (b)(2)(i)(E)(2)(ii) of this 
section.
    (ii) Amended return. If gain recognition is required pursuant to 
paragraph (b)(2)(i)(E)(2)(i) of this section, the foreign distributee 
corporation shall file an amended U.S. income tax return on behalf of 
the domestic liquidating corporation for the year of the distribution of 
such item of property. On the amended return, the domestic liquidating 
corporation may use any losses (or credits) existing in the year of the 
distribution to offset the gain recognized pursuant to paragraph 
(b)(2)(i)(E)(2)(i) of this section (or the tax thereon), provided that 
the losses (or credits) were otherwise available in the year 
distribution and were not used in another year. The amended return shall 
be filed no later than the due date (including extensions) for the 
return of the foreign distributee corporation for the taxable year in 
which the property ceases to be used by the foreign distributee 
corporation in the conduct of a trade or business in the United States.
    (iii) Interest. If the domestic liquidating corporation owes 
additional tax pursuant to paragraph (b)(2)(i)(E)(2)(i) of this section 
for the year of liquidation, then interest must be paid on

[[Page 350]]

that amount at the rates determined under section 6621. The interest due 
will be calculated from the due date of the domestic liquidating 
corporation's U.S. income tax return for the year of the distribution to 
the date on which the additional tax for that year is paid.
    (iv) Joint and several liability. The foreign distributee 
corporation shall be jointly and severally liable for any tax owed by 
the domestic liquidating corporation as a result of the application of 
this section, and shall succeed to the domestic liquidating 
corporation's agreement to extend the statute of limitations on 
assessments and collections under section 6501.
    (3) Schedule for property no longer used in a U.S. trade or 
business. If qualifying property (other than inventory) ceases to be 
used by the foreign distributee corporation in the conduct of a U.S. 
trade or business in the ten-year period beginning on the date of 
distribution of such property from the domestic liquidating corporation 
to the foreign distributee corporation, then the foreign distributee 
corporation shall list on a separate schedule (attached to its U.S. 
income tax return for the year of cessation) all such qualifying 
property. For purposes of this paragraph (b)(2)(i)(E)(3), property 
ceases to be used in a U.S. trade or business whenever such property is 
sold, exchanged, or otherwise removed from the U.S. trade or business, 
irrespective of whether the domestic liquidating corporation filed an 
amended return under paragraph (b)(2)(i)(E)(2) of this section, and 
irrespective of whether the property ceases to be used in the foreign 
distributee corporation's U.S. trade or business by virtue of a 
nontriggering event described in paragraph (b)(2)(i)(E)(4) of this 
section or a nontriggering transfer described in paragraph 
(b)(2)(i)(E)(5) of this section.
    (4) Nontriggering events--(i) Conversions, certain exchanges, and 
abandonment. Gain (or loss) under this paragraph (b)(2)(i)(E) shall not 
be triggered if qualifying property described in paragraph (b)(2)(i)(B) 
of this section is involuntarily converted into, or exchanged for, 
similar qualifying property used in the conduct of a trade or business 
in the United States, to the extent such conversion or exchange 
qualifies for nonrecognition under section 1033 or 1031. Also, the 
abandonment or disposal of worthless or obsolete property shall not 
trigger gain (or loss) under this paragraph (b)(2)(i)(E).
    (ii) Amendment to Master Property Description. If the foreign 
distributee corporation acquires replacement property by virtue of a 
conversion or exchange of the qualifying property under this paragraph 
(b)(2)(i)(E)(4), then the foreign distributee corporation shall attach 
to its U.S. income tax return for the year of the acquisition such 
replacement property a schedule entitled ``Amendment to Master Property 
Description Required by Sec. 1.367(e)-2(b)(2)(i)'' that lists the 
replacement property and the property being replaced.
    (5) Nontriggering transfers to qualified transferees. Gain (or loss) 
under this paragraph (b)(2)(i)(E) will not be triggered if qualifying 
property described in paragraph (b)(2)(i)(B) of this section is 
transferred to another person (qualified transferee) in a transaction 
qualifying for nonrecognition under the Internal Revenue Code (other 
than transactions described in paragraphs (b)(2)(i)(E)(4)(i) and (c)(1) 
of this section), if--
    (i) The qualified transferee (and all other subsequent qualified 
transferees), immediately thereafter and for the ten-year period 
beginning on the date of the initial distribution of such qualifying 
property from the domestic liquidating corporation to the foreign 
distributee corporation, uses the property in the conduct of a trade or 
business in the United States;
    (ii) The foreign distributee corporation (or its successor in 
interest) prepares and attaches to its U.S. income tax return for the 
year of transfer a statement entitled ``Required Statement under Sec. 
1.367(e)-2(b)(2)(i)(E)(5) for Property Transferred to a Qualified 
Transferee'' that is signed under penalties of perjury by an authorized 
officer of the foreign distributee corporation and by a person similarly 
authorized by the qualified transferee;
    (iii) The statement described in paragraph (b)(2)(i)(E)(5)(ii) of 
this section

[[Page 351]]

shall contain a description of all qualifying property transferred by 
the foreign distributee corporation (or qualified transferee) to the 
qualified transferee (or subsequent qualified transferee);
    (iv) The statement described in paragraph (b)(2)(i)(E)(5)(ii) of 
this section shall also contain an identification of the qualified 
transferee (or subsequent qualified transferee), including its name and 
address, taxpayer identification number, residence, and place of 
incorporation (if applicable);
    (v) The statement described in paragraph (b)(2)(i)(E)(5)(ii) of this 
section shall also contain a declaration by the qualifying transferee 
(or subsequent qualifying transferee) that it irrevocably waives any 
right under any treaty (whether or not currently in force at the time of 
the liquidation) to sell or exchange any item of such property without 
U.S. income taxation or at a reduced rate of taxation, or to derive 
income from the use of any item of such qualifying property without U.S. 
income taxation or at a reduced rate of taxation; and
    (vi) A declaration that the transfer to the qualifying transferee 
(or subsequent qualifying transferee) is one to which the rules of this 
paragraph (b)(2)(i)(E)(5) apply and a certification that the foreign 
distributee corporation (or its successor in interest) and the 
qualifying transferee (or subsequent qualifying transferee) agree to all 
of the terms and conditions set forth in paragraph (b)(2)(i)(E)(1) of 
this section, replacing ``foreign distributee corporation'' with 
``qualifying transferee'' and replacing references to ``section 882(a)'' 
with ``section 871(b)'' (as the case may be).
    (ii) Distribution of certain U.S. real property interests. A 
domestic liquidating corporation shall not recognize gain (or loss) 
under paragraph (b)(1) of this section on the distribution of a U.S. 
real property interest (other than stock in a former U.S. real property 
holding corporation that is treated as a U.S. real property interest for 
five years under section 897(c)(1)(A)(ii)). If property distributed by 
the domestic liquidating corporation is a U.S. real property interest 
that qualifies for nonrecognition under this paragraph (b)(2)(ii) in 
addition to nonrecognition provided by paragraph (b)(2)(i) of this 
section, then the domestic liquidating corporation shall secure 
nonrecognition pursuant to this paragraph (b)(2)(ii) and not pursuant to 
the provisions of paragraph (b)(2)(i) of this section.
    (iii) Distribution of stock of domestic subsidiary corporations--(A) 
Conditions for nonrecognition. A domestic liquidating corporation shall 
not recognize gain or loss under paragraph (b)(1) of this section on a 
distribution of stock of an 80 percent domestic subsidiary corporation, 
if the domestic liquidating corporation attaches a statement described 
in paragraph (b)(2)(iii)(D) of this section to its U.S. income tax 
return for the year of the distribution of such stock. For purposes of 
this paragraph (b)(2)(iii), a corporation is an 80 percent domestic 
subsidiary corporation, if--
    (1) The subsidiary corporation is a domestic corporation (but not a 
foreign corporation that has made an election under section 897(i) to be 
treated as a U.S. corporation for purposes of section 897);
    (2) The domestic liquidating corporation owns (directly and without 
regard to paragraph (b)(1)(iii) of this section) at least 80 percent of 
the total voting power of the stock of such corporation; and
    (3) The domestic liquidating corporation owns (directly and without 
regard to paragraph (b)(1)(iii) of this section) at least 80 percent of 
the total value of all stock of such corporation.
    (B) Exceptions when the liquidating corporation is a U.S. real 
property holding corporation. If the domestic liquidating corporation is 
a U.S. real property holding corporation (as defined in section 
897(c)(2)) at the time of liquidation (or is a former U.S. real property 
holding corporation the stock of which is treated as a U.S. real 
property interest for five years under section 897(c)(1)(A)(ii)), then 
the exception in paragraph (b)(2)(iii)(A) of this section shall apply 
only to the distribution of stock of an 80 percent domestic subsidiary 
corporation that is a U.S. real property holding corporation (as defined 
in section 897(c)(2)) at the time of

[[Page 352]]

the liquidation and immediately thereafter.
    (C) Anti-abuse rule. (1) The exception in paragraph (b)(2)(iii)(A) 
of this section shall not apply, if a principal purpose of the 
distribution of the 80 percent domestic subsidiary corporation's stock 
is the avoidance of U.S. tax that would have been imposed on the 
domestic liquidating corporation's disposition of such stock when taken 
together to an unrelated party. A distribution may have a principal 
purpose of tax avoidance even though the tax avoidance purpose is 
outweighed by other purposes when taken together.
    (2) For purposes of paragraph (b)(2)(iii)(C)(1) of this section, a 
distribution of stock of the 80 percent domestic subsidiary corporation 
will be deemed to have been made pursuant to a plan, one of the 
principal purposes of which was the avoidance of U.S. tax, if the 
foreign distributee corporation disposes of (whether in a recognition or 
nonrecognition transaction) any such stock within two years of such 
distribution. The rule in this paragraph (b)(2)(iii)(C)(2) will not 
apply if the foreign distributee corporation can demonstrate to the 
satisfaction of the Commissioner that the avoidance of U.S. tax was not 
a principal purpose of the liquidation.
    (D) Required statement. The statement required by paragraph 
(b)(2)(iii)(A) of this section shall be entitled ``Required Statement 
under Sec. 1.367(e)-2(b)(2)(iii) for Stock of 80 Percent Domestic 
Subsidiary Corporations'' and shall be prepared by the domestic 
liquidating corporation and shall be signed under penalties of perjury 
by an authorized officer of the domestic liquidating corporation and by 
an authorized officer of the foreign distributee corporation. The 
required statement shall contain a certification that states that if the 
foreign distributee corporation disposes of any stock subject to 
paragraph (b)(2)(iii)(A) of this section in a transaction described in 
paragraph (b)(2)(iii)(C) of this section, then the domestic liquidating 
corporation shall recognize all realized gain attributable to the 
distributed stock at the time of distribution, and the domestic 
liquidating corporation (or the foreign distributee corporation on 
behalf of the domestic liquidating corporation) shall file a U.S. income 
tax return (or amended U.S. income tax return, as the case may be) for 
the year of distribution reporting the gain attributable to such stock.
    (3) Other consequences--(i) Distributee basis in property. The 
foreign distributee corporation's basis in property subject to this 
paragraph (b) shall be the same as the domestic liquidating 
corporation's basis in such property immediately before the liquidation, 
increased by any gain, or reduced by any loss recognized by the domestic 
liquidating corporation on such property pursuant to paragraph (b)(1) of 
this section.
    (ii) Reporting under section 6038B. Section 6038B and the 
regulations thereunder apply to a domestic liquidating corporation's 
transfer of property to a foreign distributee corporation under section 
367(e)(2).
    (iii) Other rules. For other rules that may be applicable, see 
sections 1248, 897, and 381.
    (c) Distribution by a foreign corporation--(1) General rule--gain 
and loss not recognized. If a foreign corporation (foreign liquidating) 
makes a distribution of property in complete liquidation under section 
332 to a foreign corporation (foreign distributee) that meets the stock 
ownership requirements of section 332(b) with respect to stock in the 
foreign liquidating corporation, then, except as provided in paragraph 
(c)(2) of this section, section 337 (a) and (b)(1) shall apply and the 
foreign liquidating corporation shall not recognize gain (or loss) on 
the distribution under section 367(e)(2). If a foreign liquidating 
corporation distributes a partnership interest (whether foreign or 
domestic), then such corporation shall be treated as having distributed 
a proportionate share of partnership property in accordance with the 
principles of paragraph (b)(1)(iii) of this section.
    (2) Exceptions--(i) Property used in a U.S. trade or business--(A) 
General rule. A foreign liquidating corporation (including a corporation 
that has made an effective election under section 897(i)) that makes a 
distribution described in paragraph (c)(1) of this section shall 
recognize gain (or loss in accordance with principles contained in 
paragraph

[[Page 353]]

(b)(1)(ii) of this section) on the distribution of qualified property, 
as described in paragraph (b)(2)(i)(B) of this section (other than U.S. 
real property interests), that is used by the foreign liquidating 
corporation in the conduct of a trade or business within the United 
States at the time of distribution.
    (B) Ten-year active U.S. business exception. A foreign liquidating 
corporation shall not recognize gain under paragraph (c)(2)(i)(A) of 
this section, if--
    (1) The foreign distributee corporation, immediately thereafter and 
for the ten-year period beginning on the date of the distribution of 
such property, uses the property in the conduct of a trade or business 
in the United States;
    (2) The foreign distributee corporation is not entitled to benefits 
under a comprehensive income tax treaty (this requirement shall apply 
only if the foreign liquidating corporation (or predecessor corporation) 
was not entitled to benefits under a comprehensive income tax treaty); 
and
    (3) The foreign liquidating corporation and foreign distributee 
corporation attach the statement described in paragraph (c)(2)(i)(C) of 
this section to their U.S. income tax returns for their taxable years 
that include the distribution.
    (C) Required statement. The statement required by paragraph 
(c)(2)(i)(B)(3) of this section shall be entitled ``Required Statement 
under Sec. 1.367(e)-2(c)(2)(i),'' shall be prepared by foreign 
liquidating corporation, shall be signed under penalties of perjury by 
an authorized officer of the foreign liquidating corporation and by an 
authorized officer of the foreign distributee corporation, and shall be 
identical to the statement described in paragraph (b)(2)(i)(C) of this 
section, except that ``Sec. 1.367(e)-2(c)(2)(i)(B)'' shall be 
substituted for references to ``Sec. 1.367(e)-2(b)(2)(i)'' and 
``foreign liquidating corporation'' shall be substituted for ``domestic 
liquidating corporation'' each time it appears. References in the rules 
of paragraph (b)(2)(i)(C) of this section to various rules in paragraph 
(b) of this section shall be applied as if such references were to this 
paragraph (c). However, the statement described in this paragraph 
(c)(2)(i)(C) shall be modified as follows:
    (1) The foreign distributee corporation shall not be required to 
waive its income tax treaty benefits as required by Sec. 1.367(e)-
2(b)(2)(i)(C)(4), unless--
    (i) The foreign liquidating corporation was required to waive its 
treaty benefits under paragraph (b)(2)(i)(C)(4) of this section in 
connection with the distribution of such property in a prior liquidation 
distribution subject to the provisions of this section; or (ii) The 
foreign distributee corporation is entitled benefits under a treaty to 
which the foreign liquidating corporation was not entitled.
    (2) If the foreign distributee is required to waive treaty benefits 
because of paragraph (c)(2)(i)(C)(1)(ii) of this section, then the 
foreign distributee shall only be required to waive benefits that were 
not available to the foreign liquidating corporation (or a predecessor 
corporation) prior to liquidation.
    (3) The property description described in paragraph (b)(2)(i)(C)(2) 
of this section shall include only the qualified U.S. trade or business 
property described in paragraph (c)(2)(i) of this section.
    (D) Operating rules. By the foreign liquidating corporation's 
claiming nonrecognition under paragraph (c)(2)(i)(B) of this section and 
filing a statement described in paragraph (c)(2)(i)(C) of this section, 
the foreign liquidating corporation and the foreign distributee 
corporation agree to be subject to the rules of paragraph (c)(2)(i) of 
this section, as well as the rules of paragraphs (b)(2)(i)(D) and (E) of 
this section. In applying the rules of paragraphs (b)(2)(i)(D) and (E) 
of this section, ``foreign liquidating corporation'' shall be used 
instead of ``domestic liquidating corporation'' each time it appears. 
References in the rules of paragraphs (b)(2)(i)(D) and (E) of this 
section to various rules in paragraph (b) of this section shall be 
applied as if such references were to this paragraph (c).
    (ii) Property formerly used in a United States trade or business. A 
foreign liquidating corporation that makes a distribution described in 
paragraph (c)(1) of this section shall recognize gain (but

[[Page 354]]

not loss) on the distribution of property (other than U.S. real property 
interests) that had ceased to be used by the foreign liquidating 
corporation in the conduct of a U.S. trade or business within the ten-
year period ending on the date of distribution and that would have been 
subject to section 864(c)(7) had it been disposed. Section 864(c)(7) 
shall govern the treatment of any gain recognized on the distribution of 
assets described in this paragraph as income effectively connected with 
the conduct of a trade or business within the United States.
    (3) Other consequences--(i) Distributee basis in property. The 
foreign distributee corporation's basis in property subject to this 
paragraph (c) shall be the same as the foreign liquidating corporation's 
basis in such property immediately before the liquidation, increased by 
any gain, or reduced by any loss recognized by the foreign liquidating 
corporation on such property, pursuant to paragraph (c)(2) of this 
section.
    (ii) Other rules. For other rules that may apply, see sections 
367(b) and 381.
    (d) Anti-abuse rule. The Commissioner may require a domestic 
liquidating corporation to recognize gain on a distribution in 
liquidation described in paragraph (b) of this section (or treat the 
liquidating corporation as if it had recognized loss on a distribution 
in liquidation), if a principal purpose of the liquidation is the 
avoidance of U.S. tax (including, but not limited to, the distribution 
of a liquidating corporation's earnings and profits with a principal 
purpose of avoiding U.S. tax). A liquidation may have a principal 
purpose of tax avoidance even though the tax avoidance purpose is 
outweighed by other purposes when taken together.
    (e) Effective date. This section shall be applicable to 
distributions occurring on or after September 7, 1999 or, if taxpayer so 
elects, to distributions in taxable years ending after August 8, 1999.

[T.D. 8834, 64 FR 43077, Aug. 9, 1999; 65 FR 11467, Mar. 3, 2000, as 
amended by T.D. 9066, 68 FR 39452, July 2, 2003]

                        special rule; definitions



Sec. 1.368-1  Purpose and scope of exception of reorganization exchanges.

    (a) Reorganizations. As used in the regulations under parts I, II, 
and III (section 301 and following), subchapter C, chapter 1 of the 
Code, the terms reorganization and party to a reorganization mean only a 
reorganization or a party to a reorganization as defined in subsections 
(a) and (b) of section 368. In determining whether a transaction 
qualifies as a reorganization under section 368(a), the transaction must 
be evaluated under relevant provisions of law, including the step 
transaction doctrine. But see Sec. Sec. 1.368-2 (f) and (k) and 1.338-
3(d). The preceding two sentences apply to transactions occurring after 
January 28, 1998, except that they do not apply to any transaction 
occurring pursuant to a written agreement which is binding on January 
28, 1998, and at all times thereafter. With respect to insolvency 
reorganizations, see part IV, subchapter C, chapter 1 of the Code.
    (b) Purpose. Under the general rule, upon the exchange of property, 
gain or loss must be accounted for if the new property differs in a 
material particular, either in kind or in extent, from the old property. 
The purpose of the reorganization provisions of the Code is to except 
from the general rule certain specifically described exchanges incident 
to such readjustments of corporate structures made in one of the 
particular ways specified in the Code, as are required by business 
exigencies and which effect only a readjustment of continuing interest 
in property under modified corporate forms. Requisite to a 
reorganization under the Internal Revenue Code are a continuity of the 
business enterprise through the issuing corporation under the modified 
corporate form as described in paragraph (d) of this section, and 
(except as provided in section 368(a)(1)(D)) a continuity of interest as 
described in paragraph (e) of this section. (For rules regarding the 
continuity of interest requirement under section 355, see Sec. 1.355-
2(c).) For purposes of this section, the term issuing

[[Page 355]]

corporation means the acquiring corporation (as that term is used in 
section 368(a)), except that, in determining whether a reorganization 
qualifies as a triangular reorganization (as defined in Sec. 1.358-
6(b)(2)), the issuing corporation means the corporation in control of 
the acquiring corporation. The preceding three sentences apply to 
transactions occurring after January 28, 1998, except that they do not 
apply to any transaction occurring pursuant to a written agreement which 
is binding on January 28, 1998, and at all times thereafter. The 
continuity of business enterprise requirement is described in paragraph 
(d) of this section. Notwithstanding the requirements of this paragraph 
(b), for transactions occurring on or after February 25, 2005, a 
continuity of the business enterprise and a continuity of interest are 
not required for the transaction to qualify as a reorganization under 
section 368(a)(1)(E) or (F). The Code recognizes as a reorganization the 
amalgamation (occurring in a specified way) of two corporate enterprises 
under a single corporate structure if there exists among the holders of 
the stock and securities of either of the old corporations the requisite 
continuity of interest in the new corporation, but there is not a 
reorganization if the holders of the stock and securities of the old 
corporation are merely the holders of short-term notes in the new 
corporation. In order to exclude transactions not intended to be 
included, the specifications of the reorganization provisions of the law 
are precise. Both the terms of the specifications and their underlying 
assumptions and purposes must be satisfied in order to entitle the 
taxpayer to the benefit of the exception from the general rule. 
Accordingly, under the Code, a short-term purchase money note is not a 
security of a party to a reorganization, an ordinary dividend is to be 
treated as an ordinary dividend, and a sale is nevertheless to be 
treated as a sale even though the mechanics of a reorganization have 
been set up.
    (c) Scope. The nonrecognition of gain or loss is prescribed for two 
specifically described types of exchanges, viz: The exchange that is 
provided for in section 354(a)(1) in which stock or securities in a 
corporation, a party to a reorganization, are, in pursuance of a plan of 
reorganization, exchanged for the stock or securities in a corporation, 
a party to the same reorganization; and the exchange that is provided 
for in section 361(a) in which a corporation, a party to a 
reorganization, exchanges property, in pursuance of a plan of 
reorganization, for stock or securities in another corporation, a party 
to the same reorganization. Section 368(a)(1) limits the definition of 
the term reorganization to six kinds of transactions and excludes all 
others. From its context, the term a party to a reorganization can only 
mean a party to a transaction specifically defined as a reorganization 
by section 368(a). Certain rules respecting boot received in either of 
the two types of exchanges provided for in section 354(a)(1) and section 
361(a) are prescribed in sections 356, 357, and 361(b). A special rule 
respecting a transfer of property with a liability in excess of its 
basis is prescribed in section 357(c). Under section 367 a limitation is 
placed on all these provisions by providing that except under specified 
conditions foreign corporations shall not be deemed within their scope. 
The provisions of the Code referred to in this paragraph are 
inapplicable unless there is a plan of reorganization. A plan of 
reorganization must contemplate the bona fide execution of one of the 
transactions specifically described as a reorganization in section 
368(a) and for the bona fide consummation of each of the requisite acts 
under which nonrecognition of gain is claimed. Such transaction and such 
acts must be an ordinary and necessary incident of the conduct of the 
enterprise and must provide for a continuation of the enterprise. A 
scheme, which involves an abrupt departure from normal reorganization 
procedure in connection with a transaction on which the imposition of 
tax is imminent, such as a mere device that puts on the form of a 
corporate reorganization as a disguise for concealing its real 
character, and the object and accomplishment of which is the 
consummation of a preconceived plan having no business or corporate 
purpose, is not a plan of reorganization.

[[Page 356]]

    (d) Continuity of business enterprise--(1) General rule. Continuity 
of business enterprise (COBE) requires that the issuing corporation (P), 
as defined in paragraph (b) of this section, either continue the target 
corporation's (T's) historic business or use a significant portion of 
T's historic business assets in a business. The preceding sentence 
applies to transactions occurring after January 28, 1998, except that it 
does not apply to any transaction occurring pursuant to a written 
agreement which is binding on January 28, 1998, and at all times 
thereafter. The application of this general rule to certain 
transactions, such as mergers of holding companies, will depend on all 
facts and circumstances. The policy underlying this general rule, which 
is to ensure that reorganizations are limited to readjustments of 
continuing interests in property under modified corporate form, provides 
the guidance necessary to make these facts and circumstances 
determinations.
    (2) Business continuity. (i) The continuity of business enterprise 
requirement is satisfied if P continues T's historic business. The fact 
P is in the same line of business as T tends to establish the requisite 
continuity, but is not alone sufficient.
    (ii) If T has more than one line of business, continuity of business 
enterprise requires only that P continue a significant line of business.
    (iii) In general, a corporation's historic business is the business 
it has conducted most recently. However, a corporation's historic 
business is not one the corporation enters into as part of a plan of 
reorganization.
    (iv) All facts and circumstances are considered in determining the 
time when the plan comes into existence and in determining whether a 
line of business is ``significant''.
    (3) Asset continuity. (i) The continuity of business enterprise 
requirement is satisfied if P uses a significant portion of T's historic 
business assets in a business.
    (ii) A corporation's historic business assets are the assets used in 
its historic business. Business assets may include stock and securities 
and intangible operating assets such as good will, patents, and 
trademarks, whether or not they have a tax basis.
    (iii) In general, the determination of the portion of a 
corporation's assets considered ``significant'' is based on the relative 
importance of the assets to operation of the business. However, all 
other facts and circumstances, such as the net fair market value of 
those assets, will be considered.
    (4) Acquired assets or stock held by members of the qualified group 
or partnerships. The following rules apply in determining whether the 
COBE requirement of paragraph (d)(1) of this section is satisfied:
    (i) Businesses and assets of members of a qualified group. The 
issuing corporation is treated as holding all of the businesses and 
assets of all of the members of the qualified group, as defined in 
paragraph (d)(4)(ii) of this section.
    (ii) Qualified group. A qualified group is one or more chains of 
corporations connected through stock ownership with the issuing 
corporation, but only if the issuing corporation owns directly stock 
meeting the requirements of section 368(c) in at least one other 
corporation, and stock meeting the requirements of section 368(c) in 
each of the corporations (except the issuing corporation) is owned 
directly by one of the other corporations.
    (iii) Partnerships--(A) Partnership assets. Each partner of a 
partnership will be treated as owning the T business assets used in a 
business of the partnership in accordance with that partner's interest 
in the partnership.
    (B) Partnership businesses. The issuing corporation will be treated 
as conducting a business of a partnership if--
    (1) Members of the qualified group, in the aggregate, own an 
interest in the partnership representing a significant interest in that 
partnership business; or
    (2) One or more members of the qualified group have active and 
substantial management functions as a partner with respect to that 
partnership business.
    (C) Conduct of the historic T business in a partnership. If a 
significant historic T business is conducted in a partnership, the fact 
that P is treated as conducting such T business under paragraph

[[Page 357]]

(d)(4)(iii)(B) of this section tends to establish the requisite 
continuity, but is not alone sufficient.
    (iv) Effective date. This paragraph (d)(4) applies to transactions 
occurring after January 28, 1998, except that it does not apply to any 
transaction occurring pursuant to a written agreement which is binding 
on January 28, 1998, and at all times thereafter.
    (5) Examples. The following examples illustrate this paragraph (d). 
All corporations have only one class of stock outstanding. The preceding 
sentence and paragraph (d)(5) Example 6 through Example 12 apply to 
transactions occurring after January 28, 1998, except that they do not 
apply to any transaction occurring pursuant to a written agreement which 
is binding on January 28, 1998, and at all times thereafter.

    Example 1. T conducts three lines of business: manufacture of 
synthetic resins, manufacture of chemicals for the textile industry, and 
distribution of chemicals. The three lines of business are approximately 
equal in value. On July 1, 1981, T sells the synthetic resin and 
chemicals distribution businesses to a third party for cash and 
marketable securities. On December 31, 1981, T transfers all of its 
assets to P solely for P voting stock. P continues the chemical 
manufacturing business without interruption. The continuity of business 
enterprise requirement is met. Continuity of business enterprise 
requires only that P continue one of T's three significant lines of 
business.
    Example 2. P manufactures computers and T manufactures components 
for computers. T sells all of its output to P. On January 1, 1981, P 
decides to buy imported components only. On March 1, 1981, T merges into 
P. P continues buying imported components but retains T's equipment as a 
backup source of supply. The use of the equipment as a backup source of 
supply constitutes use of a significant portion of T's historic business 
assets, thus establishing continuity of business enterprise. P is not 
required to continue T's business.
    Example 3. T is a manufacturer of boys' and men's trousers. On 
January 1, 1978, as part of a plan of reorganization, T sold all of its 
assets to a third party for cash and purchased a highly diversified 
portfolio of stocks and bonds. As part of the plan T operates an 
investment business until July 1, 1981. On that date, the plan of 
reorganization culminates in a transfer by T of all its assets to P, a 
regulated investment company, solely in exchange for P voting stock. The 
continuity of business enterprise requirement is not met. T's investment 
activity is not its historic business, and the stocks and bonds are not 
T's historic business assets.
    Example 4. T manufactures children's toys and P distributes steel 
and allied products. On January 1, 1981, T sells all of its assets to a 
third party for $100,000 cash and $900,000 in notes. On March 1, 1981, T 
merges into P. Continuity of business enterprise is lacking. The use of 
the sales proceeds in P's business is not sufficient.
    Example 5. T manufactures farm machinery and P operates a lumber 
mill. T merges into P. P disposes of T's assets immediately after the 
merger as part of the plan of reorganization. P does not continue T's 
farm machinery manufacturing business. Continuity of business enterprise 
is lacking.
    Example 6. Use of a significant portion of T's historic business 
assets by the qualified group. (i) Facts. T operates an auto parts 
distributorship. P owns 80 percent of the stock of a holding company 
(HC). HC owns 80 percent of the stock of ten subsidiaries, S-1 through 
S-10. S-1 through S-10 each separately operate a full service gas 
station. Pursuant to a plan of reorganization, T merges into P and the T 
shareholders receive solely P stock. As part of the plan of 
reorganization, P transfers T's assets to HC, which in turn transfers 
some of the T assets to each of the ten subsidiaries. No one subsidiary 
receives a significant portion of T's historic business assets. Each of 
the subsidiaries will use the T assets in the operation of its full 
service gas station. No P subsidiary will be an auto parts distributor.
    (ii) Continuity of business enterprise. Under paragraph (d)(4)(i) of 
this section, P is treated as conducting the ten gas station businesses 
of S-1 through S-10 and as holding the historic T assets used in those 
businesses. P is treated as holding all the assets and conducting the 
businesses of all of the members of the qualified group, which includes 
S-1 through S-10 (paragraphs (d)(4)(i) and (ii) of this section). No 
member of the qualified group continues T's historic distributorship 
business. However, subsidiaries S-1 through S-10 continue to use the 
historic T assets in a business. Even though no one corporation of the 
qualified group is using a significant portion of T's historic business 
assets in a business, the COBE requirement of paragraph (d)(1) of this 
section is satisfied because, in the aggregate, the qualified group is 
using a significant portion of T's historic business assets in a 
business.
    Example 7. Continuation of the historic T business in a partnership 
satisfies continuity of business enterprise. (i) Facts. T manufactures 
ski boots. P owns all of the stock of S-1. S-1 owns all of the stock of 
S-2, and S-2 owns all of the stock of S-3. T merges into P and the T 
shareholders receive consideration consisting of P stock and cash. The T 
ski boot business is to be continued and expanded. In anticipation of 
this expansion, P

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transfers all of the T assets to S-1, S-1 transfers all of the T assets 
to S-2, and S-2 transfers all of the T assets to S-3. S-3 and X (an 
unrelated party) form a new partnership (PRS). As part of the plan of 
reorganization, S-3 transfers all the T assets to PRS, and S-3, in its 
capacity as a partner, performs active and substantial management 
functions for the PRS ski boot business, including making significant 
business decisions and regularly participating in the overall 
supervision, direction, and control of the employees of the ski boot 
business. S-3 receives a 20 percent interest in PRS. X transfers cash in 
exchange for an 80 percent interest in PRS.
    (ii) Continuity of business enterprise. Under paragraph 
(d)(4)(iii)(B)(2) of this section, P is treated as conducting T's 
historic business because S-3 performs active and substantial management 
functions for the ski boot business in S-3's capacity as a partner. P is 
treated as holding all the assets and conducting the businesses of all 
of the members of the qualified group, which includes S-3 (paragraphs 
(d)(4)(i) and (ii) of this section). The COBE requirement of paragraph 
(d)(1) of this section is satisfied.
    Example 8. Continuation of the historic T business in a partnership 
does not satisfy continuity of business enterprise. (i) Facts. The facts 
are the same as Example 7 except that S-3 transfers the historic T 
business to PRS in exchange for a 1 percent interest in PRS.
    (ii) Continuity of business enterprise. Under paragraph 
(d)(4)(iii)(B)(2) of this section, P is treated as conducting T's 
historic business because S-3 performs active and substantial management 
functions for the ski boot business in S-3's capacity as a partner. The 
fact that a significant historic T business is conducted in PRS, and P 
is treated as conducting such T business under (d)(4)(iii)(B) tends to 
establish the requisite continuity, but is not alone sufficient 
(paragraph (d)(4)(iii)(C) of this section). The COBE requirement of 
paragraph (d)(1) of this section is not satisfied.
    Example 9. Continuation of the T historic business in a partnership 
satisfies continuity of business enterprise. (i) Facts. The facts are 
the same as Example 7 except that S-3 transfers the historic T business 
to PRS in exchange for a 33\1/3\ percent interest in PRS, and no member 
of P's qualified group performs active and substantial management 
functions for the ski boot business operated in PRS.
    (ii) Continuity of business enterprise. Under paragraph 
(d)(4)(iii)(B)(1) of this section, P is treated as conducting T's 
historic business because S-3 owns an interest in the partnership 
representing a significant interest in that partnership business. P is 
treated as holding all the assets and conducting the businesses of all 
of the members of the qualified group, which includes S-3 (paragraphs 
(d)(4)(i) and (ii) of this section). The COBE requirement of paragraph 
(d)(1) of this section is satisfied.
    Example 10. Use of T's historic business assets in a partnership 
business. (i) Facts. T is a fabric distributor. P owns all of the stock 
of S-1. T merges into P and the T shareholders receive solely P stock. 
S-1 and X (an unrelated party) own interests in a partnership (PRS). As 
part of the plan of reorganization, P transfers all of the T assets to 
S-1, and S-1 transfers all the T assets to PRS, increasing S-1's 
percentage interest in PRS from 5 to 33\1/3\ percent. After the 
transfer, X owns the remaining 66\2/3\ percent interest in PRS. Almost 
all of the T assets consist of T's large inventory of fabric, which PRS 
uses to manufacture sportswear. All of the T assets are used in the 
sportswear business. No member of P's qualified group performs active 
and substantial management functions for the sportswear business 
operated in PRS.
    (ii) Continuity of business enterprise. Under paragraph 
(d)(4)(iii)(A) of this section, S-1 is treated as owning 33\1/3\ percent 
of the T assets used in the PRS sportswear manufacturing business. Under 
paragraph (d)(4)(iii)(B)(1) of this section, P is treated as conducting 
the sportswear manufacturing business because S-1 owns an interest in 
the partnership representing a significant interest in that partnership 
business. P is treated as holding all the assets and conducting the 
businesses of all of the members of the qualified group, which includes 
S-1 (paragraphs (d)(4)(i) and (ii) of this section). The COBE 
requirement of paragraph (d)(1) of this section is satisfied.
    Example 11. Aggregation of partnership interests among members of 
the qualified group: use of T's historic business assets in a 
partnership business. (i) Facts. The facts are the same as Example 10, 
except that S-1 transfers all the T assets to PRS, and P and X each 
transfer cash to PRS in exchange for partnership interests. After the 
transfers, P owns 11 percent, S-1 owns 22\1/3\ percent, and X owns 66\2/
3\ percent of PRS.
    (ii) Continuity of business enterprise. Under paragraph 
(d)(4)(iii)(B)(1) of this section, P is treated as conducting the 
sportswear manufacturing business because members of the qualified 
group, in the aggregate, own an interest in the partnership representing 
a significant interest in that business. P is treated as owning 11 
percent of the assets directly, and S-1 is treated as owning 22\1/3\ 
percent of the assets, used in the PRS sportswear business (paragraph 
(d)(4)(iii)(A) of this section). P is treated as holding all the assets 
of all of the members of the qualified group, which includes S-1, and 
thus in the aggregate, P is treated as owning 33\1/3\ of the T assets 
(paragraphs (d)(4)(i) and (ii) of this section). The COBE requirement of 
paragraph (d)(1) of this section is satisfied because P is treated as 
using a significant portion of T's historic business assets in its 
sportswear manufacturing business.

[[Page 359]]

    Example 12. Tiered partnerships: use of T's historic business assets 
in a partnership business. (i) Facts. T owns and manages a commercial 
office building in state Z. Pursuant to a plan of reorganization, T 
merges into P, solely in exchange for P stock, which is distributed to 
the T shareholders. P transfers all of the T assets to a partnership, 
PRS-1, which owns and operates television stations nationwide. After the 
transfer, P owns a 50 percent interest in PRS-1. P does not have active 
and substantial management functions as a partner with respect to the 
PRS-1 business. X, not a member of P's qualified group, owns the 
remaining 50 percent interest in PRS-1. PRS-1, in an effort to expand 
its state Z television operation, enters into a joint venture with U, an 
unrelated party. As part of the plan of reorganization, PRS-1 transfers 
all the T assets and its state Z television station to PRS-2, in 
exchange for a 75 percent partnership interest. U contributes cash to 
PRS-2 in exchange for a 25 percent partnership interest and oversees the 
management of the state Z television operation. PRS-1 does not actively 
and substantially manage PRS-2's business. PRS-2's state Z operations 
are moved into the acquired T office building. All of the assets that P 
acquired from T are used in PRS-2's business.
    (ii) Continuity of business enterprise. Under paragraph 
(d)(4)(iii)(A) of this section, PRS-1 is treated as owning 75 percent of 
the T assets used in PRS-2's business. P, in turn, is treated as owning 
50 percent of PRS-1's interest the T assets. Thus, P is treated as 
owning 37\1/2\ percent (50 percent x 75 percent) of the T assets used in 
the PRS-2 business. Under paragraph (d)(4)(iii)(B)(1) of this section, P 
is treated as conducting PRS-2's business, the operation of the state Z 
television station, and under paragraph (d)(4)(iii)(A) of this section, 
P is treated as using 37\1/2\ percent of the historic T business assets 
in that business. The COBE requirement of paragraph (d)(1) of this 
section is satisfied because P is treated as using a significant portion 
of T's historic business assets in its television business.

    (e) Continuity of interest--(1) General rule. (i) The purpose of the 
continuity of interest requirement is to prevent transactions that 
resemble sales from qualifying for nonrecognition of gain or loss 
available to corporate reorganizations. Continuity of interest requires 
that in substance a substantial part of the value of the proprietary 
interests in the target corporation be preserved in the reorganization. 
A proprietary interest in the target corporation is preserved if, in a 
potential reorganization, it is exchanged for a proprietary interest in 
the issuing corporation (as defined in paragraph (b) of this section), 
it is exchanged by the acquiring corporation for a direct interest in 
the target corporation enterprise, or it otherwise continues as a 
proprietary interest in the target corporation. However, a proprietary 
interest in the target corporation is not preserved if, in connection 
with the potential reorganization, it is acquired by the issuing 
corporation for consideration other than stock of the issuing 
corporation, or stock of the issuing corporation furnished in exchange 
for a proprietary interest in the target corporation in the potential 
reorganization is redeemed. All facts and circumstances must be 
considered in determining whether, in substance, a proprietary interest 
in the target corporation is preserved. For purposes of the continuity 
of interest requirement, a mere disposition of stock of the target 
corporation prior to a potential reorganization to persons not related 
(as defined in paragraph (e)(4) of this section determined without 
regard to paragraph (e)(4)(i)(A) of this section) to the target 
corporation or to persons not related (as defined in paragraph (e)(4) of 
this section) to the issuing corporation is disregarded and a mere 
disposition of stock of the issuing corporation received in a potential 
reorganization to persons not related (as defined in paragraph (e)(4) of 
this section) to the issuing corporation is disregarded.
    (ii) For purposes of paragraph (e)(1)(i) of this section, a 
proprietary interest in the target corporation (other than one held by 
the acquiring corporation) is not preserved to the extent that 
consideration received prior to a potential reorganization, either in a 
redemption of the target corporation stock or in a distribution with 
respect to the target corporation stock, is treated as other property or 
money received in the exchange for purposes of section 356, or would be 
so treated if the target shareholder also had received stock of the 
issuing corporation in exchange for stock owned by the shareholder in 
the target corporation.
    (2) Measuring continuity of interest--(i) In general. In determining 
whether a

[[Page 360]]

proprietary interest in the target corporation is preserved, the 
consideration to be exchanged for the proprietary interests in the 
target corporation pursuant to a contract to effect the potential 
reorganization shall be valued on the last business day before the first 
date such contract is a binding contract, if such contract provides for 
fixed consideration.
    (ii) Binding contract--(A) In general. A binding contract is an 
instrument enforceable under applicable law against the parties to the 
instrument. The presence of a condition outside the control of the 
parties (including, for example, regulatory agency approval) shall not 
prevent an instrument from being a binding contract. Further, the fact 
that insubstantial terms remain to be negotiated by the parties to the 
contract, or that customary conditions remain to be satisfied, shall not 
prevent an instrument from being a binding contract.
    (B) Modifications--(1) In general. If a term of a binding contract 
that relates to the amount or type of the consideration the target 
shareholders will receive in a potential reorganization is modified 
before the closing date of the potential reorganization, and the 
contract as modified is a binding contract, the date of the modification 
shall be treated as the first date there is a binding contract.
    (2) Exception. Notwithstanding paragraph (e)(2)(ii)(B)(1) of this 
section, a modification of a term that relates to the amount or type of 
consideration the target shareholders will receive in a potential 
reorganization will not be treated as a modification for purposes of 
that provision if--
    (i) That modification has the sole effect of providing for the 
issuance of additional shares of issuing corporation stock to the target 
corporation shareholders; and
    (ii) The execution of the potential reorganization would have 
resulted in the preservation of a substantial part of the value of the 
target corporation shareholders' proprietary interest in the target 
corporation if there had been no modification.
    (C) Tender offers. For purposes of this paragraph (e)(2), a tender 
offer that is subject to section 14(d) of the Securities and Exchange 
Act of 1934 [15 U.S.C. 78n(d)(1)] and Regulation 14D (17 CFR 240.14d-1 
through 240.14d-101) and is not pursuant to a binding contract, is 
treated as a binding contract made on the date of its announcement, 
notwithstanding that it may be modified by the offeror or that it is not 
enforceable against the offerees. If a modification (not pursuant to a 
binding contract) of such a tender offer is subject to the provisions of 
Regulation 14d-6(c) (17 CFR 240.14d-6(c)) and relates to the amount or 
type of the consideration received in the tender offer, then the date of 
the modification shall be treated as the first date there is a binding 
contract.
    (iii) Fixed consideration--(A) In general. A contract provides for 
fixed consideration if it provides--
    (1) The number of shares of each class of stock of the issuing 
corporation, the amount of money, and the other property (identified 
either by value or by specific description), if any, to be exchanged for 
all of the proprietary interests in the target corporation;
    (2) The number of shares of each class of stock of the issuing 
corporation, the amount of money, and the other property (identified 
either by value or by specific description), if any, to be exchanged for 
each proprietary interest in the target corporation;
    (3) The percentage of the number of shares of each class of 
proprietary interests in the target corporation, or the percentage (by 
value) of the proprietary interests in the target corporation, to be 
exchanged for stock of the issuing corporation, provided that the 
proprietary interests in the target corporation to be exchanged for 
stock of the issuing corporation and the proprietary interests in the 
target corporation to be exchanged for consideration other than stock of 
the issuing corporation each represents an economically reasonable 
exchange as of the last business day before the first date there is a 
binding contract to effect the potential reorganization; or
    (4) The percentage of each proprietary interest in the target 
corporation to be exchanged for stock of the issuing corporation, 
provided that the portion of each proprietary interest in the target 
corporation to be exchanged for

[[Page 361]]

stock of the issuing corporation and the portion of each proprietary 
interest in the target corporation to be exchanged for consideration 
other than stock of the issuing corporation each represents an 
economically reasonable exchange as of the last business day before the 
first date there is a binding contract to effect the potential 
reorganization.
    (B) Shareholder elections--(1) In general. A contract that is not 
described in paragraph (e)(2)(iii)(A) of this section and pursuant to 
which a target corporation shareholder has an election to receive stock 
and/or money and other property in respect of target corporation stock 
is treated as providing for fixed consideration if the contract 
provides--
    (i) The minimum number of shares of each class of stock of the 
issuing corporation and the maximum amount of money and other property 
(identified either by value or by specific description) to be exchanged 
for all of the proprietary interests in the target corporation; or
    (ii) The minimum percentage of the number of shares of each class of 
proprietary interests in the target corporation, or the minimum 
percentage (by value) of the proprietary interests in the target 
corporation, to be exchanged for stock of the issuing corporation, 
provided that the proprietary interests in the target corporation to be 
exchanged for stock of the issuing corporation and the proprietary 
interests in the target corporation to be exchanged for consideration 
other than stock of the issuing corporation each represents an 
economically reasonable exchange as of the last business day before the 
first date there is a binding contract to effect the potential 
reorganization.
    (2) Special rules. (i) In the case of a shareholder election 
described in paragraph (e)(2)(iii)(B)(1)(i) of this section, the 
determination of whether a proprietary interest in the target 
corporation is preserved shall be made by assuming the issuance by the 
issuing corporation of the minimum number of shares of each class of 
stock of the issuing corporation and the maximum amount of money and 
other property allowable under the contract and without regard to the 
number of shares of each class of stock of the issuing corporation and 
the amount of money and other property actually exchanged thereafter for 
proprietary interests in the target corporation.
    (ii) In the case of a shareholder election described in paragraph 
(e)(2)(iii)(B)(1)(ii) of this section, the determination of whether a 
proprietary interest in the target corporation is preserved shall be 
made by assuming the issuance of issuing corporation stock in exchange 
for the minimum percentage of the number of shares of each class of 
proprietary interests in the target corporation, or the minimum 
percentage (by value) of proprietary interests in the target 
corporation, as the case may be, to be exchanged for stock of the 
issuing corporation allowable under the contract and without regard to 
the percentage of the number of shares of each class of proprietary 
interests in the target corporation, or the percentage (by value) of 
proprietary interests in the target corporation, actually exchanged for 
stock of the issuing corporation.
    (C) Contingent consideration--(1) In general. In general, the fact 
that a contract provides for contingent consideration will prevent a 
contract from being treated as providing for fixed consideration. 
However, a contract will not fail to be treated as providing for fixed 
consideration solely as a result of a provision that provides for 
contingent consideration, if--
    (i) The contingent consideration consists solely of stock of the 
issuing corporation; and
    (ii) The execution of the potential reorganization would have 
resulted in the preservation of a substantial part of the value of the 
target corporation shareholders' proprietary interests in the target 
corporation if none of the contingent consideration were delivered to 
the target corporation shareholders.
    (2) Exception for escrows. For purposes of paragraph 
(e)(2)(iii)(C)(1) of this section, contingent consideration does not 
include consideration paid in escrow to secure target's performance of 
customary pre-closing covenants or customary target representations and 
warranties.

[[Page 362]]

    (D) Escrows. Placing part of the consideration to be exchanged for 
proprietary interests in the target corporation in escrow to secure 
target's performance of customary pre-closing covenants or customary 
target representations and warranties will not prevent a contract from 
being treated as providing for fixed consideration.
    (E) Anti-dilution clauses. The presence of a customary anti-dilution 
clause will not prevent a contract from being treated as providing for 
fixed consideration. However, the absence of such a clause will prevent 
a contract from being treated as providing for fixed consideration if 
the issuing corporation alters its capital structure between the first 
date there is an otherwise binding contract to effect the potential 
reorganization and the effective date of the potential reorganization in 
a manner that materially alters the economic arrangement of the parties 
to the binding contract.
    (F) Dissenters' rights. The possibility that some shareholders may 
exercise dissenters' rights and receive consideration other than that 
provided for in the binding contract will not prevent the contract from 
being treated as providing for fixed consideration.
    (G) Fractional shares. The fact that money may be paid in lieu of 
issuing fractional shares will not prevent a contract from being treated 
as providing for fixed consideration.
    (iv) Valuation of new issuances. For purposes of applying paragraph 
(e)(2)(i) of this section, any class of stock, securities, or 
indebtedness that the issuing corporation issues to the target 
corporation shareholders pursuant to the potential reorganization and 
that does not exist before the first date there is a binding contract to 
effect the potential reorganization is deemed to have been issued on the 
last business day before the first date there is a binding contract to 
effect the potential reorganization.
    (v) Examples. For purposes of the examples in this paragraph 
(e)(2)(v), P is the issuing corporation, T is the target corporation, S 
is a wholly owned subsidiary of P, all corporations have only one class 
of stock outstanding, A is an individual, no transactions other than 
those described occur, and the transactions are not otherwise subject to 
recharacterization. The following examples illustrate the application of 
this paragraph (e)(2):

    Example 1. Application of signing date rule. On January 3 of Year 1, 
P and T sign a binding contract pursuant to which T will be merged with 
and into P on June 1 of Year 1. Pursuant to the contract, the T 
shareholders will receive 40 P shares and $60 of cash in exchange for 
all of the outstanding stock of T. Twenty of the P shares, however, will 
be placed in escrow to secure customary target representations and 
warranties. The P stock is listed on an established market. On January 2 
of Year 1, the value of the P stock is $1 per share. On June 1 of Year 
1, T merges with and into P pursuant to the terms of the contract. On 
that date, the value of the P stock is $.25 per share. None of the stock 
placed in escrow is returned to P. Because the contract provides for the 
number of shares of P and the amount of money to be exchanged for all of 
the proprietary interests in T, under paragraph (e)(2) of this section, 
there is a binding contract providing for fixed consideration as of 
January 3 of Year 1. Therefore, whether the transaction satisfies the 
continuity of interest requirement is determined by reference to the 
value of the P stock on January 2 of Year 1. Because, for continuity of 
interest purposes, the T stock is exchanged for $40 of P stock and $60 
of cash, the transaction preserves a substantial part of the value of 
the proprietary interest in T. Therefore, the transaction satisfies the 
continuity of interest requirement.
    Example 2. Treatment of forfeited escrowed stock. (i) The facts are 
the same as in Example 1 except that T's breach of a representation 
results in the escrowed consideration being returned to P. Because the 
contract provides for the number of shares of P and the amount of money 
to be exchanged for all of the proprietary interests in T, under 
paragraph (e)(2) of this section, there is a binding contract providing 
for fixed consideration as of January 3 of Year 1. Therefore, whether 
the transaction satisfies the continuity of interest requirement is 
determined by reference to the value of the P stock on January 2 of Year 
1. Because, for continuity of interest purposes, the T stock is 
exchanged for $20 of P stock and $60 of cash, the transaction does not 
preserve a substantial part of the value of the proprietary interest in 
T. Therefore, the transaction does not satisfy the continuity of 
interest requirement.
    (ii) The facts are the same as in Example 2 (i) except that the 
consideration placed in escrow consists solely of eight of the P shares 
and $12 of the cash. Because the contract provides for the number of 
shares of P and the amount of money to be exchanged for all of the 
proprietary interests in T, under paragraph (e)(2) of this section, 
there

[[Page 363]]

is a binding contract providing for fixed consideration as of January 3 
of Year 1. Therefore, whether the transaction satisfies the continuity 
of interest requirement is determined by reference to the value of the P 
stock on January 2 of Year 1. Because, for continuity of interest 
purposes, the T stock is exchanged for $32 of P stock and $48 of cash, 
the transaction preserves a substantial part of the value of the 
proprietary interest in T. Therefore, the transaction satisfies the 
continuity of interest requirement.
    Example 3. Redemption of stock received pursuant to binding 
contract. The facts are the same as in Example 1 except that A owns 50 
percent of the outstanding stock of T immediately prior to the merger 
and receives 10 P shares and $30 in the merger and an additional 10 P 
shares upon the release of the stock placed in escrow. In connection 
with the merger, A and S agree that, immediately after the merger, S 
will purchase any P shares that A acquires in the merger for $1 per 
share. Shortly after the merger, S purchases A's P shares for $20. 
Because the contract provides for the number of shares of P and the 
amount of money to be exchanged for all of the proprietary interests in 
T, under paragraph (e)(2) of this section, there is a binding contract 
providing for fixed consideration as of January 3 of Year 1. Therefore, 
whether the transaction satisfies the continuity of interest requirement 
is determined by reference to the value of the P stock on January 2 of 
Year 1. In addition, S is a person related to P under paragraph 
(e)(4)(i)(A) of this section. Accordingly, A is treated as exchanging 
his T shares for $50. Because, for continuity of interest purposes, the 
T stock is exchanged for $20 of P stock and $80 of cash, the transaction 
does not preserve a substantial part of the value of the proprietary 
interest in T. Therefore, the transaction does not satisfy the 
continuity of interest requirement.
    Example 4. Modification of binding contract--continuity not 
preserved. The facts are the same as in Example 1 except that on April 1 
of Year 1, the parties modify their contract. Pursuant to the modified 
contract, which is a binding contract, the T shareholders will receive 
50 P shares (an additional 10 shares) and $75 of cash (an additional $15 
of cash) in exchange for all of the outstanding T stock. On March 31 of 
Year 1, the value of the P stock is $.50 per share. Under paragraph 
(e)(2) of this section, although there was a binding contract providing 
for fixed consideration as of January 3 of Year 1, terms of that 
contract relating to the consideration to be provided to the target 
shareholders were modified on April 1 of Year 1. Because the modified 
contract provides for the number of P shares and the amount of money to 
be exchanged for all of the proprietary interests in T, under paragraph 
(e)(2) of this section, the modified contract is a binding contract 
providing for fixed consideration as of April 1 of Year 1. Therefore, 
whether the transaction satisfies the continuity of interest requirement 
is determined by reference to the value of the P stock on March 31 of 
Year 1. Because, for continuity of interest purposes, the T stock is 
exchanged for $25 of P stock and $75 of cash, the transaction does not 
preserve a substantial part of the value of the proprietary interest in 
T. Therefore, the transaction does not satisfy the continuity of 
interest requirement.
    Example 5. Modification of binding contract disregarded--continuity 
preserved. The facts are the same as in Example 4 except that, pursuant 
to the modified contract, which is a binding contract, the T 
shareholders will receive 60 P shares (an additional 20 shares as 
compared to the original contract) and $60 of cash in exchange for all 
of the outstanding T stock. In addition, on March 31 of Year 1, the 
value of the P stock is $.40 per share. Under paragraph (e)(2) of this 
section, although there was a binding contract providing for fixed 
consideration as of January 3 of Year 1, terms of that contract relating 
to the consideration to be provided to the target shareholders were 
modified on April 1 of Year 1. Nonetheless, the modification has the 
sole effect of providing for the issuance of additional P shares to the 
T shareholders. In addition, the execution of the terms of the contract 
without regard to the modification would have resulted in the 
preservation of a substantial part of the value of the T shareholders' 
proprietary interest in T because, for continuity of interest purposes, 
the T stock would have been exchanged for $40 of P stock and $60 of 
cash. Therefore, the modification is not treated as a modification under 
paragraph (e)(2) of this section. Accordingly, whether the transaction 
satisfies the continuity of interest requirement is determined by 
reference to the value of the P stock on January 2 of Year 1. Despite 
the modification, the transaction continues to satisfy the continuity of 
interest requirement.
    Example 6. New issuance. The facts are the same as in Example 1, 
except that, in lieu of the $60 of cash, the T shareholders will receive 
a new class of P securities that will be publicly traded. In the 
aggregate, the securities will have a stated principal amount of $60 and 
bear interest at the average LIBOR (London Interbank Offered Rates) 
during the 10 days prior to the potential reorganization. If the T 
shareholders had been issued the P securities on January 2 of Year 1, 
the P securities would have had a value of $60 (determined by reference 
to the value of comparable publicly traded securities). Whether the 
transaction satisfies the continuity of interest requirement is 
determined by reference to the value of the P stock and the P securities 
to be issued to the T shareholders on January 2 of Year 1. Under 
paragraph

[[Page 364]]

(e)(2)(iv) of this section, for purposes of valuing the new P 
securities, they will be treated as having been issued on January 2 of 
Year 1. Because, for continuity of interest purposes, the T stock is 
exchanged for $40 of P stock and $60 of other property, the transaction 
preserves a substantial part of the value of the proprietary interest in 
T. Therefore, the transaction satisfies the continuity of interest 
requirement.
    Example 7. Economically unreasonable exchange. On January 3 of Year 
1, P and T sign a binding contract pursuant to which T will be merged 
with and into P on June 2 of Year 1. At that time, A is T's sole 
shareholder. Pursuant to the contract, 60 percent of the T stock will be 
exchanged for $80 of cash and 40 percent of the T stock will be 
exchanged for 20 shares of P stock. As of January 2, 20 shares of P 
stock have a value of $20, representing only 20 percent of the value of 
the total consideration to be received by the T shareholders. Because 
the percentage of proprietary interests in the target corporation to be 
exchanged for stock of the issuing corporation and the proprietary 
interests in the target corporation to be exchanged for money do not 
each represent an economically reasonable exchange as of the last 
business day before the first date there is a binding contract to effect 
the potential reorganization, under paragraph (e)(2)(iii)(A)(3) of this 
section, the contract is not treated as a binding contract that provides 
for fixed consideration.
    Example 8. Absence of anti-dilution clause. On January 3 of Year 1, 
P and T sign a binding contract pursuant to which T will be merged with 
and into P on June 1 of Year 1. Pursuant to the contract, the T 
shareholders will receive 40 P shares and $60 of cash in exchange for 
all of the outstanding stock of T. The contract does not contain a 
customary anti-dilution provision. The P stock is listed on an 
established market. On January 2 of Year 1, the value of the P stock is 
$1 per share. On April 10 of Year 1, P issues its stock to effect a 
stock split; each shareholder of P receives an additional share of P for 
each P share that it holds. On April 11 of Year 1, the value of the P 
stock is $.50 per share. Because P altered its capital structure between 
January 3 and June 1 of Year 1 in a manner that materially alters the 
economic arrangement of the parties, under paragraph (e)(2)(iii)(E) of 
this section, the contract is not treated as a binding contract that 
provides for fixed consideration.
    Example 9. Shareholder election with a proration mechanism. On 
January 3 of Year 1, P and T sign a binding contract pursuant to which T 
will be merged with and into P on June 1 of Year 1. Pursuant to the 
contract, at the shareholders' election, each share of T will be 
exchanged for cash of $1 or, alternatively, P stock that has a value of 
$1, if the value of each share of P stock is at least $.80 and no more 
than $1.20 on the effective date of the potential reorganization; 1.25 
shares of P stock, if the value of each share of P stock is less than 
$.80 on the effective date of the potential reorganization; or .83 
shares of P stock, if the value of each share of P stock is more than 
$1.20 on the effective date of the potential reorganization. In 
addition, the contract provides for a proration mechanism to ensure that 
50 percent of the T shares will be exchanged for cash and 50 percent of 
the T shares will be exchanged for P stock. On January 2 of Year 1, T 
has 100 shares outstanding. The P stock is listed on an established 
market. On January 2 of Year 1, the value of the P stock is $1 per 
share. Because the contract provides for the percentage of the number of 
shares of each class of proprietary interests in T, and the percentage 
(by value) of the proprietary interests in T, to be exchanged for stock 
of P and the other requirements of paragraph (e)(2)(iii)(A)(3) of this 
section are satisfied, there is a binding contract providing for fixed 
consideration as of January 3 of Year 1. Therefore, whether the 
transaction satisfies the continuity of interest requirement is 
determined by reference to the value of the P stock on January 2 of Year 
1. Because, for continuity of interest purposes, the T stock is 
exchanged for $50 of P stock and $50 of cash, the transaction preserves 
a substantial part of the value of the proprietary interest in T. 
Therefore, the transaction satisfies the continuity of interest 
requirement.
    (3) Related person acquisitions. A proprietary interest in the 
target corporation is not preserved if, in connection with a potential 
reorganization, a person related (as defined in paragraph (e)(4) of this 
section) to the issuing corporation acquires, with consideration other 
than a proprietary interest in the issuing corporation, stock of the 
target corporation or stock of the issuing corporation furnished in 
exchange for a proprietary interest in the target corporation in the 
potential reorganization, except to the extent those persons who were 
the direct or indirect owners of the target corporation prior to the 
potential reorganization maintain a direct or indirect proprietary 
interest in the issuing corporation.
    (4) Definition of related person--(i) In general. For purposes of 
this paragraph (e), two corporations are related persons if either--
    (A) The corporations are members of the same affiliated group as 
defined in section 1504 (determined without regard to section 1504(b)); 
or

[[Page 365]]

    (B) A purchase of the stock of one corporation by another 
corporation would be treated as a distribution in redemption of the 
stock of the first corporation under section 304(a)(2) (determined 
without regard to Sec. 1.1502-80(b)).
    (ii) Special rules. The following rules apply solely for purposes of 
this paragraph (e)(4):
    (A) A corporation will be treated as related to another corporation 
if such relationship exists immediately before or immediately after the 
acquisition of the stock involved.
    (B) A corporation, other than the target corporation or a person 
related (as defined in paragraph (e)(4) of this section determined 
without regard to paragraph (e)(4)(i)(A) of this section) to the target 
corporation, will be treated as related to the issuing corporation if 
the relationship is created in connection with the potential 
reorganization.
    (5) Acquisitions by partnerships. For purposes of this paragraph 
(e), each partner of a partnership will be treated as owning or 
acquiring any stock owned or acquired, as the case may be, by the 
partnership in accordance with that partner's interest in the 
partnership. If a partner is treated as acquiring any stock by reason of 
the application of this paragraph (e)(5), the partner is also treated as 
having furnished its share of any consideration furnished by the 
partnership to acquire the stock in accordance with that partner's 
interest in the partnership.
    (6) Successors and predecessors. For purposes of this paragraph (e), 
any reference to the issuing corporation or the target corporation 
includes a reference to any successor or predecessor of such 
corporation, except that the target corporation is not treated as a 
predecessor of the issuing corporation and the issuing corporation is 
not treated as a successor of the target corporation.
    (7) Examples. For purposes of the examples in this paragraph (e)(7), 
P is the issuing corporation, T is the target corporation, S is a wholly 
owned subsidiary of P, all corporations have only one class of stock 
outstanding, A and B are individuals, PRS is a partnership, all 
reorganization requirements other than the continuity of interest 
requirement are satisfied, and the transaction is not otherwise subject 
to recharacterization. The following examples illustrate the application 
of this paragraph (e):

    Example 1. Sale of stock to third party. (i) Sale of issuing 
corporation stock after merger. A owns all of the stock of T. T merges 
into P. In the merger, A receives P stock having a fair market value of 
$50x and cash of $50x. Immediately after the merger, and pursuant to a 
preexisting binding contract, A sells all of the P stock received by A 
in the merger to B. Assume that there are no facts and circumstances 
indicating that the cash used by B to purchase A's P stock was in 
substance exchanged by P for T stock. Under paragraphs (e)(1) and (3) of 
this section, the sale to B is disregarded because B is not a person 
related to P within the meaning of paragraph (e)(4) of this section. 
Thus, the transaction satisfies the continuity of interest requirement 
because 50 percent of A's T stock was exchanged for P stock, preserving 
a substantial part of the value of the proprietary interest in T.
    (ii) Sale of target corporation stock before merger. The facts are 
the same as paragraph (i) of this Example 1, except that B buys A's T 
stock prior to the merger of T into P and then exchanges the T stock for 
P stock having a fair market value of $50x and cash of $50x. The sale by 
A is disregarded. The continuity of interest requirement is satisfied 
because B's T stock was exchanged for P stock, preserving a substantial 
part of the value of the proprietary interest in T.
    Example 2. Relationship created in connection with potential 
reorganization. Corporation X owns 60 percent of the stock of P and 30 
percent of the stock of T. A owns the remaining 70 percent of the stock 
of T. X buys A's T stock for cash in a transaction which is not a 
qualified stock purchase within the meaning of section 338. T then 
merges into P. In the merger, X exchanges all of its T stock for 
additional stock of P. As a result of the issuance of the additional 
stock to X in the merger, X's ownership interest in P increases from 60 
to 80 percent of the stock of P. X is not a person related to P under 
paragraph (e)(4)(i)(B) of this section, because a purchase of stock of P 
by X would not be treated as a distribution in redemption of the stock 
of P under section 304(a)(2). However, X is a person related to P under 
paragraphs (e)(4)(i)(A) and (ii)(B) of this section, because X becomes 
affiliated with P in the merger. The continuity of interest requirement 
is not satisfied, because X acquired a proprietary interest in T for 
consideration other than P stock, and a substantial part of the value of 
the proprietary interest in T is not preserved. See paragraph (e)(3) of 
this section.

[[Page 366]]

    Example 3. Participation by issuing corporation in post-merger sale. 
A owns 80 percent of the T stock and none of the P stock, which is 
widely held. T merges into P. In the merger, A receives P stock. In 
addition, A obtains rights pursuant to an arrangement with P to have P 
register the P stock under the Securities Act of 1933, as amended. P 
registers A's stock, and A sells the stock shortly after the merger. No 
person who purchased the P stock from A is a person related to P within 
the meaning of paragraph (e)(4) of this section. Under paragraphs (e)(1) 
and (3) of this section, the sale of the P stock by A is disregarded 
because no person who purchased the P stock from A is a person related 
to P within the meaning of paragraph (e)(4) of this section. The 
transaction satisfies the continuity of interest requirement because A's 
T stock was exchanged for P stock, preserving a substantial part of the 
value of the proprietary interest in T.
    Example 4. Redemptions and purchases by issuing corporation or 
related persons. (i) Redemption by issuing corporation. A owns 100 
percent of the stock of T and none of the stock of P. T merges into S. 
In the merger, A receives P stock. In connection with the merger, P 
redeems all of the P stock received by A in the merger for cash. The 
continuity of interest requirement is not satisfied, because, in 
connection with the merger, P redeemed the stock exchanged for a 
proprietary interest in T, and a substantial part of the value of the 
proprietary interest in T is not preserved. See paragraph (e)(1) of this 
section.
    (ii) Purchase of target corporation stock by issuing corporation. 
The facts are the same as paragraph (i) of this Example 4, except that, 
instead of P redeeming its stock, prior to and in connection with the 
merger of T into S, P purchases 90 percent of the T stock from A for 
cash. The continuity of interest requirement is not satisfied, because 
in connection with the merger, P acquired a proprietary interest in T 
for consideration other than P stock, and a substantial part of the 
value of the proprietary interest in T is not preserved. See paragraph 
(e)(1) of this section. However, see Sec. 1.338-3(d) (which may change 
the result in this case by providing that, by virtue of section 338, 
continuity of interest is satisfied for certain parties after a 
qualified stock purchase).
    (iii) Purchase of issuing corporation stock by person related to 
issuing corporation. The facts are the same as paragraph (i) of this 
Example 4, except that, instead of P redeeming its stock, S buys all of 
the P stock received by A in the merger for cash. S is a person related 
to P under paragraphs (e)(4)(i)(A) and (B) of this section. The 
continuity of interest requirement is not satisfied, because S acquired 
P stock issued in the merger, and a substantial part of the value of the 
proprietary interest in T is not preserved. See paragraph (e)(3) of this 
section.
    Example 5. Redemption in substance by issuing corporation. A owns 
100 percent of the stock of T and none of the stock of P. T merges into 
P. In the merger, A receives P stock. In connection with the merger, B 
buys all of the P stock received by A in the merger for cash. Shortly 
thereafter, in connection with the merger, P redeems the stock held by B 
for cash. Based on all the facts and circumstances, P in substance has 
exchanged solely cash for T stock in the merger. The continuity of 
interest requirement is not satisfied, because in substance P redeemed 
the stock exchanged for a proprietary interest in T, and a substantial 
part of the value of the proprietary interest in T is not preserved. See 
paragraph (e)(1) of this section.
    Example 6. Purchase of issuing corporation stock through 
partnership. A owns 100 percent of the stock of T and none of the stock 
of P. S is an 85 percent partner in PRS. The other 15 percent of PRS is 
owned by unrelated persons. T merges into P. In the merger, A receives P 
stock. In connection with the merger, PRS purchases all of the P stock 
received by A in the merger for cash. Under paragraph (e)(5) of this 
section, S, as an 85 percent partner of PRS, is treated as having 
acquired 85 percent of the P stock exchanged for A's T stock in the 
merger, and as having furnished 85 percent of the cash paid by PRS to 
acquire the P stock. S is a person related to P under paragraphs 
(e)(4)(i)(A) and (B) of this section. The continuity of interest 
requirement is not satisfied, because S is treated as acquiring 85 
percent of the P stock issued in the merger, and a substantial part of 
the value of the proprietary interest in T is not preserved. See 
paragraph (e)(3) of this section.
    Example 7. Exchange by acquiring corporation for direct interest. A 
owns 30 percent of the stock of T. P owns 70 percent of the stock of T, 
which was not acquired by P in connection with the acquisition of T's 
assets. T merges into P. A receives cash in the merger. The continuity 
of interest requirement is satisfied, because P's 70 percent proprietary 
interest in T is exchanged by P for a direct interest in the assets of 
the target corporation enterprise.
    Example 8. Maintenance of direct or indirect interest in issuing 
corporation. X, a corporation, owns all of the stock of each of 
corporations P and Z. Z owns all of the stock of T. T merges into P. Z 
receives P stock in the merger. Immediately thereafter and in connection 
with the merger, Z distributes the P stock received in the merger to X. 
X is a person related to P under paragraph (e)(4)(i)(A) of this section. 
The continuity of interest requirement is satisfied, because X was an 
indirect owner of T prior to the merger who maintains a direct or 
indirect proprietary interest in P, preserving a substantial part of

[[Page 367]]

the value of the proprietary interest in T. See paragraph (e)(3) of this 
section.
    Example 9. Preacquisition redemption by target corporation. T has 
two shareholders, A and B. P expresses an interest in acquiring the 
stock of T. A does not wish to own P stock. T redeems A's shares in T in 
exchange for cash. No funds have been or will be provided by P for this 
purpose. P subsequently acquires all the outstanding stock of T from B 
solely in exchange for voting stock of P. The cash received by A in the 
prereorganization redemption is not treated as other property or money 
under section 356, and would not be so treated even if A had received 
some stock of P in exchange for his T stock. The prereorganization 
redemption by T does not affect continuity of interest, because B's 
proprietary interest in T is unaffected, and the value of the 
proprietary interest in T is preserved.

    (8) Effective date. Paragraphs (e)(1) and (e)(3) through (e)(7) of 
this section apply to transactions occurring after January 28, 1998, 
except that they do not apply to any transaction occurring pursuant to a 
written agreement which is binding on January 28, 1998, and at all times 
thereafter. Paragraph (e)(1)(ii) of this section, however, applies to 
transactions occurring after August 30, 2000, unless the transaction 
occurs pursuant to a written agreement that is (subject to customary 
conditions) binding on that date and at all times thereafter. Taxpayers 
who entered into a binding agreement on or after January 28, 1998, and 
before August 30, 2000, may request a private letter ruling permitting 
them to apply the final regulation to their transaction. A private 
letter ruling will not be issued unless the taxpayer establishes to the 
satisfaction of the IRS that there is not a significant risk of 
different parties to the transaction taking inconsistent positions, for 
Federal tax purposes, with respect to the applicability of the final 
regulations to the transaction. Paragraph (e)(2) of this section applies 
to transactions occurring pursuant to binding contracts entered into 
after September 16, 2005.

[T.D. 6500, 25 FR 11607, Nov. 26, 1960, as amended by T.D. 7745, 45 FR 
86437, Dec. 31, 1980; T.D. 8760, 63 FR 4178, Jan. 28, 1998; T.D. 8783, 
63 FR 50758, Sept. 23, 1998; T.D. 8858, 65 FR 1237, Jan. 7, 2000; T.D. 
8898, 65 FR 52911, Aug. 31, 2000; T.D. 9182, 70 FR 9220, Feb. 25, 2005; 
T.D. 9225, 70 FR 54634, Sept. 16, 2005]



Sec. 1.368-2  Definition of terms.

    (a) The application of the term reorganization is to be strictly 
limited to the specific transactions set forth in section 368(a). The 
term does not embrace the mere purchase by one corporation of the 
properties of another corporation. The preceding sentence applies to 
transactions occurring after January 28, 1998, except that it does not 
apply to any transaction occurring pursuant to a written agreement which 
is binding on January 28, 1998, and at all times thereafter. If the 
properties are transferred for cash and deferred payment obligations of 
the transferee evidenced by short-term notes, the transaction is a sale 
and not an exchange in which gain or loss is not recognized.
    (b)(1)(i) Definitions. For purposes of this paragraph (b)(1), the 
following terms shall have the following meanings:
    (A) Disregarded entity. A disregarded entity is a business entity 
(as defined in Sec. 301.7701-2(a) of this chapter) that is disregarded 
as an entity separate from its owner for Federal income tax purposes. 
Examples of disregarded entities include a domestic single member 
limited liability company that does not elect to be classified as a 
corporation for Federal income tax purposes, a corporation (as defined 
in Sec. 301.7701-2(b) of this chapter) that is a qualified REIT 
subsidiary (within the meaning of section 856(i)(2)), and a corporation 
that is a qualified subchapter S subsidiary (within the meaning of 
section 1361(b)(3)(B)).
    (B) Combining entity. A combining entity is a business entity that 
is a corporation (as defined in Sec. 301.7701-2(b) of this chapter) 
that is not a disregarded entity.
    (C) Combining unit. A combining unit is composed solely of a 
combining entity and all disregarded entities, if any, the assets of 
which are treated as owned by such combining entity for Federal income 
tax purposes.
    (ii) Statutory merger or consolidation generally. For purposes of 
section

[[Page 368]]

368(a)(1)(A), a statutory merger or consolidation is a transaction 
effected pursuant to the statute or statutes necessary to effect the 
merger or consolidation, in which transaction, as a result of the 
operation of such statute or statutes, the following events occur 
simultaneously at the effective time of the transaction--
    (A) All of the assets (other than those distributed in the 
transaction) and liabilities (except to the extent such liabilities are 
satisfied or discharged in the transaction or are nonrecourse 
liabilities to which assets distributed in the transaction are subject) 
of each member of one or more combining units (each a transferor unit) 
become the assets and liabilities of one or more members of one other 
combining unit (the transferee unit); and
    (B) The combining entity of each transferor unit ceases its separate 
legal existence for all purposes; provided, however, that this 
requirement will be satisfied even if, under applicable law, after the 
effective time of the transaction, the combining entity of the 
transferor unit (or its officers, directors, or agents) may act or be 
acted against, or a member of the transferee unit (or its officers, 
directors, or agents) may act or be acted against in the name of the 
combining entity of the transferor unit, provided that such actions 
relate to assets or obligations of the combining entity of the 
transferor unit that arose, or relate to activities engaged in by such 
entity, prior to the effective time of the transaction, and such actions 
are not inconsistent with the requirements of paragraph (b)(1)(ii)(A) of 
this section.
    (iii) Examples. The following examples illustrate the rules of 
paragraph (b)(1) of this section. In each of the examples, except as 
otherwise provided, each of R, V, Y, and Z is a C corporation. X is a 
domestic limited liability company. Except as otherwise provided, X is 
wholly owned by Y and is disregarded as an entity separate from Y for 
Federal income tax purposes. The examples are as follows:

    Example 1. Divisive transaction pursuant to a merger statute. (i) 
Facts. Under State W law, Z transfers some of its assets and liabilities 
to Y, retains the remainder of its assets and liabilities, and remains 
in existence for Federal income tax purposes following the transaction. 
The transaction qualifies as a merger under State W corporate law.
    (ii) Analysis. The transaction does not satisfy the requirements of 
paragraph (b)(1)(ii)(A) of this section because all of the assets and 
liabilities of Z, the combining entity of the transferor unit, do not 
become the assets and liabilities of Y, the combining entity and sole 
member of the transferee unit. In addition, the transaction does not 
satisfy the requirements of paragraph (b)(1)(ii)(B) of this section 
because the separate legal existence of Z does not cease for all 
purposes. Accordingly, the transaction does not qualify as a statutory 
merger or consolidation under section 368(a)(1)(A).
    Example 2. Merger of a target corporation into a disregarded entity 
in exchange for stock of the owner. (i) Facts. Under State W law, Z 
merges into X. Pursuant to such law, the following events occur 
simultaneously at the effective time of the transaction: all of the 
assets and liabilities of Z become the assets and liabilities of X and 
Z's separate legal existence ceases for all purposes. In the merger, the 
Z shareholders exchange their stock of Z for stock of Y.
    (ii) Analysis. The transaction satisfies the requirements of 
paragraph (b)(1)(ii) of this section because the transaction is effected 
pursuant to State W law and the following events occur simultaneously at 
the effective time of the transaction: all of the assets and liabilities 
of Z, the combining entity and sole member of the transferor unit, 
become the assets and liabilities of one or more members of the 
transferee unit that is comprised of Y, the combining entity of the 
transferee unit, and X, a disregarded entity the assets of which Y is 
treated as owning for Federal income tax purposes, and Z ceases its 
separate legal existence for all purposes. Accordingly, the transaction 
qualifies as a statutory merger or consolidation for purposes of section 
368(a)(1)(A).
    Example 3. Merger of a target S corporation that owns a QSub into a 
disregarded entity. (i) Facts. The facts are the same as in Example 2, 
except that Z is an S corporation and owns all of the stock of U, a 
QSub.
    (ii) Analysis. The deemed formation by Z of U pursuant to Sec. 
1.1361-5(b)(1) (as a consequence of the termination of U's QSub 
election) is disregarded for Federal income tax purposes. The 
transaction is treated as a transfer of the assets of U to X, followed 
by X's transfer of these assets to U in exchange for stock of U. See 
Sec. 1.1361-5(b)(3) Example 9. The transaction will, therefore, satisfy 
the requirements of paragraph (b)(1)(ii) of this section because the 
transaction is effected pursuant to State W law and the following events 
occur simultaneously at the effective time of the transaction: all of 
the assets and liabilities of Z and U, the sole members of

[[Page 369]]

the transferor unit, become the assets and liabilities of one or more 
members of the transferee unit that is comprised of Y, the combining 
entity of the transferee unit, and X, a disregarded entity the assets of 
which Y is treated as owning for Federal income tax purposes, and Z 
ceases its separate legal existence for all purposes. Moreover, the 
deemed transfer of the assets of U in exchange for U stock does not 
cause the transaction to fail to qualify as a statutory merger or 
consolidation. See Sec. 368(a)(2)(C). Accordingly, the transaction 
qualifies as a statutory merger or consolidation for purposes of section 
368(a)(1)(A).
    Example 4. Triangular merger of a target corporation into a 
disregarded entity. (i) Facts. The facts are the same as in Example 2, 
except that V owns 100 percent of the outstanding stock of Y and, in the 
merger of Z into X, the Z shareholders exchange their stock of Z for 
stock of V. In the transaction, Z transfers substantially all of its 
properties to X.
    (ii) Analysis. The transaction is not prevented from qualifying as a 
statutory merger or consolidation under section 368(a)(1)(A), provided 
the requirements of section 368(a)(2)(D) are satisfied. Because the 
assets of X are treated for Federal income tax purposes as the assets of 
Y, Y will be treated as acquiring substantially all of the properties of 
Z in the merger for purposes of determining whether the merger satisfies 
the requirements of section 368(a)(2)(D). As a result, the Z 
shareholders that receive stock of V will be treated as receiving stock 
of a corporation that is in control of Y, the combining entity of the 
transferee unit that is the acquiring corporation for purposes of 
section 368(a)(2)(D). Accordingly, the merger will satisfy the 
requirements of section 368(a)(2)(D).
    Example 5. Merger of a target corporation into a disregarded entity 
owned by a partnership. (i) Facts. The facts are the same as in Example 
2, except that Y is organized as a partnership under the laws of State W 
and is classified as a partnership for Federal income tax purposes.
    (ii) Analysis. The transaction does not satisfy the requirements of 
paragraph (b)(1)(ii)(A) of this section. All of the assets and 
liabilities of Z, the combining entity and sole member of the transferor 
unit, do not become the assets and liabilities of one or more members of 
a transferee unit because neither X nor Y qualifies as a combining 
entity. Accordingly, the transaction cannot qualify as a statutory 
merger or consolidation for purposes of section 368(a)(1)(A).
    Example 6. Merger of a disregarded entity into a corporation. (i) 
Facts. Under State W law, X merges into Z. Pursuant to such law, the 
following events occur simultaneously at the effective time of the 
transaction: all of the assets and liabilities of X (but not the assets 
and liabilities of Y other than those of X) become the assets and 
liabilities of Z and X's separate legal existence ceases for all 
purposes.
    (ii) Analysis. The transaction does not satisfy the requirements of 
paragraph (b)(1)(ii)(A) of this section because all of the assets and 
liabilities of a transferor unit do not become the assets and 
liabilities of one or more members of the transferee unit. The 
transaction also does not satisfy the requirements of paragraph 
(b)(1)(ii)(B) of this section because X does not qualify as a combining 
entity. Accordingly, the transaction cannot qualify as a statutory 
merger or consolidation for purposes of section 368(a)(1)(A).
    Example 7. Merger of a corporation into a disregarded entity in 
exchange for interests in the disregarded entity. (i) Facts. Under State 
W law, Z merges into X. Pursuant to such law, the following events occur 
simultaneously at the effective time of the transaction: all of the 
assets and liabilities of Z become the assets and liabilities of X and 
Z's separate legal existence ceases for all purposes. In the merger of Z 
into X, the Z shareholders exchange their stock of Z for interests in X 
so that, immediately after the merger, X is not disregarded as an entity 
separate from Y for Federal income tax purposes. Following the merger, 
pursuant to Sec. 301.7701-3(b)(1)(i) of this chapter, X is classified 
as a partnership for Federal income tax purposes.
    (ii) Analysis. The transaction does not satisfy the requirements of 
paragraph (b)(1)(ii)(A) of this section because immediately after the 
merger X is not disregarded as an entity separate from Y and, 
consequently, all of the assets and liabilities of Z, the combining 
entity of the transferor unit, do not become the assets and liabilities 
of one or more members of a transferee unit. Accordingly, the 
transaction cannot qualify as a statutory merger or consolidation for 
purposes of section 368(a)(1)(A).
    Example 8. Merger transaction preceded by distribution. (i) Facts. Z 
operates two unrelated businesses, Business P and Business Q, each of 
which represents 50 percent of the value of the assets of Z. Y desires 
to acquire and continue operating Business P, but does not want to 
acquire Business Q. Pursuant to a single plan, Z sells Business Q for 
cash to parties unrelated to Z and Y in a taxable transaction, and then 
distributes the proceeds of the sale pro rata to its shareholders. Then, 
pursuant to State W law, Z merges into Y. Pursuant to such law, the 
following events occur simultaneously at the effective time of the 
transaction: all of the assets and liabilities of Z related to Business 
P become the assets and liabilities of Y and Z's separate legal 
existence ceases for all purposes. In the merger, the Z shareholders 
exchange their Z stock for Y stock.

[[Page 370]]

    (ii) Analysis. The transaction satisfies the requirements of 
paragraph (b)(1)(ii) of this section because the transaction is effected 
pursuant to State W law and the following events occur simultaneously at 
the effective time of the transaction: all of the assets and liabilities 
of Z, the combining entity and sole member of the transeferor unit, 
become the assets and liabilities of Y, the combining entity and sole 
member of the transferee unit, and Z ceases its separate legal existence 
for all purposes. Accordingly, the transaction qualifies as a statutory 
merger or consolidation for purposes of section 368(a)(1)(A).
    Example 9. State law conversion of target corporation into a limited 
liability company. (i) Facts. Y acquires the stock of V from the V 
shareholders in exchange for consideration that consists of 50 percent 
voting stock of Y and 50 percent cash. Immediately after the stock 
acquisition, V files the necessary documents to convert from a 
corporation to a limited liability company under State W law. Y's 
acquisition of the stock of V and the conversion of V to a limited 
liability company are steps in a single integrated acquisition by Y of 
the assets of V.
    (ii) Analysis. The acquisition by Y of the assets of V does not 
satisfy the requirements of paragraph (b)(1)(ii)(B) of this section 
because V, the combining entity of the transferor unit, does not cease 
its separate legal existence. Although V is an entity disregarded from 
its owner for Federal income tax purposes, it continues to exist as a 
juridical entity after the conversion. Accordingly, Y's acquisition of 
the assets of V does not qualify as a statutory merger or consolidation 
for purposes of section 368(a)(1)(A).
    Example 10. Dissolution of target corporation. (i) Facts. Y acquires 
the stock of Z from the Z shareholders in exchange for consideration 
that consists of 50 percent voting stock of Y and 50 percent cash. 
Immediately after the stock acquisition, Z files a certificate of 
dissolution pursuant to State W law and commences winding up its 
activities. Under State W dissolution law, ownership and title to Z's 
assets does not automatically vest in Y upon dissolution. Instead, Z 
transfers assets to its creditors in satisfaction of its liabilities and 
transfers its remaining assets to Y in the liquidation stage of the 
dissolution. Y's acquisition of the stock of Z and the dissolution of Z 
are steps in a single integrated acquisition by Y of the assets of Z.
    (ii) Analysis. The acquisition by Y of the assets of Z does not 
satisfy the requirements of paragraph (b)(1)(ii) of this section because 
Y does not acquire all of the assets of Z as a result of Z filing the 
certificate of dissolution or simultaneously with Z ceasing its separate 
legal existence. Instead, Y acquires the assets of Z by reason of Z's 
transfer of its assets to Y. Accordingly, Y's acquisition of the assets 
of Z does not qualify as a statutory merger or consolidation for 
purposes of section 368(a)(1)(A).
    Example 11. Merger of corporate partner into a partnership. (i) 
Facts. Y owns an interest in X, an entity classified as a partnership 
for Federal income tax purposes, that represents a 60 percent capital 
and profits interest in X. Z owns an interest in X that represents a 40 
percent capital and profits interest. Under State W law, Z merges into 
X. Pursuant to such law, the following events occur simultaneously at 
the effective time of the transaction: all of the assets and liabilities 
of Z become the assets and liabilities of X and Z ceases its separate 
legal existence for all purposes. In the merger, the Z shareholders 
exchange their stock of Z for stock of Y. As a result of the merger, X 
becomes an entity that is disregarded as an entity separate from Y for 
Federal income tax purposes.
    (ii) Analysis. The transaction satisfies the requirements of 
paragraph (b)(1)(ii) of this section because the transaction is effected 
pursuant to State W law and the following events occur simultaneously at 
the effective time of the transaction: all of the assets and liabilities 
of Z, the combining entity and sole member of the transferor unit, 
become the assets and liabilities of one or more members of the 
transferee unit that is comprised of Y, the combining entity of the 
transferee unit, and X, a disregarded entity the assets of which Y is 
treated as owning for Federal income tax purposes immediately after the 
transaction, and Z ceases its separate legal existence for all purposes. 
Accordingly, the transaction qualifies as a statutory merger or 
consolidation for purposes of section 368(a)(1)(A).
    Example 12. State law consolidation. (i) Facts. Under State W law, Z 
and V consolidate. Pursuant to such law, the following events occur 
simultaneously at the effective time of the transaction: all of the 
assets and liabilities of Z and V become the assets and liabilities of 
Y, an entity that is created in the transaction, and the existence of Z 
and V continues in Y. In the consolidation, the Z shareholders and the V 
shareholders exchange their stock of Z and V, respectively, for stock of 
Y.
    (ii) Analysis. With respect to each of Z and V, the transaction 
satisfies the requirements of paragraph (b)(1)(ii) of this section 
because the transaction is effected pursuant to State W law and the 
following events occur simultaneously at the effective time of the 
transaction: all of the assets and liabilities of Z and V, respectively, 
each of which is the combining entity of a transferor unit, become the 
assets and liabilities of Y, the combining entity and sole member of the 
transferee unit, and Z and V each ceases its separate legal existence 
for all purposes. Accordingly, the transaction qualifies as the 
statutory merger or consolidation of each of Z and V into Y for purposes 
of section 368(a)(1)(A).

[[Page 371]]

    Example 13. Transaction effected pursuant to foreign statutes. (i) 
Facts. Z and Y are entities organized under the laws of Country Q and 
classified as corporations for Federal income tax purposes. Z and Y 
combine. Pursuant to statutes of Country Q the following events occur 
simultaneously: all of the assets and liabilities of Z become the assets 
and liabilities of Y and Z's separate legal existence ceases for all 
purposes.
    (ii) Analysis. The transaction satisfies the requirements of 
paragraph (b)(1)(ii) of this section because the transaction is effected 
pursuant to statutes of Country Q and the following events occur 
simultaneously at the effective time of the transaction: all of the 
assets and liabilities of Z, the combining entity of the transferor 
unit, become the assets and liabilities of Y, the combining entity and 
sole member of the transferee unit, and Z ceases its separate legal 
existence for all purposes. Accordingly, the transaction qualifies as a 
statutory merger or consolidation for purposes of section 368(a)(1)(A).
    Example 14. Foreign law amalgamation using parent stock. (i) Facts. 
Z and V are entities organized under the laws of Country Q and 
classified as corporations for Federal income tax purposes. Z and V 
amalgamate. Pursuant to statutes of Country Q, the following events 
occur simultaneously: all the assets and liabilities of Z and V become 
the assets and liabilities of R, an entity that is created in the 
transaction and that is wholly owned by Y immediately after the 
transaction, and Z's and V's separate legal existences cease for all 
purposes. In the transaction, the Z and V shareholders exchange their Z 
and V stock, respectively, for stock of Y.
    (ii) Analysis. With respect to each of Z and V, the transaction 
satisfies the requirements of paragraph (b)(1)(ii) of this section 
because the transaction is effected pursuant to Country Q law and the 
following events occur simultaneously at the effective time of the 
transaction: all of the assets and liabilities of Z and V, respectively, 
each of which is the combining entity of a transferor unit, become the 
assets and liabilities of R, the combining entity and sole member of the 
transferee unit, with regard to each of the above transfers, and Z and V 
each ceases its separate legal existence for all purposes. Because Y is 
in control of R immediately after the transaction, the Z shareholders 
and the V shareholders will be treated as receiving stock of a 
corporation that is in control of R, the combining entity of the 
transferee unit that is the acquiring corporation for purposes of 
section 368(a)(2)(D). Accordingly, the transaction qualifies as the 
statutory merger or consolidation of each of Z and V into R, a 
corporation controlled by Y, and is a reorganization under section 
368(a)(1)(A) by reason of section 368(a)(2)(D).
    (v) Effective date. This paragraph (b)(1) applies to transactions 
occurring on or after January 23, 2006. For rules regarding statutory 
mergers or consolidation occurring before January 23, 2006, see Sec. 
1.368-2T as contained in 26 CFR part 1, revised April 1, 2005, and Sec. 
1.368-2(b)(1) as in effect before January 24, 2003 (see 26 CFR part 1, 
revised April 1, 2002).
    (2) In order for the transaction to qualify under section 
368(a)(1)(A) by reason of the application of section 368(a)(2)(D), one 
corporation (the acquiring corporation) must acquire substantially all 
of the properties of another corporation (the acquired corporation) 
partly or entirely in exchange for stock of a corporation which is in 
control of the acquiring corporation (the controlling corporation), 
provided that (i) the transaction would have qualified under section 
368(a)(1)(A) if the merger had been into the controlling corporation, 
and (ii) no stock of the acquiring corporation is used in the 
transaction. The foregoing test of whether the transaction would have 
qualified under section 368(a)(1)(A) if the merger had been into the 
controlling corporation means that the general requirements of a 
reorganization under section 368(a)(1)(A) (such as a business purpose, 
continuity of business enterprise, and continuity of interest) must be 
met in addition to the special requirements of section 368(a)(2)(D). 
Under this test, it is not relevant whether the merger into the 
controlling corporation could have been effected pursuant to State or 
Federal corporation law. The term substantially all has the same meaning 
as it has in section 368(a)(1)(C). Although no stock of the acquiring 
corporation can be used in the transaction, there is no prohibition 
(other than the continuity of interest requirement) against using other 
property, such as cash or securities, of either the acquiring 
corporation or the parent or both. In addition, the controlling 
corporation may assume liabilities of the acquired corporation without 
disqualifying the transaction under section 368(a)(2(D), and for 
purposes of section 357(a) the controlling corporation is considered a 
party to the exchange. For example, if the controlling corporation 
agrees to

[[Page 372]]

substitute its stock for stock of the acquired corporation under an 
outstanding employee stock option agreement, this assumption of 
liability will not prevent the transaction from qualifying as a 
reorganization under section 368(a)(2)(D) and the assumption of 
liability is not treated as money or other property for purposes of 
section 361(b). Section 368(a)(2)(D) applies whether or not the 
controlling corporation (or the acquiring corporation) is formed 
immediately before the merger, in anticipation of the merger, or after 
preliminary steps have been taken to merge directly into the controlling 
corporation. Section 368(a)(2)(D) applies only to statutory mergers 
occurring after October 22, 1968.
    (3) For regulations under section 368(a)(2)(E), see paragraph (j) of 
this section.
    (c) In order to qualify as a ``reorganization'' under section 
368(a)(1)(B), the acquisition by the acquiring corporation of stock of 
another corporation must be in exchange solely for all or a part of the 
voting stock of the acquiring corporation (or, in the case of 
transactions occurring after December 31, 1963, solely for all or a part 
of the voting stock of a corporation which is in control of the 
acquiring corporation), and the acquiring corporation must be in control 
of the other corporation immediately after the transaction. If, for 
example, Corporation X in one transaction exchanges nonvoting preferred 
stock or bonds in addition to all or a part of its voting stock in the 
acquisition of stock of Corporation Y, the transaction is not a 
reorganization under section 368(a)(1)(B). Nor is a transaction a 
reorganization described in section 368(a)(1)(B) if stock is acquired in 
exchange for voting stock both of the acquiring corporation and of a 
corporation which is in control of the acquiring corporation. The 
acquisition of stock of another corporation by the acquiring corporation 
solely for its voting stock (or solely for voting stock of a corporation 
which is in control of the acquiring corporation) is permitted tax-free 
even though the acquiring corporation already owns some of the stock of 
the other corporation. Such an acquisition is permitted tax-free in a 
single transaction or in a series of transactions taking place over a 
relatively short period of time such as 12 months. For example, 
Corporation A purchased 30 percent of the common stock of Corporation W 
(the only class of stock outstanding) for cash in 1939. On March 1, 
1955, Corporation A offers to exchange its own voting stock for all the 
stock of Corporation W tendered within 6 months from the date of the 
offer. Within the 6-months' period Corporation A acquires an additional 
60 percent of stock of Corporation W solely for its own voting stock, so 
that it owns 90 percent of the stock of Corporation W. No gain or loss 
is recognized with respect to the exchanges of stock of Corporation A 
for stock of Corporation W. For this purpose, it is immaterial whether 
such exchanges occurred before Corporation A acquired control (80 
percent) of Corporation W or after such control was acquired. If 
Corporation A had acquired 80 percent of the stock of Corporation W for 
cash in 1939, it could likewise acquire some or all of the remainder of 
such stock solely in exchange for its own voting stock without 
recognition of gain or loss.
    (d) In order to qualify as a reorganization under section 
368(a)(1)(C), the transaction must be one described in subparagraph (1) 
or (2) of this paragraph:
    (1) One corporation must acquire substantially all the properties of 
another corporation solely in exchange for all or a part of its own 
voting stock, or solely in exchange for all or a part of the voting 
stock of a corporation which is in control of the acquiring corporation. 
For example, Corporation P owns all the stock of Corporation A. All the 
properties of Corporation W are transferred to Corporation A either 
solely in exchange for voting stock of Corporation P or solely in 
exchange for less than 80 percent of the voting stock of Corporation A. 
Either of such transactions constitutes a reorganization under section 
368(a)(1)(C). However, if the properties of Corporation W are acquired 
in exchange for voting stock of both Corporation P and Corporation A, 
the transaction will not constitute a reorganization under section 
368(a)(1)(C). In determining whether the exchange meets the requirement 
of

[[Page 373]]

``solely for voting stock'', the assumption by the acquiring corporation 
of liabilities of the transferor corporation, or the fact that property 
acquired from the transferor corporation is subject to a liability, 
shall be disregarded. Though such an assumption does not prevent an 
exchange from being solely for voting stock for the purposes of the 
definition of a reorganization contained in section 368(a)(1)(C), it may 
in some cases, however, so alter the character of the transaction as to 
place the transaction outside the purposes and assumptions of the 
reorganization provisions. Section 368(a)(1)(C) does not prevent 
consideration of the effect of an assumption of liabilities on the 
general character of the transaction but merely provides that the 
requirement that the exchange be solely for voting stock is satisfied if 
the only additional consideration is an assumption of liabilities.
    (2) One corporation:
    (i) Must acquire substantially all of the properties of another 
corporation in such manner that the acquisition would qualify under (1) 
above, but for the fact that the acquiring corporation exchanges money, 
or other property in addition to such voting stock, and
    (ii) Must acquire solely for voting stock (either of the acquiring 
corporation or of a corporation which is in control of the acquiring 
corporation) properties of the other corporation having a fair market 
value which is at least 80 percent of the fair market value of all the 
properties of the other corporation.
    (3) For the purposes of subparagraph (2)(ii) only, a liability 
assumed or to which the properties are subject is considered money paid 
for the properties. For example, Corporation A has properties with a 
fair market value of $100,000 and liabilities of $10,000. In exchange 
for these properties, Corporation Y transfers its own voting stock, 
assumes the $10,000 liabilities, and pays $8,000 in cash. The 
transaction is a reorganization even though a part of the properties of 
Corporation A is acquired for cash. On the other hand, if the properties 
of Corporation A worth $100,000, were subject to $50,000 in liabilities, 
an acquisition of all the properties, subject to the liabilities, for 
any consideration other than solely voting stock would not qualify as a 
reorganization under this section since the liabilities alone are in 
excess of 20 percent of the fair market value of the properties. If the 
transaction would qualify under either subparagraph (1) or (2) of this 
paragraph and also under section 368(a)(1)(D), such transaction shall 
not be treated as a reorganization under section 368 (a)(1)(C).
    (4)(i) For purposes of paragraphs (d)(1) and (2)(ii) of this 
section, prior ownership of stock of the target corporation by an 
acquiring corporation will not by itself prevent the solely for voting 
stock requirement of such paragraphs from being satisfied. In a 
transaction in which the acquiring corporation has prior ownership of 
stock of the target corporation, the requirement of paragraph (d)(2)(ii) 
of this section is satisfied only if the sum of the money or other 
property that is distributed in pursuance of the plan of reorganization 
to the shareholders of the target corporation other than the acquiring 
corporation and to the creditors of the target corporation pursuant to 
section 361(b)(3), and all of the liabilities of the target corporation 
assumed by the acquiring corporation (including liabilities to which the 
properties of the target corporation are subject), does not exceed 20 
percent of the value of all of the properties of the target corporation. 
If, in connection with a potential acquisition by an acquiring 
corporation of substantially all of a target corporation's properties, 
the acquiring corporation acquires the target corporation's stock for 
consideration other than the acquiring corporation's own voting stock 
(or voting stock of a corporation in control of the acquiring 
corporation if such stock is used in the acquisition of the target 
corporation's properties), whether from a shareholder of the target 
corporation or the target corporation itself, such consideration is 
treated, for purposes of paragraphs (d)(1) and (2) of this section, as 
money or other property exchanged by the acquiring corporation for the 
target corporation's properties. Accordingly, the transaction will not 
qualify under section 368(a)(1)(C) unless, treating such consideration 
as money or other property, the requirements of

[[Page 374]]

section 368(a)(2)(B) and paragraph (d)(2)(ii) of this section are met. 
The determination of whether there has been an acquisition in connection 
with a potential reorganization under section 368(a)(1)(C) of a target 
corporation's stock for consideration other than an acquiring 
corporation's own voting stock (or voting stock of a corporation in 
control of the acquiring corporation if such stock is used in the 
acquisition of the target corporation's properties) will be made on the 
basis of all of the facts and circumstances.
    (ii) The following examples illustrate the principles of this 
paragraph (d)(4):

    Example 1. Corporation P (P) holds 60 percent of the Corporation T 
(T) stock that P purchased several years ago in an unrelated 
transaction. T has 100 shares of stock outstanding. The other 40 percent 
of the T stock is owned by Corporation X (X), an unrelated corporation. 
T has properties with a fair market value of $110 and liabilities of 
$10. T transfers all of its properties to P. In exchange, P assumes the 
$10 of liabilities, and transfers to T $30 of P voting stock and $10 of 
cash. T distributes the P voting stock and $10 of cash to X and 
liquidates. The transaction satisfies the solely for voting stock 
requirement of paragraph (d)(2)(ii) of this section because the sum of 
$10 of cash paid to X and the assumption by P of $10 of liabilities does 
not exceed 20% of the value of the properties of T.
    Example 2. The facts are the same as in Example 1 except that P 
purchased the 60 shares of T for $60 in cash in connection with the 
acquisition of T's assets. The transaction does not satisfy the solely 
for voting stock requirement of paragraph (d)(2)(ii) of this section 
because P is treated as having acquired all of the T assets for 
consideration consisting of $70 of cash, $10 of liability assumption and 
$30 of P voting stock, and the sum of $70 of cash and the assumption by 
P of $10 of liabilities exceeds 20% of the value of the properties of T.

    (iii) This paragraph (d)(4) applies to transactions occurring after 
December 31, 1999, unless the transaction occurs pursuant to a written 
agreement that is (subject to customary conditions) binding on that date 
and at all times thereafter.
    (e) A ``recapitalization'', and therefore a reorganization, takes 
place if, for example:
    (1) A corporation with $200,000 par value of bonds outstanding, 
instead of paying them off in cash, discharges them by issuing preferred 
shares to the bondholders;
    (2) There is surrendered to a corporation for cancellation 25 
percent of its preferred stock in exchange for no par value common 
stock;
    (3) A corporation issues preferred stock, previously authorized but 
unissued, for outstanding common stock;
    (4) An exchange is made of a corporation's outstanding preferred 
stock, having certain priorities with reference to the amount and time 
of payment of dividends and the distribution of the corporate assets 
upon liquidation, for a new issue of such corporation's common stock 
having no such rights;
    (5) An exchange is made of an amount of a corporation's outstanding 
preferred stock with dividends in arrears for other stock of the 
corporation. However, if pursuant to such an exchange there is an 
increase in the proportionate interest of the preferred shareholders in 
the assets or earnings and profits of the corporation, then under Sec. 
1.305-7(c)(2), an amount equal to the lesser of (i) the amount by which 
the fair market value or liquidation preference, whichever is greater, 
of the stock received in the exchange (determined immediately following 
the recapitalization) exceeds the issue price of the preferred stock 
surrendered, or (ii) the amount of the dividends in arrears, shall be 
treated under section 305(c) as a deemed distribution to which sections 
305(b)(4) and 301 apply.
    (f) The term a party to a reorganization includes a corporation 
resulting from a reorganization, and both corporations, in a transaction 
qualifying as a reorganization where one corporation acquires stock or 
properties of another corporation. If a transaction otherwise qualifies 
as a reorganization, a corporation remains a party to the reorganization 
even though stock or assets acquired in the reorganization are 
transferred in a transaction described in paragraph (k) of this section. 
If a transaction otherwise qualifies as a reorganization, a corporation 
shall not cease to be a party to the reorganization solely by reason of 
the fact that part or all of the assets acquired in the reorganization 
are transferred to a partnership in which the transferor is a

[[Page 375]]

partner if the continuity of business enterprise requirement is 
satisfied. See Sec. 1.368-1(d). The preceding three sentences apply to 
transactions occurring after January 28, 1998, except that they do not 
apply to any transaction occurring pursuant to a written agreement which 
is binding on January 28, 1998, and at all times thereafter. A 
corporation controlling an acquiring corporation is a party to the 
reorganization when the stock of such controlling corporation is used in 
the acquisition of properties. Both corporations are parties to the 
reorganization if, under statutory authority, Corporation A is merged 
into Corporation B. All three of the corporations are parties to the 
reorganization if, pursuant to statutory authority, Corporation C and 
Corporation D are consolidated into Corporation E. Both corporations are 
parties to the reorganization if Corporation F transfers substantially 
all its assets to Corporation G in exchange for all or a part of the 
voting stock of Corporation G. All three corporations are parties to the 
reorganization if Corporation H transfers substantially all its assets 
to Corporation K in exchange for all or a part of the voting stock of 
Corporation L, which is in control of Corporation K. Both corporations 
are parties to the reorganization if Corporation M transfers all or part 
of its assets to Corporation N in exchange for all or a part of the 
stock and securities of Corporation N, but only if (1) immediately after 
such transfer, Corporation M, or one or more of its shareholders 
(including persons who were shareholders immediately before such 
transfer), or any combination thereof, is in control of Corporation N, 
and (2) in pursuance of the plan, the stock and securities of 
Corporation N are transferred or distributed by Corporation M in a 
transaction in which gain or loss is not recognized under section 354 or 
355, or is recognized only to the extent provided in section 356. Both 
Corporation O and Corporation P, but not Corporation S, are parties to 
the reorganization if Corporation O acquires stock of Corporation P from 
Corporation S in exchange solely for a part of the voting stock of 
Corporation O, if (1) the stock of Corporation P does not constitute 
substantially all of the assets of Corporation S, (2) Corporation S is 
not in control of Corporation O immediately after the acquisition, and 
(3) Corporation O is in control of Corporation P immediately after the 
acquisition.
    (g) The term plan of reorganization has reference to a consummated 
transaction specifically defined as a reorganization under section 
368(a). The term is not to be construed as broadening the definition of 
reorganization as set forth in section 368(a), but is to be taken as 
limiting the nonrecognition of gain or loss to such exchanges or 
distributions as are directly a part of the transaction specifically 
described as a reorganization in section 368(a). Moreover, the 
transaction, or series of transactions, embraced in a plan of 
reorganization must not only come within the specific language of 
section 368(a), but the readjustments involved in the exchanges or 
distributions effected in the consummation thereof must be undertaken 
for reasons germane to the continuance of the business of a corporation 
a party to the reorganization. Section 368(a) contemplates genuine 
corporate reorganizations which are designed to effect a readjustment of 
continuing interests under modified corporate forms.
    (h) As used in section 368, as well as in other provisions of the 
Internal Revenue Code, if the context so requires, the conjunction 
``or'' denotes both the conjunctive and the disjunctive, and the 
singular includes the plural. For example, the provisions of the statute 
are complied with if ``stock and securities'' are received in exchange 
as well as if ``stock or securities'' are received.
    (i) [Reserved]
    (j)(1) This paragraph (j) prescribes rules relating to the 
application of section 368 (a)(2)(E).
    (2) Section 368(a)(2)(E) does not apply to a consolidation.
    (3) A transaction otherwise qualifying under section 368(a)(1)(A) is 
not disqualified by reason of the fact that stock of a corporation (the 
controlling corporation) which before the merger was in control of the 
merged corporation is used in the transaction, if the conditions of 
section 368(a)(2)(E) are satisfied. Those conditions are as follows:

[[Page 376]]

    (i) In the transaction, shareholders of the surviving corporation 
must surrender stock in exchange for voting stock of the controlling 
corporation. Further, the stock so surrendered must constitute control 
of the surviving corporation. Control is defined in section 368(c). The 
amount of stock constituting control is measured immediately before the 
transaction. For purposes of this subdivision (i), stock in the 
surviving corporation which is surrendered in the transaction (by any 
shareholder except the controlling corporation) in exchange for 
consideration furnished by the surviving corporation (and not by the 
controlling corporation of the merged corporation) is considered not to 
be outstanding immediately before the transaction. For effect on 
``substantially all'' test of consideration furnished by the surviving 
corporation, see paragraph (j)(3)(iii) of this section.
    (ii) Except as provided in paragraph (k)(2) of this section, the 
controlling corporation must control the surviving corporation 
immediately after the transaction.
    (iii) After the transaction, except as provided in paragraph (k)(2) 
of this section, the surviving corporation must hold substantially all 
of its own properties and substantially all of the properties of the 
merged corporation (other than stock of the controlling corporation 
distributed in the transaction). The term substantially all has the same 
meaning as in section 368(a)(1)(C). The ``substantially all'' test 
applies separately to the merged corporation and to the surviving 
corporation. In applying the ``substantially all'' test to the surviving 
corporation, consideration furnished in the transaction by the surviving 
corporation in exchange for its stock is property of the surviving 
corporation which it does not hold after the transaction. In applying 
the ``substantially all'' test to the merged corporation, assets 
transferred from the controlling corporation to the merged corporation 
in pursuance of the plan of reorganization are not taken into account. 
Thus, for example, money transferred from the controlling corporation to 
the merged corporation to be used for the following purposes is not 
taken into account for purposes of the ``substantially all'' test:
    (A) To pay additional consideration to shareholders of the surviving 
corporation;
    (B) To pay dissenting shareholders of the surviving corporation;
    (C) To pay creditors of the surviving corporation;
    (D) To pay reorganization expenses; or
    (E) To enable the merged corporation to satisfy state minimum 
capitalization requirements (where the money is returned to the 
controlling corporation as part of the transaction).
    (iv) Paragraphs (j)(3)(ii) and (iii) of this section apply to 
transactions occurring after January 28, 1998, except that they do not 
apply to any transaction occurring pursuant to a written agreement which 
is binding on January 28, 1998, and at all times thereafter.
    (4) The controlling corporation may assume liabilities of the 
surviving corporation without disqualifying the transaction under 
section 368(a)(2)(E). An assumption of liabilities of the surviving 
corporation by the controlling corporation is a contribution to capital 
by the controlling corporation to the surviving corporation. If, in 
pursuance of the plan of reorganization, securities of the surviving 
corporation are exchanged for securities of the controlling corporation, 
or for other securities of the surviving corporation, see sections 354 
and 356.
    (5) In applying section 368(a)(2)(E), it makes no difference if the 
merged corporation is an existing corporation, or is formed immediately 
before the merger, in anticipation of the merger, or after preliminary 
steps have been taken to otherwise acquire control of the surviving 
corporation.
    (6) The following examples illustrate the application of this 
paragraph (j). In each of the examples, Corporation P owns all of the 
stock of Corporation S and, except as otherwise stated, Corporation T 
has outstanding 1,000 shares of common stock and no shares of any other 
class. In each of the examples, it is also assumed that the transaction 
qualifies under section 368(a)(1)(A) if the conditions of section 
368(a)(2)(E) are satisfied.


[[Page 377]]


    Example 1. P owns no T stock. On January 1, 1981, S merges into T. 
In the merger, T's shareholders surrender 950 shares of common stock in 
exchange for P voting stock. The holders of the other 50 shares (who 
dissent from the merger) are paid in cash with funds supplied by P. 
After the transaction, T holds all of its own assets and all of S's 
assets. Based on these facts, the transaction qualifies under section 
368(a)(1)(A) by reason of the application of section 368(a)(2)(E). In 
the transaction, former shareholders of T surrender, in exchange for P 
voting stock, an amount of T stock (950/1,000 shares or 95 percent) 
which constitutes control of T.
    Example 2. The facts are the same as in Example (1) except that 
holders of 100 shares in corporation T, who dissented from the merger, 
are paid in cash with funds supplied by T (and not by P or S) and in the 
merger, T's remaining shareholders surrender 720 shares of common stock 
in exchange for P voting stock and 180 shares of common stock for cash 
supplied by P. The requirements of section 368(a)(2)(E)(ii) are 
satisfied since, in the transaction, former shareholders of T surrender, 
in exchange for P voting stock, an amount of T stock (720/900 shares or 
80 percent) which constitutes control of T. The T stock surrendered in 
exchange for consideration furnished by T is not considered outstanding 
for purposes of determining whether the amount of T stock surrendered by 
T shareholders for P stock constitutes control of T.
    Example 3. T has outstanding 1,000 shares of common stock, 100 
shares of nonvoting preferred stock, and no shares of any other class. 
On January 1, 1981, S merges into T. Prior to the merger, as part of the 
transaction, T distributes its own cash in redemption of the 100 shares 
of preferred stock. In the transaction, T's remaining shareholders 
surrender their 1,000 shares of common stock in exchange for P voting 
stock. The requirements of section 368(a)(2)(E)(ii) are satisfied since, 
in the transaction, former shareholders of T surrender, in exchange for 
P voting stock, an amount of T stock (1,000/1,000 shares or 100 percent) 
which constitutes control of T. The preferred stock surrendered in 
exchange for consideration furnished by T is not considered outstanding 
for purposes of determining whether the amount of T stock surrendered by 
T shareholders for P stock constitutes control of T. However, the 
consideration furnished by T for its stock is property of T which T does 
not hold after the transaction for purposes of the substantially all 
test in paragraph (j)(3)(iii) of this section.
    Example 4. On January 1, 1971, P purchased 201 shares of T's stock. 
On January 1, 1981, S merges into T. In the merger, T's shareholders 
(other than P) surrender 799 shares of T stock in exchange for P voting 
stock. Based on these facts, in the transaction, former shareholders of 
T do not surrender, in exchange for P voting stock, an amount of T stock 
which constitutes control of T (799/1,000 shares being less than 80 
percent). Therefore, the transaction does not qualify under section 
368(a)(1)(A). However, if S is a transitory corporation, formed solely 
for purposes of effectuating the transaction, the transaction may 
qualify as a reorganization described in section 368(a)(1)(B) provided 
all of the applicable requirements are satisfied.
    Example 5. On January 1, 1971, P purchased 200 shares of T's stock. 
On January 1, 1981, S merges into T. Prior to the merger, as part of the 
transaction, T distributes its own cash in redemption of 1 share of T 
stock from a T shareholder other than P. In the merger, T's remaining 
shareholders (other than P) surrender 799 shares of T stock in exchange 
for P voting stock. Based on these facts, in the transaction, former 
shareholders of T do not surrender, in exchange for P voting stock, an 
amount of T stock which constitutes control of T (799/999 shares being 
less than 80 percent). Therefore, the transaction does not qualify under 
section 368(a)(1)(A). However, if S is a transitory corporation, formed 
for purposes of effectuating the transaction, the transaction may 
qualify as a reorganization described in section 368(a)(1)(B) provided 
all of the applicable requirements are satisfied.
    Example 6. The stock of S has a value of $25,000. The stock of T has 
a value of $75,000. On January 1, 1984, S merges into T. In the merger, 
T's shareholders surrender all of their T stock in exchange for P voting 
stock. After the transaction, T holds all of its own assets and all of 
S's assets. Based on these facts, the transaction qualifies under 
section 368(a)(1)(A) by reason of the application of section 
368(a)(2)(E). In the transaction, former shareholders of T surrender, in 
exchange for P voting stock, an amount of T stock (1,000/1,000 shares or 
100 percent) which constitutes control of T. The stock of T received by 
P in exchange for P's prior interest in S is not taken into account for 
purposes of section 368(a)(2)(E)(ii) since the amount of T stock 
constituting control of T is measured before the transaction.
    Example 7. The stock of T has a value of $75,000. On January 1, 
1984, S merges into T. In the merger, T's shareholders surrender all of 
their T stock in exchange for P voting stock. As part of the 
transaction, P contributes $25,000 to T in exchange for new shares of T 
stock. None of the cash received by T is distributed or otherwise paid 
out to former T shareholders. After the transaction, T holds all of its 
own assets and all of S's assets. Based on these facts, the transaction 
qualifies under section 368(a)(1)(A) by reason of the application of 
section 368(a)(2)(E). In the transaction, former shareholders of T 
surrender, in exchange for P voting stock, an amount of T stock (1,000/
1,000 shares or 100 percent) which constitutes control of T. The T stock 
received by P in exchange for its

[[Page 378]]

contribution to T is not taken into account for purposes of section 
368(a)(2)(E)(ii) since the amount of T stock constituting control of T 
is measured before the transaction.
    Example 8. The facts are the same as in Example (7) except that, as 
part of the transaction, corporation R, instead of P, contributes 
$25,000 to T in exchange for T stock. Based on these facts, the 
transaction does not qualify under section 368(a)(1)(A) by reason of 
section 368(a)(2)(E) since P does not control T immediately after the 
transaction.
    Example 9. T stock has a value of $75,000. P owns 500 shares (\1/2\) 
of that stock with a value of $37,500. The stock of S has a value of 
$125,000. On January 1, 1984, S merges into T. In the merger, T's 
shareholders (other than P) surrender their T stock in exchange for P 
voting stock. Based on these facts, in the transaction, former 
shareholders of T do not surrender, in exchange for P voting stock, an 
amount of T stock which constitutes control of T (500/1,000 shares being 
less than 80 percent). Therefore, the transaction does not qualify under 
section 368(a)(1)(A). The stock of T received by P in exchange for P's 
prior interest in S does not contribute to satisfaction of the 
requirement of section 368(a)(2)(E)(ii).

    (k) Transfer of assets or stock in section 368(a)(1)(A), (B), (C), 
or (G) reorganizations--(1) General rule for transfers to controlled 
corporations. Except as otherwise provided in this section, a 
transaction otherwise qualifying under section 368(a)(1)(A), (B), (C), 
or (G) (where the requirements of sections 354(b)(1)(A) and (B) are met) 
shall not be disqualified by reason of the fact that part or all of the 
acquired assets or stock acquired in the transaction are transferred or 
successively transferred to one or more corporations controlled in each 
transfer by the transferor corporation. Control is defined under section 
368(c).
    (2) Transfers following a reverse triangular merger. A transaction 
qualifying under section 368(a)(1)(A) by reason of the application of 
section 368(a)(2)(E) is not disqualified by reason of the fact that part 
or all of the stock of the surviving corporation is transferred or 
successively transferred to one or more corporations controlled in each 
transfer by the transferor corporation, or because part or all of the 
assets of the surviving corporation or the merged corporation are 
transferred or successively transferred to one or more corporations 
controlled in each transfer by the transferor corporation.
    (3) Examples. The following examples illustrate the application of 
this paragraph (k). P is the issuing corporation and T is the target 
corporation. P has only one class of stock outstanding. The examples are 
as follows:

    Example 1. Transfers of acquired assets to controlled corporations. 
(i) Facts. T operates a bakery which supplies delectable pastries and 
cookies to local retail stores. The acquiring corporate group produces a 
variety of baked goods for nationwide distribution. P owns 80 percent of 
the stock of S-1. Pursuant to a plan of reorganization, T transfers all 
of its assets to S-1 solely in exchange for P stock, which T distributes 
to its shareholders. S-1 owns 80 percent of the stock of S-2; S-2 owns 
80 percent of the stock of S-3, which also makes and supplies pastries 
and cookies. Pursuant to the plan of reorganization, S-1 transfers the T 
assets to S-2; S-2 transfers the T assets to S-3.
    (ii) Analysis. Under this paragraph (k), the transaction, otherwise 
qualifying as a reorganization under section 368(a)(1)(C), is not 
disqualified by reason of the fact of the successive transfers of all of 
the acquired assets from S-1 to S-2, and from S-2 to S-3 because in each 
transfer, the transferee corporation is controlled by the transferor 
corporation. Control is defined under section 368(c).
    Example 2. Transfers of acquired stock to controlled corporations. 
(i) Facts. The facts are the same as Example 1 except that S-1 acquires 
all of the T stock rather than the T assets, and as part of the plan of 
reorganization, S-1 transfers all of the T stock to S-2, and S-2 
transfers all of the T stock to S-3.
    (ii) Analysis. Under this paragraph (k), the transaction, otherwise 
qualifying as a reorganization under section 368(a)(1)(B), is not 
disqualified by reason of the fact of the successive transfers of all of 
the acquired stock from S-1 to S-2, and from S-2 to S-3 because in each 
transfer, the transferee corporation is controlled by the transferor 
corporation.
    Example 3. Transfers of acquired stock to partnerships. (i) Facts. 
The facts are the same as in Example 2. However, as part of the plan of 
reorganization, S-2 and S-3 form a new partnership, PRS. Immediately 
thereafter, S-3 transfers all of the T stock to PRS in exchange for an 
80 percent partnership interest, and S-2 transfers cash to PRS in 
exchange for a 20 percent partnership interest.
    (ii) Analysis. This paragraph (k) describes the successive transfer 
of the T stock to S-3, but does not describe S-3's transfer of the T 
stock to PRS. Therefore, the characterization of this transaction must 
be determined under the relevant provisions of law, including the step 
transaction doctrine. See Sec. 1.368-

[[Page 379]]

1(a). The transaction fails to meet the control requirement of a 
reorganization described in section 368(a)(1)(B) because immediately 
after the acquisition of the T stock, the acquiring corporation does not 
have control of T.

    (4) This paragraph (k) applies to transactions occurring after 
January 28, 1998, except that it does not apply to any transaction 
occurring pursuant to a written agreement which is binding on January 
28, 1998, and at all times thereafter.

[T.D. 6500, 25 FR 11607, Nov. 26, 1960, as amended by T.D. 7281, 38 FR 
18540, July 12, 1973; T.D. 7422, 41 FR 26570, June 28, 1976; T.D. 8059, 
50 FR 42689, Oct. 22, 1985; 51 FR 6400, Feb. 24, 1986; T.D. 8760, 63 FR 
4182, Jan. 28, 1998; T.D. 8885, 65 FR 31806, May 19, 2000; T.D. 9038, 
Jan. 24, 2003; T.D. 9242, 71 FR 4261, Jan. 26, 2006]



Sec. 1.368-3  Records to be kept and information to be filed with 
returns.

    (a) The plan of reorganization must be adopted by each of the 
corporations parties thereto; and the adoption must be shown by the acts 
of its duly constituted responsible officers, and appear upon the 
official records of the corporation. Each corporation, a party to a 
reorganization, shall file as a part of its return for its taxable year 
within which the reorganization occurred a complete statement of all 
facts pertinent to the nonrecognition of gain or loss in connection with 
the reorganization, including:
    (1) A copy of the plan of reorganization, together with a statement, 
executed under the penalties of perjury, showing in full the purposes 
thereof and in detail all transactions incident to, or pursuant to, the 
plan.
    (2) A complete statement of the cost or other basis of all property, 
including all stock or securities, transferred incident to the plan.
    (3) A statement of the amount of stock or securities and other 
property or money received from the exchange, including a statement of 
all distributions or other disposition made thereof. The amount of each 
kind of stock or securities and other property received shall be stated 
on the basis of the fair market value thereof at the date of the 
exchange.
    (4) A statement of the amount and nature of any liabilities assumed 
upon the exchange, and the amount and nature of any liabilities to which 
any of the property acquired in the exchange is subject.
    (b) Every taxpayer, other than a corporation a party to the 
reorganization, who receives stock or securities and other property or 
money upon a tax-free exchange in connection with a corporate 
reorganization shall incorporate in his income tax return for the 
taxable year in which the exchange takes place a complete statement of 
all facts pertinent to the nonrecognition of gain or loss upon such 
exchange including:
    (1) A statement of the cost or other basis of the stock or 
securities transferred in the exchange, and
    (2) A statement in full of the amount of stock or securities and 
other property or money received from the exchange, including any 
liabilities assumed upon the exchange, and any liabilities to which 
property received is subject. The amount of each kind of stock or 
securities and other property (other than liabilities assumed upon the 
exchange) received shall be set forth upon the basis of the fair market 
value thereof at the date of the exchange.
    (c) Permanent records in substantial form shall be kept by every 
taxpayer who participates in a tax-free exchange in connection with a 
corporate reorganization showing the cost or other basis of the 
transferred property and the amount of stock or securities and other 
property or money received (including any liabilities assumed on the 
exchange, or any liabilities to which any of the properties received 
were subject), in order to facilitate the determination of gain or loss 
from a subsequent disposition of such stock or securities and other 
property received from the exchange.

[T.D. 6500, 25 FR 11607, Nov. 26, 1960, as amended by T.D. 6622, 27 FR 
11918, Dec. 4, 1962]

                       Insolvency Reorganizations



Sec. 1.371-1  Exchanges by corporations.

    (a) Exchange solely for stock or securities. (1) Section 371(a)(1) 
provides for the nonrecognition of gain or loss by a corporation upon 
certain exchanges

[[Page 380]]

made in connection with the reorganization of an insolvent corporation. 
The section does not apply to a railroad corporation as defined in 
section 77(m) of the Bankruptcy Act (11 U.S.C. 205(m)). In order to 
qualify as a section 371(a) reorganization, the transaction must satisfy 
the express statutory requirements as well as the underlying assumptions 
and purposes for which the exchange is excepted from the general rule 
requiring the recognition of gain or loss upon the exchange of property.
    (2) Section 371(a)(1) applies only with respect to a reorganization 
effected in one of two specified types of court proceedings: (i) 
Receivership, foreclosure, or similar proceedings, or (ii) corporate 
reorganization proceedings under chapter X of the Bankruptcy Act (11 
U.S.C. 10). The specific statutory requirements are the transfer of 
property of a corporation, in pursuance of an order of the court having 
jurisdiction of the corporation in such proceeding, to another 
corporation organized or made use of to effectuate a plan of 
reorganization approved by the court in such proceeding, in exchange 
solely for stock or securities in such other corporation. If the 
consideration for the transfer consists of other property or money as 
well as stock and securities, see section 371(a)(2) and (c). As to the 
assumption of liabilities in an exchange described in section 371(a), 
see section 371(d).
    (3) The application of section 371(a)(1) is to be strictly limited 
to a transaction of the character set forth in such section. Hence, the 
section is inapplicable unless there is a bona fide plan of 
reorganization approved by the court having jurisdiction of the 
proceeding and the transfer of the property of the insolvent corporation 
is made pursuant to such plan. It is unnecessary that the transfer be a 
direct transfer from the insolvent corporation; it is sufficient if the 
transfer is an integral step in the consummation of the reorganization 
plan approved by the court. By its terms, the section has no application 
to a reorganization consummated by adjustment of the capital or debt 
structure of the insolvent corporation without the transfer of its 
assets to another corporation.
    (4) As used in section 371(a)(1), the term reorganization is not 
controlled by the definition of reorganization contained in section 368. 
However, certain basic requirements, implicit in the statute, which are 
essential to a reorganization under section 368, are likewise essential 
to qualify a transaction as a reorganization under section 371(a)(1). 
Among these requirements are a continuity of the business enterprise 
under the modified corporate form and a continuity of interest therein 
on the part of those persons who were the owners of the enterprise prior 
to the reorganization. Thus, the nonrecognition accorded by section 
371(a)(1) applies only to a genuine reorganization as distinguished from 
a liquidation and sale of property to either new or old interests 
supplying new capital and discharging the obligations of the old 
corporation. For the purpose of determining whether the requisite 
continuity of interest exists, the interest of creditors who have, by 
appropriate legal steps, obtained effective command of the property of 
an insolvent corporation is considered as the equivalent of a 
proprietary interest. But the mere possibility of a proprietary interest 
is not its equivalent. In general, any transaction will be subject to 
nonrecognition of gain or loss as prescribed by section 371(a)(1) where 
the property is transferred to a corporation and the stock and 
securities of such corporation are transferred to persons who were 
shareholders or creditors of the transferor corporation as if such stock 
or securities had been transferred to such persons as shareholders 
pursuant to the nonrecognition provisions of part III, subchapter C, 
chapter 1 of the Code. The determinative and controlling factors are the 
corporation's insolvency and the effective command by the creditors over 
its property. The term insolvent as used herein refers to insolvency at 
any time during the course of the proceeding referred to in section 
371(a)(1), either in the sense of excess of liabilities over assets or 
in the sense of inability to meet obligations as they mature.
    (5) A short-term purchase money note is not a security within the 
meaning of this section, and the transfer of

[[Page 381]]

the properties of the insolvent corporation for cash and deferred 
payment obligations of the transferee evidenced by short-term notes is a 
sale and not an exchange.
    (b) Exchange for stock or securities and other property or money. If 
an exchange would be within the provisions of section 371(a)(1) if it 
were not for the fact that the consideration for the transfer of the 
property of the insolvent corporation consists not only of stock or 
securities but also of other property or money, then, as provided in 
section 371(a)(2), if the other property or money received by the 
corporation is distributed by it pursuant to the plan of reorganization, 
no gain to the corporation will be recognized. Property is distributed 
within the meaning of this section if it is paid over or distributed to 
shareholders or creditors who have by appropriate legal steps obtained 
effective command of the property of the corporation. If the other 
property or money received by the corporation is not distributed by it 
pursuant to the plan of reorganization, the gain, if any, to the 
corporation from the exchange will be recognized in an amount not in 
excess of the sum of money and the fair market value of the other 
property so received which is not distributed. In either case no loss 
from the exchange will be recognized (see section 371(c)).
    (c) Records to be kept and information to be filed. (1) Each 
corporation a party to a section 371(a) reorganization shall furnish a 
complete statement of all facts pertinent to the nonrecognition of gain 
or loss in connection with the exchange, including:
    (i) A certified copy of the plan of reorganization approved by the 
court in the proceeding, together with a statement showing in full the 
purposes thereof and in detail all transactions incident, or pursuant, 
to the plan;
    (ii) A complete statement of the cost or other basis of all 
property, including all stock or securities, transferred incident to the 
plan;
    (iii) A statement of the amount of stock or securities and other 
property or money received in the exchange, including a statement of all 
distributions or other disposition made thereof. The amount of each kind 
of stock or securities or other property shall be stated on the basis of 
the fair market value thereof at the date of the exchange;
    (iv) A statement of the amount and nature of any liabilities assumed 
upon the exchange.

The information required by this section shall be filed as a part of the 
corporation's return for its taxable year within which the 
reorganization occurred.
    (2) Permanent records in substantial form must be kept by every 
taxpayer who participates in a tax-free exchange in connection with a 
corporate reorganization showing the cost or other basis of the 
transferred property and the amount of stock or securities and other 
property or money received (including any liabilities assumed upon the 
exchange), in order to facilitate the determination of gain or loss from 
a subsequent disposition of such stock or securities and other property 
received from the securities and other property or money received 
(including any liabilities assumed upon the exchange), in order to 
facilitate the determination of gain or loss from a subsequent 
disposition of such stock or securities and other property received from 
the exchange.



Sec. 1.371-2  Exchanges by security holders.

    (a) In general. (1) Section 371(b) prescribes the rules relative to 
the recognition of gain or loss upon certain exchanges made by the 
holders of stock or securities of an insolvent corporation in connection 
with a reorganization described in section 371(a). Under section 
371(b)(1), no gain or loss shall be recognized if, pursuant to the plan 
of reorganization, stock or securities in the insolvent corporation are 
exchanged solely for stock or securities in the corporation organized or 
made use of to effectuate such plan. If, in addition to such stock or 
securities, other property or money is received upon such exchange, gain 
is recognized to the extent of such other property or money (section 
371(b)(2)), but no loss is recognized (section 371(c)). As to the basis 
of the stock or securities or other property acquired upon an exchange 
under section 371(b), see section 358.

[[Page 382]]

    (2) By thus characterizing as an exchange, and regarding as a single 
taxable event, the event or series of events resulting in the 
relinquishment or extinguishment of the stock or securities in the old 
corporation and the acquisition in consideration thereof, in whole or in 
part, of stock or securities in the new corporation, the Code secures 
uniformity of treatment for the participating security holders, 
regardless of the particular steps or the procedural devices by which 
such exchange is effected. Thus, the transaction which qualified as a 
reorganization under section 371(a) may take one of several forms. In a 
typical creditors' reorganization there may be a transfer of the 
property of the old corporation to its bondholders, or the bondholders' 
committee, upon surrender of the bonds, followed by the transfer of such 
property to the new corporation in consideration of stock in the latter; 
or there may be a transfer of the bonds to the new corporation in 
exchange for its stocks or securities, followed by the transfer of the 
property of the old corporation in consideration of the surrender of its 
bonds. In either event, section 371(b) treats the result to the 
participating security holders as an exchange of the securities of the 
old corporation for securities of the new corporation. In order, 
however, to qualify as an exchange under section 371(b) the various 
events resulting in the relinquishment or extinguishment of the old 
securities and the acquisition of the new securities must be embraced 
within the plan of reorganization and must be undertaken for reasons 
germane to the plan. If the event, or series of events, qualifies as an 
exchange under section 371(b), no antecedent event necessarily a 
component of the relinquishment or extinguishment of the securities of 
the old corporation in consideration of the acquisition of the 
securities of the new corporation shall be considered a transaction or 
event having consequences for income tax purposes.
    (b) Exchange solely for stock or securities. Section 371(b)(1) 
provides that no gain or loss shall be recognized upon an exchange 
consisting of the relinquishment or extinguishment of stock or 
securities in an insolvent corporation described in section 371(a), in 
consideration of the acquisition solely of stock or securities in a 
corporation organized or made use of to effectuate the plan of 
reorganization. As used in this section, the term security does not 
include a short-term note.
    (c) Exchanges for stock or securities and other property or money. 
If an exchange would be within section 371(b)(1) if it were not for the 
fact that the property received in the exchange consists not only of 
stock or securities in the corporation organized or made use of to 
effectuate the plan of reorganization, but also of other property or 
money, then
    (1) As provided in section 371(b)(2), the gain, if any, to the 
taxpayer will be recognized in an amount not in excess of the sum of 
money and the fair market value of the other property. The gain so 
recognized shall be treated as capital gain.
    (2) The loss, if any, to the taxpayer from such an exchange is not 
to be recognized to any extent (see section 371(c)).
    (d) Records to be kept and information to be filed. (1) Every 
taxpayer who receives stock or securities and other property or money 
upon an exchange described in section 371(b) in connection with a 
corporate reorganization, must furnish a complete statement of all facts 
pertinent to the recognition or nonrecognition of gain or loss upon such 
exchange, including--
    (i) A statement of the cost or other basis of the stock or 
securities transferred in the exchange, and
    (ii) A statement in full of the amount of stock or securities and 
other property or money received from the exchange, including any 
liability assumed upon the exchange. The amount of each kind of stock or 
securities and other property (other than liabilities assumed upon the 
exchange) received shall be set forth upon the basis of the fair market 
value thereof at the date of the exchange. The statement shall be 
incorporated in the taxpayer's income tax return for the taxable year in 
which the exchange occurs.
    (2) Permanent records in substantial form shall be kept by every 
taxpayer who participates in an exchange described in section 371(b), 
showing the

[[Page 383]]

cost or other basis of the transferred property and the amount of stock 
or securities and other property or money received (including any 
liabilities assumed upon the exchange), in order to facilitate the 
determination of gain or loss from a subsequent disposition of such 
stock or securities and other property received from the exchange.



Sec. 1.372-1  Corporations.

    (a) If, as the result of a transaction described in section 371, so 
much of section 371(c) as relates to section 371(a), or the 
corresponding provisions of prior law, the property of an insolvent 
corporation is transferred, in pursuance of a plan of reorganization, to 
a corporation organized or made use of to effectuate such plan, the 
basis of such property in the hands of the acquiring corporation is the 
same as it would be in the hands of the insolvent corporation, increased 
in the amount of gain recognized upon such transfer under the law 
applicable to the year in which the transfer was made. In any such case, 
the adjustments to basis provided by section 270 of the Bankruptcy Act 
(11 U.S.C. 670), or section 1017 of the Code, shall not be made in 
respect of any indebtedness cancelled pursuant to the plan of 
reorganization under which the transfer was made. If the transaction 
falls within the provisions of section 372(a), the basis of the property 
involved shall be determined pursuant to such provisions, 
notwithstanding that the transaction might otherwise fall within another 
basis provision.
    (b) The provisions of section 372(a) are applicable in the 
determination of basis for all taxable years beginning after December 
31, 1933, except that the basis so determined shall not be given effect 
in the determination of the tax liability for any taxable year beginning 
prior to January 1, 1943. With the exception indicated, the basis so 
prescribed is applicable from the date of acquisition of such property. 
For example, the provisions of section 1016 relating to adjusted basis 
shall be applied as if section 372(a) were a part of the Internal 
Revenue Code of 1939 and prior internal revenue laws applicable to all 
taxable years beginning after December 31, 1933. Hence, in determining 
the amount of the adjustments for depreciation, depletion, etc., under 
the provisions of section 1016(a)(2), the amount allowable is the amount 
computed with reference to the basis provided in section 372(a).
    (c) The effect of the application of section 372(a) may be 
illustrated by the following examples:

    Example (1). On January 1, 1935, the Y Corporation, a taxpayer 
making its returns on the calendar year basis, acquired depreciable 
property from the X Corporation as the result of a transaction described 
in section 372(a). On January 1, 1935, the property had, in the hands of 
the X Corporation, a basis of $200,000, an adjusted basis of $150,000, a 
fair market value as of January 1, 1935 of $80,000, and an estimated 
remaining life of 20 years. The 1935 transaction was treated as a 
taxable exchange and, accordingly, the Y Corporation claimed and was 
allowed depreciation in the amount of $4,000 for each of the eight 
taxable years 1935 through 1942, inclusive. For each of the twelve 
taxable years 1943 through 1954, inclusive, the Y Corporation claimed 
and was allowed depreciation in the amount of $7,500. On December 31, 
1954, the property was sold for $10,000 cash. The amount of the gain 
realized upon the sale is computed as follows:

Basis to X Corporation.....................................     $200,000
Adjustment for depreciation in the hands of X Corporation         50,000
 (sec. 1016)...............................................
                                                -------------
Adjusted basis for depreciation in the hands of both X and      150,000
 Y Corporations (sec. 372(b))..............................
Deduct:
  Depreciation allowable in amount of $7,500        $60,000
   per year (\1/20\ of $150,000) for 8 years,
   from Jan. 1, 1935, through Dec. 31, 1942....
  Depreciation allowable Jan. 1, 1943, to Dec.       90,000
   31, 1954 (12 years at $7,500)...............
                                                ------------
                                                 ..........      150,000
                                                            ------------
Adjusted basis for computing gain or loss..................            0
Sale price.................................................       10,000
                                                -------------
Gain realized..............................................       10,000
 


For the taxable year 1943 and succeeding taxable years, the Y 
Corporation is entitled to deductions for depreciation in respect of 
such property in the amounts of $7,500 in the determination of its tax 
liabilities for such years. But no change in the tax liability is 
authorized for preceding taxable years by reason of the difference 
between the $7,500 depreciation allowable and the $4,000 deduction 
previously allowed.
    Example (2). Assume the same facts as in Example (1), except that 
the property acquired by the Y Corporation had a fair market value as of 
January 1, 1935, of $180,000, instead of $80,000, and the Y Corporation

[[Page 384]]

claimed and was allowed depreciation in the amount of $9,000 for each of 
the eight taxable years 1935 to 1942, inclusive, and in the amount of 
$6,500 for the taxable years 1943 to 1954, inclusive. In such case, the 
amount of the gain realized upon the sale of the property would be 
computed as follows:

Adjusted basis for depreciation in the hands of Y               $150,000
 Corporation as computed in Example (1)....................
Deduct:
  Depreciation allowed in the amount of $9,000      $72,000
   per year for 8 years Jan. 1, 1935 to Dec.
   31, 1942....................................
  Depreciation allowable Jan. 1, 1943, to Dec.       78,000
   31, 1954, inclusive (12 times $6,500).......
                                                ------------
                                                 ..........     150,000
Adjusted basis for computing gain or loss..................            0
Sale price.................................................      $10,000
                                                -------------
Gain realized..............................................       10,000
 


No change in the tax liability is authorized for taxable years preceding 
1943 by reason of the difference between the $7,500 depreciation 
allowable and the $9,000 deduction previously allowed.



Sec. 1.374-1  Exchanges by insolvent railroad corporations.

    (a) Exchange solely for stock or securities. (1) Section 374(a)(1) 
provides for the nonrecognition of gain or loss by an insolvent railroad 
corporation upon certain exchanges made in connection with the 
reorganization of the corporation. In order to qualify as a section 
374(a) reorganization, the transaction must satisfy the express 
statutory requirements as well as the underlying assumptions and 
purposes for which the exchange is excepted from the general rule 
requiring the recognition of gain or loss upon the exchange of property.
    (2) Section 374(a)(1) applies only with respect to a reorganization 
effected in one of two specified types of court proceedings: (i) 
Receivership proceedings, or (ii) proceedings under section 77 of the 
Bankruptcy Act (11 U.S.C. 205). The specific statutory requirements are 
the transfer after July 31, 1955, of property of a railroad corporation, 
as defined in section 77(m) of the Bankruptcy Act (11 U.S.C. 205(m)), in 
pursuance of an order of the court having jurisdiction of the 
corporation in such proceeding, to another railroad corporation, as 
defined in section 77(m) of the Bankruptcy Act, organized or made use of 
to effectuate a plan of reorganization approved by the court in such 
proceeding, in exchange solely for stock or securities in such other 
railroad corporation. If the consideration for the transfer consists of 
other property or money as well as stock and securities, see section 
374(a)(2) and (3) and paragraph (b) of this section. As to the 
assumption of liabilities in an exchange described in section 374(a), 
see section 357 and paragraph (a)(1) and (2) of Sec. 1.357-1 and 
paragraph (a) of Sec. 1.357-2.
    (3) The application of section 374(a)(1) is to be strictly limited 
to a transaction of the character set forth in such section. Hence, the 
section is inapplicable unless there is a bona fide plan of 
reorganization approved by the court having jurisdiction of the 
proceeding and the transfer of the property of the insolvent railroad 
corporation is made pursuant to such plan. It is unnecessary that the 
transfer be a direct transfer from the insolvent railroad corporation; 
it is sufficient if the transfer is an integral step in the consummation 
of the reorganization plan approved by the court. By its terms, the 
section has no application to a reorganization consummated by adjustment 
of the capital or debt structure of the insolvent railroad corporation 
without the transfer of its assets to another railroad corporation.
    (4) As used in section 374(a)(1), the term reorganization is not 
controlled by the definition of reorganization contained in section 368. 
However, certain basic requirements, implicit in the statute, which are 
essential to a reorganization under section 368, are likewise essential 
to qualify a transaction as a reorganization under section 374(a)(1). 
Among these requirements are a continuity of the business enterprise 
under the modified corporate form and a continuity of interest therein 
on the part of those persons who were the owners of the enterprise prior 
to the reorganization. Thus, the nonrecognition accorded by section 
374(a)(1) applies only to a genuine reorganization as distinguished from 
a liquidation and sale of property to either new or old interests 
supplying new capital and discharging the obligations of the old 
railroad corporation. For the purpose of determining whether the 
requisite continuity of interest exists,

[[Page 385]]

the interest of creditors who have, by appropriate legal steps, obtained 
effective command of the property of an insolvent railroad corporation 
is considered as the equivalent of a proprietary interest. But the mere 
possibility of a proprietary interest is not its equivalent. In general, 
any transaction will be subject to nonrecognition of gain or loss as 
prescribed by section 374(a)(1) where the property is transferred to a 
railroad corporation and the stock and securities of such corporation 
are transferred to persons who were shareholders or creditors of the 
transferor railroad corporation as if such stock or securities had been 
transferred to such persons as shareholders pursuant to the 
nonrecognition provisions of part III, subchapter C, chapter 1 of the 
Code. The determinative and controlling factors are the railroad 
corporation's insolvency and the effective command by the creditors over 
its property. The term insolvent as used in this section refers to 
insolvency at any time during the course of the proceeding referred to 
in section 374(a)(1), either in the sense of excess of liabilities over 
assets or in the sense of inability to meet obligations as they mature.
    (5) A short-term purchase money note is not a security within the 
meaning of this section, and the transfer of the properties of the 
insolvent railroad corporation for cash and deferred payment obligations 
of the transferee evidenced by short-term notes is a sale and not an 
exchange.
    (b) Exchange for stock or securities and other property or money. If 
an exchange would be within the provisions of section 374(a)(1) if it 
were not for the fact that the consideration for the transfer of the 
property of the insolvent railroad corporation consists not only of 
stock or securities but also of other property or money, then, as 
provided in section 374(a)(2), if the other property or money received 
by the railroad corporation is distributed by it pursuant to the plan of 
reorganization, no gain to the railroad corporation will be recognized. 
Property is distributed within the meaning of this section if it is paid 
over or distributed to shareholders or creditors who have by appropriate 
legal steps obtained effective command of the property of the railroad 
corporation. If the other property or money received by the railroad 
corporation is not distributed by it pursuant to the plan of 
reorganization, the gain, if any, to the railroad corporation from the 
exchange will be recognized in an amount not in excess of the sum of 
money and the fair market value of the other property so received which 
is not distributed. In either case no loss from the exchange will be 
recognized (see section 374(a)(3)). See section 354(c) relative to 
exchanges by stock or security holders.

[T.D. 6528, 26 FR 400, Jan. 19, 1961]



Sec. 1.374-2  Basis of property acquired after December 31, 1938, by 
railroad corporation in a receivership or railroad reorganization proceeding.

    Section 374(b)(1) provides that if property of a railroad 
corporation, as defined in section 77(m) of the Bankruptcy Act (11 
U.S.C. 205(m)), was acquired after July 31, 1955, in pursuance of an 
order of the court having jurisdiction of such corporation in either a 
receivership proceeding or a proceeding under section 77 of the 
Bankruptcy Act, and the acquiring corporation is also a railroad 
corporation as defined in section 77(m) of such Act, organized or 
availed of to effectuate a plan of reorganization approved by the court 
in such proceeding, the basis shall be the same as it would be in the 
hands of the transferor railroad corporation, increased in the amount of 
gain recognized to the transferor under section 374(a)(2) and paragraph 
(b) of Sec. 1.374-1. For purposes of section 374(b)(1), it is 
unnecessary that the acquisition in question be a direct transfer from 
the corporation undergoing reorganization or that such reorganization 
constitute a reorganization within the meaning of section 368(a) since 
that section does not apply to part IV, subchapter C, chapter 1 of the 
Code. It is sufficient if the acquisition is in pursuance of an order of 
the court and is an integral step in the consummation of a 
reorganization plan approved by the court having jurisdiction of the 
proceeding. If the transaction falls within the provisions of section 
374(b)(1), the basis of the property involved shall be determined 
pursuant to such provisions, notwithstanding that the transaction

[[Page 386]]

might also fall within another basis provision.

[T.D. 6528, 26 FR 401, Jan. 19, 1961, as amended by T.D. 7616, 44 FR 
26870, May 8, 1979]



Sec. 1.374-3  Records to be kept and information to be filed.

    (a) Return information. Each railroad corporation a party to a 
section 374(a) reorganization shall furnish a complete statement of all 
facts pertinent to the recognition or nonrecognition of gain or loss in 
connection with the exchange, including:
    (1) A certified copy of the plan of reorganization approved by the 
court in the proceeding, together with a statement showing in full the 
purposes thereof and in detail all transactions incident, or pursuant, 
to the plan;
    (2) A complete statement of the cost or other basis of all property, 
including all stock or securities, transferred incident to the plan;
    (3) A statement of the amount of stock or securities and other 
property or money received in the exchange, including a statement of all 
distributions or other disposition made thereof. The amount of each kind 
of stock or securities or other property shall be stated on the basis of 
the fair market value thereof at the date of the exchange;
    (4) A statement of the amount and nature of any liabilities assumed 
upon the exchange.

The information required by this paragraph shall be filed as a part of 
each railroad corporation's return for its taxable year within which the 
reorganization occurred.
    (b) Permanent records. Permanent records in substantial form must be 
kept by every railroad corporation which participates in a tax-free 
exchange in connection with a section 374(a) reorganization showing the 
cost or other basis of the transferred property and the amount of stock 
or securities and other property or money received (including any 
liabilities assumed upon the exchange), in order to facilitate the 
determination of gain or loss from a subsequent disposition of such 
stock or securities and other property received from the exchange.

[T.D. 6528, 26 FR 401, Jan. 19, 1961]



Sec. 1.374-4  Property acquired by electric railway corporation in 
corporate reorganizing proceeding.

    Subject to the limitations and conditions set forth in section 
374(b)(2), if the reorganization under section 77 of the Bankruptcy Act 
(11 U.S.C. 501 and following) of an electric railway corporation results 
in the acquisition of the property of such corporation by another 
corporation, the basis of such property in the hands of the acquiring 
corporation is the same as it would be in the hands of the old 
corporation. It is requisite to the application of the section that both 
corporations be street, suburban, or interurban electric railway 
corporations engaged in the transportation of persons or property in 
interstate commerce, and that the acquisition is in pursuance of an 
order of the court and is an integral step in the consummation of a 
reorgnizing plan approved by the court having jurisidiction of the 
proceeding. If section 374(b)(2) applies, section 270 of the Bankruptcy 
Act (11 U.S.C. 670), relating to the adjustment of basis by reason of 
the cancellation or reduction of indebtedness in a corporate 
reorganization proceeding, is inapplicable. Moreover, if the transaction 
is within the provisons of section 374(b)(2) and may also be considered 
to be within any other basis provision, then the provisions of section 
374(b)(2) only shall apply.

[T.D. 7616, 44 FR 26870, May 8, 1979]

                               Carryovers



Sec. 1.381(a)-1  General rule relating to carryovers in certain 
corporate acquisitions.

    (a) Allowance of carryovers. Section 381 provides that a corporation 
which acquires the assets of another corporation in certain liquidations 
and reorganizations shall succeed to, and take into account, as of the 
close of the date of distribution or transfer, the items described in 
section 381(c) of the distributor or transferor corporation. These items 
shall be taken into account by the acquiring corporation subject to the 
conditions and limitations specified in sections 381, 382(b), and 383 
and the regulations thereunder.

[[Page 387]]

    (b) Determination of transactions and items to which section 381 
applies--(1) Qualified transactions. Except to the extent provided in 
section 381(c)(20), relating to the carryover of unused pension trust 
deductions in certain liquidations, the items described in section 
381(c) are required by section 381 to be carried over to the acquiring 
corporation (as defined in subparagraph (2) of this paragraph) only in 
the following liquidations and reorganizations:
    (i) The complete liquidation of a subsidiary corporation upon which 
no gain or loss is recognized in accordance with the provisions of 
section 332, but only if the basis of the assets distributed to the 
acquiring corporation is not required by section 334(b)(2) to be the 
adjusted basis of the stock with respect to which the distribution is 
made;
    (ii) A statutory merger or consolidation qualifying under section 
368(a)(1)(A) to which section 361 applies;
    (iii) A reorganization qualifying under section 368(a)(1)(C);
    (iv) A reorganization qualifying under section 368(a)(1)(D) if the 
requirements of section 354(b)(1)(A) and (B) are satisfied; and
    (v) A mere change in identity, form, or place of organization 
qualifying under section 368(a)(1)(F).
    (2) Acquiring corporation defined. (i) Only a single corporation may 
be an acquiring corporation for purposes of section 381 and the 
regulations thereunder. The corporation which acquires the assets of its 
subsidiary corporation in a complete liquidation to which section 
381(a)(1) applies is the acquiring corporation for purposes of section 
381. Generally, in a transaction to which section 381(a)(2) applies, the 
acquiring corporation is that corporation which, pursuant to the plan of 
reorganization, ultimately acquires, directly or indirectly, all of the 
assets transferred by the transferor corporation. If, in a transaction 
qualifying under section 381(a)(2), no one corporation ultimately 
acquires all of the assets transferred by the transferor corporation, 
that corporation which directly acquires the assets so transferred shall 
be the acquiring corporation for purposes of section 381 and the 
regulations thereunder, even though such corporation ultimately retains 
none of the assets so transferred. Whether a corporation has acquired 
all of the assets transferred by the transferor corporation is a 
question of fact to be determined on the basis of all the facts and 
circumstances.
    (ii) The application of this subparagraph may be illustrated by the 
following examples:

    Example (1). Y Corporation, a wholly-owned subsidiary of X 
Corporation, directly acquired all the assets of Z Corporation solely in 
exchange for voting stock of X Corporation in a transaction qualifying 
under section 368(a)(1)(C). Y Corporation is the acquiring corporation 
for purposes of section 381.
    Example (2). X Corporation acquired all the assets of Z Corporation 
solely in exchange for voting stock of X Corporation in a transaction 
qualifying under section 368(a)(1)(C). Thereafter, pursuant to the plan 
of reorganization X Corporation transferred all the assets so acquired 
to Y Corporation, its wholly-owned subsidiary (see section 
368(a)(2)(C)). Y Corporation is the acquiring corporation for purposes 
of section 381.
    Example (3). X Corporation acquired all the assets of Z Corporation 
solely in exchange for the voting stock of X Corporation in a 
transaction qualifying under section 368(a)(1)(C). Thereafter, pursuant 
to the plan of reorganization X Corporation transferred one-half of the 
assets so acquired to Y Corporation, its wholly-owned subsidiary, and 
retained the other half of such assets. X Corporation is the acquiring 
corporation for purposes of section 381.
    Example (4). X Corporation acquired all the assets of Z Corporation 
solely in exchange for voting stock of X Corporation in a transaction 
qualifying under section 368(a)(1)(C). Thereafter, pursuant to the plan 
of reorganization X Corporation transferred one-half of the assets so 
acquired to Y Corporation, its wholly-owned subsidiary, and the other 
half of such assets to M Corporation, another wholly-owned subsidiary of 
X Corporation. X Corporation is the acquiring corporation for purposes 
of section 381.

    (3) Transactions and items not covered by section 381. (i) Section 
381 does not apply to partial liquidations, divisive reorganizations, or 
other transactions not described in subparagraph (1) of this paragraph. 
Moreover, section 381 does not apply to the carryover of an item or tax 
attribute not specified in subsection (c) thereof. In a case where 
section 381 does not apply to a transaction, item, or tax attribute by 
reason of either of the preceding sentences, no

[[Page 388]]

inference is to be drawn from the provisions of section 381 as to 
whether any item or tax attribute shall be taken into account by the 
successor corporation.
    (ii) If, pursuant to the provisions of subparagraph (2) of this 
paragraph, a corporation is considered to be the acquiring corporation 
even though a part of the acquired assets is transferred to one or more 
corporations controlled by the acquiring corporation, or all the 
acquired assets are transferred to two or more corporations controlled 
by the acquiring corporation, then the carryover of any item described 
in section 381(c) to such controlled corporation or corporations shall 
be determined without regard to section 381. Thus, for example, if a 
parent corporation is the acquiring corporation for purposes of section 
381 notwithstanding the fact that, pursuant to the plan of 
reorganization, it transferred to its wholly-owned subsidiary property 
acquired from the transferor corporation which the transferor 
corporation had elected to inventory under the last-in first-out method, 
then the question whether the subsidiary corporation shall continue to 
use the same method of inventorying with respect to that property shall 
be determined without regard to section 381.
    (c) Foreign corporations. A foreign corporation may be a 
distributor, transferor, or acquiring corporation for purposes of 
section 381. Thus, for example, the net operating loss carryovers of a 
foreign corporation, determined under the provisions of section 172 and 
subchapter N (section 861 and following), chapter 1 of the Code, may be 
carried over to a domestic acquiring corporation if the domestic 
corporation acquires the assets of the foreign corporation in a 
liquidation or reorganization described in section 381(a) and the 
requirements of Sec. 1.367-1, if applicable, have been complied with.
    (d) Internal Revenue Code of 1939. Any reference in the regulations 
under section 381 to any provision of the Internal Revenue Code of 1954 
shall, where appropriate, be deemed also to refer to the corresponding 
provision of the Internal Revenue Code of 1939.

[T.D. 6500, 25 FR 11607, Nov. 26, 1960, as amended by T.D. 7343, 40 FR 
1698, Jan. 9, 1975]



Sec. 1.381(b)-1  Operating rules applicable to carryovers in certain 
corporate acquisitions.

    (a) Closing of taxable year--(1) In general. Except in the case of 
certain reorganizations qualifying under section 368(a)(1)(F), the 
taxable year of the distributor or transferor corporation shall end with 
the close of the date of distribution or transfer. With regard to the 
closing of the taxable year of the transferor corporation in certain 
reorganizations under section 368(a)(1)(F) involving a foreign 
corporation after December 31, 1986, see Sec. Sec. 1.367(a)-1T(e) and 
1.367(b)-2(f).
    (2) Reorganizations under section 368(a)(1)(F). In the case of a 
reorganization qualifying under section 368(a)(1)(F) (whether or not 
such reorganization also qualifies under any other provision of section 
368(a)(1)), the acquiring corporation shall be treated (for purposes of 
section 381) just as the transferor corporation would have been treated 
if there had been no reorganization. Thus, the taxable year of the 
transferor corporation shall not end on the date of transfer merely 
because of the transfer; a net operating loss of the acquiring 
corporation for any taxable year ending after the date of transfer shall 
be carried back in accordance with section 172(b) in computing the 
taxable income of the transferor corporation for a taxable year ending 
before the date of transfer; and the tax attributes of the transferor 
corporation enumerated in section 381(c) shall be taken into account by 
the acquiring corporation as if there had been no reorganization.
    (b) Date of distribution or transfer. (1) The date of distribution 
or transfer shall be that day on which are distributed or transferred 
all those properties of the distributor or transferor corporation which 
are to be distributed or transferred pursuant to a liquidation or 
reorganization described in paragraph (b)(1) of Sec. 1.381(a)-1. If the 
distribution or transfer of all such properties is not made on one day, 
then, except as provided in subparagraph (2) of this paragraph, the date 
of distribution or transfer shall be that day on which the distribution 
or transfer of all such properties is completed.

[[Page 389]]

    (2) If the distributor or transferor and acquiring corporations file 
the statements described in subparagraph (3) of this paragraph, the date 
of distribution or transfer shall be that day as of which (i) 
substantially all of the properties to be distributed or transferred 
have been distributed or transferred, and (ii) the distributor or 
transferor corporation has ceased all operations (other than liquidating 
activities). Such day also shall be the date of distribution or transfer 
if the completion of the distribution or transfer is unreasonably 
postponed beyond the date as of which substantially all the properties 
to be distributed or transferred have been distributed or transferred 
and the distributor or transferor corporation has ceased all operations 
other than liquidating activities. A corporation shall be considered to 
have distributed or transferred substantially all of its properties to 
be distributed or transferred even though it retains money or other 
property in a reasonable amount to pay outstanding debts or preserve the 
corporation's legal existence. A corporation shall be considered to have 
ceased all operations, other than liquidating activities, when it ceases 
to be a going concern and its activities are merely for the purpose of 
winding up its affairs, paying its debts, and distributing any remaining 
balance of its money or other properties to its shareholders.
    (3) The statements referred to in subparagraph (2) of this paragraph 
shall specify the day considered to be the date of distribution or 
transfer and shall specify, as of such date (i) the nature and amount of 
the total assets which were distributed or transferred and the dates so 
distributed or transferred, (ii) the nature and amount of the assets not 
distributed or transferred and the purpose for which they were retained, 
and (iii) the date on which the distributor or transferor corporation 
ceased all operations other than liquidating activities. Such statements 
shall be attached to the timely filed income tax return of the 
distributor or transferor corporation for its taxable year ending with 
such date of distribution or transfer and to the timely filed income tax 
return of the acquiring corporation for its first taxable year ending 
after such date, except that, with respect to any income tax return 
filed before October 11, 1960, any such statement shall be filed before 
October 11, 1960, with the district director with whom such return is 
filed.
    (4) If--
    (i) The last day of the acquiring corporation's taxable year is a 
Saturday, Sunday, or legal holiday, and
    (ii) The day specified in subparagraph (1) or (2) of this paragraph 
as the date of distribution or transfer is the last business day before 
such Saturday, Sunday, or holiday,

then the last day of the acquiring corporation's taxable year shall be 
the date of distribution or transfer for purposes of section 381(b) and 
this section. For purposes of this subparagraph, the term business day 
means a day which is not a Saturday, Sunday, or legal holiday, and also 
means a Saturday, Sunday, or legal holiday if the date of distribution 
or transfer determined under subparagraph (1) or (2) of this paragraph 
is such Saturday, Sunday, or holiday.
    (c) Return of distributor or transferor corporation. The distributor 
or transferor corporation shall file an income tax return for the 
taxable year ending with the date of distribution or transfer described 
in paragraph (b) of this section. If the distributor or transferor 
corporation remains in existence after such date of distribution or 
transfer, it shall file an income tax return for the taxable year 
beginning on the day following the date of distribution or transfer and 
ending with the date on which the distributor or transferor 
corporation's taxable year would have ended if there had been no 
distribution or transfer.
    (d) Carryback of net operating losses. For provisions relating to 
the carryback of net operating losses of the acquiring corporation, see 
paragraph (b) of Sec. 1.381(c)(1)-1.

[T.D. 6500, 25 FR 11607, Nov. 26, 1960, as amended at T.D. 8280, 55 FR 
1417, Jan. 16, 1990; T.D. 8862, 65 FR 3609, Jan. 24, 2000]

[[Page 390]]



Sec. 1.381(c)(1)-1  Net operating loss carryovers in certain corporate 
acquisitions.

    (a) Carryover requirement. (1) Section 381(c)(1) requires the 
acquiring corporation to succeed to, and take into account, the net 
operating loss carryovers of the distributor or transferor corporation. 
To determine the amount of these carryovers as of the close of the date 
of distribution or transfer, and to integrate them with any carryovers 
and carrybacks of the acquiring corporation for purposes of determining 
the taxable income of the acquiring corporation for taxable years ending 
after the date of distribution or transfer, it is necessary to apply the 
provisions of section 172 in accordance with the conditions and 
limitations of section 381(c)(1) and this section. See also section 
382(b) and the regulations thereunder.
    (2) The net operating loss carryovers and carrybacks of the 
acquiring corporation determined as of the close of the date of 
distribution or transfer shall be computed without reference to any net 
operating loss of a distributor or transferor corporation. The net 
operating loss carryovers of a distributor or transferor corporation as 
of the close of the date of distribution or transfer shall be determined 
without reference to any net operating loss of the acquiring 
corporation.
    (3) For purposes of the tax imposed under section 56, the acquiring 
corporation succeeding to and taking into account any net operating loss 
carryovers of the distributor or transferor corporation shall also 
succeed to and take into account along with such net operating loss 
carryforward any deferred tax liability under section 56(b) and the 
regulations thereunder attributable to such net operating loss 
carryover.
    (b) Carryback of net operating losses. A net operating loss of the 
acquiring corporation for any taxable year ending after the date of 
distribution or transfer shall not be carried back in computing the 
taxable income of a distributor or transferor corporation. However, a 
net operating loss of the acquiring corporation for any such taxable 
year shall be carried back in accordance with section 172(b) in 
computing the taxable income of the acquiring corporation for a taxable 
year ending on or before the date of distribution or transfer. If a 
distributor or transferor corporation remains in existence after the 
date of distribution or transfer, a net operating loss sustained by it 
for any taxable year beginning after such date shall be carried back in 
accordance with section 172(b) in computing the taxable income of such 
corporation for a taxable year ending on or before that date, but may 
not be carried back or over in computing the taxable income of the 
acquiring corporation. This paragraph may be illustrated by the 
following examples:

    Example (1). On December 31, 1954, X Corporation merged into Y 
Corporation in a statutory merger to which section 361 applies, and the 
charter of Y Corporation continued after the merger. Y Corporation 
sustained a net operating loss for the calendar year 1955. Y 
Corporation's net operating loss for 1955 may not be carried back in 
computing the taxable income of X Corporation but shall be carried back 
in computing the taxable income of Y Corporation.
    Example (2). On December 31, 1954, X Corporation and Y Corporation 
transferred all their assets to Z Corporation in a statutory 
consolidation to which section 361 applies. Z Corporation sustained a 
net operating loss for the calendar year 1955. Z Corporation's net 
operating loss for 1955 may not be carried back in computing the taxable 
income of X Corporation or Y Corporation.
    Example (3). On December 31, 1954, X Corporation ceased all 
operations (other than liquidating activities) and transferred 
substantially all its properties to Y Corporation in a reorganization 
qualifying under section 368(a)(1)(C). Such properties comprised all of 
X Corporation's properties which were to be transferred pursuant to the 
reorganization. In the process of liquidating its assets and winding up 
its affairs, X Corporation sustained a net operating loss for its 
taxable year beginning on January 1, 1955. This net operating loss of X 
Corporation shall be carried back in computing the taxable income of 
that corporation but may not be carried back or over in computing the 
taxable income of Y Corporation.

    (c) First taxable year to which carryovers apply. (1) The net 
operating loss carryovers available to the distributor or transferor 
corporation as of the close of the date of distribution or transfer 
shall first be carried to the first taxable year of the acquiring 
corporation ending after that date. This

[[Page 391]]

rule applies irrespective of whether the date of distribution or 
transfer is on the last day, or any other day, of the acquiring 
corporation's taxable year. Thus, such net operating loss carryovers 
shall first be used by the acquiring corporation with respect to the 
computation of its net operating loss deduction under section 172(a), 
and its taxable income determined under the provisions of section 
172(b)(2), for such first taxable year. However, see paragraph (f) of 
this section.
    (2) The net operating loss carryovers available to the distributor 
or transferor corporation as of the close of the date of distribution or 
transfer shall be carried to the acquiring corporation without 
diminution by reason of the fact that the acquiring corporation does not 
acquire 100 percent of the assets of the distributor or transferor 
corporation. Thus, if a parent corporation owning 80 percent of all 
classes of stock of its subsidiary corporation were to acquire its share 
of the assets of the subsidiary corporation upon a complete liquidation 
described in paragraph (b)(1)(i) of Sec. 1.381(a)-1, then, subject to 
the conditions and limitations of this section, 100 percent of the net 
operating loss carryovers available to the subsidiary corporation as of 
the close of the date of distribution would be carried over to the 
parent corporation.
    (d) Limitation on net operating loss deduction for first taxable 
year ending after date of distribution or transfer. (1) That part of the 
acquiring corporation's net operating loss deduction, determined in 
accordance with sections 172(a) and 381(c)(1), for its first taxable 
year ending after the date of distribution or transfer which is 
attributable to the net operating loss carryovers of the distributor or 
transferor corporation, is limited by section 381(c)(1)(B) and this 
paragraph to an amount equal to the acquiring corporation's 
postacquisition part year taxable income. Such postacquisition part year 
taxable income is the amount which bears the same ratio to the acquiring 
corporation's taxable income for the first taxable year ending after the 
date of distribution or transfer (determined under section 63 without 
regard to any net operating loss deduction but taking into account other 
items to which the acquiring corporation succeeds under section 381) as 
the number of days in such first taxable year which follow the date of 
distribution or transfer bears to the total number of days in such 
taxable year. Thus, if the date of distribution or transfer is the last 
day of the acquiring corporation's taxable year, the net operating loss 
carryovers of the distributor or transferor are allowed in full in 
computing under section 172(a) the net operating loss deduction of the 
acquiring corporation for its first taxable year ending after that date. 
In such instance, the number of days in the first taxable year which 
follow the date of distribution or transfer is the total number of days 
in such taxable year.
    (2) The limitation provided by section 381(c)(1)(B) applies solely 
for the purpose of computing the net operating loss deduction of the 
acquiring corporation under section 172(a) for the acquiring 
corporation's first taxable year ending after the date of distribution 
or transfer. The limitation does not apply for purposes of determining 
the portion of any net operating loss (whether of the distributor, 
transferor, or acquiring corporation) which may be carried to any 
taxable year of the acquiring corporation following its first taxable 
year ending after the date of distribution or transfer since such 
determination is made pursuant to section 172(b) and section 
381(c)(1)(C). See paragraphs (e) and (f) of this section.
    (3) The limitation provided by section 381(c)(1)(B) shall be applied 
to the aggregate of the allowable net operating loss carryovers of the 
distributor or transferor corporation without reference to the taxable 
years in which the net operating losses were sustained by such 
corporation. If the acquiring corporation has acquired the assets of two 
or more distributor or transferor corporations on the same date of 
distribution or transfer, then the limitation provided by section 
381(c)(1)(B) shall be applied to the aggregate of the net operating loss 
carryovers from all of such distributor or transferor corporations.
    (4) If the acquiring corporation succeeds to the net operating loss 
carryovers of two or more distributor

[[Page 392]]

or transferor corporations on two or more different dates of 
distribution or transfer within one taxable year of the acquiring 
corporation, the limitation to be applied under section 381(c)(1)(B) to 
the aggregate of such carryovers shall be governed by the rules 
prescribed in paragraph (b) of Sec. 1.381(c)(1)-2.
    (5) Illustrations. The application of this paragraph may be 
illustrated by the following examples:

    Example (1). (i) X Corporation and Y Corporation were organized on 
January 1, 1956, and make their returns on the calendar year basis. On 
December 16, 1957, X Corporation transferred all its assets to Y 
Corporation in a statutory merger to which section 361 applies. The net 
operating losses and taxable income (computed without the net operating 
loss deduction) of the two corporations are as follows, the assumption 
being made that none of the modifications specified in section 
172(b)(2)(A) apply to any taxable year:

------------------------------------------------------------------------
                                                     X            Y
                 Taxable year                   Corporation  Corporation
                                               (transferor)   (acquirer)
------------------------------------------------------------------------
1956.........................................    ($35,000)      ($5,000)
Ending 12-16-57..............................     (30,000)           xxx
1957.........................................          xxx        36,500
------------------------------------------------------------------------

    (ii) The aggregate of the net operating loss carryovers of X 
Corporation carried under section 381(c)(1)(A) to Y Corporation's 
taxable year ending December 31, 1957, is $65,000; but pursuant to 
section 381(c)(1)(B), only $1,500 of such aggregate amount ($36,500x 15/
365 ) may be used in computing the net operating loss deduction of Y 
Corporation for such taxable year under section 172(a). This limitation 
applies even though Y Corporation's own net operating loss carryover to 
such year is only $5,000, with the result that Y Corporation has taxable 
income under section 63 of $30,000 for its taxable year ending December 
31, 1957, that is, $36,500 less the sum of $5,000 and $1,500.
    (iii) For rules determining the portion of any given loss of X 
Corporation or Y Corporation which may be carried to a taxable year of Y 
Corporation following its taxable year ending December 31, 1957, see 
sections 172(b)(2) and 381(c)(1)(C) and paragraph (f) of this section.
    Example (2). (i) X Corporation was organized on January 1, 1954, and 
Y Corporation was organized on January 1, 1956. Each corporation makes 
its return on the basis of the calendar year. On December 31, 1956, X 
Corporation transferred all its assets to Y Corporation in a statutory 
merger to which section 361 applies. The net operating losses and the 
taxable income (computed without any net operating loss deduction) of 
the two corporations are as follows, the assumption being made that none 
of the modifications specified in section 172(b)(2)(A) apply to any 
taxable year:

------------------------------------------------------------------------
                                                     X            Y
                 Taxable year                   Corporation  Corporation
                                               (transferor)   (acquirer)
------------------------------------------------------------------------
1954.........................................     ($5,000)           xxx
1955.........................................     (15,000)           xxx
1956.........................................     (10,000)       $20,000
1957.........................................          xxx        40,000
------------------------------------------------------------------------

    (ii) The aggregate of the net operating loss carryovers of X 
Corporation carried under section 381(c)(1)(A) to Y Corporation's 
taxable year 1957 is $30,000, and the full amount of such carryovers is 
allowed in such taxable year to Y Corporation as a deduction under 
section 172(a), since such amount does not exceed the limitation 
($40,000x 365/365 ) for such taxable year under section 381(c)(1)(B).
    Example (3). (i) X Corporation, Y Corporation, and Z Corporation 
were organized on January 1, 1954, and each corporation makes its return 
on the basis of the calendar year. On September 30, 1956, X Corporation 
and Y Corporation transferred all their assets to Z Corporation in a 
statutory merger to which section 361 applies. The net operating losses 
and the taxable income (computed without any net operating loss 
deduction) of the three corporations are as follows, the assumption 
being made that none of the modifications specified in section 
172(b)(2)(A) apply to any taxable year:

------------------------------------------------------------------------
                                       X             Y            Z
          Taxable year            Corporation   Corporation  Corporation
                                 (transferor)  (transferor)   (acquirer)
------------------------------------------------------------------------
1954...........................     ($5,000)      ($3,000)     ($40,000)
1955...........................      (4,000)       (2,000)        10,000
Ending 9-30-56.................      (1,000)       (9,000)           xxx
1956...........................          xxx           xxx        73,200
------------------------------------------------------------------------

    (ii) The aggregate of the net operating loss carryovers of X 
Corporation and Y Corporation carried under section 381(c)(1)(A) to Z 
Corporation's taxable year 1956 is $24,000; but, pursuant to section 
381(c)(1)(B), only $18,400 of such aggregate amount ($73,200x 92/366 ) 
may be used in computing the net operating loss deduction of Z 
Corporation for such taxable year under section 172(a). For this 
purpose, Z Corporation may not use the total of the aggregate carryovers 
($10,000) from X Corporation plus the aggregate carryovers ($14,000) 
from Y Corporation, even though each such aggregate of carryovers is 
separately less than the limitation ($18,400) applicable under section 
381(c)(1)(B) and this section.
    (iii) For rules determining the portion of any given loss of X 
Corporation, Y Corporation, or Z Corporation which may be carried to a 
taxable year of Z Corporation following its taxable year ending December 
31, 1956, see

[[Page 393]]

sections 172(b)(2) and 381(c)(1)(C) and paragraph (f) of this section.

    (e) Computation of carryovers and carrybacks; general rule--(1) 
Sequence for applying losses and computation of taxable income. The 
portion of any net operating loss which is carried back or carried over 
to any taxable year is the excess, if any, of the amount of the loss 
over the sum of the taxable income for each of the prior taxable years 
to which the loss may be carried under sections 172(b)(1) and 381. In 
determining the taxable income for each such prior taxable year for this 
purpose, the various net operating loss carryovers and carrybacks to 
such prior taxable year are considered to be applied in reduction of the 
taxable income in the order of the taxable years in which the net 
operating losses are sustained, beginning with the loss for the earliest 
taxable year. The application of this rule to the taxable income of the 
acquiring corporation for any taxable year ending after the date of 
distribution or transfer involves the use of carryovers of the 
distributor or transfer corporation, and of carryovers and carrybacks of 
the acquiring corporation. In such instance, the sequence for the use of 
loss years remains the same, and the requirement is to begin with the 
net operating loss of the earliest taxable year, whether or not it is a 
loss of the distributor, transferor, or acquiring corporation. The 
taxable income of the acquiring corporation for any taxable year ending 
after the date of distribution or transfer shall be determined in the 
manner prescribed by section 172(b)(2), except that, if the date of 
distribution or transfer is on a day other than the last day of a 
taxable year of the acquiring corporation, the taxable income of such 
corporation for the taxable year which includes such date shall be 
computed in the special manner prescribed by section 381(c)(1)(C) and 
paragraph (f) of this section.
    (2) Loss year of transferor or distributor considered prior taxable 
year. Section 381(c)(1)(C) provides that, for the purpose of determining 
the net operating loss carryovers under section 172(b)(2), a net 
operating loss for a loss year of a distributor or transferor 
corporation which ends on or before the last day of a loss year of the 
acquiring corporation shall be considered to be a net operating loss for 
a year prior to such loss year of the acquiring corporation. In a case 
where the acquiring corporation has acquired the assets of two or more 
distributor or transferor corporations on the same date of distribution 
or transfer, the loss years of the distributor or transferor 
corporations shall be taken into account in the order in which such loss 
years terminate; if any one of the loss years of a distributor or 
transferor corporation ends on the same day as the loss year of another 
distributor or transferor corporation, either loss year may be taken 
into account before the other.
    (3) Years to which losses may be carried. The taxable years to which 
a net operating loss shall be carried back or carried over are 
prescribed by section 172(b)(1). Since the taxable year of the 
distributor or transferor corporation ends with the close of the date of 
distribution or transfer, such taxable year and the first taxable year 
of the acquiring corporation which ends after that date shall be 
considered two separate taxable years to which a net operating loss of 
the distributor or transferor corporation for any taxable year ending 
before that date may be carried over. This rule applies even though the 
taxable year of the distributor or transferor corporation which ends on 
the date of distribution or transfer is a period of less than twelve 
months. However, for the purpose of determining under section 172(b)(1) 
the taxable years to which a net operating loss of the acquiring 
corporation is carried over or carried back, the first taxable year of 
the acquiring corporation which ends after the date of distribution or 
transfer shall be treated as only one taxable year even though such 
taxable year is considered under section 381(c)(1)(C) and paragraph 
(f)(2) of this section as two taxable years. The application of this 
subparagraph may be illustrated by the following example:

    Example. X Corporation was organized on January 1, 1954, and 
thereafter it sustained net operating losses in its calendar years 1954, 
1955, and 1956. On June 30, 1957, X Corporation transferred all its 
assets to Y Corporation, which was organized on January 1, 1955, in a 
statutory merger to which section 361 applies. In its taxable year 
ending June

[[Page 394]]

30, 1957, X Corporation sustained a net operating loss. Y Corporation 
sustained net operating losses in its calendar years 1955, 1956, and 
1958, but had taxable income for the year 1957. The years to which these 
losses of X Corporation and Y Corporation shall be carried, and the 
sequence in which carried, are as follows:

------------------------------------------------------------------------
                Loss year
------------------------------------------------------------------------
X 1954..................................  X 1955, X 1956, X 6/30/57, Y
                                           1957, Y 1958.
X 1955..................................  X 1954, X 1956, X 6/30/57, Y
                                           1957, Y 1958, Y 1959.
Y 1955..................................  Y 1956, Y 1957, Y 1958, Y
                                           1959, Y 1960.
X 1956..................................  X 1954, X 1955, X 6/30/57, Y
                                           1957, Y 1958, Y 1959, Y 1960.
Y 1956..................................  Y 1955, Y 1957, Y 1958, Y
                                           1959, Y 1960, Y 1961.
X 6-30-57...............................  X 1955, X 1956, Y 1957, Y
                                           1958, Y 1959, Y 1960, Y 1961.
Y 1958..................................  Y 1955, Y 1956, Y 1957, Y
                                           1959, Y 1960, Y 1961, Y 1962,
                                           Y 1963.
------------------------------------------------------------------------

    (4) Computation of carryovers in a case where the date of 
distribution or transfer occurs on last day of acquiring corporation's 
taxable year. The computation of the net operating loss carryovers from 
the distributor or transferor corporation and from the acquiring 
corporation in a case where the date of distribution or transfer occurs 
on the last day of a taxable year of the acquiring corporation may be 
illustrated by the following example:

    Example. X Corporation and Y Corporation were organized on January 
1, 1955, and each corporation makes its return on the basis of the 
calendar year. On December 31, 1956, X Corporation transferred all its 
assets to Y Corporation in a statutory merger to which section 361 
applies. The net operating losses and the taxable income (computed 
without any net operating loss deduction) of the two corporations are as 
follows, the assumption being made that none of the modifications 
specified in section 172(b)(2)(A) apply to any taxable year:

------------------------------------------------------------------------
                                                     X            Y
                 Taxable year                   Corporation  Corporation
                                               (transferor)   (acquirer)
------------------------------------------------------------------------
1955.........................................     ($2,000)     ($11,000)
1956.........................................      (3,000)        10,000
1957.........................................          xxx      (15,000)
------------------------------------------------------------------------


The sequence in which the losses of X Corporation and Y Corporation are 
applied, and the computation of the carryovers to Y Corporation's 
calendar year 1958, may be illustrated as follows:
    (i) X Corporation's 1955 loss. The carryover to 1958 is $2,000, 
computed as follows:

Net operating loss..........................................      $2,000
Less:
  X's 1956 taxable income........................          0
  Y's 1957 taxable income........................          0
                                                  ------------
                                                   .........           0
                                                             -----------
 Carryover..................................................       2,000
 

    (ii) Y Corporation's 1955 loss. The carryover to 1958 is $1,000, 
computed as follows:

Net operating loss..........................................    $11,000
Less:
  Y's 1956 taxable income.......................     $10,000
  Y's 1957 taxable income.......................           0
                                                 -------------
                                                  ..........      10,000
                                                             -----------
 Carryover..................................................       1,000
 

    (iii) X Corporation's 1956 loss. The carryover to 1958 is $3,000, 
computed as follows:

Net operating loss...........................................     $3,000
Less:
  X's 1955 taxable income.........................          0
  Y's 1957 taxable income.........................          0
                                                   ------------
                                                    .........          0
                                                              ----------
 Carryover...................................................      3,000
 

    (iv) Y Corporation's 1957 loss. The carryover to 1958 is $15,000, 
computed as follows:

Net operating loss..........................................    $15,000
Less:
  Y's 1955 taxable income..........................        0
  Y's 1956 taxable income before net        $10,000
   operating loss deduction............
  Minus Y's 1956 net operating loss          11,000        0
   deduction (i.e., Y's 1955 carryover)
                                        -------------
                                         ..........        0
                                                    ----------
 Carryover..................................................      15,000
 

    (v) Summary of carryovers to 1958. The aggregate of the net 
operating loss carryovers to 1958 is $21,000, computed as follows:

X's 1955 loss................................................     $2,000
Y's 1955 loss................................................      1,000
X's 1956 loss................................................      3,000
Y's 1957 loss................................................     15,000
                                                              ----------
 Total.......................................................     21,000
 

    (f) Computation of carryovers and carrybacks when date of 
distribution or transfer is not on last day of acquiring corporation's 
taxable year--(1) General rule. Pursuant to the provisions of section 
381(c)(1)(C), the taxable income of the acquiring corporation for its 
taxable year which is a prior taxable year for purposes of section 
172(b)(2) and paragraph (e) of this section shall be determined in the 
manner prescribed in this paragraph, if the date of distribution or 
transfer occurs within, but not on the last day of, such taxable year.

[[Page 395]]

    (2) Taxable year considered as two taxable years. Such taxable year 
of the acquiring corporation shall be considered as though it were two 
taxable years, but only for the limited purpose of applying section 
172(b)(2). The first of such two taxable years shall be referred to in 
this section as the preacquisition part year; the second, as the 
postacquisition part year. For purposes of section 172(b)(2), a net 
operating loss of the acquiring corporation shall be carried to the 
preacquisition part year and then to the postacquisition part year, 
whereas a net operating loss of a distributor or transferor corporation 
shall be carried to the postacquisition part year and then to the 
acquiring corporation's subsequent taxable years. In determining under 
section 172(b)(2) and this paragraph the portion of any net operating 
loss of a distributor or transferor corporation which is carried to any 
taxable year of the acquiring corporation ending after the 
postacquisition part year, the taxable income (as determined under this 
paragraph) of the postacquisition part year shall be taken into account 
but the taxable income of the preacquisition part year (as so 
determined) shall not be taken into account. Though considered as two 
separate taxable years for purposes of section 172(b)(2), the 
preacquisition part year and the postacquisition part year are treated 
as one taxable year in determining the years to which a net operating 
loss is carried under section 172(b)(1). See paragraph (e)(3) of this 
section.
    (3) Preacquisition part year. The preacquisition part year shall 
begin with the beginning of such taxable year of the acquiring 
corporation and shall end with the close of the date of distribution or 
transfer.
    (4) Postacquisition part year. The postacquisition part year shall 
begin with the day following the date of distribution or transfer and 
shall end with the close of such taxable year of the acquiring 
corporation.
    (5) Division of taxable income. The taxable income for such taxable 
year (computed with the modifications specified in section 172(b)(2)(A) 
but without any net operating loss deduction) of the acquiring 
corporation shall be divided between the preacquisition part year and 
the postacquisition part year in proportion to the number of days in 
each. Thus, if in a statutory merger to which section 361 applies Y 
Corporation acquires the assets of X Corporation on June 30, 1960, and Y 
Corporation has taxable income (computed in the manner so prescribed) of 
$36,600 for its calendar year 1960, then the preacquisition part year 
taxable income would be $18,200 ($36,600x 182/366 ) and the 
postacquisition part year taxable income would be $18,400 ($36,600x 184/
366 ).
    (6) Net operating loss deduction. After obtaining the taxable income 
of the preacquisition part year and of the postacquisition part year in 
the manner described in subparagraph (5) of this paragraph, it is 
necessary to compute the net operating loss deduction for each such part 
year. This deduction shall be determined in the manner prescribed by 
section 172(b)(2)(B) but subject to the provisions of this subparagraph. 
The net operating loss deduction for the preacquisition part year shall, 
for purposes of section 172(b)(2) only, be determined in the same manner 
as that prescribed by section 172(b)(2)(B) but shall be computed without 
taking into account any net operating loss of the distributor or 
transferor corporation. Therefore, only net operating loss carryovers 
and carrybacks of the acquiring corporation to the preacquisition part 
year shall be taken into account in computing the net operating loss 
deduction for such part year. The net operating loss deduction for the 
post- acquisition part year shall, for purposes of section 172(b)(2) 
only, be determined in the same manner as that prescribed by section 
172(b)(2)(B) and shall be computed by taking into account all the net 
operating loss carryovers available to the distributor or transferor 
corporation as of the close of the date of distribution or transfer, as 
well as the net operating loss carryovers and carrybacks of the 
acquiring corporation to the postacquisition part year. The sequence in 
which the net operating losses of the two corporations shall be

[[Page 396]]

applied for purposes of this subparagraph shall be determined in the 
manner prescribed in paragraph (e) of this section.
    (7) Limitation on taxable income. In no case shall the taxable 
income of the preacquisition part year or the postacquisition part year, 
as computed under this paragraph, be considered to be less than zero.
    (8) Cross reference. If the acquiring corporation succeeds to the 
net operating loss carryovers of two or more distributors or transferor 
corporations on two or more dates of distribution or transfer during the 
same taxable year of the acquiring corporation, the determination of the 
taxable income of the acquiring corporation for such year pursuant to 
section 381(c)(1)(C) shall be governed by the rules prescribed in 
paragraph (c) of Sec. 1.381(c)(1)-2.
    (9) Illustration. The application of this paragraph may be 
illustrated by the following example:

    Example-- (i) Facts. X Corporation was organized on January 1, 1955, 
and Y Corporation was organized on January 1, 1954. Each corporation 
makes its return on the basis of the calendar year. On June 30, 1956, X 
Corporation transferred all its assets to Y Corporation in a statutory 
merger to which section 361 applies. The net operating losses and the 
taxable income (computed without any net operating loss deduction) of 
the two corporations are as follows, the assumption being made that none 
of the modifications specified in section 172(b)(2)(A) apply to any 
taxable year:

------------------------------------------------------------------------
                                                     X            Y
                 Taxable year                   Corporation  Corporation
                                               (transferor)   (acquirer)
------------------------------------------------------------------------
1954.........................................          xxx      ($5,000)
1955.........................................    ($65,000)      (20,000)
Ending June 30, 1956.........................        1,000           xxx
1956.........................................          xxx        36,600
------------------------------------------------------------------------

    (ii) Y Corporation's 1954 loss. The carryover to 1957 is $0, 
computed as follows:

Net operating loss...........................................     $5,000
Less:
  Y's 1955 taxable income....................................          0
                                                  -------------
    Carryover to Y's preacquisition part year................      5,000
Less:
  Y's preacquisition part year taxable income         $18,200
   computed under subparagraph (5) of this
   paragraph ($36,600x 182/366 ).................
  Minus Y's net operating loss deduction for              xxx     18,200
   preacquisition part year......................
                                                  ----------------------
    Carryover to Y's postacquisition part year and also to Y           0
     1957....................................................
 

    (iii) X Corporation's 1955 loss. The carryover to 1957 is $45,600, 
computed as follows:

Net operating loss..........................................     $65,000
Less:
  X's 6/30/56 year taxable income...........................       1,000
                                                 -------------
    Carryover to Y's postacquisition part year..............     64,000
Less:
  Y's postacquisition part year taxable income       $18,400
   computed under subparagraph (5) of this
   paragraph ($36,600x184/366)..................
  Minus Y's net operating loss deduction for      ..........     $18,400
   postacquisition part year (i.e., Y's 1954
   carryover of $0 to such part year)...........
                                                             -----------
    Carryover to Y 1957.....................................      45,600
 

    (iv) Y Corporation's 1955 loss. The carryover to 1957 is $6,800, 
computed as follows:

Net operating loss..........................................     $20,000
Less:
  Y's 1954 taxable income...................................           0
                                                 -------------
    Carryover to Y's preacquisition part year...............     20,000
Less:
  Y's preacquisition part year taxable income        $18,200
   computed under subparagraph (5) of this
   paragraph....................................
  Minus Y's net operating loss deduction for           5,000
   preacquisition part year (i.e., Y's 1954
   carryover to such part year).................
                                                 ------------
                                                  ..........      13,200
                                                             -----------
    Carryover to Y's postacquisition part year..............      6,800
Less:
  Y's postacquisition part year taxable income       $18,400
   computed under subparagraph (5) of this
   paragraph....................................
  Minus Y's net operating loss deduction for          64,000
   postacquisition part year (i.e., Y's 1954
   carryover of $0, and X's 1955 carryover of
   $64,000, to such part year)..................
                                                 ------------
                                                  ..........           0
                                                             -----------
    Carryover to Y 1957.....................................       6,800
 

    (v) Summary of carryovers to 1957. The aggregate of the net 
operating loss carryovers to 1957 is $52,400, determined as follows:

Y's 1954 loss...............................................           0
X's 1955 loss...............................................     $45,600
Y's 1955 loss...............................................       6,800
                                                             -----------
 Total......................................................      52,400
 

    (g) Successive acquiring corporations. An acquiring corporation 
which, in a

[[Page 397]]

distribution or transfer to which section 381(a) applies, acquires the 
assets of a distributor or transferor corporation which previously 
acquired the assets of another corporation in a transaction to which 
section 381(a) applies, shall succeed to and take into account, subject 
to the conditions and limitations of sections 172 and 381, the net 
operating loss carryovers available to the first acquiring corporation 
under sections 172 and 381.
    (h) Illustration. The application of this section may be further 
illustrated by the following example:

    Example-- (1) Facts. X Corporation was organized on January 1, 1954, 
and Y Corporation was organized on January 1, 1955. Each corporation 
makes its return on the basis of the calendar year. On August 31, 1957, 
X Corporation transferred all its assets to Y Corporation in a statutory 
merger to which section 361 applies. The net operating losses and the 
taxable income of the two corporations for the taxable years involved 
are set forth in the tabulation below. The taxable income so shown is 
computed without the modifications required by section 172(b)(2)(A) and 
without the benefit of any net operating loss deduction. In its calendar 
year 1957, Y Corporation had a deduction of $365 which is disallowed by 
section 172(b)(2)(A).

------------------------------------------------------------------------
                                                     X            Y
                 Taxable year                   Corporation  Corporation
                                               (transferor)   (acquirer)
------------------------------------------------------------------------
1954.........................................     ($7,000)           xxx
1955.........................................     (10,000)     ($10,000)
1956.........................................     (25,000)      (15,000)
Ending 8-31-57...............................        1,000           xxx
1957.........................................          xxx        54,750
1958.........................................          xxx       (5,000)
1959.........................................          xxx        50,000
------------------------------------------------------------------------

    (2) Computation of carryovers and carrybacks. The sequence in which 
the losses of X Corporation and Y Corporation are applied and the 
computation of the carryovers to Y Corporation's calendar year 1959 may 
be illustrated as follows:
    (i) X Corporation's 1954 loss. The carryover to 1958, which is the 
last year to which this loss may be carried, is $0, computed as follows:

Net operating loss..........................................      $7,000
Less:
  X's 1955 taxable income.......................           0
  X's 1956 taxable income.......................           0
                                                 ------------
                                                  ..........           0
                                                             -----------
    Carryover to X's 8/31/57-year...........................       7,000
Less:
  X's 8/31/57-year taxable income...........................       1,000
                                                 -------------
    Carryover to Y's postacquisition part year..............       6,000
Less:
  Y's postacquisition part year taxable income       $18,422
   computed under paragraph (f)(5) of this
   section (($54,750+$365) x 122/365)...........
  Minus Y's net operating loss deduction for             xxx
   postacquisition part year....................
                                                 ------------
                                                  ..........      18,422
                                                             -----------
    Carryover to Y 1958.....................................           0
 

    (ii) X Corporation's 1955 loss. The carryover to 1959 is $0, 
computed as follows:

Net operating loss..........................................     $10,000
Less:
  X's 1954 taxable income.......................           0
  X's 1956 taxable income.......................           0
                                                 ------------
                                                  ..........           0
                                                             -----------
    Carryover to X's 8/31/57-year...........................      10,000
Less:
  X's 8/31/57-year taxable income before net          $1,000
   operating loss deduction.....................
  Minus X's net operating loss deduction for 8/        7,000
   31/57-year (i.e., X's 1954 carryover)........
                                                 ------------
                                                  ..........           0
                                                             -----------
    Carryover to Y's postacquisition part year..............      10,000
Less:
  Y's postacquisition part year taxable income       $18,422
   computed under paragraph (f)(5) of this
   section......................................
  Minus Y's net operating loss deduction for           6,000
   postacquisition part year (i.e., X's 1954
   carryover to such part year).................
                                                 ------------
                                                  ..........      12,422
                                                             -----------
    Carryover to Y 1958 and Y 1959..........................           0
 

    (iii) Y Corporation's 1955 loss. The carryover to 1959 is $0, 
computed as follows:

Net operating loss..........................................     $10,000
Less:
  Y's 1956 taxable income...................................           0
                                                 -------------
    Carryover to Y's preacquisition part year...............      10,000
Less:
  Y's preacquisition part year taxable income        $36,693
   computed under paragraph (f)(5) of this
   section (($54,750+$365) x 243/365)...........
  Minus Y's net operating loss deduction for             xxx
   preacquisition part year.....................
                                                 ------------
                                                  ..........      36,693
                                                             -----------
    Carryover to Y's postacquisition part year, to Y 1958,             0
     and to Y 1959..........................................
 

    (iv) X Corporation's 1956 loss. The carryover to 1959 is $22,578, 
computed as follows:

Net operating loss.........................................      $25,000

[[Page 398]]

 
Less:
  X's 1954 taxable income.......................          0
  X's 1955 taxable income.......................          0
  X's 8/31/57-year taxable income         $1,000
   before net operating loss
   deduction........................
  Minus X's net operating loss           $17,000          0            0
   deduction for 8/31/57-year (i.e.,
   X's 1954 carryover of $7,000 and
   X's 1955 carryover of $10,000)...
                                     -----------------------------------
    Carryover to Y's postacquisition part year.............      $25,000
Less:
  Y's postacquisition part year taxable income      $18,422
   computed under paragraph (f)(5) of this
   section......................................
  Minus Y's net operating loss deduction for         16,000
   postacquisition part year (i.e., X's 1954
   carryover of $6,000, X's 1955 carryover of
   $10,000 and Y's 1955 carryover of $0, to such
   part year)...................................
                                     ------------
                                                  .........        2,422
                                                 ------------
    Carryover to Y 1958....................................       22,578
Less:
  Y's 1958 taxable income..................................            0
                                     -------------
    Carryover to Y 1959....................................       22,578
 

    (v) Y Corporation's 1956 loss. The carryover to 1959 is $0, computed 
as follows:

Net operating loss..........................................     $15,000
Less:
  Y's 1955 taxable income...................................           0
                                                 -------------
    Carryover to Y's preacquisition part year...............      15,000
Less:
  Y's preacquisition part year taxable income        $36,693
   computed under paragraph (f)(5) of this
   section......................................
  Minus Y's net operating loss deduction for          10,000
   preacquisition part year (i.e., Y's 1955
   carryover to such part year).................
                                                 ------------
                                                  ..........      26,693
                                                             -----------
    Carryover to Y's postacquisition part year, to Y 1958,             0
     and to Y 1959..........................................
 

    (vi) Y Corporation's 1958 loss. The carryover to 1959 is $0, 
computed as follows:

Net operating loss...........................................     $5,000
Less:
  Y's 1955 taxable income \1\....................           0
  Y's 1956 taxable income........................           0
                                                  ------------
                                                   ..........          0
                                                              ----------
    Carryback to Y's preacquisition part year................    $5,000
Less:
  Y's preacquisition part year taxable income         $36,693
   computed under paragraph (f)(5) of this
   section.......................................
  Minus Y's net operating loss deduction for           25,000
   preacquisition part year (i.e., Y's 1955
   carryover of $10,000, and Y's 1956 carryover
   of $15,000, to such part year)................
                                                  -------------
                                                   ..........    11,693
    Carryback to Y's postacquisition part year and carryover           0
     to Y 1959...............................................
 
\1\ Three-year carryback in case of loss years ending after December 31,
  1957.

    (vii) Summary of carryovers to 1959. The aggregate of the net 
operating loss carryovers to 1959 is $22,578, computed as follows:

X's 1955 loss...............................................           0
Y's 1955 loss...............................................           0
X's 1956 loss...............................................     $22,578
Y's 1956 loss...............................................           0
Y's 1958 loss...............................................           0
                                                             -----------
 Total......................................................      22,578
 

    (3) Net operating loss deduction for 1957. (i) The net operating 
loss deduction available to Y Corporation under section 172(a) for the 
calendar year 1957, determined in accordance with paragraph (d) of this 
section, is $48,300, computed as follows:

Aggregate of the net operating loss carryovers
 available to the transferor corporation as of
 the close of August 31, 1957, but limited by
 paragraph (d) of this section to $18,300 (Y's
 1957 taxable income of $54,750, computed
 without any net operating loss deduction,
 multiplied by 122/365)
  Carryover of X's 1954 loss....................      $6,000
  Carryover of X's 1955 loss....................      10,000
  Carryover of X's 1956 loss....................      25,000
                                                 -------------
                                                    $41,000
Aggregate of carryovers, limited as above...................     $18,300
Carryover of Y's 1955 loss..................................      10,000
Carryover of Y's 1956 loss..................................      15,000
Carryback of Y's 1958 loss..................................       5,000
                                                 -------------
 Net operating loss deduction...............................      48,800
 

    (ii) The taxable income under section 63 for 1957 is $6,450, 
computed as follows:

Taxable income determined without any net operating loss         $54,750
 deduction..................................................
Less:
  Net operating loss deduction for 1957, as determined under     $48,300
   subdivision (i) of this subparagraph.....................
                                                             -----------
 Taxable income under section 63............................       6,450
 

    (4) Net operating loss deduction for 1959. The taxable income under 
section 63 for 1959 is $27,422, computed as follows:

Taxable income determined without any net operating loss         $50,000
 deduction..................................................
Less:
  Net operating loss deduction for 1959 (i.e., the aggregate      22,578
   carryovers determined under subparagraph (2)(vii) of this
   paragraph)...............................................
                                                             -----------
 Taxable income under section 63............................      27,422
 


[[Page 399]]

    (5) Years to which losses may be carried. The taxable years to which 
the losses of X Corporation and Y Corporation may be carried, and the 
sequence in which carried, are as follows:

------------------------------------------------------------------------
             Loss year                           Carried to
------------------------------------------------------------------------
X 1954............................  X 1955, X 1956, X 8/31/57, Y 1957, Y
                                     1958.
X 1955............................  X 1954, X 1956, X 8/31/57, Y 1957, Y
                                     1958, Y 1959.
Y 1955............................  Y 1956, Y 1957, Y 1958, Y 1959, Y
                                     1960.
X 1956............................  X 1954, X 1955, X 8/31/57, Y 1957, Y
                                     1958, Y 1959, Y 1960.
Y 1956............................  Y 1955, Y 1957, Y 1958, Y 1959, Y
                                     1960, Y 1961.
Y 1958............................  Y 1955, Y 1956, Y 1957, Y 1959, Y
                                     1960, Y 1961, Y 1962, Y 1963.
------------------------------------------------------------------------


[T.D. 6500, 25 FR 11607, Nov. 26, 1960, as amended by T.D. 7564, 43 FR 
40493, Sept. 12, 1978]



Sec. 1.381(c)(1)-2  Net operating loss carryovers; two or more dates of 
distribution or transfer in the taxable year.

    (a) In general. If the acquiring corporation succeeds to the net 
operating loss carryovers of two or more distributor or transferor 
corporations on two or more dates of distribution or transfer within one 
taxable year of the acquiring corporation, the limitation to be applied 
under section 381(c)(1)(B) to the aggregate of the net operating loss 
carryovers to that taxable year from all of the distributor or 
transferor corporations shall be determined by applying the rules 
prescribed in paragraph (b) of this section, and the taxable income of 
the acquiring corporation for that taxable year under sections 
381(c)(1)(C) and 172(b)(2) shall be determined by applying the rules 
prescribed in paragraph (c) of this section. For purposes of this 
section, the term postacquisition income means postacquisition part year 
taxable income determined under paragraph (d)(1) of Sec. 1.381(c)(1)-1 
by treating the first date of distribution or transfer as though it were 
the only date of distribution or transfer during the taxable year of the 
acquiring corporation.
    (b) Determination of limitation under section 381(c)(1)(B)--(1) In 
general. If the acquiring corporation succeeds to the net operating loss 
carryovers of two or more distributor or transferor corporations on two 
or more dates of distribution or transfer during the same taxable year 
of the acquiring corporation, and if the amount of the net operating 
loss carryovers acquired on the first date of distribution or transfer 
equals or exceeds the postacquisition income, then the limitation under 
section 381(c)(1)(B) shall be an amount equal to such postacquisition 
income. If the amount of the net operating loss carryovers acquired on 
the first date of distribution or transfer is less than such 
postacquisition income, then the limitation under section 381(c)(1)(B) 
shall be determined as provided in subparagraphs (2) through (5) of this 
paragraph.
    (2) Allocation of postacquisition income among partial 
postacquisition years. That part of the taxable year of the acquiring 
corporation beginning on the day following the first date of 
distribution or transfer and ending with the close of the taxable year 
of the acquiring corporation shall be divided into the same number of 
partial postacquisition years as the number of dates of distribution or 
transfer on which the acquiring corporation succeeds to net operating 
loss carryovers during its taxable year. The first partial 
postacquisition year shall begin with the day following the first date 
of distribution or transfer and shall end with the close of the second 
date of distribution or transfer. The second and succeeding partial 
postacquisition years shall begin with the day following the close of 
the preceding such partial year and shall end with the close of the 
succeeding date of distribution or transfer, or, if there is no such 
succeeding date, then with the close of the taxable year of the 
acquiring corporation. The postacquisition income of the acquiring 
corporation shall be allocated among the partial postacquisition years 
in proportion to the number of days in each such partial year.
    (3) Two dates of distribution or transfer. If the acquiring 
corporation succeeds to the net operating loss carryovers of two 
distributor or transferor corporations on two dates of distribution or 
transfer during the same taxable year of the acquiring corporation, and 
if the amount of the net operating loss carryovers acquired on the first 
date equals or exceeds the income for the first partial postacquisition 
year, the limitation provided by section

[[Page 400]]

381(c)(1)(B) shall be the amount of the postacquisition income. If the 
income for the first partial postacquisition year exceeds the net 
operating loss carryovers acquired on the first date of distribution or 
transfer, the limitation provided by section 381(c)(1)(B) shall be the 
amount of the postacquisition income reduced by the amount of such 
excess. The application of this subparagraph may be illustrated by the 
following example:

    Example. (i) X Corporation has taxable income (computed without any 
net operating loss deduction) of $36,500 for its calendar year 1955. 
During 1955, X Corporation acquires the assets of Y and Z Corporations 
in statutory mergers to each of which section 361 applies, the dates of 
transfer being January 1 and December 1, respectively. The net operating 
loss carryovers of each transferor corporation and the income for each 
partial postacquisition year are:

----------------------------------------------------------------------------------------------------------------
                    Corp.                      Carryovers           Income for partial years           Reduction
----------------------------------------------------------------------------------------------------------------
Y............................................      $1,000  $33,400 ($36,500x334/365)                     $32,400
Z............................................      50,000   3,000 ($36,500x30/365)                             0
                                              ------------------------------------------------------------------
                                                   51,000  36,400                                         32,400
----------------------------------------------------------------------------------------------------------------

    (ii) The limitation provided by section 381(c)(1)(B) equals the 
postacquisition income of $36,400 reduced by $32,400, the excess of the 
income for the first partial year ($33,400) over the net operating loss 
carryovers acquired on the first date of transfer ($1,000). Accordingly, 
the limitation is $4,000 ($36,400 minus $32,400). Therefore, although X 
Corporation acquired carryovers aggregating $51,000 during 1955, it can 
utilize only $4,000 of such carryovers in computing its net operating 
loss deduction for 1955.

    (4) Three dates of distribution or transfer. If the acquiring 
corporation succeeds to the net operating loss carryovers of three 
distributor or transferor corporations on three dates of distribution or 
transfer during the same taxable year of the acquiring corporation, and 
if the amount of the net operating loss carryovers acquired on the first 
date equals or exceeds the income for the first and second partial 
postacquisition years, the limitation provided by section 381(c)(1)(B) 
shall be the amount of the postacquisition income. If the amount of the 
carryovers acquired on the first date equals or exceeds the income for 
the first partial postacquisition year but does not equal or exceed the 
income for the first and second partial postacquisition years, the 
limitation shall be the amount of the postacquisition income reduced by 
the excess of the income for the first and second partial 
postacquisition years over the amount of carryovers acquired on the 
first and second dates of distribution or transfer. If the income for 
the first partial postacquisition year exceeds the carryovers acquired 
on the first date, the limitation shall be the postacquisition income 
reduced by the sum of the amount of such excess plus the amount, if any, 
by which the income for the second partial postacquisition year exceeds 
the carryovers acquired on the second date. This subparagraph may be 
illustrated by the following examples:

    Example (1). (i) X Corporation has taxable income (computed without 
any net operating loss deduction) of $36,500 for its calendar year 1955. 
During 1955, X Corporation acquires the assets of M, N, and Z 
Corporations in statutory mergers to each of which section 361 applies, 
the dates of transfer being January 1, January 31, and December 1, 
respectively. The net operating loss carryovers of each transferor 
corporation and the income for each partial postacquisition year are:

----------------------------------------------------------------------------------------------------------------
                    Corp.                      Carryovers           Income for partial years           Reduction
----------------------------------------------------------------------------------------------------------------
M............................................      $4,000  $3,000 ($36,500x 30/365)                      $23,400
N............................................       6,000  30,400 ($36,500x304/365)
Z............................................      50,000   3,000 ($36,500x 30/365)                            0
                                              ------------------------------------------------------------------
                                                   60,000  36,400                                         23,400
----------------------------------------------------------------------------------------------------------------


[[Page 401]]

    (ii) Since the carryovers of $4,000 acquired on the first date of 
transfer exceed the income for the first partial year ($3,000), the 
limitation provided by section 381(c)(1)(B) is the amount of the 
postacquisition income ($36,400) reduced by the excess of the income for 
the first and second partial years ($33,400) over the carryovers 
acquired on the first and second dates of transfer ($10,000). Therefore, 
the limitation is $13,000 ($36,400 less $23,400).
    Example (2). (i) Assume the same facts as in Example (1) except that 
the amount of the net operating loss carryovers acquired from M 
Corporation is $1,000. The net operating loss carryovers of each 
transferor corporation and the income for each partial postacquisition 
year are:

----------------------------------------------------------------------------------------------------------------
                    Corp.                      Carryovers           Income for partial years           Reduction
----------------------------------------------------------------------------------------------------------------
M............................................      $1,000  $3,000 ($36,500x30/365)                        $2,000
N............................................       6,000  30,400 ($36,500x304/365)                       24,400
Z............................................      50,000   3,000 ($36,500x30/365)                             0
                                              ------------------------------------------------------------------
                                                   57,000  36,400                                         26,400
----------------------------------------------------------------------------------------------------------------

    (ii) Since the income for the first partial year ($3,000) exceeds 
the $1,000 of carryovers acquired on the first date by $2,000, the 
limitation provided by section 381(c)(1)(B) is the postacquisition 
income of $36,400 reduced by such excess and also reduced by the excess 
of the income for the second partial year ($30,400) over the carryovers 
acquired on the second date of transfer ($6,000). Therefore, the 
limitation is $10,000 ($36,400 less the sum of $2,000 and $24,400).
    Example (3). (i) Assume the same facts as in Example (2) except that 
the carryovers acquired from N Corporation are $75,000. The net 
operating loss carryovers of each transferor corporation and the income 
for each partial postacquisition year are:

----------------------------------------------------------------------------------------------------------------
                    Corp.                      Carryovers           Income for partial years           Reduction
----------------------------------------------------------------------------------------------------------------
M............................................      $1,000  $3,000 ($36,500x 30/365)                       $2,000
N............................................      75,000  30,400 ($36,500x304/365)                            0
Z............................................      50,000   3,000 ($36,500x 30/365)                            0
                                              ------------------------------------------------------------------
                                                  126,000  36,400                                          2,000
----------------------------------------------------------------------------------------------------------------

    (ii) Since the income for the first partial year ($3,000) exceeds 
the $1,000 of carryovers acquired on the first date by $2,000, the 
limitation provided by section 381(c)(1)(B) is the postacquisition 
income of $36,400 reduced by $2,000, or $34,400. No further reduction is 
made since the income for the second partial year ($30,400) does not 
exceed the carryovers of $75,000 acquired on the second date of 
transfer.

    (5) Four or more dates of distribution or transfer. If the acquiring 
corporation succeeds to the net operating loss carryovers of four or 
more distributor or transferor corporations on four or more dates of 
distribution or transfer during the same taxable year of the acquiring 
corporation, the limitation provided by section 381(c)(1)(B) shall be 
determined consistently with the methods prescribed in subparagraphs (3) 
and (4) of this paragraph. The application of this subparagraph may be 
illustrated by the following example:

    Example. (i) X Corporation has taxable income (computed without any 
net operating loss deduction) of $36,500 for its calendar year 1955. 
During 1955, X Corporation acquired the assets of M, N, O, Y, and Z 
Corporations in statutory mergers to each of which section 361 applied, 
the dates of transfer being, respectively, January 1, January 31, March 
3, April 2, and December 1. The net operating loss carryovers of each 
transferor corporation and the income for each partial postacquisition 
year are:

----------------------------------------------------------------------------------------------------------------
                    Corp.                      Carryovers           Income for partial years           Reduction
----------------------------------------------------------------------------------------------------------------
M............................................      $1,000  $3,000 ($36,500x 30/365)                       $2,000
N............................................       4,000   3,100 ($36,500x 31/365)
O............................................       1,000   3,000 ($36,500x 30/365)                        1,100
Y............................................      10,000  24,300 ($36,500x243/365)                       14,300
Z............................................      20,000   3,000 ($36,500x 30/365)                            0
                                              ------------------------------------------------------------------
                                                   36,000  36,400                                         17,400
----------------------------------------------------------------------------------------------------------------


[[Page 402]]

    (ii) The limitation provided by section 381(c)(1)(B) equals the 
postacquisition income of $36,400 reduced by the sum of (a) the $2,000 
excess of the income for the first partial year ($3,000) over the 
carryovers acquired from M Corporation ($1,000), (b) the $1,100 excess 
of the income for the second and third partial years ($6,100) over the 
carryovers acquired from N and O Corporations ($5,000), and (c) the 
$14,300 excess of the income for the fourth partial year ($24,300) over 
the carryovers acquired from Y Corporation ($10,000). Accordingly, the 
limitation is $19,000 ($36,400 minus $17,400). Therefore, although X 
Corporation acquired carryovers aggregating $36,000 during 1955, it can 
utilize only $19,000 of such carryovers in computing its net operating 
loss deduction for 1955.

    (c) Determination of taxable income of acquiring corporation under 
section 381(c)(1)(C)--(1) In general. If the acquiring corporation 
succeeds to the net operating loss carryovers of two or more distributor 
or transferor corporations on two or more dates of distribution or 
transfer within one taxable year of the acquiring corporation, then 
pursuant to section 381(c)(1)(C) the taxable income of the acquiring 
corporation for its taxable year which is a prior taxable year for 
purposes of section 172(b)(2) and paragraph (e) of Sec. 1.381(c)(1)-1 
shall be determined as provided in this paragraph.
    (2) Division of taxable income. The taxable income of the acquiring 
corporation (computed with the modifications specified in section 
172(b)(2)(A) but without any net operating loss deduction) shall be 
allocated proportionately on a daily basis among a preacquisition part 
year (determined under paragraph (f)(3) of Sec. 1.381(c)(1)-1 by 
treating the first date of distribution or transfer as though it were 
the only date of distribution or transfer during the taxable year of the 
acquiring corporation) and two or more partial postacquisition years 
(determined as provided in paragraph (b)(2) of this section). The 
preacquisition part year and each partial postacquisition year shall be 
considered a separate taxable year, but only for the limited purpose of 
applying sections 172(b)(2) and 381(c)(1)(C).
    (3) Net operating loss deduction. The net operating loss deduction 
of the preacquisition part year and the partial postacquisition years 
shall be determined consistently with the manner described in paragraph 
(f)(6) of Sec. 1.381(c)(1)-1 but by taking into account, in the case of 
any partial postacquisition year, only the net operating loss carryovers 
and carrybacks of the acquiring corporation and those net operating loss 
carryovers from a distributor or transferor corporation which become 
available to the acquiring corporation as of the close of those dates of 
distribution or transfer which occur before the beginning of that 
specific partial postacquisition year. The sequence in which the net 
operating losses of the distributor or transferor and acquiring 
corporations shall be applied for this purpose shall be determined in 
the manner described in paragraph (e) of Sec. 1.381(c)(1)-1. Subject to 
the preceding sentence, the net operating loss carryovers to any 
specific partial postacquisition year, whether from a distributor, 
transferor, or acquiring corporation, shall be taken into account in the 
order of the taxable years in which the net operating losses arose, 
beginning with the loss for the earliest taxable year.
    (4) Illustration. The application of this paragraph may be 
illustrated by the following example:

    Example-- (i) Facts. X Corporation, which was organized on January 
1, 1957, sustained a net operating loss of $20,000 for its calendar year 
1957 and had taxable income (computed without any net operating loss 
deduction) of $36,500 for its calendar year 1958. During 1958, X 
Corporation acquired the assets of Y and Z Corporations in statutory 
mergers to each of which section 361 applied, the dates of transfer 
being June 30 and September 30, respectively. None of the modifications 
specified in section 172(b)(2)(A) apply to any of the corporations for 
any taxable year. The taxable income (computed without any net operating 
loss deduction) and net operating losses of Y and Z Corporations (which 
were organized on January 1, 1957, and January 1, 1954, respectively) 
are set forth below:

------------------------------------------------------------------------
                                    Acquiring    Transferor   Transferor
           Taxable year            corporation  corporation  corporation
                                        X            Y            Z
------------------------------------------------------------------------
1954.............................         xxx          xxx     ($30,000)
1955.............................         xxx          xxx         1,000
1956.............................         xxx          xxx         1,000
1957.............................   ($20,000)    ($25,000)         1,000
Ending 6-30-58...................         xxx        1,000           xxx
Ending 9-30-58...................         xxx          xxx         1,000
1958.............................      36,500          xxx           xxx
------------------------------------------------------------------------


[[Page 403]]


The sequence in which the losses of the acquiring corporation and the 
transferor corporations are applied and the computation of the 
carryovers to X Corporation's calendar year 1959 are illustrated in the 
following subdivisions of this example.
    (ii) Computation of taxable income. X Corporation's taxable income, 
determined in the manner described in subparagraph (2) of this 
paragraph, for the preacquisition part year and for the partial 
postacquisition years is as follows:

------------------------------------------------------------------------
                                            Taxable
                  Year                      income        Computation
------------------------------------------------------------------------
Preacquisition part year................     $18,100     $36,500x181/365
Partial No. 1...........................       9,200       36,500x92/365
Partial No. 2...........................       9,200       36,500x92/365
------------------------------------------------------------------------

    (iii) Z Corporation's 1954 loss. The carryover to 1959 is $0, 
computed as follows:

Net operating loss.........................................      $30,000
Less:
  Z's 1955, 1956, 1957, and 9/30/58-3 year income..........        4,000
                                                            ------------
Net operating loss carryover to Partial No. 2 year.........       26,000
Less:
  Partial No. 2 year taxable income........................        9,200
                                                            ------------
                                                                  16,800
------------------------------------------------------------------------

The balance of $16,800 is not carried over to 1959 since X Corporation's 
taxable year 1958 is the last of the five years to which Z's 1954 loss 
may be carried under section 172(b)(1).

    (iv) Y Corporation's 1957 loss. The carryover to 1959 is $14,800, 
computed as follows:

Net operating loss...........................................    $25,000
Less:
  Y's 6/30/58-year income....................................      1,000
                                                   ------------
Net operating loss carryover to Partial No. 1 year...........     24,000
Less:
  Partial No. 1 year taxable income..........................      9,200
                                                   ------------
    Carryover to Partial No. 2 year..........................     14,800
Less:
  X's Partial No. 2 year taxable income...........     $9,200
  Minus X's net operating loss deduction for           26,000
   Partial No. 2 year (i.e., Z's 1954 carryover of
   $26,000 to such partial year)..................
                                                   -----------
                                                    .........          0
                                                              ----------
    Carryover to 1959........................................     14,800
 

    (v) X Corporation's 1957 loss. The carryover to 1959 is $1,900, 
computed as follows:

Net operating loss...........................................    $20,000
Less:
  X's preacquisition part year taxable income................     18,100
                                                   ------------
    Carryover to Partial No. 1 year..........................      1,900
Less:
  Partial No. 1 year taxable income...............     $9,200
  Minus X's net operating loss deduction for           24,000
   Partial No. 1 year (i.e., Y's 1957 carryover of
   $24,000 to such partial year)..................
                                                   -----------
                                                    .........          0
                                                              ----------
    Carryover to Partial No. 2 year..........................      1,900
Less:
  Partial No. 2 year taxable income...............     $9,200
  Minus X's net operating loss deduction for           40,800
   Partial No. 2 year (i.e., Z's 1954 carryover of
   $26,000, and Y's 1957 carryover of $14,800, to
   such partial year..............................
                                                   -----------
                                                    .........          0
                                                              ----------
    Carryover to 1959........................................     $1,900
 

    (vi) Summary of carryovers to 1959. The aggregate of the net 
operating loss carryovers to 1959 is $16,700, computed as follows:

Z's 1954 loss...............................................         xxx
Y's 1957 loss...............................................     $14,800
X's 1957 loss...............................................      91,900
                                                             -----------
 Total......................................................      16,700
 



Sec. 1.381(c)(2)-1  Earnings and profits.

    (a) In general. (1) Section 381(c)(2) requires the acquiring 
corporation in a transaction to which section 381(a) applies to succeed 
to, and take into account, the earnings and profits, or deficit in 
earnings and profits, of the distributor or transferor corporation as of 
the close of the date of distribution or transfer. In determining the 
amount of such earnings and profits, or deficit, to be carried over, and 
the manner in which they are to be used by the acquiring corporation 
after such date, the provisions of section 381(c)(2) and this section 
shall apply. For purposes of section 381(c)(2) and this section, if the 
distributor or transferor corporation accumulates earnings and profits, 
or incurs a deficit in earnings and profits, after the date of 
distribution or transfer and before the completion of the reorganization 
or liquidation, such earnings and profits, or deficit, shall be deemed 
to have been accumulated or incurred as of the close of the date of 
distribution or transfer.
    (2) If the distributor or transferor corporation has accumulated 
earnings and profits as of the close of the date of distribution or 
transfer, such earnings and profits shall (except as hereinafter 
provided in this section) be deemed to be received by, and to become a 
part of the accumulated earnings and profits

[[Page 404]]

of, the acquiring corporation as of such time. Similarly, if the 
distributor or transferor corporation has a deficit in accumulated 
earnings and profits as of the close of the date of distribution or 
transfer, such deficit shall (except as hereinafter provided in this 
section) be deemed to be incurred by the acquiring corporation as of 
such time. In no event, however, shall the accumulated earnings and 
profits, or deficit, of the distribution or transferor corporation be 
taken into account in determining earnings and profits of the acquiring 
corporation for the taxable year during which occurs the date of 
distribution or transfer.
    (3) Any part of the accumulated earnings and profits, or deficit in 
accumulated earnings and profits, of the distributor or transferor 
corporation which consists of earnings and profits, or deficits, 
accumulated before March 1, 1913, shall be deemed to become earnings and 
profits, or deficits, of the acquiring corporation accumulated before 
March 1, 1913, and any part of the accumulated earnings and profits of 
the distributor or transferor corporation which consists of increase in 
value of property accrued before March 1, 1913, shall be deemed to 
become earnings and profits of the acquiring corporation consisting of 
increase in value of property accrued before March 1, 1913.
    (4) If the acquiring corporation and each distributor or transferor 
corporation has accumulated earnings and profits as of the close of the 
date of distribution or transfer, or if each of such corporations has a 
deficit in accumulated earnings and profits as of such time, then the 
accumulated earnings and profits (or deficit) of each such corporation 
shall be consolidated as of the close of the date of distribution or 
transfer in the accumulated earnings and profits account of the 
acquiring corporation. See subparagraph (6) of this paragraph for 
determination of the accumulated earnings and profits (or deficit) of 
the acquiring corporation as of the close of the date of distribution or 
transfer.
    (5) If (i) one or more corporations a party to a distribution or 
transfer has accumulated earnings and profits as of the close of the 
date of distribution or transfer, and (ii) one or more of such 
corporations has a deficit in accumulated earnings and profits as of 
such time, the total of any such deficits shall be used only to offset 
earnings and profits accumulated, or deemed to have been accumulated 
under subparagraph (6) of this paragraph, by the acquiring corporation 
after the date of distribution or transfer. In such instance, the 
acquiring corporation will be considered as maintaining two separate 
earnings and profits accounts after the date of distribution or 
transfer. The first such account shall contain the total of the 
accumulated earnings and profits as of the close of the date of 
distribution or transfer of each corporation which has accumulated 
earnings and profits as of such time, and the second such account shall 
contain the total of the deficits in accumulated earnings and profits of 
each corporation which has a deficit as of such time. The total deficit 
in the second account may not be used to reduce the accumulated earnings 
and profits in the first account (although such earnings and profits may 
be offset by deficits incurred, or deemed to have been incurred, after 
the date of distribution or transfer) but shall be used only to offset 
earnings and profits accumulated, or deemed to have been accumulated 
under subparagraph (6) of this paragraph, by the acquiring corporation 
after the date of distribution or transfer.
    (6) In any case in which it is necessary to compute the accumulated 
earnings and profits, or the deficit in accumulated earnings and 
profits, of the acquiring corporation as of the close of the date of 
distribution or transfer and such date is a day other than the last day 
of a taxable year of the acquiring corporation--
    (i) If the acquiring corporation has earnings and profits for its 
taxable year during which occurs the date of distribution or transfer, 
such earnings and profits (a) shall be deemed to have accumulated as of 
the close of such date in an amount which bears the same ratio to the 
undistributed earnings and profits of such corporation for such year as 
the number of days in the taxable year preceding the date following the 
date of distribution or

[[Page 405]]

transfer bears to the total number of days in the taxable year, and (b) 
shall be deemed to have accumulated after the date of distribution or 
transfer in an amount which bears the same ratio to the undistributed 
earnings and profits of such corporation for such year as the number of 
days in the taxable year following such date bears to the total number 
of days in such taxable year. For purposes of the preceding sentence, 
the undistributed earnings and profits of the acquiring corporation for 
such taxable year shall be the earnings and profits for such taxable 
year reduced by any distributions made therefrom during such taxable 
year.
    (ii) If the acquiring corporation has an operating deficit for its 
taxable year during which occurs the date of distribution or transfer, 
then, unless the actual accumulated earnings and profits, or deficit, as 
of such date can be shown, such operating deficit shall be deemed to 
have accumulated in a manner similar to that described in subdivision 
(i) of this subparagraph.
    (7) This paragraph may be illustrated by the following examples, in 
which it is assumed that none of the accumulated earnings and profits, 
or deficits, consist of earnings and profits or deficits accumulated, or 
increase in value of property accrued, before March 1, 1913.

    Example (1). (i) M and N Corporations make their returns on the 
basis of the calendar year. On June 30, 1959, M Corporation transfers 
all its assets to N Corporation in a statutory merger to which section 
361 applies. The books of the two corporations reveal the following 
information:

------------------------------------------------------------------------
                                                     M            N
                 Description                    Corporation  Corporation
                                               (transferor)   (acquirer)
------------------------------------------------------------------------
Accumulated earnings and profits at close of      $100,000      $150,000
 calendar year 1958..........................
Earnings and profits of taxable year ending         15,000   ...........
 June 30, 1959...............................
Earnings and profits of calendar year 1959...  ............       36,500
Distributions during calendar year 1959......            0             0
------------------------------------------------------------------------

    (ii) As of the close of June 30, 1959, N acquires from M accumulated 
earnings and profits of $115,000. Since M and N each has accumulated 
earnings and profits as of the close of the date of transfer, M's 
accumulated earnings and profits are added to N's accumulated earnings 
and profits as of such time. However, no part of M's accumulated 
earnings and profits is taken into account in determining N's earnings 
and profits for the calendar year 1959. Therefore, N's earnings and 
profits for the calendar year 1959 are $36,500.
    Example (2). (i) X and Y Corporations make their returns on the 
basis of the calendar year. On June 30, 1959, X Corporation transfers 
all its assets to Y Corporation in a statutory merger to which section 
361 applies. The books of the two corporations reveal the following 
information:

------------------------------------------------------------------------
                                                     X             Y
                 Description                    Corporation  Corporation
                                               (transferor)   (acquirer)
------------------------------------------------------------------------
Accumulated earnings and profits at close of       $20,000      $100,000
 calendar year 1958..........................
Deficit in earnings and profits for taxable         80,000   ...........
 year ending June 30, 1959...................
Earnings and profits of calendar year 1959...  ............       36,500
Distributions during calendar year 1959......            0             0
------------------------------------------------------------------------

    (ii) As of the close of June 30, 1959, Y acquires from X a deficit 
in accumulated earnings and profits in the amount of $60,000. This 
deficit may be used only to reduce those earnings and profits of Y which 
are accumulated, or deemed to have accumulated, after June 30, 1959. 
Accordingly, as of December 31, 1959, the accumulated earnings and 
profits of Y amount to $118,100; at such time Y also has a separate 
deficit in accumulated earnings and profits in the amount of $41,600. 
These amounts are determined as follows:

Accumulated earnings and profits of Y as of the close of        $100,000
 1958.......................................................
Add:
  Portion of undistributed earnings and profits of Y for          18,100
   1959 deemed to have accumulated as of close of June 30,
   1959 ($36,500x181/365)...................................
                                                             -----------
    Accumulated earnings and profits of Y as of close of         118,100
     June 30, 1959, and also as of Dec. 31, 1959............
                                                             ===========
  Portion of undistributed earnings and profits of Y for          18,400
   1959 deemed to have accumulated after June 30, 1959
   ($36,500x184/365)........................................
Less:
  Deficit in accumulated earnings and profits acquired by Y       60,000
   from X Corporation as of close of June 30, 1959..........
                                                             -----------
    Separate deficit in accumulated earnings and profits of       41,600
     Y as of Dec. 31, 1959..................................
 

    Example (3). Assume the same facts as in Example (2), except that on 
September 15, 1959, Y Corporation makes a cash distribution of $96,500. 
The entire distribution is a dividend: $36,500 from earnings and profits 
for the taxable year 1959 and $60,000 from earnings and profits 
accumulated as of December 31, 1958. Accordingly, as of December

[[Page 406]]

31, 1959, Y has accumulated earnings and profits of $40,000, and also 
has a separate deficit in accumulated earnings and profits of $60,000. 
These amounts are determined as follows:

Earnings and profits of Y for calendar year 1959.............    $36,500
Accumulated earnings and profits of Y as of close of 1958....    100,000
                                                              ----------
 Total.......................................................    136,500
Less:
  Distributions during 1959..................................     96,500
                                                              ----------
    Accumulated earnings and profits of Y as of Dec. 31, 1959     40,000
                                                              ==========
Deficit in accumulated earnings and profits acquired from X      $60,000
 as of close of June 30, 1959................................
Less:
  Portion of Y's undistributed earnings and profits for 1959           0
   deemed to have accumulated after June 30, 1959............
                                                              ----------
    Separate deficit in accumulated earnings and profits of Y     60,000
     as of Dec. 31, 1959.....................................
 

    Example (4). (i) M and N Corporations make their returns on the 
basis of the calendar year. On June 30, 1959, M Corporation transfers 
all its assets to N Corporation in a statutory merger to which section 
361 applies. The books of the two corporations reveal the following 
information:

------------------------------------------------------------------------
                                                     M            N
                 Description                    Corporation  Corporation
                                               (transferor)   (acquirer)
------------------------------------------------------------------------
Accumulated earnings and profits at close of      $100,000       $50,000
 calendar year 1958..........................
Earnings and profits for taxable year ending        10,000
 June 30, 1959...............................
Deficit in earnings and profits for calendar   ............      146,000
 year 1959...................................
Distributions during calendar year 1959......            0             0
------------------------------------------------------------------------

    (ii) Assuming that N has not shown its actual accumulated earnings 
and profits, or deficit, as of the close of June 30, 1959, N has a 
deficit in accumulated earnings and profits at such time which amounts 
to $22,400, determined as follows:

Accumulated earnings and profits of N as of close of 1958....    $50,000
Less:
  Portion of deficit in earnings and profits of N for 1959        72,400
   deemed to have accumulated as of close of June 30, 1959
   ($146,000x181/365)........................................
                                                              ----------
    Deficit in accumulated earnings and profits of N as of        22,400
     close of June 30, 1959, and also as of Dec. 31, 1959....
------------------------------------------------------------------------


As of the close of June 30, 1959, N acquires from M accumulated earnings 
and profits in the amount of $110,000, no part of which may be offset by 
N's own deficit of $22,400; however, such earnings and profits may be 
offset by deficits incurred, or deemed incurred, by N after June 30, 
1959. Thus, as of December 31, 1959, N has the above-mentioned deficit 
of $22,400; at such time N also has accumulated earnings and profits in 
the amount of $36,400, determined as follows:

Accumulated earnings and profits acquired from M as of close    $110,000
 of June 30, 1959...........................................
Less:
  Portion of deficit in earnings and profits of N for 1959        73,600
   deemed to have accumulated after June 30, 1959
   ($146,000x184/365).......................................
                                                             -----------
    Accumulated earnings and profits of N as of Dec. 31,          36,400
     1959...................................................
 

    Example (5). Assume the same facts as in Example (4), except that on 
September 9, 1959, N Corporation makes a cash distribution of $100,000. 
The amount of $82,000 is a dividend from accumulated earnings and 
profits, computed as follows:

Accumulated earnings and profits acquired from M as of close    $110,000
 of June 30, 1959...........................................
Less:
  Deficit in earnings and profits of N for 1959 deemed to         28,000
   have accumulated from June 30 through Sept. 8, 1959
   ($146,000x70/365)........................................
                                                             -----------
    Accumulated earnings and profits as of close of Sept. 8,      82,000
     1959...................................................
 


As of December 31, 1959, N Corporation has a deficit in accumulated 
earnings and profits of $68,000, computed as follows:

Deficit in accumulated earnings and profits of N as of close     $22,400
 of June 30, 1959............................................
Add:
  Portion of N's deficit in earnings and profits for 1959         45,600
   deemed to have accumulated after Sept. 8, 1959
   ($146,000x114/365)........................................
                                                              ----------
    Deficit in accumulated earnings and profits of N as of        68,000
     Dec. 31, 1959...........................................
 

    Example (6). (i) X, Y, and Z Corporations make their returns on the 
basis of the calendar year. On June 30, 1959, X Corporation and Y 
Corporation transfer all their assets to Z Corporation in a statutory 
merger to which section 361 applies. The books of the three corporations 
reveal the following information:

----------------------------------------------------------------------------------------------------------------
                                                                               X             Y            Z
                              Description                                 Corporation   Corporation  Corporation
                                                                         (transferor)  (transferor)   (acquirer)
----------------------------------------------------------------------------------------------------------------
Accumulated earnings and profits (or deficit) at close of calendar year       $35,000     ($25,000)    ($20,000)
 1958..................................................................
Earnings and profits (or deficit) for taxable year ended June 30, 1959.         5,000       (5,000)
Earnings and profits for calendar year 1959............................  ............  ............       36,500
Distributions during 1959..............................................             0             0            0
----------------------------------------------------------------------------------------------------------------


[[Page 407]]

    (ii) As of the close of June 30, 1959, Z acquires from Y a deficit 
in accumulated earnings and profits of $30,000. As of such time, Z's own 
deficit in accumulated earnings and profits amounts to $1,900, 
determined as follows:

Deficit in accumulated earnings and profits of Z as of close     $20,000
 of 1958....................................................
Less:
  Portion of undistributed earnings and profits of Z for          18,100
   1959 deemed to have accumulated as of close of June 30,
   1959 ($36,500x181/365)...................................
                                                             -----------
    Deficit in accumulated earnings and profits as of close        1,900
     of June 30, 1959.......................................
 


The total deficit of $31,900 may be used only to offset earnings and 
profits of Z accumulated, or deemed to have accumulated, after June 30, 
1959; such deficit may not be used to reduce the accumulated earnings 
and profits of $40,000 acquired from X as of the close of June 30, 1959. 
Thus, as of December 31, 1959, the accumulated earnings and profits of Z 
amount to $40,000; at such time Z Corporation also has a separate 
deficit in accumulated earnings and profits in the amount of $13,500, 
determined as follows:

Deficit in accumulated earnings and profits as of close of       $31,900
 June 30, 1959..............................................
Less:
  Portion of undistributed earnings and profits of Z for          18,400
   1959 deemed to have accumulated after June 30, 1959
   ($36,500x184/365)........................................
                                                             -----------
    Separate deficit in accumulated earnings and profits as       13,500
     of Dec. 31, 1959.......................................
 

    Example (7). X and Y Corporations make their returns on the basis of 
the calendar year. On December 31, 1954, X transfers all its assets to Y 
in a statutory merger to which section 361 applies. The books of the two 
corporations reveal the following information:

------------------------------------------------------------------------
                                                     X            Y
                 Description                    Corporation  Corporation
                                               (transferor)   (acquirer)
------------------------------------------------------------------------
Accumulated earnings and profits (or deficit)    ($50,000)      $210,000
 at close of calendar year 1954..............
Earnings and profits (or deficit) for
 calendar year:
  1955.......................................  ............        5,000
  1956.......................................  ............     (20,000)
  1957.......................................  ............       70,000
  1958.......................................  ............       60,000
  1959.......................................  ............       55,000
Cash distributions on:
  Sept. 1, 1957..............................  ............       80,000
  Sept. 1, 1958..............................  ............       40,000
  Sept. 1, 1959..............................  ............       30,000
------------------------------------------------------------------------


The balances in the accumulated earnings and profits account and the 
separate deficit account of Y Corporation at the close of the taxable 
year involved are as follows:

------------------------------------------------------------------------
                                                             Accumulated
                                                  Deficit      earnings
                     Year                         acquired   and profits
                                                   from X        of Y
                                                Corporation  Corporation
------------------------------------------------------------------------
1954..........................................      $50,000     $210,000
1955..........................................       45,000      210,000
1956..........................................       45,000      190,000
1957..........................................       45,000      180,000
1958..........................................       25,000      180,000
1959..........................................         None      180,000
------------------------------------------------------------------------

    (b) Successive acquisitions. (1) If, as of the date of distribution 
or transfer, either the acquiring corporation, or the distributor or 
transferor corporation, or both, is considered under paragraph (a) of 
this section to be maintaining separate earnings and profits accounts as 
the result of a prior transaction or transactions to which section 
381(a) applied, the accumulated earnings and profits, or deficit in 
accumulated earnings and profits, of each such corporation shall be 
combined with the appropriate earnings and profits account of the other 
such corporation. For example, if, as of the date of transfer, the 
acquiring corporation and the transferor corporation are each 
maintaining separate accounts, one containing accumulated earnings and 
profits and the other containing a deficit in accumulated earnings and 
profits, the amounts in the two accumulated earnings and profits 
accounts shall be combined into one account, and the amounts in the two 
deficit accounts shall be combined into a second account, and the amount 
in one combined account may not be used to offset the amount in the 
other combined account.
    (2) This paragraph may be illustrated by the following examples, in 
which it is assumed that none of the accumulated earnings and profits, 
or deficits, consist of earnings and profits or deficits accumulated, or 
increase in value of property accrued, before March 1, 1913.

    Example (1). (i) X, Y, and Z Corporations make their returns on the 
basis of the calendar year. On June 30, 1958, X Corporation transfers 
all its assets to Z Corporation in a statutory merger to which section 
361 applies, and on August 31, 1958, Y Corporation transfers all its 
assets to Z Corporation in another statutory merger to which section 361 
applies. The books of the three corporations reveal the following 
information:

[[Page 408]]



----------------------------------------------------------------------------------------------------------------
                                                                               X             Y            Z
                              Description                                 Corporation   Corporation  Corporation
                                                                         (transferor)  (transferor)   (acquirer)
----------------------------------------------------------------------------------------------------------------
Accumulated earnings and profits (deficit) at close of calendar year         ($40,000       $10,000      $60,000
 1957..................................................................
Deficit in earnings and profits for taxable year ending June 30, 1958..       (5,000)  ............  ...........
Earnings and profits for taxable year ending Aug. 31, 1958.............  ............         2,000  ...........
Earnings and profits of calendar year 1958.............................  ............  ............       36,500
Distributions during calendar year 1958................................             0             0            0
----------------------------------------------------------------------------------------------------------------

    (ii) As of the close of June 30, 1958, Z acquires from X a deficit 
in accumulated earnings and profits in the amount of $45,000, which 
deficit may be used only to reduce those earnings and profits of Z which 
are accumulated, or deemed to have been accumulated, after June 30, 
1958. As of the close of August 31, 1958, Z acquires from Y earnings and 
profits of $12,000, no portion of which may be reduced by the deficit 
acquired by Z from X. Accordingly, as of December 31, 1958, Z has 
accumulated earnings and profits of $90,100, and also has a separate 
deficit in accumulated earnings and profits of $26,600. These amounts 
are determined as follows:

Accumulated earnings and profits of Z as of Dec. 31, 1957...     $60,000
Add:
  Portion of undistributed earnings and profits of Z for          18,100
   1958 deemed to have accumulated as of close of June 30,
   1958 ($36,500x181/365)...................................
                                                             -----------
Accumulated earnings and profits of Z as of June 30, 1958...      78,100
Add:
  Accumulated earnings and profits acquired by Z from Y as        12,000
   of close of Aug. 31, 1958................................
                                                             -----------
Accumulated earnings and profits of Z as of close of Aug.         90,100
 31, 1958, and also as of Dec. 31, 1958.....................
                                                             ===========
Deficit in accumulated earnings and profits acquired by Z         45,000
 from X as of close of June 30, 1958........................
Less:
  Portion of undistributed earnings and profits of Z for           6,200
   1958 deemed to have accumulated from June 30 through Aug.
   31, 1958 ($36,500x62/365)................................
                                                             -----------
    Separate deficit in accumulated earnings and profits of       38,800
     Z as of Aug. 31, 1958..................................
Less:
  Portion of undistributed earnings and profits of Z for          12,200
   1958 deemed to have accumulated after Aug. 31, 1958
   ($36,500x122/365)........................................
                                                             -----------
    Separate deficit in accumulated earnings and profits of       26,600
     Z as of Dec. 31, 1958..................................
 

    Example (2). (i) Assume the same facts as in Example (1), plus the 
additional fact that on June 30, 1959, Z Corporation transfers all its 
assets to M Corporation (which makes its return on the basis of the 
calendar year) in a statutory merger to which section 361 applies, and 
that as of such time M Corporation is considered to be maintaining 
separate earnings and profits accounts as the result of a previous 
transaction to which section 381(a) applied. The books of the two 
corporations reveal the following information:

------------------------------------------------------------------------
                                                     Z            M
                 Description                    Corporation  Corporation
                                               (transferor)   (acquirer)
------------------------------------------------------------------------
Accumulated earnings and profits as of Dec.        $90,100       $50,000
 31, 1958....................................
Separate deficit in accumulated earnings and        26,600        30,000
 profits as of Dec. 31, 1958.................
Earnings and profits for taxable year ending         5,000   ...........
 June 30, 1959...............................
Earnings and profits of calendar year 1959...  ............       36,500
Distributions during 1959....................            0             0
------------------------------------------------------------------------

    (ii) As of June 30, 1959, M acquires from Z accumulated earnings and 
profits of $90,100, which amount is combined with M's own accumulated 
earnings and profits of $50,000; M also acquires from Z a deficit in 
accumulated earnings and profits of $21,600 ($26,600 minus $5,000), 
which amount is combined with M's own deficit of $11,900. The total 
deficit of $33,500 may be used only to reduce earnings and profits of M 
which are accumulated, or deemed to have accumulated, after June 30, 
1959. Accordingly, as of December 31, 1959, M has accumulated earnings 
and profits of $140,100, and also has a separate deficit in accumulated 
earnings and profits in the amount of $15,100. These amounts are 
determined as follows:

Deficit of M as of Dec. 31, 1958............................     $30,000
Less:
  Portion of M's undistributed earnings and profits for 1959      18,100
   deemed to have accumulated as of close of June 30, 1959
   ($36,500x181/365)........................................
                                                             -----------
    Deficit of M as of June 30, 1959........................      11,900
Plus:
  Deficit of Z as of June 30, 1959..........................      21,600
                                                             -----------
    Combined deficit of M as of close of June 30, 1959......      33,500
Less:
  Portion of M's undistributed earnings and profits for 1959      18,400
   deemed to have accumulated after June 30, 1959
   ($36,500x184/365)........................................
                                                             -----------
    Separate deficit of M as of Dec. 31, 1959...............      15,100
                                                             ===========

[[Page 409]]

 
Accumulated earnings and profits of M as of Dec. 31, 1958,        50,000
 and also as of June 30, 1959...............................
Accumulated earnings and profits of Z as of Dec. 31, 1958,        90,100
 and also as of June 30, 1959...............................
                                                             -----------
    Combined accumulated earnings and profits of M as of         140,100
     close of June 30, 1959, and also as of Dec. 31, 1959...
 


    (c) Distribution of earnings and profits pursuant to reorganization 
or liquidation. (1) If, in a reorganization to which section 381(a)(2) 
applies, the transferor corporation pursuant to the plan of 
reorganization distributes to its stockholders property consisting not 
only of property permitted by section 354 to be received without 
recognition of gain, but also of other property or money, then the 
accumulated earnings and profits of the transferor corporation as of the 
close of the date of transfer shall be computed by taking into account 
the amount of earnings and profits properly applicable to the 
distribution, regardless of whether such distribution occurs before or 
after the close of the date of transfer.
    (2) If, in a distribution to which section 381(a)(1) (relating to 
certain liquidations of subsidiaries) applies, the acquiring corporation 
receives less than 100 percent of the assets distributed by the 
distributor corporation, then the accumulated earnings and profits of 
the distributor corporation as of the close of the date of distribution 
shall be computed by taking into account the amount of earnings and 
profits properly applicable to the distributions to minority 
stockholders, regardless of whether such distributions occur before or 
after the close of the date of distribution.
    (d) Treatment of earnings and profits where assets are transferred 
to a corporation controlled by the acquiring corporation. If, pursuant 
to the provisions of paragraph (b)(2) of Sec. 1.381(a)-1, a corporation 
is considered to be the acquiring corporation even though a part of the 
acquired assets is transferred to one or more corporations controlled by 
the acquiring corporation, or all the acquired assets are transferred to 
two or more corporations controlled by the acquiring corporation, then 
whether any portion of the earnings and profits received by the 
acquiring corporation under section 381(c)(2) is allocable to such 
controlled corporation or corporations shall be determined without 
regard to section 381. See paragraph (a) of Sec. 1.312-11.

[T.D. 6586, 26 FR 12550, Dec. 28, 1961, as amended by T.D. 6692, 28 FR 
12817, Dec. 3, 1963]



Sec. 1.381(c)(3)-1  Capital loss carryovers.

    (a) Carryover requirement. (1) Section 381(c)(3) requires the 
acquiring corporation in a transaction to which section 381(a) applies 
to succeed to, and take into account, the capital loss carryovers of the 
distributor or transferor corporation. To determine the amount of these 
carryovers as of the close of the date of distribution or transfer, and 
to integrate them with the capital loss carryovers of the acquiring 
corporation for purposes of determining the taxable income of the 
acquiring corporation for taxable years ending after the date of 
distribution or transfer, it is necessary to apply the provisions of 
section 1212 in accordance with the conditions and limitations of 
section 381(c)(3) and this section.
    (2) The capital loss carryovers of the acquiring corporation as of 
the close of the date of distribution or transfer shall be determined 
without reference to any capital gains or capital losses of the 
distributor or transferor corporation. The capital loss carryovers of a 
distributor or transferor corporation as of the close of the date of 
distribution or transfer shall be determined without reference to any 
capital gains or capital losses of the acquiring corporation.
    (3) This section contains rules applicable to capital loss 
carryovers determined without reference to the amendment of section 
1212(a) made by section 7 of the Act of September 2, 1964 (Public Law 
88-571, 78 Stat. 860) in respect of foreign expropriation capital 
losses. If the distributor, transferor, or acquiring corporation 
sustains a net capital loss in a taxable year ending after December 31, 
1958, any portion of which is attributable to a foreign expropriation 
capital loss, such portion shall be carried over to each of the ten 
succeeding taxable years consistently with the rules prescribed in this 
section and paragraph (a)(2) of Sec. 1.1212-1.
    (b) First taxable year to which carryovers apply. (1) The capital 
loss carryovers available to the distributor

[[Page 410]]

or transferor corporation as of the close of the date of distribution or 
transfer shall first be carried to the first taxable year of the 
acquiring corporation ending after that date. This rule applies 
irrespective of whether the date of distribution or transfer is on the 
last day, or any other day, of the acquiring corporation's taxable year.
    (2) The capital loss carryovers available to the distributor or 
transferor corporation as of the close of the date of distribution or 
transfer shall be carried to the acquiring corporation without 
diminution by reason of the fact that the acquiring corporation does not 
acquire 100 percent of the assets of the distributor or transferor 
corporation.
    (c) Limitation on capital loss carryovers for first taxable year 
ending after date of distribution or transfer. (1) Any capital loss 
carryover of a distributor or transferor corporation which is available 
to the acquiring corporation as of the close of the date of distribution 
or transfer shall be a short-term capital loss of the acquiring 
corporation in each of the taxable years to which the net capital loss 
giving rise to such carryover may be carried to the extent provided in 
section 1212 and this section. However, in the first taxable year of the 
acquiring corporation ending after the date of distribution or transfer, 
the total capital loss carryovers of the distributor or transferor 
corporation which may be treated in that year as short-term capital 
losses of the acquiring corporation is limited by section 381(c)(3)(B) 
to an amount which bears the same ratio to the acquiring corporation's 
capital gain net income (net capital gain for taxable years beginning 
before January 1, 1977) for such first taxable year (determined without 
regard to any capital loss carryovers) as the number of days in such 
first taxable year which follow the date of distribution or transfer 
bears to the total number of days in such taxable year. Thus, if the 
date of distribution or transfer is the last day of the acquiring 
corporation's taxable year, there is no limitation under section 
381(c)(3)(B) on the amount of such carryovers which may be treated as 
short-term capital losses of the acquiring corporation for its first 
taxable year ending after that date.
    (2) The limitation provided by section 381(c)(3)(B) shall be applied 
to the aggregate of the capital loss carryovers of the distributor or 
transferor corporation without reference to the taxable years in which 
the net capital losses giving rise to the carryovers were sustained. If 
the acquiring corporation has acquired the assets of two or more 
distributor or transferor corporations on the same date of distribution 
or transfer, then the limitation provided by section 381(c)(3)(B) shall 
be applied to the aggregate of the capital loss carryovers from all of 
such distributor or transferor corporations.
    (3) If the acquiring corporation succeeds to the capital loss 
carryovers of two or more distributor or transferor corporations on two 
or more dates of distribution or transfer during the same taxable year 
of the acquiring corporation, the limitation to be applied under section 
381(c)(3)(B) to the aggregate of such carryovers shall be determined 
consistently with the rules prescribed in paragraph (b) of Sec. 
1.381(c)(1)-2.
    (4) The application of this paragraph may be illustrated by the 
following example:

    Example. (i) X and Y Corporations are organized on January 1, 1954, 
and make their returns on the basis of the calendar year. On July 4, 
1957, X Corporation transfers all its assets to Y Corporation in a 
statutory merger to which section 361 applies. The net capital losses 
and the net capital gains (capital gain net income for taxable years 
beginning after Dec. 31, 1976), (computed without regard to any capital 
loss carryovers) of the two corporations are as follows:

------------------------------------------------------------------------
                                                     X            Y
                 Taxable year                   Corporation  Corporation
                                               (transferor)   (acquirer)
------------------------------------------------------------------------
1954.........................................     ($5,000)             0
1955.........................................     (10,000)        $5,000
1956.........................................     (25,000)       (7,000)
Ending 7-4-57................................      (8,000)   ...........
1957.........................................  ............       36,500
------------------------------------------------------------------------

    (ii) The capital loss carryovers of X Corporation which are 
available to Y Corporation as of the close of July 4, 1957, amount to 
$48,000 in the aggregate; but only $18,000 ($36,500 x 180/365 ) of such 
amount may be treated as short-term capital losses of Y Corporation for 
1957.

    (d) Computation of carryovers; general rule--(1) Sequence for 
applying losses and determination of capital gain net income.

[[Page 411]]

Section 1212 provides that a net capital loss sustained in any taxable 
year (hereinafter referred to as the ``loss year'') shall be carried 
over to each of the five succeeding taxable years and treated in each of 
such succeeding years as a short-term capital loss to the extent not 
allowed as a deduction against any capital gain net income (net capital 
gain for taxable years beginning before January 1, 1977) of any taxable 
years intervening between the loss year and the taxable year to which 
such loss is carried. For this purpose, the capital gain net income (net 
capital gain for taxable years beginning before January 1, 1977) of any 
intervening taxable year is determined without regard to the net capital 
loss for the loss year or for any taxable year thereafter, and the 
various capital loss carryovers from taxable years preceding the loss 
year to any such intervening taxable year are considered to be applied 
in reduction of the capital gain net income (net capital gain for 
taxable years beginning before January 1, 1977) for such year in the 
order of the taxable years in which the losses were sustained, beginning 
with the loss for the earliest preceding taxable year. The application 
of these rules to the capital gain net income (net capital gain for 
taxable years beginning before January 1, 1977) of the acquiring 
corporation for any taxable year ending after the date of distribution 
or transfer involves the use of carryovers of the distributor or 
transferor corporation and of the acquiring corporation. In determining 
the order in which the capital loss carryovers of the distributor or 
transferor and acquiring corporations from taxable years ending on or 
before the date of distribution or transfer are considered to be applied 
in reduction of the capital gain net income (net capital gain for 
taxable years beginning before January 1, 1977) of the acquiring 
corporation for any intervening taxable year ending after such date, the 
following rules shall apply:
    (i) Each taxable year of the distributor or transferor and acquiring 
corporations which, with respect to the first taxable year of the 
acquiring corporation ending after the date of distribution or transfer, 
constitutes a first preceding taxable year, shall be treated as if each 
such year ended on the same day, whether or not such taxable years 
actually end on the same day. In like manner, each taxable year of the 
distributor or transferor and acquiring corporations which, with respect 
to such first taxable year of the acquiring corporation ending after the 
date of distribution or transfer, constitutes a second preceding taxable 
year, shall be treated as if each such year ended on the same day 
(whether or not such taxable years actually end on the same day), and a 
similar rule shall be applied with respect to those taxable years of the 
distributor or transferor and acquiring corporations which constitute 
third, fourth, and fifth preceding taxable years;
    (ii) If in the same preceding taxable year both the distributor or 
transferor and acquiring corporations incurred a net capital loss which 
is a carryover to an intervening taxable year of the acquiring 
corporation ending after the date of distribution or transfer, then in 
applying such losses in reduction of the capital gain net income (net 
capital gain for taxable years beginning before January 1, 1977) for 
such an intervening year, either such loss may be taken into account 
before the other; and
    (iii) The rules of subdivisions (i) and (ii) of this subparagraph 
shall apply regardless of the number of distributor or transferor 
corporations the assets of which are acquired by the acquiring 
corporation on the same date of distribution or transfer.
    (2) Cross reference. If the date of distribution or transfer is a 
day other than the last day of a taxable year of the acquiring 
corporation, then in determining the capital gain net income (net 
capital gain for taxable years beginning before January 1, 1977) of the 
acquiring corporation for its first taxable year ending after the date 
of distribution or transfer, section 1212 and this paragraph shall be 
applied in the special manner set forth in paragraph (e) of this 
section.
    (3) Years to which losses may be carried. The taxable years to which 
a net capital loss shall be carried are prescribed by section 1212. 
Since the taxable year of a distributor or transferor corporation ends 
with the close of the date of distribution or transfer, such

[[Page 412]]

taxable year and the first taxable year of the acquiring corporation 
which ends after that date are considered two separate taxable years to 
which a net capital loss of the distributor or transferor corporation 
for any taxable year ending before that date shall be carried. This rule 
applies even though the taxable year of the distributor or transferor 
corporation which ends on the date of distribution or transfer is a 
period of less than twelve months. However, the distribution or transfer 
has no effect in determining under section 1212 the taxable years to 
which a net capital loss of the acquiring corporation is carried. For 
this purpose, the first taxable year of the acquiring corporation which 
ends after the date of distribution or transfer constitutes only one 
taxable year even though such taxable year is considered under paragraph 
(e) of this section as two taxable years for certain purposes. The 
application of this subparagraph may be illustrated by the following 
example:

    Example. R and S Corporations are organized on January 1, 1954, and 
both corporations make their returns on the basis of the calendar year. 
R Corporation has net capital losses for its years 1954, 1955, and 1957, 
and S Corporation has net capital losses for its years 1954 and 1956. On 
June 30, 1958, R Corporation transfers all its assets to S Corporation 
in a statutory merger to which section 361 applies. The taxable years to 
which these losses of R and S Corporations may be carried are as 
follows:

------------------------------------------------------------------------
             Loss year                           Carried to
------------------------------------------------------------------------
R1954.............................  R1955, R1956, R1957, R6/30/58,
                                     S1958.
S1954.............................  S1955, S1956, S1957, S1958, S1959.
R1955.............................  R1956, R1957, R6/30/58, S1958,
                                     S1959.
S1956.............................  S1957, S1958, S1959, S1960, S1961.
R1957.............................  R6/30/58, S1958, S1959, S1960,
                                     S1961.
------------------------------------------------------------------------

    (4) Computation of carryovers in case where date of distribution or 
transfer occurs on last day of acquiring corporation's taxable year. The 
computation of the capital loss carryovers from the distributor or 
transferor corporation and from the acquiring corporation in a case 
where the date of distribution or transfer occurs on the last day of a 
taxable year of the acquiring corporation may be illustrated by the 
following example:

    Example. X and Y Corporations are organized on January 1, 1955, and 
make their returns on the basis of the calendar year. On December 31, 
1956, X Corporation transfers all its assets to Y Corporation in a 
statutory merger to which section 361 applies. The net capital losses 
and the net capital gains (capital gain net income for taxable years 
beginning after December 31, 1976), (computed without regard to any 
capital loss carryovers) of the two corporations are as follows:

------------------------------------------------------------------------
                                                     X            Y
                 Taxable year                   Corporation  Corporation
                                               (transferor)   (acquirer)
------------------------------------------------------------------------
1955.........................................    ($20,000)      ($2,000)
1956.........................................     (10,000)       (8,000)
1957.........................................  ............       25,000
1958.........................................  ............       10,000
------------------------------------------------------------------------


The sequence in which the net capital losses of X and Y Corporations are 
applied, and the computation of the capital loss carryovers to Y 
Corporation's taxable year 1959, may be illustrated as follows. (For 
purposes of this example, the carryover from a preceding taxable year of 
the transferor corporation will be applied before the carryover from the 
same preceding taxable year of the acquiring corporation):
    (i) X Corporation's 1955 loss. The carryover to 1959 is $0, computed 
as follows:

Net capital loss............................................     $20,000
Less: Y's 1957 net capital gain (computed without regard to       25,000
 any capital loss carryovers)...............................
                                                             -----------
  Carryover to Y 1958 and Y 1959............................           0
 

    (ii)Y Corporation's 1955 loss. The carryover to 1959 is $0, computed 
as follows:

Net capital loss.............................................     $2,000
Less:
  Y's 1957 net capital gain (computed without         $25,000
   regard to any capital loss carryovers)........
  Minus capital loss carryovers to Y 1957 (i.e.,       20,000
   carryover of $20,000 from X 1955).............
                                                  ------------
                                                   ..........      5,000
                                                              ----------
    Carryover to Y 1958 and Y 1959...........................          0
 

    (iii) X Corporation's 1956 loss. The carryover to 1959 is $0, 
computed as follows:

Net capital loss............................................     $10,000
Less:
  Y's 1957 net capital gain (computed without        $25,000
   regard to any capital loss carryovers).......
  Minus capital loss carryovers to Y 1957 (i.e.,      22,000
   carryovers of $20,000 from X 1955 and $2,000
   from Y 1955).................................
                                                 ------------
                                                  ..........       3,000
                                                             -----------
    Carryover to Y 1958.....................................       7,000
Less:
  Y's 1958 net capital gain (computed without        $10,000
   regard to any capital loss carryovers).......

[[Page 413]]

 
  Minus capital loss carryovers to Y 1958.......           0
                                                 ------------
                                                  ..........      10,000
                                                             -----------
    Carryover to Y 1959.....................................           0
 

    (iv) Y Corporation's 1956 loss. The carryover to 1959 is $5,000, 
computed as follows:

Net capital loss.............................................     $8,000
Less:
  Y's 1957 net capital gain (computed without         $25,000
   regard to any capital loss carryovers)........
  Minus capital loss carryovers to Y 1957 (i.e.,       32,000
   carryovers of $20,000 from X 1955, $2,000 from
   Y 1955, and $10,000 from X 1956)..............
                                                  ------------
                                                   ..........          0
                                                              ----------
    Carryover to Y 1958......................................      8,000
Less:
  Y's 1958 net capital gain (computed without         $10,000
   regard to any capital loss carryovers)........
  Minus capital loss carryovers to Y 1958 (i.e.,        7,000
   carryover of $7,000 from X 1956)..............
                                                  ------------
                                                   ..........      3,000
                                                              ----------
    Carryover to Y 1959......................................      5,000
 

    (e) Computation of carryovers when date of distribution or transfer 
is not on last day of acquiring corporation's taxable year--(1) General 
rule. If, in determining under paragraph (d) of this section the portion 
of a net capital loss for any taxable year which is carried over to a 
succeeding taxable year, an intervening taxable year is a taxable year 
of the acquiring corporation which includes, but does not end on, the 
date of distribution or transfer, the capital gain net income (net 
capital gain for taxable years beginning before January 1, 1977) of such 
intervening year shall be determined by applying section 1212 in the 
special manner provided by this paragraph.
    (2) Taxable year considered as two taxable years. Such intervening 
taxable year of the acquiring corporation shall be considered as though 
it were two taxable years, but only for the limited purpose of computing 
capital loss carryovers to subsequent taxable years. The first of such 
two taxable years shall be referred to in this paragraph as the 
preacquisition part year; the second, as the postacquisition part year. 
Though considered as two separate taxable years for purposes of this 
paragraph, the preacquisition part year and the postacquisition part 
year are treated as one taxable year in determining the years to which a 
net capital loss is carried under section 1212. See paragraph (d)(3) of 
this section.
    (3) Preacquisition part year. The preacquisition part year shall 
begin with the beginning of such taxable year of the acquiring 
corporation and shall end with the close of the date of distribution or 
transfer.
    (4) Postacquisition part year. The postacquisition part year shall 
begin with the day following the date of distribution or transfer and 
shall end with the close of such taxable year of the acquiring 
corporation.
    (5) Division of capital gain net income. The capital gain net income 
(net capital gain for taxable years beginning before January 1, 1977) 
for such intervening taxable year (computed without regard to any 
capital loss carryovers) of the acquiring corporation shall be divided 
between the preacquisition part year and the postacquisition part year 
in proportion to the number of days in each. Thus, if in a statutory 
merger to which section 361 applies Y Corporation acquires the assets of 
X Corporation on June 30, 1956, and Y Corporation has net capital gain 
(computed in the manner so prescribed) of $36,600 for its calendar year 
1956, then the preacquisition part year capital gain net income (net 
capital gain for taxable years beginning before January 1, 1977) would 
be $18,200 ($36,600x182/366) and the postacquisition part year capital 
gain net income (net capital gain for taxable years beginning before 
January 1, 1977) would be $18,400 ($36,600x184/366).
    (6) Application of capital loss carryovers. After obtaining the 
capital gain net income (net capital gain for taxable years beginning 
before January 1, 1977) of the preacquisition part year and 
postacquisition part year in the manner described in subparagraph (5) of 
this paragraph, it is necessary to determine the capital loss carryovers 
which are taken into account with respect to each such part year. The 
carryovers to be taken into account and the sequence in which such 
carryovers are applied, shall be determined in accordance with paragraph 
(d)(1) of this section but subject to the

[[Page 414]]

provisions of this subparagraph. With respect to the preacquisition part 
year, no capital loss carryovers of the distributor or transferor 
corporation shall be taken into account; that is, only capital loss 
carryovers of the acquiring corporation shall be taken into account. 
With respect to the postacquisition part year, capital loss carryovers 
of both the distributor or transferor corporation and the acquiring 
corporation shall be taken into account.
    (7) Cross reference. If an intervening taxable year is a taxable 
year of the acquiring corporation during which the acquiring corporation 
succeeds to the capital loss carryovers of two or more distributor or 
transferor corporations on two or more dates of distribution or 
transfer, the capital gain net income (net capital gain for taxable 
years beginning before January 1, 1977) of the acquiring corporation for 
such intervening taxable year shall be determined consistently with the 
rules prescribed in paragraph (c) of Sec. 1.381(c)(1)-2, except that 
the sequence in which the capital loss carryovers of the distributor or 
transferor and acquiring corporations shall be applied shall be 
determined under paragraph (d)(1) of this section.
    (8) Illustration. The application of this paragraph may be 
illustrated as follows:

    Example. X Corporation is organized on April 1, 1959, and makes its 
return on the basis of the fiscal year ending March 31. Y Corporation is 
organized on January 1, 1959, and makes its return on the basis of the 
calendar year. On June 30, 1961, X Corporation transfers all its assets 
to Y Corporation in a statutory merger to which section 361 applies. The 
net capital losses and the net capital gains (capital gain net income 
for taxable years beginning after December 31, 1976) (computed without 
regard to any capital loss carryovers) of the two corporations are as 
follows:

------------------------------------------------------------------------
                                                     X            Y
                 Taxable year                   Corporation  Corporation
                                               (transferor)   (acquirer)
------------------------------------------------------------------------
1959.........................................  ............    ($24,000)
Ending 3-31-60...............................    ($19,000)
1960.........................................  ............      (6,000)
Ending 3-31-61...............................      (5,000)
Ending 6-30-61...............................            0
1961.........................................  ............       36,500
1962.........................................  ............       12,000
------------------------------------------------------------------------


The following table shows those taxable years of the transferor and 
acquiring corporations which, with respect to Y Corporation's calendar 
year 1961, are first, second, and third preceding taxable years:

------------------------------------------------------------------------
                                                                  Y
            Taxable year                  X Corporation      Corporation
                                          (transferor)        (acquirer)
------------------------------------------------------------------------
First preceding year...............  Ending June 30, 1961..        1960
Second preceding year..............  Ending March 31, 1961.        1959
Third preceding year...............  Ending March 31, 1960.
------------------------------------------------------------------------

The sequence in which the net capital losses of X and Y Corporations are 
applied, and the computation of the capital loss carryovers to Y 
Corporation's calendar year 1963, may be illustrated as follows. (For 
purposes of this example, the carryover from a preceding taxable year of 
the acquiring corporation will be applied before the carryover from the 
same preceding taxable year of the transferor corporation):
    (i) X Corporation's 3/31/60 loss. The carryover to 1963 is $0, 
computed as follows:

Net capital loss............................................     $19,000
Less: Y's postacquisition part year net capital gain              18,400
 computed under subparagraph (5) of this paragraph ($36,500x
 184/365 )..................................................
                                                             -----------
  Carryover to Y 1962.......................................         600
Less: Y's 1962 net capital gain (computed without regard to       12,000
 any capital loss carryovers)...............................
                                                             -----------
  Carryover to Y 1963.......................................           0
 

    (ii) Y Corporation's 1959 loss. The carryover to 1963 is $0, 
computed as follows:

Net capital loss............................................     $24,000
Less: Y's preacquisition part year net capital gain computed      18,100
 under subparagraph (5) of this paragraph ($36,500x 181/365
 )..........................................................
                                                 -------------
  Carryover to Y's postacquisition part year................       5,900
Less:
  Y's postacquisition part year net capital gain     $18,400
   computed under subparagraph (5) of this
   paragraph....................................
  Minus capital loss carryovers to                    19,000           0
   postacquisition part year (i.e., carryover of
   $19,000 from X 3/31/60)......................
                                                 -----------------------
    Carryover to Y 1962.....................................       5,900
Less:
  Y's 1962 net capital gain (computed without        $12,000
   regard to any capital loss carryovers).......
  Minus capital loss carryovers to Y 1962 (i.e.,         600      11,400
   carryover of $600 from X 3/31/60)............
                                                 -----------------------
    Carryover to Y 1963.....................................           0
 

    (iii) X Corporation's 3/31/61 loss. The carryover to 1963 is $0, 
computed as follows:

Net capital loss.............................................     $5,000
Less:
  Y's postacquisition part year net capital gain      $18,400
   computed under subparagraph (5) of this
   paragraph.....................................

[[Page 415]]

 
  Minus capital loss carryovers to                     24,900
   postacquisition part year (i.e., carryovers of
   $19,000 from X 3/31/60 and $5,900 from Y 1959)
                                                  ------------
                                                   ..........          0
                                                              ----------
    Carryover to Y 1962......................................      5,000
Less:
  Y's 1962 net capital gain (computed without         $12,000
   regard to any capital loss carryovers)........
  Minus capital loss carryovers to Y 1962 (i.e.,        6,500
   carryovers of $600 from X 3/31/60 and $5,900
   from Y 1959)..................................
                                                  ------------
                                                   ..........      5,500
                                                              ----------
    Carryover to Y 1963......................................          0
 

    (iv) Y Corporation's 1960 loss. The carryover to 1963 is $5,500, 
computed as follows:

Net capital loss.............................................     $6,000
Less:
  Y's preacquisition part year net capital gain       $18,100
   computed under subparagraph (5) of this
   paragraph.....................................
  Minus capital loss carryovers to preacquisition      24,000
   part year (i.e., carryover of $24,000 from Y
   1959).........................................
                                                  ------------
                                                   ..........          0
                                                              ----------
    Carryover to Y's postacquisition part year...............      6,000
Less:
  Y's postacquisition part year net capital gain      $18,400
   computed under subparagraph (5) of this
   paragraph.....................................
  Minus capital loss carryovers to                     29,900          0
   postacquisition part year (i.e., carryovers of
   $19,000 from X 3/31/60, $5,900 from Y 1959,
   and $5,000 from X 3/31/61)....................
                                                              ----------
                                                   ..........          0
                                                              ----------
    Carryover to Y 1962......................................      6,000
Less:
  Y's 1962 net capital gain (computed without         $12,000
   regard to any capital loss carryovers)........
  Minus capital loss carryovers to Y 1962 (i.e.,      11,5000
   carryovers of $600 from X 3/31/60, $5,900 from
   Y 1959, and $5,000 from X 3/31/61)............
                                                  ------------
                                                   ..........       $500
                                                              ----------
    Carryover to Y 1963......................................      5,500
 

    (f) Successive acquiring corporations. An acquiring corporation 
which, in a transaction to which section 381(a) applies, acquires the 
assets of a distributor or transferor corporation which previously 
acquired the assets of another corporation in a transaction to which 
section 381(a) applies, shall succeed to and take into account, subject 
to the conditions and limitations of sections 1212 and 381, the capital 
loss carryovers available to the first acquiring corporation under 
sections 1212 and 381.

[T.D. 6552, 26 FR 1985, Mar. 8, 1961, as amended by T.D. 6867, 30 FR 
15094, Dec. 12, 1965; T.D. 7728, 45 FR 72650, Nov. 3, 1980]



Sec. 1.381(c)(4)-1  Method of accounting.

    (a) Carryover requirement--(1) General rule. (i) Section 381(c)(4) 
provides that, in a transaction to which section 381(a) applies, an 
acquiring corporation shall use the same method of accounting used by 
the distributor or transferor corporation on the date of distribution or 
transfer unless different methods of accounting were used on that date 
by several distributor or transferor corporations or by a distributor or 
transferor corporation and the acquiring corporation. If different 
methods of accounting were used, the acquiring corporation shall use the 
method or combination of methods of accounting adopted pursuant to this 
section.
    (ii) The acquiring corporation shall take into its accounts the 
dollar balances of those accounts of the distributor or transferor 
corporation representing items of income or deduction which, because of 
its method of accounting, were not required or permitted to be included 
or deducted by the distributor or transferor corporation in computing 
taxable income for taxable years ending on or before the date of 
distribution or transfer. The acquiring corporation shall similarly take 
into its accounts the dollar balances of those accounts of the 
distributor or transferor corporation which represents reserves in 
respect of which the distributor or transferor corporation has taken a 
deduction for taxable years ending on or before the date of distribution 
or transfer. The acquiring corporation shall also take into its accounts 
the dollar balance of that account of the distributor or transferor 
corporation which represents a suspense account established by the 
distributor or transferor corporation under section 166(f)(4) in taxable 
years ending on or before the date of distribution or transfer. Items of 
income and deduction shall have the same

[[Page 416]]

character in the hands of the acquiring corporation as they would have 
had in the hands of the distributor or transferor corporation or 
corporations if no distribution or transfer had occurred. This section 
shall have no application to items of income or deduction, or dollar 
balances, to the extent they are attributable to assets or liabilities 
not distributed or transferred, and shall have no application to items 
the tax treatment of which is specifically provided for in other 
paragraphs of section 381(c). In the case of an obligation of the 
distributor or transferor corporation which is assumed by the acquiring 
corporation and which gives rise to a liability (within the meaning of 
paragraph (a)(4) of Sec. 1.381(c)(16)-1) after the date of distribution 
or transfer, the deductibility of such an item is determined under this 
section if it is not deductible under section 381(c)(16) and the 
regulations thereunder. The amount of the adjustments necessary to 
reflect a change in accounting method pursuant to this section, the 
manner in which they are to be taken into account, and the tax 
attributable thereto shall be determined and computed under section 481 
and the regulations thereunder, subject to the rules provided in 
paragraphs (c) and (d) of this section. Where such change is a change 
from the accrual to the installment method by a dealer in personal 
property, section 453(c) and the regulations thereunder apply.
    (2) Rules of application. For purposes of section 381(c)(4) and this 
section, the term method of accounting shall have the same meaning as 
that provided under section 446 and the regulations thereunder. This 
section shall not be construed as preventing the exercise of any 
election which may be made by the acquiring corporation without consent 
of the Commissioner, or preventing the application of section 269 or 
482, or the regulations thereunder. For provisions defining the date of 
distribution or transfer, see paragraph (b) of Sec. 1.381(b)-1. See 
other paragraphs of section 381(c) and the regulations thereunder for 
other rules regarding the treatment of the carryover of certain items 
specifically enumerated therein. See Sec. 1.460-4(k) for rules relating 
to transfers of contracts accounted for using a long-term contract 
method of accounting in a transaction to which section 381 applies.
    (b) Conditions for continuation of methods of accounting--(1) No 
differences in methods of accounting. If all the parties to a section 
381(a) transaction used the same method of accounting on the date of 
distribution or transfer, the acquiring corporation shall continue to 
use such method of accounting, unless the acquiring corporation has 
obtained the consent of the Commissioner in accordance with paragraph 
(e) of Sec. 1.446-1 to use a different method of accounting. This 
subparagraph may be illustrated by the following examples:

    Example (1). X Corporation and Y Corporation use the accrual method 
as their overall method of accounting. Both corporations have 
established a reserve for bad debts under section 166(c). Pursuant to 
elections made by each corporation, they are amortizing trademark and 
trade name expenditures over a 60-month period under section 177, 
expensing intangible drilling and development costs under section 
263(c), and accruing real property taxes ratably under section 461(c). 
It is assumed that there are no other items to which paragraph (a) of 
this section might apply. Y Corporation acquires all of the assets of X 
Corporation in a transaction to which section 381(a) applies. On and 
after the date of distribution or transfer Y Corporation must continue, 
without further election, to use the same overall method of accounting 
and the same accounting treatment of the specified items, unless consent 
of the Commissioner is obtained in accordance with paragraph (e) of 
Sec. 1.446-1 to change the methods of accounting. Thus, Y Corporation 
shall carry over the balance in X Corporation's reserve for bad debts 
account, shall continue to amortize and deduct over the remaining 
portion of the 60-month period the unamortized portion of the trademark 
and trade name expenditures carried over from X Corporation, and shall 
continue the same treatment of intangible drilling and development costs 
and of real property taxes.
    Example (2). M Corporation and N Corporation use the cash receipts 
and disbursements method of accounting. N Corporation acquires all of 
the assets and assumes all the obligations of M Corporation in a 
transaction to which section 381(a) applies. M Corporation, immediately 
prior to the transaction, is entitled to receive $10,000 for unbilled 
services performed, and has billed but not received payment for services 
performed in an amount of $20,000. It has received but not paid invoices 
amounting to $18,000, and has received services in the amount of $5,000 
for which no invoices have

[[Page 417]]

been received. Since M Corporation and N Corporation are both on the 
cash receipts and disbursements method, N Corporation must continue to 
use that method, unless consent of the Commissioner is obtained in 
accordance with paragraph (e) of Sec. 1.446-1 to change its method of 
accounting. Accordingly, N Corporation must include in income when 
received the unrealized receivables of M Corporation and may deduct the 
payment of those obligations of M Corporation which would have been 
deductible by such corporation if paid by it. Thus, N Corporation shall 
treat as ordinary income the receipt by it of M Corporation's $30,000 of 
receivables, and may deduct upon payment the amount of M Corporation's 
$23,000 of payables which would have been deductible by it.
    Example (3). S Corporation and T Corporation are both publishers and 
use the accrual method as their overall method of accounting. Both 
corporations have elected under section 455 to defer prepaid 
subscription income to the taxable years during which the liability to 
furnish the newspaper, magazine, or other periodical exists. T 
Corporation, in a transaction to which section 381(a) applies, acquires 
all the assets of S Corporation and assumes the liability of such 
corporation to furnish or deliver the newspaper, magazine, or other 
periodical. On and after the date of the transfer, T Corporation must 
continue, without further election, to use the accrual method as its 
over-all method of accounting and to defer prepaid subscription income 
under section 455, unless consent of the Commissioner is obtained in 
accordance with paragraph (e) of Sec. 1.446-1 to change the method of 
accounting. T Corporation shall carry over the closing balance of S 
Corporation's prepaid subscription income account. The principles in 
this example would be equally applicable if both corporations had been 
deferring prepaid subscription income under a method permitted by 
subsection (e) of section 455.

    (2) Separate businesses. If, after the date of distribution or 
transfer, the trades or businesses of the parties to a transaction 
described in section 381(a) are operated as separate and distinct trades 
or businesses within the meaning of paragraph (d) of Sec. 1.446-1, then 
the method of accounting employed by the parties to the transaction on 
the date of distribution or transfer with respect to each trade or 
business shall be used by the acquiring corporation, unless the 
acquiring corporation has obtained the consent of the Commissioner in 
accordance with paragraph (e) of Sec. 1.446-1 to use a different method 
of accounting, or unless the Commissioner prescribes a different method 
of accounting under paragraph (b)(1) of Sec. 1.446-1. However, if only 
a single method of accounting may be employed by a taxpayer with respect 
to a particular item regardless of the number of separate and distinct 
trades or businesses operated by such taxpayer, but different methods 
were employed by the several corporations on the date of distribution or 
transfer with respect to such item, then the acquiring corporation shall 
adopt the principal method of accounting determined under paragraph (c) 
of this section (see subparagraph (2)(iv) thereof) for such item, or the 
method of accounting determined in accordance with paragraph (d) of this 
section, whichever is applicable. This subparagraph may be illustrated 
by the following examples:

    Example (1). M Corporation is engaged in a personal service business 
and uses the cash receipts and disbursements method of accounting. N 
Corporation is engaged in a retail furniture business and uses the 
accrual method of accounting. N Corporation acquires the assets of M 
Corporation in a transaction to which section 381(a) applies. In 
accordance with paragraph (d) of Sec. 1.446-1, N Corporation operates 
as a separate and distinct trade or business the personal service 
business formerly operated by M Corporation. Unless consent of the 
Commissioner is obtained in accordance with paragraph (e) of Sec. 
1.446-1 to change the method of accounting, N Corporation shall continue 
to use the cash receipts and disbursements method of accounting with 
respect to the personal service business formerly operated by M 
Corporation, and shall use the accrual method of accounting with respect 
to the retail furniture business.
    Example (2). Assume the same facts as in Example (1), except that M 
Corporation has elected under section 171 to amortize bond premium with 
respect to fully taxable bonds. N Corporation has not made the election 
to amortize bond premium with respect to such bonds owned by it. N 
Corporation may not continue separate accounting methods as to 
amortizable bond premium but must consistently apply only a single 
method of accounting with respect to such bond premium since the 
election to amortize bond premium applies to all fully taxable bonds 
held by the taxpayer. N Corporation shall use the principal method of 
accounting determined under paragraph (c) of this section for such bond 
premium, unless it is determined in accordance with paragraph (d) of 
this section that a different method of accounting is to

[[Page 418]]

be used. However, if such principal or different method of accounting is 
not to amortize bond premium N Corporation is not precluded from making 
a new election to the extent permitted by section 171.

    (3) Integrated businesses. (i) If, after the date of distribution or 
transfer, any of the trades or business of the parties to a transaction 
in section 381(a) are not operated as separate and distinct trades or 
businesses within the meaning of paragraph (d) of Sec. 1.446-1, then, 
to the extent that the same methods of accounting were employed on the 
date of distribution or transfer by the parties to the transaction with 
respect to any trades or businesses which are integrated or are required 
to be integrated in accordance with section 446(d) and the regulations 
thereunder, the acquiring corporation shall continue to employ such 
methods of accounting, unless the acquiring corporation has obtained the 
consent of the Commissioner in accordance with paragraph (e) of Sec. 
1.446-1 to use a different method of accounting, or unless the 
Commissioner prescribes a different method of accounting under paragraph 
(b)(1) of Sec. 1.446-1.
    (ii) If, after the date of distribution or transfer, any of the 
trades or businesses of the parties to a transaction described in 
section 381(a) are not operated as separate and distinct trades or 
businesses within the meaning of paragraph (d) of Sec. 1.446-1, then, 
to the extent that different methods of accounting were employed on the 
date of distribution or transfer by the parties to the transaction with 
respect to any trades or businesses which are integrated or required to 
be integrated in accordance with section 446(d) and the regulations 
thereunder, this paragraph shall not apply and the acquiring corporation 
shall adopt the principal method of accounting determined under 
paragraph (c) of this section or the method of accounting determined in 
accordance with paragraph (d) of this section, whichever is applicable.
    (iii) The provisions of this subparagraph may be illustrated by the 
following examples:

    Example (1). M Corporation and N Corporation both use the accrual 
method as an overall method of accounting. M Corporation has established 
a reserve for bad debts while N Corporation uses the specific charge-off 
method with respect to its bad debts. N Corporation acquires all of the 
assets of M Corporation in a transaction to which section 381(a) applies 
and integrates the business formerly operated by M Corporation into the 
business operated by N Corporation before the date of distribution or 
transfer. N Corporation shall continue to use the accrual method as its 
overall method of accounting, unless consent of the Commissioner is 
obtained in accordance with paragraph (e) of Sec. 1.446-1 to change its 
method of accounting. N Corporation shall use the principal method of 
accounting determined under paragraph (c) of this section with respect 
to bad debts, or the method of accounting determined in accordance with 
paragraph (d) of this section, whichever is applicable.
    Example (2). X Corporation conducts two separate and distinct trades 
or businesses, a personal service business with respect to which the 
cash receipts and disbursements method of accounting is used and a 
manufacturing business with respect to which the accrual method of 
accounting is used. Y Corporation conducts a manufacturing business and 
uses the accrual method of accounting. Y Corporation acquires all of the 
assets of X Corporation in a transaction to which section 381(a) 
applies. After the date of distribution or transfer, Y integrates the 
manufacturing business formerly operated by X Corporation into the 
manufacturing business operated by it and continues to operate as a 
separate and distinct trade or business the personal service business 
formerly operated by X Corporation. Unless consent of the Commissioner 
is obtained in accordance with paragraph (e) of Sec. 1.446-1 to change 
the method of accounting, Y Corporation shall continue to use the 
accrual method of accounting with respect to the integrated 
manufacturing business and shall continue to use the cash receipts and 
disbursements method of accounting with respect to the personal service 
business.

    (4) Rules of application. In any case where the method of accounting 
employed on the date of distribution or transfer is continued, it will 
be unnecessary for the acquiring corporation to renew any election 
previously made by it or by any distributor or transferor corporation 
with respect to such method of accounting. Also, the acquiring 
corporation is bound by any election previously made by it or by any 
distributor or transferor corporation with respect to such method of 
accounting which is in effect on the date of distribution or transfer to 
the same extent as though the distribution or transfer had not occurred. 
If, on the

[[Page 419]]

date of distribution or transfer, any party to a section 381(a) 
transaction had no established method of accounting for any item, or 
came into existence as a result of the transaction, such party shall not 
be considered to be using a method of accounting for such item or having 
an overall method of accounting different from that used by the other 
parties to the transaction. Where under other sections of the Internal 
Revenue Code or regulations thereunder a taxpayer is permitted to elect 
a method of accounting on a project-by-project, job-by-job, or other 
similar basis (such as the election to charge taxes and carrying charges 
to capital account under Sec. 1.266-1), that method elected with 
respect to each project or job shall be deemed to be an established 
method of accounting only for the project or job for which it is 
elected. Accordingly, unless two or more of the parties were working on 
the same project or job and were using different methods of accounting 
for such project or job before the date of distribution or transfer, the 
method of accounting previously elected for each project or job must be 
continued.
    (c) Change of method of accounting without consent of Commissioner--
(1) General rule. If the acquiring corporation may not continue to use, 
under the provisions of paragraph (b) of this section, the method of 
accounting used by it or the distributor or transferor corporation or 
corporations on the date of distribution or transfer, the acquiring 
corporation shall use the principal method of accounting of such 
corporation (as determined under subparagraph (2) of this paragraph), 
provided that (i) such method of accounting clearly reflects the income 
of the acquiring corporation, and (ii) the use of such method is not 
inconsistent with the provisions of any closing agreement entered into 
under section 7121 and the regulations thereunder. If the principal 
method of accounting does not meet these requirements, or if there is no 
principal method of accounting, see subdivision (i) of paragraph (d)(1) 
of this section. If the acquiring corporation wishes to use a method of 
accounting other than the principal method of accounting, see 
subdivision (ii) of paragraph (d)(1) of this section. Whenever this 
paragraph applies, the increase or decrease in tax resulting from the 
change from the method of accounting previously used by any of the 
corporations involved shall be taken into account by the acquiring 
corporation. The adjustments necessary to reflect such change and such 
increase or decrease in tax shall be determined and computed in the same 
manner as if on the date of distribution or transfer each of the several 
corporations whose method or methods of accounting are required to be 
changed in accordance with this section had initiated a change in 
accounting method. In addition, the acquiring corporation shall take 
into account the portion of such adjustments which is attributable to 
pre-1954 Code years to the extent not taken into account by any of the 
other corporations in accordance with the rules provided in section 
481(b)(4) and this paragraph. If the principal method of accounting is 
adopted under this paragraph, it will be unnecessary for the acquiring 
corporation to renew any election previously made by it or by any 
distributor or transferor corporation with respect to such principal 
method of accounting. Also, in such event, the acquiring corporation is 
bound by any election previously made by it or by any distributor or 
transferor corporation with respect to such principal method of 
accounting which is in effect on the date of distribution or transfer to 
the same extent as though the distribution or transfer had not occurred.
    (2) Principal method of accounting. (i) The determination of the 
principal method of accounting shall be made with respect to each 
integrated trade or business operated by the acquiring corporation 
immediately after the date of distribution or transfer, except with 
respect to items for which only a single method of accounting may be 
used by any one taxpayer. See subdivision (iv) of this subparagraph. 
Such determination for an integrated trade or business shall be made by 
reference to the methods of accounting used immediately preceding the 
date of distribution or transfer by each of the component trades or 
businesses which now constitute the integrated trade or business of the 
acquiring corporation. The

[[Page 420]]

method of accounting for items other than those for which special 
methods of accounting are provided under chapter 1 of the Code and the 
regulations thereunder (see Sec. 1.446-1(c)(1)(iii)) shall be governed 
by the principal overall method determined for such trade or business 
under subdivision (ii) of this subparagraph. The method of accounting 
for items for which special methods of accounting are provided under 
chapter 1 of the Code and the regulations thereunder shall be determined 
under subdivision (iii) of this subparagraph.
    (ii) The principal overall method of accounting of an integrated 
trade or business is determined by making a comparison of--
    (a) The total of the adjusted bases of the assets (determined under 
section 1011 and the regulations thereunder) immediately preceding the 
date of distribution or transfer, and
    (b) The gross receipts for a representative period (ordinarily the 
most recent period of 12 consecutive calendar months ending on or prior 
to the date of distribution or transfer)

of the component trades or businesses which are integrated or are 
required to be integrated. If more than one component trade or business 
used the same overall method, then such total assets and gross receipts 
of each of the component trades or businesses shall be aggregated and 
compared with the aggregate of such total assets and gross receipts of 
other component trades or businesses which used a different overall 
method. If this comparison shows that the one or more component trades 
or businesses (using a common overall method of accounting) having the 
greatest total of the adjusted bases of assets also has the greatest 
amount of gross receipts, then the overall method of accounting of such 
one or more component trades or businesses shall be the principal 
overall method of accounting. If this comparison shows that the one or 
more component trades or businesses (using a common overall method of 
accounting) having the greatest total of the adjusted bases of assets 
does not also have the greatest amount of gross receipts, then there is 
no principal overall method of accounting, and the acquiring corporation 
shall request the Commissioner to determine the appropriate overall 
method of accounting for such integrated trade or business in accordance 
with paragraph (d) of this section.
    (iii) The principal method of accounting for an item for which a 
special method or methods of accounting are provided under chapter 1 of 
the Code and the regulations thereunder is determined by comparing the 
amounts of such item and related accounts for the component trades or 
businesses in accordance with the principles of subdivision (ii) of this 
subparagraph. Thus, for example, in the case of bad debts, trades or 
businesses which are components of the integrated trade or business and 
which had been using the reserve method of accounting will be compared 
with the other component trades or businesses which had been using the 
specific charge-off method of accounting. In such a case, the following 
factors would ordinarily be used in determining the principal method of 
accounting for bad debts: (a) Sales on account for the most recent 
period of 12 consecutive calendar months ending on or prior to the date 
of distribution or transfer, (b) accounts receivable immediately before 
the date of distribution or transfer, and (c) the amount of debts which 
became worthless within the meaning of section 166(a) and the 
regulations thereunder during the most recent period of 12 consecutive 
calendar months ending on or prior to the date of distribution or 
transfer. If this comparison shows that the one or more component trades 
or businesses using the same method of accounting with respect to bad 
debts have the greater amounts of such sales, accounts receivable, and 
bad debts, then the method of accounting with respect to bad debts for 
such one or more component trades or businesses shall be the principal 
method of accounting. If such comparison shows that the one or more 
component trades or businesses using the same method of accounting with 
respect to bad debts do not have the greater amounts of all of such 
items, then there is no principal method of accounting with respect to 
bad debts, and the acquiring corporation shall request the Commissioner 
to determine the appropriate method of accounting for bad

[[Page 421]]

debts for such integrated trade or business in accordance with paragraph 
(d) of this section.
    (iv) If a single method of accounting must be employed by a taxpayer 
with respect to a particular item regardless of the number of separate 
and distinct trades or businesses operated by the taxpayer, the 
principal method of accounting for such item shall be determined by 
comparing the aggregate amount of the item and related accounts for all 
the parties to the transaction using a common method, with the aggregate 
amount of the item and related accounts for those parties to the 
transaction which use a different common method. The method of 
accounting of the party having the greatest aggregate amount of such 
item and related accounts shall be the principal method of accounting 
for such item.
    (3) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example (1). M Corporation, which commenced business in 1955, uses 
the cash receipts and disbursements method of accounting, while N 
Corporation uses the accrual method. On June 30, 1961, N Corporation 
acquires all of the assets of M Corporation in a transaction to which 
section 381(a) applies. N Corporation then integrates its own business 
with that of M Corporation. Immediately prior to the transfer the total 
of the adjusted bases of the assets of N Corporation was greater than 
that of M Corporation, and for the 12-month period ending on June 30, 
1961, the gross receipts of N Corporation were greater than that of M 
Corporation. Under such circumstances, the accrual method of accounting 
is the principal overall method of accounting and N Corporation shall 
use such method for the integrated business, provided it clearly 
reflects income, unless consent of the Commissioner is obtained in 
accordance with paragraph (d) of this section to use a different method 
of accounting. Except as to items for which N Corporation had no 
established method of accounting and items for which a special method of 
accounting is provided under chapter 1 of the Code and the regulations 
thereunder, all adjustments necessary to place the accounts of M 
Corporation on the accrual method shall be made in accordance with 
section 481. Any increase or decrease in tax resulting from such 
adjustments shall be taken into account by N Corporation. Such 
adjustments and such increase or decrease in tax shall be determined and 
computed in the same manner as if M Corporation had initiated a change 
in method of accounting on June 30, 1961.
    Example (2). Assume the same facts as in Example (1) except that the 
gross receipts of M Corporation were greater than those of N Corporation 
for the 12-month period ending on June 30, 1961. N Corporation must, 
under such circumstances, request the Commissioner to determine the 
appropriate overall method of accounting, in accordance with the 
provisions of paragraph (d) of this section. The necessary adjustments 
to be made by the corporation whose method of accounting is changed 
shall be made in accordance with section 481 to place the integrated 
business on the method so adopted. Any increase or decrease in tax 
resulting from such adjustments shall be taken into account by N 
Corporation. Such adjustments and such increase or decrease in tax shall 
be determined and computed in the same manner as if the corporation 
whose method is changed had initiated a change in method of accounting 
on June 30, 1961.
    Example (3). Assume the same facts as in Example (1). Assume further 
that M Corporation's deduction for wages and salaries for the 12 
calendar months ending on June 30, 1961, is larger than N Corporation's 
deduction for wages and salaries for such period. Since wages and 
salaries is not an item for which a special method of accounting is 
provided under chapter 1 of the Code or the regulations thereunder, the 
necessary adjustments shall be made in accordance with section 481 to 
place the wages and salary account of M Corporation on the accrual 
method of accounting, provided such accrual method clearly reflects 
income, unless consent of the Commissioner is obtained in accordance 
with paragraph (d) of this section to use a different method of 
accounting. Any increase or decrease in tax resulting from such 
adjustments shall be taken into account by N Corporation. Such 
adjustments and such increase or decrease in tax shall be determined and 
computed in the same manner as if M Corporation had initiated a change 
in method of accounting on June 30, 1961.
    Example (4). Assume the same facts as in Example (1). Assume further 
that M Corporation used the specific charge-off method with respect to 
bad debts, and that N Corporation has established a reserve for bad 
debts. M Corporation's sales on account and bad debts for the 12 
calendar months ending June 30, 1961, were larger than those of N 
Corporation. Also M Corporation's accounts receivable immediately prior 
to June 30, 1961, were larger than those of N Corporation. Since the 
method of accounting for bad debts is a special method of accounting 
under section 166, M Corporation's method of accounting for bad debts is 
the principal method of accounting for such item. Assuming such method 
clearly reflects income, appropriate adjustments shall be made in 
accordance with section 481 to the accounts of N Corporation to

[[Page 422]]

place N Corporation on the specific charge-off method with respect to 
all of its bad debts, as if N Corporation had initiated a change in 
method of accounting on June 30, 1961, and N Corporation shall include 
the amount of its reserve for bad debts in gross income, unless consent 
of the Commissioner is obtained in accordance with paragraph (d) of this 
section to use a different method of accounting.
    Example (5). Assume the same facts as in Example (1) except that M 
Corporation commenced business in 1945. In addition assume that N 
Corporation is a calendar-year taxpayer and that of the total amount of 
the adjustments required by section 481 to place the accounts of M 
Corporation on the accrual method $40,000 is attributable to pre-1954 
Code years as described in section 481(b)(4) and the regulations 
thereunder. Assume further that M Corporation does not elect, under 
section 481(b)(6), to take the $40,000 portion of the adjustments into 
account in the manner described in section 481(b)(1) or (2). In 
computing the increase in tax of M Corporation attributable to the 
$40,000 portion of the adjustment for the fiscal year ended June 30, 
1961, only one-tenth, or $4,000, will be taken into account. The 
resulting increase in tax shall be taken into account by N Corporation. 
The remaining nine-tenths of the $40,000 portion of the adjustments, or 
$36,000, shall be taken into account by N Corporation in the amount of 
$4,000 in each of the calender years 1962 through 1970.

    (d) Change of method of accounting with consent of Commissioner--(1) 
General rule. (i) If the acquiring corporation may not continue to use, 
under paragraph (b), the method of accounting used by it or the 
distributor or transferor corporation or corporations on the date of 
distribution or transfer, and may not under paragraph (c) use the 
principal method of accounting, or, if there is no principal method of 
accounting, then the Commissioner shall determine the appropriate method 
or combination of methods of accounting to be used.
    (ii) If an acquiring corporation wishes to use a method or 
combination of methods of accounting other than the principal method of 
accounting which is required to be used by paragraph (c) of this 
section, it shall apply to the Commissioner for permission to use such 
other method or combination of methods of accounting. Permission to use 
such other method or combination of methods of accounting will not be 
granted unless the acquiring corporation and the Commissioner agree to 
the terms, conditions, and adjustments under which the change to such 
method or combination of methods will be effected.
    (iii) The increase or decrease in tax resulting from the change from 
the method of accounting previously used by any of the corporations 
involved shall be taken into account by the acquiring corporation. The 
adjustments necessary to reflect such change and such increase or 
decrease in tax shall be determined and computed in the same manner as 
if, on the date of distribution or transfer, each of the several 
corporations that were not using the method or combination of methods of 
accounting adopted pursuant to subdivision (i) or (ii) of this 
subparagraph had initiated a change in accounting method.
    (2) Time and manner of making application. Applications under 
subparagraph (1) of this paragraph for permission to use a method of 
accounting or requests for determination of the method of accounting to 
be used shall be filed with the Commissioner of Internal Revenue, 
Attention: T:R, Washington, DC, 20224, not later than 90 days after the 
date of distribution or transfer, except that in cases where the date of 
distribution or transfer occurs before August 5, 1964, such applications 
or requests shall be filed not later than November 3, 1964. The 
application shall be accompanied by a copy of the statement described in 
paragraph (b)(3) of Sec. 1.381(b)-1, and by a statement specifying the 
nature of the transaction which causes section 381 to apply; the 
difference in accounting methods used by the corporations concerned; the 
method or methods of accounting proposed to be used by the acquiring 
corporation; and the various amounts, if any, of items of income or 
deduction which will be duplicated or omitted in the computation of 
taxable income under such proposed method or methods. The Commissioner 
may also require such other information as may be necessary in order to 
determine the appropriate method or combination of methods of accounting 
to be used by the acquiring corporation.
    (e) Special rules applicable to distributions or transfers before 
August 5, 1964--(1) Statute of limitations bars assessment

[[Page 423]]

or refund. If the date of distribution or transfer was before August 5, 
1964, and if the assessment of any deficiency or the refund or credit of 
any overpayment for the taxable year of the acquiring corporation which 
includes the date of distribution or transfer or any subsequent taxable 
year is prevented by the operation of any law or rule of law, then this 
section does not authorize the Commissioner or the acquiring corporation 
to change any method or methods of accounting in any taxable year of the 
acquiring corporation. However, the Commissioner or the acquiring 
corporation may change such method or methods of accounting under the 
provisions of section 446 and the regulations thereunder or, where 
applicable, any section of the Internal Revenue Code (other than section 
381(c)(4)), or the regulations thereunder, in accordance with which such 
changes may be made without the consent of the Commissioner.
    (2) Statute of limitations does not bar assessment and refund. 
Except as provided in subparagraph (1) of this paragraph--
    (i) If the date of distribution or transfer was before August 5, 
1964, and the acquiring corporation has, for the taxable year which 
includes the date of distribution or transfer, (a) adopted or continued 
a method of accounting consistent with the rules of this section, (b) 
been granted permission by the Commissioner in accordance with paragraph 
(e) of Sec. 1.446-1 to use a method or combination of methods of 
accounting, or (c) adopted a method of accounting that under other 
sections of the Internal Revenue Code, or regulations thereunder, may be 
adopted without the consent of the Commissioner, then the method or 
methods of accounting adopted or continued in the manner described in 
(a), (b), and (c) shall not be changed, by reason of the rules contained 
in this section, by the Commissioner or the acquiring corporation for 
any taxable year ending after the date of distribution or transfer. 
However, the Commissioner or the acquiring corporation may change such 
methods of accounting for any such taxable year under the provisions of, 
and to the extent permitted by, section 446 and the regulations 
thereunder or, where applicable, any section of the Internal Revenue 
Code (other than section 381(c)(4)), or regulations thereunder, in 
accordance with which such change may be made without the consent of the 
Commissioner.
    (ii) If the date of distribution or transfer was before August 5, 
1964, and the acquiring corporation has, for the taxable year which 
includes the date of distribution or transfer, adopted or continued a 
method or methods of accounting other than in the manner described in 
(a), (b), and (c) of subdivision (i) of this subparagraph, then the 
acquiring corporation may--
    (a) Continue to use the method or methods of accounting so adopted 
or continued if such method or methods clearly reflect income and if 
proper adjustments were made to reflect the adoption of such method or 
methods, or
    (b) Adopt the method or methods of accounting prescribed by this 
section. Such method or methods of accounting shall be adopted by filing 
an amended return (which includes the proper adjustments required by 
this section) for the taxable year of the acquiring corporation which 
includes the date of distribution or transfer, and by filing amended 
returns for all subsequent taxable years of the acquiring corporation 
for which returns have previously been filed. Such amended return or 
returns shall be accompanied by a copy of the statement described in 
paragraph (b)(3) of Sec. 1.381(b)-1, and by a statement specifying the 
nature of the transaction which causes section 381 to apply; the 
difference in accounting methods used by the corporations concerned; the 
method or methods of accounting originally adopted by the acquiring 
corporation; the method or methods of accounting adopted on the amended 
return or returns; and the computation of the amount of the adjustments 
and the resulting increase or decrease in tax.

[T.D. 6750, 29 FR 11263, Aug. 5, 1964, as amended by T.D. 8071, 51 FR 
2481, Jan. 17, 1986; T.D. 8995, 67 FR 34605, May 15, 2002]



Sec. 1.381(c)(5)-1  Inventories.

    (a) Carryover requirement--(1) General rule. Section 381(c)(5) 
provides that in a

[[Page 424]]

transaction to which section 381(a) applies and in which inventories are 
received by the acquiring corporation (as defined in Sec. 1.381(a)-
1(b)(2)) such inventories shall be taken by the acquiring corporation 
(in determining its income) on the same basis on which such inventories 
were taken by the distributor or transferor corporation on the date of 
distribution or transfer unless different inventory methods were used on 
that date by several distributor or transferor corporations or by a 
distributor or transferor corporation and the acquiring corporation. If 
different methods were used, the acquiring corporation shall use the 
method or combination of methods of taking inventories adopted pursuant 
to the provisions of this section.
    (2) Rules of application. Reference in this section to a method or 
methods of taking inventories are to be construed as referring to both 
the method or methods of identifying the goods and the method or methods 
of valuing the goods. The method or methods of taking inventories shall 
be determined on the date of distribution or transfer, and any 
corporation, a party to a section 381(a) transaction whose taxable year 
does not end on such date shall be considered as using the method or 
methods of taking inventories that it would have employed had its 
taxable year ended on such date. The amount of the adjustments necessary 
to reflect the change in method of taking inventories pursuant to this 
section, the manner in which they are to be taken into account by the 
acquiring corporation, and the tax attributable thereto shall be 
determined and computed under section 481 and the regulations 
thereunder, subject to the rules provided in paragraphs (c) and (d) of 
this section. However, in the case of any party to a section 381(a) 
transaction which changes its method of taking inventories to the last-
in, first-out method of identification, the adjustments required by 
section 472(d) shall be applicable. See paragraph (e) of this section. 
This section shall not be construed as preventing any party to a section 
381(a) transaction from adopting an inventory method which, under the 
provisions of section 471 or 472, and the regulations thereunder, may be 
adopted without the consent of the Commissioner. For provisions defining 
the date of distribution or transfer, see paragraph (b) of Sec. 
1.381(b)-1.
    (b) Conditions for continuation of methods of taking inventories--
(1) No difference in method of taking inventories. (i) If all the 
parties to a section 381(a) transaction used the same method of taking 
inventories on the date of distribution or transfer, the acquiring 
corporation, whether or not immediately after the date of distribution 
or transfer it operates separate or integrated trades or businesses, 
shall continue to use such method of taking inventories, unless the 
acquiring corporation has, in accordance with paragraph (e) of Sec. 
1.446-1, obtained the consent of the Commissioner to use a different 
method of taking inventories. For purposes of this determination, a 
corporation shall be deemed to be using the last-in, first-out method of 
taking inventories with respect to a particular type of goods on the 
date of the distribution or transfer, if such corporation elects, under 
the provisions of section 472, to adopt the last-in, first-out method 
with respect to such goods for its taxable year within which or with 
which the date of distribution or transfer occurs.
    (ii) The provisions of this subparagraph may be illustrated by the 
following example:

    Example. O and P corporations are manufacturing companies which 
compute their entire inventories by the use of the last-in, first-out 
method of identification and the cost basis of valuation. In applying 
the last-in, first-out method both corporations use the dollar-value 
method, use the double-extension method, pool under the natural business 
unit method, and value annual inventory increases by reference to the 
actual cost of goods most recently purchased. P corporation acquires the 
assets of O corporation in a transaction to which section 381(a) 
applies. Under the provisions of this subparagraph, on and after the 
date of distribution or transfer P corporation must continue to use the 
last-in, first-out method of identification, the cost basis of 
valuation, and, in applying the last-in, first-out method, must continue 
to use the dollar-value method, use the double-extension method, pool 
under the natural business unit method, and value annual inventory 
increases by reference to the actual cost of goods most recently 
purchased, unless, in accordance with paragraph (e) of Sec. 1.446-1, 
consent of the Commissioner

[[Page 425]]

is obtained to change the method of taking inventories.

    (2) Separate businesses. (i) If, immediately after the date of 
distribution or transfer, any of the trades or businesses of the parties 
to a section 381(a) transaction are operated as separate and distinct 
trades or businesses within the meaning of paragraph (d) of Sec. 1.446-
1, then the method or methods of taking inventories employed by such 
parties to the transaction on the date of distribution or transfer with 
respect to such trades or businesses shall be used by the acquiring 
corporation, unless the acquiring corporation has, in accordance with 
paragraph (e) of Sec. 1.446-1, obtained the consent of the Commissioner 
to use a different method of taking inventories. This subparagraph shall 
not be construed as precluding the Commissioner under section 471 or 
472, and the regulations thereunder, from requiring that the method of 
taking inventories used in a particular trade or business be used in 
another trade or business with respect to similar types of goods, if, in 
the opinion of the Commissioner, the use of such method of taking 
inventories is necessary for a clear reflection of income.
    (ii) The provisions of this subparagraph may be illustrated by the 
following example:

    Example. R Corporation is engaged in the production of radios and 
television sets and S Corporation is engaged in the production of 
washers and driers. In computing their inventories both corporations use 
the cost basis of valuation. R corporation uses the last-in, first-out 
method of identification, whereas S corporation uses the first-in, 
first-out method. T corporation acquires the assets of R corporation and 
S corporation in a transaction to which section 381(a) applies. T 
corporation operates as a separate and distinct trade or business, 
within the meaning of paragraph (d) of Sec. 1.446-1, each of the 
businesses formerly operated by R corporation and S corporation. Under 
the provisions of this subparagraph, T corporation is required to 
continue to use the method of taking inventories previously used by R 
corporation and S corporation, respectively, with respect to each trade 
or business, unless, in accordance with paragraph (e) of Sec. 1.446-1, 
consent of the Commissioner is obtained to change the methods of taking 
inventories, on and after the dates of transfer. However, the 
Commissioner may require T corporation, in accordance with Sec. 1.472-
2, to use the last-in, first-out method with respect to that portion of 
the goods in the trades or businesses formerly operated by S corporation 
and T corporation which are similar to goods in the trade or business 
formerly operated by R corporation, if, in his opinion, the use of the 
last-in, first-out method with respect to such similar goods is 
necessary for a clear reflection of income.

    (3) Integrated businesses--(i) Same inventory method. If, 
immediately after the date of distribution or transfer, any of the 
trades or businesses of the parties to a section 381(a) transaction are 
not operated as separate and distinct trades or businesses within the 
meaning of paragraph (d) of Sec. 1.446-1, then, to the extent that the 
same methods of taking inventories for particular types of goods were 
employed on the date of distribution or transfer by the parties to the 
transaction with respect to any trades or businesses which are 
integrated or are required to be integrated in accordance with paragraph 
(d) of Sec. 1.446-1, the acquiring corporation shall continue to employ 
such methods of taking inventories for such types of goods, unless, in 
accordance with paragraph (e) of Sec. 1.446-1, the acquiring 
corporation has obtained the consent of the Commissioner to use a 
different method of taking inventories. This subdivision shall not be 
construed as precluding the Commissioner under section 471 or 472, and 
the regulations thereunder, from requiring that the method of taking 
inventories used with respect to particular types of goods in a 
particular trade or business operated by the acquiring corporation after 
the date of distribution or transfer be used with respect to similar 
types of goods in another trade or business operated by it after such 
date if, in the opinion of the Commissioner, the use of such method of 
taking inventories is necessary for a clear reflection of income.
    (ii) Different inventory methods. If, immediately after the date of 
distribution or transfer, any of the trades or businesses of the parties 
to a section 381(a) transaction are not operated as separate and 
distinct trades or businesses within the meaning of paragraph (d) of 
Sec. 1.446-1, then, to the extent that different methods of taking 
inventories for particular types of goods were employed on the date of 
distribution or

[[Page 426]]

transfer by the parties to the transaction with respect to any trades or 
businesses which are integrated or required to be integrated in 
accordance with paragraph (d) of Sec. 1.446-1, the acquiring 
corporation shall not be permitted to continue to use such different 
methods of taking inventories, and shall adopt the method of taking 
inventories described in paragraph (c) of this section for such types of 
goods unless, in accordance with paragraph (d) of this section, consent 
of the Commissioner is obtained to use a different method of taking 
inventories.
    (iii) Examples. The provisions of this subparagraph may be 
illustrated by the following examples:

    Example (1). O and P corporations are manufacturing companies which 
compute their entire inventories by the use of the last-in, first-out 
method of identification and the cost basis of valuation. In applying 
the last-in, first-out method both corporations use the dollar-value 
method and the double-extension method. However, O corporation pools 
under the natural business unit method while P corporation pools under 
the multiple pool method. In addition, O corporation determines the cost 
of its annual inventory increase by reference to the actual cost of 
goods most recently purchased, whereas P corporation determines the cost 
of such increase by reference to the actual cost of the goods purchased 
during the taxable year in the order of acquisition. P corporation 
acquires the assets of O corporation in a transaction to which section 
381(a) applies and integrates the business formerly operated by O 
corporation into the business which was operated by P corporation before 
the date of distribution or transfer. Under the provisions of 
subdivision (i) of this subparagraph (relating to the same inventory 
methods in an integrated trade or business), P corporation shall 
continue to use the last-in, first-out method of identification, the 
cost basis of valuation, and in applying the last-in, first-out method, 
shall continue to use the dollar-value method and the double-extension 
method, unless, in accordance with paragraph (e) of Sec. 1.446-1, 
consent of the Commissioner is obtained to change the method of taking 
inventories. However, under the provisions of subdivision (ii) of this 
subparagraph (relating to different inventory methods in an integrated 
trade or business), P corporation shall use the method of taking 
inventories described in paragraph (c) of this section with respect to 
the method of pooling and the method of determining the cost of annual 
inventory increases, unless, in accordance with paragraph (d) of this 
section, consent of the Commissioner is obtained to use a different 
method of taking inventories.
    Example (2). Y and Z corporations are engaged in the manufacture of 
cereal products. Y corporation uses the first-in, first-out method of 
identification and the cost or market, whichever is lower, method of 
valuing its inventories, including oats. Z corporation uses the first-
in, first-out method of identification and the cost or market, whichever 
is lower, method of valuing its inventories, except oats which are 
valued on the cost method. Y corporation acquires all of the assets of Z 
corporation in a transaction to which section 381(a) applies and 
integrates the business formerly operated by Z corporation into the 
business which was operated by Y corporation before the date of 
distribution or transfer. Under the provisions of subdivision (i) of 
this subparagraph (relating to the same inventory methods in an 
integrated trade or business), Y corporation must continue to use the 
first-in, first-out method with respect to all of its inventories and 
must continue to use the cost or market, whichever is lower, method of 
valuing all inventories except oats, unless, in accordance with 
paragraph (e) of Sec. 1.446-1, consent of the Commissioner is obtained 
to change the method of taking inventories. In addition, under the 
provisions of subdivision (ii) of this subparagraph (relating to 
different inventory methods in an integrated trade or business), Y 
corporation shall use the method described in paragraph (c) of this 
section in valuing its inventory of oats, unless, in accordance with 
paragraph (d) of this section, consent of the Commissioner is obtained 
to use a different method of valuing its oats.

    (4) Rules of application. (i) In any case where the method of taking 
inventories employed on the date of distribution or transfer is 
continued, it will be unnecessary for the acquiring corporation to renew 
any election previously made by it or by any distributor or transferor 
corporation with respect to such method of taking inventories, and the 
acquiring corporation is bound by any such elections. If, on the date of 
distribution or transfer, any party to a section 381(a) transaction had 
no inventories of a particular type of goods, or such party came into 
existence as a result of the transaction, such party shall not be 
considered to be using a method of taking inventories for the particular 
type of goods different from that used by the other parties to the 
transaction. If, on the date of distribution or transfer, any one of the 
parties

[[Page 427]]

to the transaction is using the cash receipts and disbursements method 
of accounting and is not required to take inventories, the determination 
as to whether such method of accounting is to be continued by the 
acquiring corporation shall be made in accordance with section 381(c)(4) 
and the regulations thereunder.
    (ii) The provisions of this subparagraph may be illustrated by the 
following examples:

    Example (1). M corporation is engaged in manufacturing and computes 
its inventories under the first-in, first-out method of identification 
and the cost or market, whichever is lower, method of valuation. N 
corporation is also engaged in manufacturing and computes its 
inventories under the first-in, first-out method of identification and 
the cost method of valuation. M corporation acquires the assets of N 
corporation in a transaction to which section 381(a) applies and M 
corporation integrates the business formerly operated by N corporation 
into the business which was operated by M corporation before the date of 
distribution or transfer. On the date of distribution or transfer, N 
corporation has inventories of sheet steel while M corporation has no 
inventories of this particular type of goods. In all other respects the 
inventories of the two corporations consist of similar types of goods. 
Under the provisions of this subparagraph, M corporation must use the 
first-in, first-out method of identification and the cost method of 
valuation of inventories of sheet steel, unless, in accordance with 
paragraph (e) of Sec. 1.446-1, consent of the Commissioner is obtained 
to change the method of taking such inventories. For other goods in its 
inventories M corporation must use the first-in, first-out method of 
identification (as required by subparagraph (3)(i) of this paragraph), 
and with respect to the method of valuation, must use the method of 
taking inventories described in paragraph (c) of this section, unless, 
in accordance with paragraph (d) of this section, consent of the 
Commissioner is obtained to use a different method of taking 
inventories.
    Example (2). W corporation is engaged in the business of raising 
cattle and uses the cash receipts and disbursements method of computing 
taxable income. Inventories, therefore, are not required. X corporation 
is also engaged in the business of raising cattle and uses the accrual 
method of computing taxable income under which it has elected to use the 
``farm-price method'' of valuing inventories. The assets of W 
corporation are acquired by X corporation in a transaction to which 
section 381(a) applies and X corporation integrates the business 
formerly operated by W corporation into the business which was operated 
by X corporation before the date of distribution or transfer. Under the 
provisions of this subparagraph, whether X corporation is required to 
take inventories will depend upon which method of accounting is used by 
X corporation after the date of distribution or transfer, in accordance 
with the provisions of section 381(c)(4) and the regulations thereunder. 
Therefore, if X corporation uses the cash receipts and disbursements 
method, it will not be required to take inventories into account in 
computing its taxable income. However, if X corporation uses the accrual 
method, it must use the ``farm-price method'' of taking inventories, 
unless, in accordance with paragraph (d) of this section, consent of the 
Commissioner is obtained to use a different method of taking 
inventories.

    (c) Change of method of taking inventories without consent of 
Commissioner--(1) General rule. If, under the provisions of paragraph 
(b) of this section, the acquiring corporation is not permitted to 
continue to use the method of taking inventories used by it or by the 
distributor or transferor corporation or corporations on the date of 
distribution or transfer, the acquiring corporation shall use the 
principal method of taking inventories for each particular type of goods 
of such corporations, as determined under subparagraph (2) of this 
paragraph: Provided, That:
    (i) Such method clearly reflects the income of the acquiring 
corporation after the distribution or transfer as provided by sections 
446(a) and 471 and the regulations thereunder, and
    (ii) The use of such method is not inconsistent with the provisions 
of any closing agreement entered into under section 7121 and the 
regulations thereunder.

If the principal method does not satisfy the requirements of 
subdivisions (i) and (ii) of this subparagraph, or if the acquiring 
corporation wishes to use a method other than the principal method, see 
paragraph (d)(1) of this section. If the principal method of taking 
inventories is adopted under this paragraph, it will not be necessary 
for the acquiring corporation or corporations to renew any election 
previously made by it or by the distributor or transferor corporation 
with respect to such principal method of taking inventories, and the 
acquiring corporation is bound by any such election.

[[Page 428]]

    (2) Principal method of taking inventories. The determination of the 
principal method of taking inventories shall be made with respect to 
each particular type of goods of each integrated trade or business 
operated by the acquiring corporation immediately after the date of 
distribution or transfer. Such determination for each integrated trade 
or business shall be made by reference to the methods of taking 
inventories previously used in the component trades or businesses for 
such types of goods which constitute the subsequent integrated trade or 
business of the acquiring corporation. For purposes of this 
determination, a corporation shall be deemed to be using the last-in, 
first-out method of taking inventories with respect to a particular type 
of goods on the date of the distribution or transfer, if such 
corporation elects, under the provisions of section 472, to adopt the 
last-in, first-out method with respect to such goods for its taxable 
year within which or with which the date of distribution or transfer 
occurs. The fair market value of the particular types of goods of each 
group of component trades or businesses with respect to which one method 
of taking inventories common to all was employed shall be compared with 
the fair market value of comparable types of goods of other groups of 
component trades or businesses with respect to which another method of 
taking inventories common to all was employed. For purposes of the above 
comparison and to the extent that particular types of goods are included 
in inventory by grouping or pooling, then such group or pool shall be 
considered as a single unit. The total fair market value of such group 
or pool shall be the basis for comparison in determining the principal 
method of taking inventories. The method of taking inventories of the 
group of component trades or businesses having the largest fair market 
value of such inventories shall be the principal method of taking 
inventories. For purposes of this subparagraph, the fair market value of 
the inventories of a component trade or business shall be determined 
immediately after the date of distribution or transfer.
    (3) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example (1). (i) X, Y, and Z corporations are all engaged in the 
manufacture of sheet metal. In addition, Y and Z corporations are 
engaged in the manufacture of paper containers. X and Y corporations use 
the first-in, first-out method of identifying goods and the cost method 
of valuing all inventories, while Z corporation uses the first-in, 
first-out method of identifying goods and the cost or market, whichever 
is lower, method of valuing all inventories. X, Y, and Z corporations 
enter into a transaction to which section 381(a) applies, and the 
acquiring corporation integrates the sheet metal businesses formerly 
operated by X, Y, and Z corporations and also integrates the paper 
container businesses formerly operated by Y and Z corporations. Each 
corporation has the same types of goods in the inventories of its sheet 
metal business and Y and Z corporations have the same types of goods in 
the inventories of their paper container businesses. Immediately after 
the date of distribution or transfer the fair market values of the 
respective inventories are as follows:

------------------------------------------------------------------------
                                            X          Y           Z
------------------------------------------------------------------------
Sheet metal..........................     $10,000     $7,000     $15,000
Paper container......................  ..........      6,000       7,000
------------------------------------------------------------------------

    (ii) Since X, Y, and Z corporations all used the first-in, first-out 
method of identifying their inventories as of the date of distribution 
or transfer, then, under the provisions of paragraph (b)(3)(i) of this 
section, the acquiring corporation shall continue to use the first-in, 
first-out method of identifying all goods unless, in accordance with 
paragraph (e) of Sec. 1.446-1, consent of the Commissioner is obtained 
to change the method of accounting.
    (iii) Since the acquired corporations used different methods of 
valuing inventories in their sheet metal business and their paper 
container business, when the businesses were integrated the acquiring 
corporation must, under the provisions of this paragraph, determine 
which method of inventory valuation used by the acquired corporations on 
the date of distribution or transfer is the principal method of 
inventory valuation for each of such businesses.
    (a) In determining which is the principal method of valuing 
inventories for the sheet metal business pursuant to subparagraph (2) of 
this paragraph, the total fair market value of the sheet metal 
inventories of X and Y corporations, $17,000 (i.e., $10,000 
+$7,000=$17,000), is compared with the fair market value of the sheet 
metal inventory of Z corporation, $15,000. Since the total fair market 
value of the sheet metal inventories

[[Page 429]]

of X and Y corporations ($17,000) exceeds the fair market value of the 
sheet metal inventory of Z corporation ($15,000), the cost method of 
valuation used by X and Y corporations is the principal method of taking 
such inventories, and must be used by the acquiring corporation in 
valuing such inventories, if the conditions set forth in subparagraph 
(1) of this paragraph are satisfied.
    (b) In determining which is the principal method of valuing 
inventories for the paper container business pursuant to subparagraph 
(2) of this paragraph, the fair market value of the paper container 
inventory of Y corporation ($6,000) is compared with the fair market 
value of the paper container inventory of Z corporation ($7,000). Since 
the fair market value of the paper container inventory of Z corporation 
($7,000) exceeds the fair market value of the paper container inventory 
of Y corporation ($6,000), the cost or market, whichever is lower, 
method of valuation used by Z corporation is the principal method of 
taking such inventories, and must be used by the acquiring corporation 
in valuing such inventories, if the conditions set forth in subparagraph 
(1) of this paragraph are satisfied.
    Example (2). (i) X, Y, and Z corporations are all engaged in the 
manufacture of electrical appliances. In addition, X and Z corporations 
are engaged in the manufacture of plastic containers. X corporation uses 
the first-in, first-out method of identifying goods and the cost method 
of valuing all inventories. Y and Z corporations use the last-in, first-
out method of identifying goods and the cost method of valuing all 
inventories. In applying the last-in, first-out method, Y corporation 
uses the dollar value method, the double-extension method, and pools 
under the natural business unit method, while Z corporation uses the 
dollar value method, the double-extension method, and pools under the 
multiple pooling method for all inventories. X, Y, and Z corporations 
enter into a transaction to which section 381(a) applies, and the 
acquiring corporation integrates the electric appliance businesses 
formerly operated by X, Y, and Z corporations and also integrates the 
plastic container businesses formerly operated by X and Z corporations. 
Each corporation has the same types of goods in the inventories of its 
electric appliance business and X and Z corporations have the same types 
of goods in the inventories of their plastic container businesses. 
Immediately after the date of distribution or transfer, the fair market 
values of the respective inventories are as follows:

------------------------------------------------------------------------
                                              X           Y         Z
------------------------------------------------------------------------
Electric appliance.....................     $13,000     $10,000   $5,000
Plastic container......................       7,000  ..........    6,000
------------------------------------------------------------------------

    (ii) Since X, Y, and Z corporations all used the cost method of 
valuing their inventories as of the date of distribution or transfer, 
then, under the provisions of paragraph (b)(3)(i) of this section, the 
acquiring corporation shall continue to use the cost method of valuing 
all goods unless, in accordance with paragraph (e) of Sec. 1.446-1, 
consent of the Commissioner is obtained to change the method of 
accounting.
    (iii) Since the acquired corporations used different methods of 
identifying inventories in their electric appliance business and their 
plastic container business, when the businesses were integrated the 
acquiring corporation must, under the provisions of this paragraph, 
determine which method of inventory identification used by the acquired 
corporations on the date of distribution or transfer is the principal 
method of inventory identification for each of such businesses.
    (a)(1) In determining which is the principal method of identifying 
inventories for the electric appliance business pursuant to subparagraph 
(2) of this paragraph, the fair market value of the electric appliance 
inventory of X corporation, $13,000, is compared with the total fair 
market value of the electric appliance inventories of Y and Z 
corporations, $15,000 (i.e., $10,000+$5,000 =$15,000). Since the total 
fair market value of the electric appliance inventories of Y and Z 
corporations ($15,000) exceeds the fair market value of the electric 
appliance inventory of X corporation ($13,000), the last-in, first-out 
method of identification is the principal method of taking the electric 
appliance inventories and must be used by the acquiring corporation, if 
the conditions set forth in subparagraph (1) of this paragraph are 
satisfied.
    (2) Since Y and Z corporations used different pooling methods, in 
applying the last-in, first-out method, the acquiring corporation must, 
under the provisions of this paragraph, determine which pooling method 
as used by Y and Z corporations on the date of distribution or transfer 
is the principal method. In making such determination pursuant to 
subparagraph (2) of this paragraph, the fair market value of the 
electric appliance inventory of Y corporation ($10,000) is compared with 
the fair market value of the electric appliance inventory of Z 
corporation ($5,000). Since the fair market value of the electric 
appliance inventory of Y corporation ($10,000) exceeds the fair market 
value of the electric appliance inventory of Z corporation ($5,000), the 
natural business unit method is the principal method of pooling and must 
be used by the acquiring corporation in applying the last-in, first-out 
method with respect to the electric appliance business, if the 
conditions set forth in subparagraph (1) of this paragraph are 
satisfied.


[[Page 430]]



In addition, under the provisions of paragraph (b)(3)(i) of this 
section, the acquiring corporation must use the dollar value method and 
the double-extension method for valuing goods in its electric appliance 
inventory since Y and Z corporations both used such methods in valuing 
their electric appliance inventories as of the date of distribution or 
transfer, unless, in accordance with paragraph (e) of Sec. 1.446-1, 
consent of the Commissioner is obtained to change the method of 
accounting.
    (b) In determining which is the principal method of identifying 
inventories for the plastic container business pursuant to subparagraph 
(2) of this paragraph, the fair market value of the plastic container 
inventory of X corporation ($7,000) is compared with the fair market 
value of the plastic container inventory of Z corporation ($6,000). 
Since the fair market value of the plastic container inventory of X 
corporation. ($7,000) exceeds the fair market value of the plastic 
container inventory of Z corporation ($6,000) the first-in, first-out 
method of identification, as used by X corporation, is the principal 
method of taking the plastic container inventories and must be used by 
the acquiring corporation, if the conditions set forth in subparagraph 
(1) of this paragraph are satisfied.

    (d) Change of method of taking inventories with consent of the 
Commissioner--(1) General rule--(i) Carryover and principal method not 
permitted. If the acquiring corporation is not permitted, under 
paragraph (b) of this section, to continue to use the method of taking 
inventories used by it or the distributor or transferor corporation or 
corporations on the date of distribution or transfer, and is not 
permitted, under paragraph (c) of this section, to use the principal 
method of taking inventories, then such acquiring corporation must 
request the Commissioner to determine the appropriate method of taking 
inventories.
    (ii) Principal method required. If the acquiring corporation wishes 
to use a method of taking inventories other than the principal method of 
taking inventories which is required to be used under paragraph (c) of 
this section, it shall apply to the Commissioner for permission to use 
such other method of taking inventories. Permission to use such other 
method of taking inventories will not be granted unless the acquiring 
corporation and the Commissioner agree to the terms, conditions, and 
adjustments under which the change to such method will be effected.
    (2) Time and manner of making application. Request for a 
determination of the method of taking inventories to be used under 
subparagraph (1)(i) of this paragraph or applications for permission to 
use a method of taking inventories under subparagraph (1)(ii) of this 
paragraph shall be filed with the Commissioner of Internal Revenue, 
Attention: T:I:C, Washington, DC 20224, not later than 90 days after the 
date of distribution or transfer, except that in cases where the date of 
distribution or transfer occurs before January 15, 1975, such 
applications or requests shall be filed not later than 90 days after 
such date. The application shall be accompanied by a copy of the 
statement described in paragraph (b)(3) of Sec. 1.381(b)-1, and by a 
statement specifying the nature of the transaction which causes section 
381 to apply; the differences in methods of taking inventories used by 
the corporations concerned; the method of taking inventories proposed to 
be used by the acquiring corporations; and the amount of adjustments 
necessary to prevent duplication or omission of items in the computation 
of taxable income under such proposed method. The Commissioner may also 
require such other information as may be necessary in order to determine 
the proper method of taking inventories to be used by the acquiring 
corporation.
    (e) Treatment of layers of inventories by the acquiring corporation 
and rules for making adjustments--(1) In general. This paragraph 
provides rules for treating layers of inventories by the acquiring 
corporation and rules for making adjustments, once the acquiring 
corporation's method of taking inventories for its taxable year 
including the date of distribution or transfer has been determined in 
accordance with the rules set forth in paragraphs (a) through (d) of 
this section. Thus, for example, if the acquiring corporation uses the 
last-in, first-out method of taking inventories for its taxable year 
including the date of distribution or transfer, either because such 
corporation elects the last-in, first-out method of taking inventories 
under the provisions of section 472 for such year or because such method 
is otherwise determined to be the

[[Page 431]]

principal method of taking inventories under paragraph (c)(2) of this 
section, then such corporation shall integrate its layers of inventories 
and make the necessary adjustments in accordance with the rules under 
paragraph (e)(2) of this section.
    (2) Acquiring corporation uses last-in, first-out method--(i) 
Dollar-value method--(a) Distributor or transferor corporation using 
last-in, first-out method. In any case where the acquiring corporation 
is required or permitted to use the dollar value method of pricing 
inventories on the last-in, first-out method for its taxable year 
including the date of distribution or transfer, the inventories of each 
distributor or transferor corporation which used the last-in, first-out 
method for its taxable year in which the distribution or transfer 
occurred shall be placed on the dollar value method pursuant to the 
rules contained in paragraph (f) of Sec. 1.472-8, and then such 
inventories shall be integrated with the inventories of the acquiring 
corporation. If pools of each corporation are permitted or required to 
be combined, they shall be combined in accordance with the principles 
set forth in paragraph (g)(2) of Sec. 1.472-8. For purposes of 
combining pools, all base-year inventories or layers of increment which 
occur in taxable years including the same December 31 shall be combined. 
A base-year inventory or layer of increment occurring in any short 
taxable year not including a December 31 or in the final taxable year of 
a distributor or transferor corporation shall be merged with and 
considered a layer of increment of its immediately preceding taxable 
year.
    (b) Distributor or transferor corporation not using last-in, first-
out method. In any case where the acquiring corporation is required or 
permitted to use the last-in, first-out method of taking inventories for 
its taxable year including the date of distribution or transfer, the 
inventories of each distributor or transferor corporation which did not 
use the last-in, first-out method for its taxable year in which the 
distribution or transfer occurred shall be treated by the acquiring 
corporation as having been acquired at their average unit cost in a 
single transaction on the date of distribution or transfer. Thus, where 
the acquiring corporation is required or permitted to use the dollar 
value method of pricing inventories, if an item of inventory is to be 
combined in an existing dollar value pool, such item shall be treated as 
if it were purchased at its average unit cost on the date of 
distribution or transfer with respect to such pool. On the other hand, 
if such item is not to be combined in an existing pool and the taxpayer 
otherwise uses LIFO with respect to such item, such item will be treated 
as if it were purchased at its average unit cost on the date of 
distribution or transfer with respect to a new pool (if any), with the 
base-year being the year of distribution or transfer. Adjustments 
resulting from a restoration to cost of any write-down to market value 
of such inventories of a distributor or transferor corporation shall be 
taken into account by such corporation in its final taxable year (where 
such year is closed by reason of section 381(b)). See section 472(d).
    (ii) Specific goods method--(a) Distributor or transferor 
corporation using last-in, first-out method. In any case where the 
acquiring corporation is required or permitted to use the specific goods 
method of pricing inventories on the last-in, first-out method for its 
taxable year including the date of distribution or transfer, the 
inventories of each distributor or transferor corporation which used the 
last-in, first-out method for its taxable year in which the distribution 
or transfer occurred shall be treated by the acquiring corporation as 
having the acquisition dates and costs of the distributor or transferor 
corporation.
    (b) Distributor or transferor not using last-in, first-out method. 
See paragraph (e)(1)(i)(b) of this section.
    (3) Acquiring corporation uses first-in, first-out method--(i) 
Distributor or transferor corporations not using first-in, first-out 
method. In any case where the acquiring corporation is permitted or 
required to use the first-in, first-out method of taking inventories for 
its taxable year including the date of distribution or transfer, the 
inventories of each distributor or transferor corporation which did not 
use the first-in, first-out method shall be treated by the acquiring 
corporation as having

[[Page 432]]

the same acquisition dates and costs which such inventory would have had 
if the distributor or transferor corporation had been using the first-
in, first-out method for its taxable year in which the distribution or 
transfer occurred. However, if the acquiring corporation values its 
inventories at cost or market, whichever is lower, then the acquired 
inventories shall be treated as having been acquired at cost or market, 
whichever is lower.
    (ii) Distributor or transferor corporation using first-in, first-out 
method. In any case where the acquiring corporation is required or 
permitted to use the first-in, first-out method of taking inventories 
for its taxable year including the date of distribution or transfer, the 
inventories of each distributor or transferor corporation which used 
such method for its taxable year in which the distribution or transfer 
occurred shall be treated by the acquiring corporation as having the 
same acquisition dates and costs as the distributor or transferor 
corporations. However, where the acquiring corporation values its 
inventories at cost or market, whichever is lower, then the acquiring 
corporation shall treat the acquired inventories as having been acquired 
at cost or market, whichever is lower.
    (4) Adjustments. Except as provided in paragraph (e)(1) of this 
section with respect to any adjustments under section 472(d), the 
adjustments necessary to reflect the change from the method of taking 
inventories previously used by any of the corporations involved 
(including any adjustments required by section 481), shall be determined 
and computed in the same manner as if on the date of distribution or 
transfer, each of the several corporations that were not using the 
method of taking inventories used by the acquiring corporation for its 
taxable year including the date of distribution or transfer had 
initiated a change in the method of taking inventories. However, such 
adjustments (as an item of income or deduction, as the case may be) 
shall be taken into account solely by the acquiring corporation in 
computing its taxable income.
    (f) Basis of inventories received. The basis of inventories received 
by the acquiring corporation from a distributor or transferor 
corporation shall be determined in accordance with section 334(b)(1) or 
362(b), and the regulations thereunder. See also section 1013, and the 
regulations thereunder.
    (g) Additional rules applicable to distributions or transfers before 
January 15, 1975--(1) Statute of limitations bars assessment or refund. 
If the date of distribution or transfer was before January 15, 1975, and 
if the assessment of any deficiency or the refund or credit of any 
overpayment for the taxable year of the acquiring corporation which 
includes the date of distribution or transfer or any subsequent taxable 
year is prevented by the operation of any law or rule of law, then this 
section does not authorize the Commissioner or the acquiring corporation 
to change any method or methods of computing inventories in any taxable 
year of the acquiring corporation. However, the Commissioner or the 
acquiring corporation may change such method or methods of computing 
inventories under the provisions of section 446, 471, or 472 and the 
regulations thereunder.
    (2) Statute of limitations does not bar assessment and refund. 
Except as provided in subparagraph (1) of this paragraph--
    (i) If the date of distribution or transfer was before January 15, 
1975, and the acquiring corporation has, for the taxable year which 
includes the date of distribution or transfer:
    (a) Adopted or continued a method or methods of taking inventories 
consistent with the rules of this section,
    (b) Been granted permission by the Commissioner, in accordance with 
section 446, 471, or 472 and the regulations thereunder, to use a method 
or methods of taking inventories, or
    (c) Adopted a method or methods of taking inventories that, under 
section 446, 471, or 472 and the regulations thereunder may be adopted 
without the consent of the Commissioner,

then the method or methods of taking inventories adopted or continued in 
the manner described in (a), (b), or (c) of this subdivision, shall not 
be changed, by reason of the rules contained in this section, by the 
Commissioner or by the acquiring corporation for any taxable

[[Page 433]]

year ending after the date of distribution or transfer. However, the 
Commissioner or the acquiring corporation may change such method or 
methods of taking inventories for any such taxable year under the 
provisions of, and to the extent permitted by, section 446, 471, or 472 
and the regulations thereunder.
    (ii) If the date of distribution or transfer was before January 15, 
1975, and the acquiring corporation has, for the taxable year which 
includes the date of distribution or transfer, adopted or continued a 
method or methods of taking inventories other than in the manner 
described in (a), (b), or (c) of subdivision (i) of this subparagraph, 
then the acquiring corporation may--
    (a) Continue to use the method or methods of taking inventories so 
adopted or continued if such method or methods clearly reflect income 
and if proper adjustments were made to reflect the adoption of such 
method or methods, or
    (b) Adopt the method or methods of taking inventories prescribed by 
this section.

Such method or methods of taking inventories shall be adopted by filing 
an amended return (which includes the proper adjustments required by 
this section) for the taxable year of the acquiring corporation which 
includes the date of distribution or transfer, and by filing amended 
returns for all subsequent taxable years of the acquiring corporation 
for which returns have previously been filed. Such amended return or 
returns shall be accompanied by a copy of the statement described in 
paragraph (b)(3) of Sec. 1.381(b)-1, and by a statement specifying the 
nature of the transaction which causes section 381 to apply; the 
difference in methods of taking inventories used by the corporation 
concerned; the method or methods of taking inventories originally 
adopted by the acquiring corporation; the method or methods of taking 
inventories adopted on the amended return or returns; and the 
computation of the amount of the adjustments and the resulting increase 
or decrease in tax.
    (h) Effective date. This section is applicable with respect to 
taxable years beginning after January 15, 1975. However, if a taxpayer 
wishes to rely on the rules stated in this section for taxable years 
beginning before January 15, 1975 it may do so, subject to the 
provisions of paragraph (g) of this section.

(Sec. 381(c)(5) and 7805 of the Internal Revenue Code of 1954 (68A Stat. 
917; 26 U.S.C. 381(c)(5) and 7805))

[T.D. 7344, 40 FR 2684, Jan. 15, 1975]



Sec. 1.381(c)(6)-1  Depreciation method.

    (a) Carryover requirement--(1) Distributions in taxable years ending 
before July 25, 1969. (i) Section 381(c)(6) provides that if, in a 
transaction in a taxable year which ends before July 25, 1969, to which 
section 381(a) applies, an acquiring corporation acquires depreciable 
property from a distributor or transferor corporation which computes its 
allowance for the depreciation of the property under section 167(b)(2), 
(3), or (4), the acquiring corporation shall compute its depreciation 
allowance by the same method used by the distributor or transferor 
corporation with respect to such property. Thus, if the distributor or 
transferor corporation used the sum of the years-digits method under 
section 167(b)(3) with respect to an asset distributed or transferred to 
an acquiring corporation, the acquiring corporation will be required to 
use the sum of the years-digits method with respect to such asset 
acquired. The computation of the depreciation allowance with respect to 
the property acquired shall be made under the provisions of section 167 
and the regulations thereunder.
    (ii) The rules provided in section 381(c)(6) and subdivision (i) of 
this subparagraph will apply only with respect to that part or all of 
the basis of the property in the hands of the acquiring corporation 
immediately after the date of distribution or transfer as does not 
exceed the basis of the property in the hands of the distributor or 
transferor corporation on the date of the distribution or transfer. For 
this purpose, the basis of the property in the hands of the distributor 
or transferor corporation shall be the adjusted basis provided in 
section 1011 for the purpose of determining gain on the sale or other 
disposition of such property. For provisions defining the date of 
distribution or transfer see Sec. 1.381(b)-1(b).
    (2) Distributions in taxable years ending after July 24, 1969. (i) 
Section 381(c)(6)

[[Page 434]]

provides that if, in a transaction in a taxable year ending after July 
24, 1969, to which section 381(a) applies, an acquiring corporation 
acquires depreciable property from a distributor or transferor 
corporation which computes its allowances for the depreciation of the 
property under subsection (b), (j), or (k) of section 167, the acquiring 
corporation shall compute its depreciation allowance by the same method 
used by the distributor or transferor corporation with respect to such 
property. Thus, if the distributor or transferor corporation used the 
straight line method under section 167(b)(1) with respect to an asset 
distributed or transferred to an acquiring corporation, the acquiring 
corporation will be required to use the straight line method with 
respect to such asset. Similarly, if the distributor or transferor 
corporation elected to compute depreciation under section 167(k) with 
respect to property attributable to rehabilitation expenditures, and 
such property is transferred to an acquiring corporation, the acquiring 
corporation will be required to compute depreciation under section 
167(k) with respect to the property acquired. The computation of the 
depreciation allowance with respect to the property acquired shall be 
made under the provisions of section 167 and the regulations thereunder.
    (ii) The rules provided in section 381(c)(6) and subdivision (i) of 
this subparagraph shall apply only with respect to that part or all of 
the basis of the property in the hands of the acquiring corporation 
immediately after the date of distribution or transfer as does not 
exceed the basis of the property in the hands of the distributor or 
transferor corporation on the date of the distribution or transfer. For 
this purpose, the basis of the property in the hands of the distributor 
or transferor corporation shall be the adjusted basis provided in 
section 1011 for the purpose of determining gain on the sale or other 
disposition of such property. For provisions defining the date of 
distribution or transfer see Sec. 1.38(b)-1(b).
    (b) Portion in excess of distributor or transferor corporation's 
basis--(1) General rule. With respect to that part of the basis of the 
depreciable property (other than certain section 1250 property described 
in subparagraph (2) of this paragraph) which in the hands of the 
acquiring corporation exceeds the adjusted basis to the distributor or 
transferor corporation, the acquiring corporation may use any reasonable 
method of computing depreciation, other than the methods provided in 
section 167(b)(2), (3), or (4). See paragraph (b) of Sec. 1.167(b)-0 
for methods which are acceptable under section 167(a) with respect to 
such property. See also sections 334(b)(1) and 362(b) for the 
determination of basis of property in the hands of the acquiring 
corporation in connection with a transaction to which section 381(a) 
applies.
    (2) Section 1250 property. With respect to that part of the basis of 
section 1250 property acquired after July 24, 1969, which in the hands 
of the acquiring corporation exceeds the adjusted basis to the 
distributor or transferor corporation, the acquiring corporation shall 
be subject to the limitations contained in section 167(j)(4) (relating 
to used section 1250 property) or 167(j)(5) (relating to used 
residential rental property). Thus, for example, if section 1250 
property which is not residential rental property is acquired in a 
section 381(a) transaction after July 24, 1969, the straight line method 
of depreciation (or other method allowable under section 167(j)(4)(B)) 
is the only acceptable method with respect to that portion of the basis 
of the property which, in the hands of the acquiring corporation, 
exceeds the adjusted basis to the transferor or distributor corporation.
    (c) Records required. Records shall be maintained in sufficient 
detail to identify any depreciable property to which this section 
applies, and to establish the basis thereof.
    (d) Agreement under section 167(d). To the extent not inconsistent 
with paragraph (b) of this section, an acquiring corporation shall be 
treated as the distributor or transferor corporation in the case of an 
agreement between the distributor or transferor corporation and the 
district director under section 167(d) and Sec. 1.167(d)-1 with respect 
to property to which section 381(c)(6) and this section apply. Thus, in 
the case where the basis of an asset in the hands of an acquiring 
corporation exceeds the basis of such asset in the hands of the

[[Page 435]]

distributor or the transferor corporation, such an agreement will not 
have the effect of permitting the acquiring corporation to compute its 
depreciation allowance with respect to such excess basis under the 
methods provided in section 167(b)(2), (3), or (4). However, the 
provisions of the agreement will continue to apply with respect to the 
useful life of the asset.
    (e) Change of method of depreciation. Although the acquiring 
corporation is required to use the method of computing depreciation used 
by the distributor or transferor with respect to depreciable property to 
which this section applies, such acquiring corporation may use another 
method with respect to such property if consent of the Commissioner is 
obtained in accordance with paragraph (e) of Sec. 1.446-1. Further, 
subject to the provisions of paragraph (b) of Sec. 1.167(e)-1 the 
acquiring corporation may change from the declining balance method 
described in section 167(b)(2) to the straight line method without 
consent of the Commissioner.
    (f) Successive transactions to which section 381(a) applies. The 
provisions of this section shall apply in the case of successive 
transactions to which section 381(a) applies. Thus, for example, if X 
Corporation, a transferor corporation, used the sum of the years-digits 
method under section 167(b)(3) with respect to an asset transferred to Y 
Corporation, an acquiring corporation, in a transaction to which section 
381(a) applies, and subsequently Y Corporation, using the same method, 
transfers such asset to Z Corporation in a transaction to which section 
381(a) also applies, then Z Corporation shall be required to use the sum 
of the years-digits method with respect to such asset.
    (g) Illustration. The application of this section may be illustrated 
by the following example:

    Example. M and N Corporations compute their taxable incomes on the 
basis of the calendar year. On December 31, 1959, M Corporation 
transfers all of its assets to N Corporation in a transaction to which 
section 381(a) applies. Included among these assets is an item of 
depreciable property which on that date has an adjusted basis (for 
determining gain) of $800,000 after M Corporation takes into account for 
1959 its allowance for depreciation under section 167(b)(2). The basis 
attributable to the asset under section 362(b) is determined to be 
$900,000 in the hands of N Corporation. Under the provisions of section 
381(c)(6) and paragraph (a) of this section, N Corporation is required 
to compute its allowance for the depreciation of the asset under section 
167(b)(2) for 1960 and subsequent years but only in respect of $800,000 
of its basis. N Corporation may use any reasonable method other than the 
methods provided in section 167(b)(2), (3), or (4) in computing its 
depreciation allowance of the remaining $100,000.

[T.D. 6559, 26 FR 2983, Apr. 7, 1961, as amended by T.D. 7166, 37 FR 
5246, Mar. 11, 1972; 37 FR 6400, Mar. 29, 1972]



Sec. 1.381(c)(8)-1  Installment method.

    (a) Carryover requirement. (1) Section 381(c)(8) provides that if, 
in a transaction to which section 381(a) applies, an acquiring 
corporation acquires installment obligations, the income from which the 
distributor or transferor corporation has elected under section 453 and 
the regulations thereunder to report on the installment method, then the 
acquiring corporation shall be treated as the distributor or transferor 
corporation would have been treated under section 453 had it not 
transferred the installment obligations. Thus, if the distributor or 
transferor corporation had properly elected to return income from the 
sale or other disposition of property giving rise to the obligations on 
the installment method, then the acquiring corporation shall be required 
to return the income from all such installment obligations in the same 
manner and to the same extent as the distributor or transferor 
corporation, unless consent of the Commissioner to use another method is 
obtained in accordance with paragraph (e) of Sec. 1.446-1. Amounts 
received by the acquiring corporation on or after the date of 
distribution or transfer with respect to an installment sale made by the 
distributor or transferor corporation will not be taken into account in 
applying the limitation under section 453(b)(2) with respect to the 
amount of payments received in the year of sale or other disposition.
    (2) Section 381(c)(8) and this section have no application to sales 
or other dispositions of property made by the acquiring corporation on 
or after the date of distribution or transfer. For

[[Page 436]]

provisions defining the date of distribution or transfer, see Sec. 
1.381(b)-1(b). See section 381(c)(4) and the regulations thereunder for 
rules relating to the proper method or combination of methods of 
accounting to be used by the acquiring corporation.
    (b) Basis of obligations. The basis in the hands of an acquiring 
corporation of installment obligations described in section 381(c)(8) 
and paragraph (a) of this section shall be the same as in the hands of 
the distributor or transferor corporation.
    (c) Repossession of property sold in prior years. If the acquiring 
corporation repossesses property, previously sold by the distributor or 
transferor corporation, by reason of default by the purchaser in payment 
of the acquired installment obligations, then the acquiring corporation 
shall be treated as though it were the vendor corporation for purposes 
of determining, under section 453 and the regulations thereunder, the 
gain, loss, income, or deduction with respect to the property 
repossessed.

[T.D. 6559, 26 FR 2983, Apr. 7, 1961]



Sec. 1.381(c)(9)-1  Amortization of bond discount or premium.

    (a) Carryover requirement. If, in a transaction to which section 
381(a) applies, the acquiring corporation assumes liability for the 
payment of bonds of a distributor or transferor corporation which were 
issued at a discount or premium, then under the provisions of section 
381(c)(9) the acquiring corporation is to be treated as the distributor 
or transferor corporation after the date of distribution or transfer for 
purposes of determining the amount of amortization allowable, or 
includible, with respect to such discount or premium in computing 
taxable income. Thus, if subsequent to February 28, 1913, a distributor 
or transferor corporation issues bonds at a premium and the liability 
for them is assumed by the acquiring corporation in a transaction to 
which section 381(a) applies, then the net amount of the premium is 
income which should be prorated or amortized over the life of the bonds, 
including the period during which the acquiring corporation is liable 
upon the obligations assumed. On the other hand, if a distributor or 
transferor corporation issues bonds at a discount and the liability for 
them is assumed by the acquiring corporation in a transaction to which 
section 381(a) applies, then the net amount of the discount is 
deductible in computing taxable income but should be prorated or 
amortized over the life of the bonds, including the period during which 
the acquiring corporation is liable upon the obligations assumed.
    (b) Expense incurred upon issuance of bonds. If, in a transaction to 
which section 381(a) applies, the acquiring corporation assumes 
liability for bonds of a distributor or transferor corporation which 
were issued at a discount or premium, the acquiring corporation shall be 
treated as the distributor or transferor corporation after the date of 
distribution or transfer with respect to the expense incurred upon the 
issuance of such bonds.
    (c) Purchase of bonds. If, in a transaction to which section 381(a) 
applies, the acquiring corporation assumes liability for bonds of a 
distributor or transferor corporation which were issued at a discount or 
premium and if the acquiring corporation subsequently purchases such 
bonds, then the acquiring corporation shall be treated as the 
distributor or transferor corporation for the purpose of determining the 
amount of any income or deduction resulting from the purchase. See 
paragraph (c) of Sec. 1.61-12. For rules relating to the exchange or 
substitution of bonds issued by the acquiring corporation for bonds of a 
distributor or transferor corporation, see paragraph (d) of this 
section.
    (d) Exchange of new for old bonds. Notwithstanding any other 
provision of this section, if--
    (1) In a transaction to which section 381(a) applies, bonds of the 
acquiring corporation are exchanged or substituted for bonds of a 
distributor or transferor corporation which were issued at a discount or 
premium, or
    (2) Bonds of the acquiring corporation are exchanged or substituted 
for bonds of a distributor or transferor corporation which were issued 
at a discount or premium and in respect of which the acquiring 
corporation has

[[Page 437]]

assumed the liability in a transaction to which section 381(a) applies,

then, with respect to any unamortized discount, premium, or expense of 
issuance attributable to such bonds of the distributor or transferor 
corporation, the acquiring corporation shall be treated as the 
distributor or transferor corporation.
    (e) Bonds of a distributor or transferor corporation. For purposes 
of applying section 381(c)(9), the term bonds of a distributor or 
transferor corporation includes not only bonds issued by the distributor 
or transferor corporation but also bonds for which the distributor or 
transferor corporation has assumed liability. Thus, if the distributor 
or transferor corporation has assumed liability for bonds in a 
transaction in which any unamortized discount or premium attributable to 
such bonds carried over to such corporation, then the acquiring 
corporation assuming liability for the bonds shall be treated as the 
distributor or transferor corporation after the date of distribution or 
transfer for purposes of determining the amount of amortization 
allowable, or includible, with respect to such discount or premium. On 
the other hand, if the distributor or transferor corporation has assumed 
liability for bonds in a transaction in which any unamortized discount 
or premium attributable to such bonds did not carry over to such 
corporation, then there can be no carryover to the acquiring corporation 
under this section.

[T.D. 6532, 26 FR 405, Jan. 19, 1961]



Sec. 1.381(c)(10)-1  Deferred exploration and development expenditures.

    (a) Carryover requirement. (1) If for any taxable year a distributor 
or transferor corporation has elected under section 615 or section 616 
(or corresponding provisions of prior law) to defer and deduct on a 
ratable basis any exploration or development expenditures made in 
connection with any ore, mineral, mine, or other natural deposit 
transferred to the acquiring corporation in a transaction described in 
section 381(a), then under the provisions of section 381(c)(10) the 
acquiring corporation shall be entitled to deduct such expenditures on a 
ratable basis in the same manner, and to the same extent, as they would 
have been deductible by the distributor or transferor corporation in the 
absence of the distribution or transfer. For this purpose, the acquiring 
corporation shall be treated as though it were the distributor or 
transferor corporation. The principles set forth in paragraph (e) of 
Sec. 1.615-3 and paragraph (f) of Sec. 1.616-2 are applicable in 
computing the amount of the deduction allowable to the acquiring 
corporation in respect of expenditures deferred by a distributor or 
transferor corporation.

    Example. X and Y Corporations are both organized on January 1, 1955, 
and both corporations compute their taxable income on the basis of the 
calendar year. During 1955, X Corporation purchases a mineral property 
which it begins to develop in 1956. During 1956, X Corporation incurs 
development expenditures of $500,000 in respect of such property which 
it elects to defer under section 616(b). On December 31, 1956, Y 
Corporation acquires all of the assets of X Corporation in a 
reorganization to which section 381(a) applies, no gain being recognized 
to X Corporation on the transfer. In 1957, Y Corporation sells 150,000 
units of produced ore benefited by the development expenditures incurred 
and deferred by X Corporation, and the number of units remaining as of 
the end of 1957, plus the number of units sold during that year, is 
estimated to be 1,000,000. In addition to its deduction for depletion, Y 
Corporation is, in 1957, entitled to a deduction under sections 616(b) 
and 381(c)(10) of $75,000 of the development expenditures previously 
deferred by X Corporation, that is, $500,000 x 150,000/1,000,000.

    (2) If a distributor or transferor corporation has elected under 
section 615 or section 616 (or corresponding provisions of prior law) to 
defer exploration or development expenditures in respect of a mine or 
other natural deposit which it subsequently disposes of except for a 
retained economic interest therein, such as the right to royalty income 
or in-ore payments, and such retained economic interest is transferred 
to the acquiring corporation in a transaction to which section 381(a) 
applies, then the acquiring corporation shall be entitled to deduct such 
deferred expenditures attributable to the economic interest retained on 
a ratable basis to the same extent they would have been deductible by 
the distributor or transferor corporation in the absence of the 
distribution or transfer.

[[Page 438]]

See paragraph (c) of Sec. 1.615-3 and paragraph (c) of Sec. 1.616-2.
    (3) For purposes of this section, the terms exploration expenditures 
and development expenditures shall have the same meaning as that 
ascribed to them in the regulations under sections 615 and 616 of the 
Internal Revenue Code of 1954, or under sections 23(cc) and 23(ff) of 
the Internal Revenue Code of 1939, whichever applies. See, for example, 
paragraph (a) of Sec. 1.615-1 and paragraph (a) of Sec. 1.616-1.
    (b) Effect and identification of election previously made. (1) The 
election made by a distributor or transferor corporation under the 
provisions of section 615 or section 616 (or corresponding provisions of 
prior law) to defer exploration or development expenditures in respect 
of any taxable year may not be revoked by the acquiring corporation for 
any reason whatsoever.
    (2) When filing its return for the first taxable year for which it 
deducts exploration or development expenditures which were deferred 
under section 615 or section 616 (or corresponding provisions of prior 
law) by a distributor or transferor corporation, the acquiring 
corporation shall attach thereto a statement properly identifying the 
taxable year for which the election to defer was made by the distributor 
or transferor corporation, the name of the corporation which made the 
election, and the district director with whom the election was filed.
    (3) It is unnecessary for an acquiring corporation to renew an 
election to defer exploration or development expenditures which was made 
by a distributor or transferor corporation.
    (c) Successive transactions to which section 381(a) applies. If, by 
virtue of section 381(c)(10), the acquiring corporation is entitled to 
deduct exploration or development expenditures deferred by a distributor 
or transferor corporation, then such acquiring corporation shall be 
deemed to have made the election to defer such expenditures for purposes 
of applying section 381(c)(10) to any subsequent transaction in which 
such acquiring corporation is a distributor or transferor corporation.
    (d) Carryover of limitation requirements. (1) If a distributor or 
transferor corporation transfers any mineral property to the acquiring 
corporation in a transaction described in section 381(a) and the 
acquiring corporation pays or incurs exploration expenditures in a 
taxable year ending after the date of the distribution or transfer, then 
in applying the 4-year or $400,000 limitations described in section 
615(c) and paragraphs (a) and (b) of Sec. 1.615-4, whichever is 
applicable, the acquiring corporation shall be deemed to have been 
allowed any deduction which, for any taxable year ending on or before 
the date of distribution or transfer, was allowed to the distributor or 
transferor corporation under section 615(a), or under section 23(ff)(1) 
of the Internal Revenue Code of 1939, or to have made any election 
which, for any such preceding year, was made by the distributor or 
transferor corporation under section 615(b), or under section 23(ff)(2) 
of the Internal Revenue Code of 1939. Thus, in such instance, the 
acquiring corporation shall take into account the years in which the 
distributor or transferor corporation exercised the election to deduct 
or defer exploration expenditures and any amounts so deducted or 
deferred. For this purpose, it is immaterial whether the deduction has 
been allowed to, or the election has been made by, the distributor or 
transferor corporation with respect to the specific mineral property 
transferred by that corporation to the acquiring corporation.
    (2) Generally, for purposes of applying the 4-year limitation 
described in paragraph (a) of Sec. 1.615-4, if there are two or more 
distributor or transferor corporations that transfer any mineral 
property to the acquiring corporation, each taxable year of any such 
corporation ending on or before the date of distribution or transfer in 
which exploration expenditures were deducted or deferred shall be 
treated as a separate taxable year regardless of the fact that the 
taxable years of two or more such corporations normally end on the same 
date. However, if the date of distribution or transfer is the same with 
respect to more than one distributor or transferor corporation, then the 
taxable years of such corporations ending on the same date of 
distribution or transfer shall be considered as one taxable year for 
purposes of applying the

[[Page 439]]

4-year limitation even though more than one such corporation deducted or 
deferred exploration expenditures for such taxable years.
    (3) For purposes of applying the $400,000 limitation described in 
paragraph (b) of Sec. 1.615-4, if there are two or more distributor or 
transferor corporations that transfer any mineral property to the 
acquiring corporation, any exploration expenditures which were deducted 
or treated as deferred expenses by such corporations for taxable years 
ending after December 31, 1950, shall be taken into account by the 
acquiring corporation.
    (4) If a distributor or transferor corporation that transfers any 
mineral property to the acquiring corporation was required to take into 
account any taxable years or amounts of its transferor, as provided by 
paragraph (e) of Sec. 1.615-4, for purposes of either the 4-year 
limitation described in paragraph (a) of Sec. 1.615-4 or the $400,000 
limitation described in paragraph (b) of Sec. 1.615-4, then the 
acquiring corporation shall also take these taxable years and amounts 
into account in applying the same limitations.
    (5) The provisions of this paragraph may be illustrated by the 
following examples:

    Example (1). M and N Corporations were organized on January 1, 1956, 
and each corporation computes its taxable income on the basis of the 
calendar year. For each of its taxable years 1956 and 1957, M 
Corporation expended $60,000 for exploration expenditures and exercised 
the option to deduct such amounts under section 615(a). N Corporation 
made no exploration expenditures during its taxable years 1956 and 1957. 
On December 31, 1957, M Corporation transferred all of its assets to N 
Corporation in a transaction to which section 381(a) applies, no gain 
being recognized to the transferor corporation on the transfer. N 
Corporation made exploration expenditures of $100,000, $120,000, 
$110,000, and $100,000 for the years 1958, 1959, 1960, and 1961, 
respectively, which expenditures it desired to deduct under section 
615(a) to the extent allowable. On the basis of these facts, N 
Corporation may deduct up to $100,000 for each of the years 1958 and 
1959. No deduction or deferral is allowable for 1960 since the benefits 
of section 615(c) were previously availed of for 4 taxable years. 
However, N Corporation may deduct $80,000 for 1961 (the 4-year 
limitation not applying to such year) but, if such deduction is made, N 
Corporation will not be allowed any further deductions or deferrals 
since the $400,000 limitation of paragraph (b) of Sec. 1.615-4 will 
have been reached.
    Example (2). R and S Corporations were organized on January 1, 1955, 
and each corporation computes its income on the basis of the calendar 
year. For the 1955 taxable year neither corporation made any exploration 
expenditures under section 615(a). On June 30, 1956, R Corporation 
transferred all its assets to S Corporation in a transaction to which 
section 381(a) applies, no gain being recognized to the transferor 
corporation on the transfer. During its short taxable year ending June 
30, 1956, R Corporation made exploration expenditures of $60,000 which 
it elected to deduct under section 615. For its taxable year ending 
December 31, 1956, S Corporation may deduct or defer exploration 
expenditures up to $100,000 since this is a separate election for 
purposes of utilizing section 615 and is not affected by the $60,000 
previously deducted by R Corporation. Assuming S Corporation exercises 
an election under section 615 for its taxable year ending December 31, 
1956, S Corporation may elect to apply the benefits of section 615 to 
exploration expenditures for two more taxable years. However, for 
taxable years beginning after July 6, 1960 (the 4-year limitation not 
applying), S Corporation is entitled under section 615 to deduct or 
defer exploration expenditures made in such years to the extent that the 
combined deductions and deferrals by R and S Corporations in prior years 
did not exceed $400,000.
    Example (3). O and P Corporations were organized on January 1, 1955, 
and each corporation computes its taxable income on the basis of the 
calendar year. For their taxable years 1955, 1956, and 1957, each 
corporation deducted exploration expenditures made in such years under 
section 615(a). On June 30, 1958, O Corporation transferred all its 
assets to P Corporation in a transaction to which section 381(a) 
applies, no gain being recognized to the transferor corporation on the 
transfer. If, during its short taxable year ending June 30, 1958, O 
Corporation made additional exploration expenditures, it may deduct or 
defer such expenditures (up to $100,000) under section 615 since O 
Corporation has utilized section 615 in only three previous taxable 
years. For its taxable years ending after June 30, 1958, and beginning 
before July 7, 1960, P Corporation may not deduct or defer exploration 
expenditures under section 615, since the benefits of that section were 
utilized by O and P Corporations for 4 taxable years. However, for 
taxable years beginning after July 6, 1960 (the 4-year limitation not 
applying), P is entitled under section 615 to deduct or defer 
exploration expenditures made in such years to the extent that the 
combined deductions and deferrals by O and P Corporations in prior years 
do

[[Page 440]]

not exceed $400,000. See paragraph (b) of Sec. 1.615-4.
    Example (4). X, Y, and Z Corporations were organized on January 1, 
1955, and each corporation computes its taxable income on the basis of 
the calendar year. For their taxable years ending December 31, 1955, X 
and Y Corporations each deferred $100,000 for exploration expenditures 
made in such taxable years under section 615(b). Z Corporation made no 
exploration expenditures during its taxable year ending December 31, 
1955. On March 31, 1956, X and Y Corporations transferred all their 
assets to Z Corporation in a transaction to which section 381(a) 
applies, no gain being recognized to the transferor corporations on the 
transfer. X and Y Corporations each made exploration expenditures of 
$75,000 during their short taxable years ending March 31, 1956, which 
they deducted under section 615(a). For purposes of taxable years 
beginning before July 7, 1960, Z Corporation must take into account the 
taxable years in which X and Y Corporations deducted or deferred 
exploration expenditures. In so doing, each taxable year in which 
exploration expenditures were deducted or deferred must be taken into 
account except that the taxable years of X and Y Corporations ending on 
March 31, 1956, shall be considered as one taxable year. Therefore, Z 
Corporation may deduct or defer exploration expenditures in accordance 
with section 615 for any one taxable year ending after March 31, 1956, 
and beginning before July 7, 1960. However, for taxable years beginning 
after July 6, 1960 (the 4-year limitation not applying), Z Corporation 
must take into account for purposes of the $400,000 limitation all of 
the $350,000 of exploration expenditures deducted or deferred by X, Y, 
and Z Corporations during taxable years ending after December 31, 1950. 
Therefore, Z Corporation, assuming it has not deducted or deferred any 
exploration expenditures, is entitled under section 615 to deduct or 
defer in taxable years beginning after July 6, 1960, up to $50,000 for 
exploration expenditures made in such years.
    Example (5). For purposes of this example, assumethat each taxpayer 
computes taxable income on the basis of the calendar year. Taxpayer A, 
an individual who has deducted exploration expenditures of $75,000 under 
section 23(ff) of the Internal Revenue Code of 1939 for each of his 
taxable years 1952 and 1953, transferred a mineral property to K 
Corporation on January 1, 1954, in a transaction in which the basis of 
the mineral property in the hands of K Corporation is determined under 
section 362(a). For its taxable year 1954 and pursuant to section 
615(a)., K Corporation deducted exploration expenditures of $100,000 
which it made in such year. K Corporation had made no exploration 
expenditures in any preceding taxable year. On December 31, 1954, K 
Corporation transferred all its assets to L Corporation in a 
reorganization to which section 381(a) applies, no gain being recognized 
to the transferor corporation on the transfer. Assuming that L 
Corporation has not deducted or deferred exploration expenditures in any 
preceding taxable year, L Corporation may deduct or defer exploration 
expenditures (up to $100,000) in accordance with section 615 for any one 
taxable year ending after December 31, 1954, and beginning before July 
7, 1960, in view of the 4-year limitation. However, if L Corporation 
does not deduct or defer exploration expenditures in that period, then 
for taxable years beginning after July 6, 1960 (the 4-year limitation 
not applying), L Corporation is entitled to deduct or defer up to 
$150,000 (but not to exceed $100,000 per year) for exploration 
expenditures made in such years. See paragraph (b) of Sec. 1.615-4.

[T.D. 6552, 26 FR 1988, Mar. 8, 1961, as amended by T.D. 6685, 28 FR 
11406, Oct. 24, 1963]



Sec. 1.381(c)(11)-1  Contributions to pension plan, employees' annuity 
plans, and stock bonus and profit-sharing plans.

    (a) Carryover requirement. Section 381(c)(11) provides that, for 
purposes of determining amounts deductible under section 404 for any 
taxable year, the acquiring corporation shall be considered after the 
date of distribution or transfer to be the distributor or transferor 
corporation in respect of any pension, annuity, stock bonus, or profit-
sharing plan.
    (b) Nature of carryover. (1) Primarily, section 381(c)(11) and this 
section apply to the amount of any unused deductions or excess 
contributions carryovers which, in the absence of the transaction 
causing section 381 to apply, would have been available to the 
distributor or transferor corporation under section 404. Thus, for 
example, this section applies to unused deductions under a profit-
sharing or stock bonus trust which, in accordance with the second 
sentence of section 404(a)(3)(A) and Sec. 1.404(a)-9, would have been 
available in succeeding taxable years to the transferor corporation if 
the transfer of assets to the acquiring corporation had not occurred.
    (2) Section 381(c)(11) also permits or requires the acquiring 
corporation to be treated as though it were the distributor or 
transferor corporation for the purpose of satisfying any conditions 
which would have been required

[[Page 441]]

of the distributor or transferor corporation in the absence of the 
distribution or transfer, so that it may be determined whether the 
distributor or transferor corporation, or the acquiring corporation, is 
entitled to take a deduction under section 404 in respect of a trust or 
plan established by the distributor or transferor corporation. Thus, for 
example, in a case when the taxable year of the transferor corporation 
ends on the date of transfer pursuant to section 381(b)(1), that 
corporation is entitled, pursuant to the provisions of section 404(a)(6) 
and paragraph (c) of Sec. 1.404(a)-1, to a deduction in such taxable 
year for a payment to a qualified trust of that corporation made by the 
acquiring corporation after the close of such taxable year but within 
the time specified in section 404(a)(6). In further illustration, if the 
transferor corporation were to establish a qualified plan, and if the 
plan were maintained as a qualified plan by the acquiring corporation, 
then any contributions paid under the plan by the acquiring corporation 
(other than those which are deductible by the transferor corporation by 
reason of section 404(a)(6)) would be deductible under section 404 by 
the acquiring corporation even though the plan were exclusively for the 
benefit of former employees of the transferor corporation. Also, for 
example, if the transferor corporation were to adopt an annuity plan 
during its taxable year ending on the date of transfer, the acquiring 
corporation would be entitled, subject to the provisions of section 
401(b) and Sec. 1.401-5, to amend the plan so as to make it 
retroactively satisfy the requirements of section 401(a)(3), (4), (5), 
and (6) for the period beginning with the date on which the plan was put 
into effect.
    (c) Taxable year of deduction. The first taxable year of the 
acquiring corporation in which any amount shall be allowed as a 
deduction to that corporation by reason of section 381(c)(11) and this 
section shall be its first taxable year ending after the date of 
distribution or transfer.
    (d) Requirements for deductions. (1) In order for any amount paid by 
the acquiring corporation (other than amounts deductible under section 
404(a)(5)) to be deductible by the acquiring corporation by reason of 
this section in respect of a trust or nontrusteed annuity plan which is 
established by a distributor or transferor corporation and maintained by 
the acquiring corporation, the contributions must be paid (or deemed to 
have been paid under section 404(a)(6)) by the acquiring corporation in 
a taxable year of that corporation which ends with or within a year of 
the trust for which it is exempt under section 501(a), or, in the case 
of a nontrusteed annuity plan, for which it meets the requirements of 
section 404(a)(2). See, however, section 404(a)(4) and Sec. 1.404(a)-11 
for rules relating to deductions for contributions to foreign-situs 
trusts. The trust or plan which is established by the distributor or 
transferor corporation and maintained by the acquiring corporation may 
separately satisfy the requirements of section 401(a) or section 
404(a)(2) or may, together with other trusts or plans of the acquiring 
corporation, constitute a single plan which qualifies under section 
401(a) or meets the requirements of section 404(a)(2).
    (2) Excess contributions paid under a qualified trust or plan 
established by the transferor or distributor corporation may be carried 
over and, subject to the applicable limitations, deducted by the 
acquiring corporation in a taxable year ending after the date of 
distribution or transfer regardless of whether the trust is exempt, or 
the plan meets the requirements of section 404(a)(2), during such 
taxable year. There are, however, special rules for computing the 
limitations on the amount of excess contributions which are deductible 
in a taxable year ending after the trust or plan has terminated (see 
Sec. 1.404(a)-7, paragraph (e) of Sec. 1.404(a)-9, and paragraph (a) 
of Sec. 1.404(a)-13). For this purpose, the pension, annuity, stock 
bonus, or profit-sharing plan of the distributor or transferor 
corporation under which the excess contributions were made shall be 
considered continued (and not terminated) by the acquiring corporation 
if, after the date of distribution or transfer, the acquiring 
corporation continues the plan as a separate and distinct plan of its 
own which continues to qualify under section 401(a),

[[Page 442]]

or to meet the requirements of section 404(a)(2), or consolidates or 
replaces that plan with a comparable plan. See subparagraph (4) of this 
paragraph for rules relating to what constitutes a ``comparable'' plan.
    (3) In order for any amount paid by the acquiring corporation to be 
deductible by the acquiring corporation as an unused deduction carried 
over from a qualified profit-sharing or stock bonus trust established by 
a distributor or transferor corporation, the acquiring corporation must 
continue such trust established by the distributor or transferor 
corporation as a separate and distinct trust of its own which continues 
to qualify under section 401(a), or must consolidate or replace that 
trust with a comparable trust. In addition, the amount paid by the 
acquiring corporation will be deductible as an unused deduction carried 
over from the transferor or distributor corporation only if it is paid 
into the profit-sharing or stock bonus trust established by the 
transferor or distributor corporation, or the comparable trust, in a 
taxable year of the acquiring corporation which ends with or within a 
year of such trust (or such comparable trust) for which it meets the 
requirements of section 401(a) and is exempt under section 501(a). See 
subparagraph (4) of this paragraph for rules relating to what 
constitutes a ``comparable'' trust.
    (4) For purposes of subparagraphs (2) and (3) of this paragraph, a 
plan under which deductions are determined pursuant to paragraph (1) or 
(2) of section 404(a) shall be considered comparable to another plan 
under which deductions are determined pursuant to either of those 
paragraphs, and a plan under which deductions are determined pursuant to 
paragraph (3) of section 404(a) shall be considered comparable to 
another plan under which deductions are determined pursuant to such 
paragraph (3). Thus, a profit-sharing plan (which qualifies under 
section 401(a)) established by the transferor or distributor corporation 
shall, for purposes of subparagraphs (2) and (3) of this paragraph, be 
considered terminated if, after the date of distribution or transfer, 
the acquiring corporation transfers the funds accumulated under the 
profit-sharing plan into a pension plan covering the same employees. In 
such a case, excess contributions paid under the profit-sharing plan by 
the distributor or transferor corporation may be carried over and 
deducted by the acquiring corporation in a taxable year ending after the 
date of distribution or transfer subject to the limitations in section 
404(a)(3)(A) computed in accordance with the rules in paragraph (e)(2) 
of Sec. 1.404(a)-9 for computing limitations when a profit-sharing plan 
has terminated. On the other hand, unused deductions attributable to the 
profit sharing plan may not be carried over and used by the acquiring 
corporation as a basis for deducting amounts contributed by it to the 
pension plan.
    (e) Effect of consolidation or replacement of plan on prior 
contributions. If a pension, annuity, stock bonus, or profit-sharing 
plan which was established by a distributor or transferor corporation is 
terminated after the date of distribution or transfer because of 
consolidation or replacement with a comparable plan of the acquiring 
corporation, then the contributions paid to or under its plan by the 
distributor or transferor corporation on or before the date of 
distribution or transfer shall not be disallowed under section 404 
merely because of the termination of the plan which was established by 
that corporation, provided that the termination does not cause the plan 
to fail to qualify under section 401(a).
    (f) Amounts deductible under section 404. Section 381(c)(11) and 
this section apply only to amounts which are otherwise deductible under 
section 404 and the regulations thereunder. See Sec. Sec. 1.404(a)-1 
through 1.404(d)-1. Thus, to be deductible by reason of this section, 
contributions paid by the acquiring corporation must be expenses which 
otherwise satisfy the conditions of section 162 (relating to trade or 
business expenses). No deduction shall be allowed by reason of section 
381(c)(11) and this section for a contribution which is allowable under 
section 162 but is not allowable under section 404. Thus, the acquiring 
corporation shall not be allowed a deduction by reason of this section 
in respect of a plan established by a distributor or transferor 
corporation if the contribution would

[[Page 443]]

not otherwise be deductible under section 404 by reason of section 
404(c) and Sec. 1.404(c)-1. On the other hand, any unused deductions or 
excess contributions of a distributor or transferor corporation which 
are carried over from 1939 Code years shall be deductible by the 
acquiring corporation if the requirements of this section, section 
404(d), and Sec. 1.404(d)-1 are satisfied.
    (g) Cost of past service credits. In computing the cost of past 
service credits under a plan with respect to employees of the 
distributor or transferor corporation, the acquiring corporation may 
include the cost of credits for periods during which the employees were 
in the service of the distributor or transferor corporation.
    (h) Separate carryovers required. The excess contributions which are 
available to a distributor or transferor corporation under the 
provisions of section 404(a)(1)(D) and section 404(a)(3)(A) at the close 
of the date of distribution or transfer and are carried over to the 
acquiring corporation under this section shall be kept separate and 
distinct from each other and from any excess contributions which are 
available to the distributor or transferor corporation at that time 
under the provisions of section 404(a)(7) and are carried over to the 
acquiring corporation under this section. If there are excess 
contributions carried over to the acquiring corporation from more than 
one transferor or distributor corporation, the excess contributions of 
each transferor or distributor corporation shall be kept separate and 
distinct from those of the other transferor or distributor corporations 
and, with respect to each such transferor or distributor corporation, 
shall be kept separate and distinct as provided in the preceding 
sentence. See, however, paragraph (i) of this section for rules for 
applying the provisions of section 404(a)(3)(A) when the acquiring 
corporation maintains two or more profit-sharing or stock bonus trusts, 
one or more of which was established by a distributor or transferor 
corporation. The requirements in this paragraph shall apply with respect 
to any excess contributions which are carried over to the acquiring 
corporation from a distributor or transferor corporation under the 
provisions of section 404(d) and this section.
    (i) Limitations applicable to profit-sharing or stock bonus trusts. 
When contributions are paid by the acquiring corporation after the date 
of distribution or transfer to two or more profit-sharing or stock bonus 
trusts, and one or more of such trusts was established by a distributor 
or transferor corporation, such trusts shall be considered as a single 
trust in applying the provisions of section 404(a)(3)(A) under this 
section. Accordingly, in determining its secondary limitation, and its 
excess contributions carryover, under section 404(a)(3)(A) and Sec. 
1.404(a)-9 in any taxable year ending after the date of distribution or 
transfer, the acquiring corporation shall take into accounts its primary 
limitations, and the deductions allowed or allowable to it, for all 
prior years under the limitations provided in those sections, and also 
the primary limitations of, and deductions allowed or allowable to, the 
distributor or transferor corporation or corporations for all prior 
years under the limitations provided in those sections.
    (j) Successive carryovers. The provisions of section 381(c)(11) and 
this section shall apply to an acquiring corporation which, in a 
distribution or transfer to which section 381(a) applies acquires the 
assets of a distributor or transferor corporation which has previously 
acquired the assets of another corporation in a transaction to which 
section 381(a) applies, even though, in computing an unused deductions 
or excess contributions carryover to the second acquiring corporation, 
it is necessary to take into account contributions paid by, and 
limitations applicable to, the first distributor or transferor 
corporation.
    (k) Information to be furnished by acquiring corporation. The 
acquiring corporation shall furnish such information with respect to a 
plan established by a distributor or transferor corporation as will, 
consistently with the principles of section 404, establish that the 
provisions of such section and this section apply. For purposes of this 
section, the district director may require any other information that he 
considers necessary to determine deductions allowable under section 404 
and this section

[[Page 444]]

or qualification under section 401. Any unused deductions or excess 
contributions carried over from a distributor or transferor corporation 
pursuant to this section shall be properly identified with the 
corporation which would have been permitted to use those deductions or 
contributions in the absence of the transaction causing section 381 to 
apply.
    (l) Illustration. The application of this section may be illustrated 
by the following example:

    Example. In 1955, X Corporation, which makes its return on the basis 
of the calendar year, paid $400,000 to completely fund past service 
credits under a qualified pension plan and deducted 10 percent ($40,000) 
of that cost in each of the taxable years 1955, 1956, and 1957. The 
pension plan established by X Corporation had an anniversary date of 
January 1. On December 31, 1957, on which date the undeducted part of 
the cost amounted to $280,000, X Corporation transferred all its assets 
to Y Corporation in a statutory merger to which section 361 applies. Y 
Corporation, which also makes its return on the basis of the calendar 
year, had a qualified pension plan and trust which also had an 
anniversary date of January 1. Since Y Corporation had many more 
employees than X Corporation on the date of transfer, it covered the 
former employees of X Corporation under its own plan. Y Corporation is 
entitled to deductions under section 404(a)(1)(D) and this section in 
1958 and succeeding taxable years, in order of time, with respect to the 
undeducted balance of $280,000, to the extent of the difference between 
the amount paid and deductible by that corporation in each such taxable 
year and the maximum amount deductible by that corporation for such 
taxable year in accordance with the applicable limitations of section 
404(a)(1). In computing the maximum amount deductible by Y Corporation 
for 1958 and 1959 under section 404(a)(1)(C), that corporation may 
include $40,000 for each year, the amount that X Corporation could have 
included for each of those years in computing the maximum amount that 
would have been deductible by X Corporation under section 404(a)(1)(C) 
if the merger had not occurred. Thus, assuming that Y Corporation's 
appropriate limitation so computed under section 404(a)(1)(C) is 
$1,000,000 (including the $40,000 carried over from X Corporation under 
this section) for each of those taxable years, and that Y Corporation 
contributed $925,000 to its trust in 1958 and $975,000 in 1959, then Y 
Corporation is entitled under section 404(a)(1)(D) and this section to 
deduct in 1958 $75,000, and in 1959 $25,000, of the amount ($280,000) 
carried over from X Corporation. The undeducted balance of such amount 
($180,000) available to Y Corporation on December 31, 1959, would be 
deductible by that corporation in succeeding taxable years in accordance 
with section 404(a)(1)(D) and this section.

[T.D. 6556, 26 FR 2405, Mar. 22, 1961, as amended by T.D. 7168, 37 FR 
5024, Mar. 9, 1972]



Sec. 1.381(c)(12)-1  Recovery of bad debts, prior taxes, or delinquency 
amounts.

    (a) Carryover requirement. (1) If, as a result of a distribution or 
transfer to which section 381(a) applies, the acquiring corporation is 
entitled to the recovery of a bad debt, prior tax, or delinquency amount 
on account of which a deduction or credit was allowed to a distributor 
or transferor corporation for a prior taxable year, and such debt, tax, 
or amount is recovered by the acquiring corporation after the date of 
distribution or transfer, then under the provisions of section 
381(c)(12) the acquiring corporation is required to include in its gross 
income for the taxable year of recovery the same amount of income 
attributable to the recovery as the distributor or transferor 
corporation would have been required to include under section 111 and 
the regulations thereunder had the distribution or transfer not 
occurred.
    (2) The rule prescribed by paragraph (a)(1) of this section and by 
section 381(c)(12) with respect to bad debts, prior taxes, and 
delinquency amounts applies equally with respect to the recovery by the 
acquiring corporation of all other losses, expenditures, and accruals 
made on the basis of deductions from the gross income of a distributor 
or transferor corporation for prior taxable years, including war losses 
referred to in section 127 of the Internal Revenue Code of 1939, but not 
including deductions with respect to depreciation, depletion, 
amortization, or amortizable bond premiums. An item which is not a 
``section 111 item'' for purposes of the regulations under section 111 
is not subject to the provisions of section 381(c)(12). The provisions 
of section 111(c) shall be applied with respect to a recovery by the 
acquiring corporation in the same manner as they would have been applied 
by the distributor or transferor corporation.
    (b) Amount of recovery exclusion allowable for year of recovery. For 
the year of

[[Page 445]]

any recovery by the acquiring corporation, the amount of the recovery 
exclusion for the original taxable year shall be determined in 
accordance with paragraph (b) of Sec. 1.111-1. For the purpose of this 
paragraph and section 381(c)(12), the recovery exclusion for any year 
with respect to section 111 items of the acquiring corporation shall be 
kept separate from the recovery exclusion for any year with respect to 
section 111 items of each distributor or transferor corporation. The 
recovery by the acquiring corporation of any section 111 item of such 
corporation after the date of the distribution or transfer shall be 
considered separately from recoveries by the acquiring corporation of 
any such item which was deducted or credited by a distributor or 
transferor corporation. Any recovery by the acquiring corporation of a 
section 111 item shall be excluded from the gross income of the 
acquiring corporation to the extent of the recovery exclusion (1) 
determined for the original year for which that item was deducted or 
credited by the specific corporation which claimed the deduction or 
credit and (2) reduced by the excludable recoveries (whether made by the 
acquiring corporation, or by the distributor or transferor corporation) 
in intervening years with respect to the recovery exclusion of such 
corporation for such original year. There shall be taken into account 
the effect of net operating loss carryovers and carrybacks or capital 
loss carryovers.
    (c) Illustration of carryover of recovery exclusion--(1) Facts. (i) 
The application of section 381(c)(12) may be illustrated by the 
following example. M and N Corporations are both organized on January 1, 
1957, and both corporations compute their taxable income on the basis of 
the calendar year. On December 31, 1959, M Corporation transfers all its 
assets to N Corporation in a reorganization to which section 381(a) 
applies.
    (ii) The section 111 items of the two corporations for the following 
taxable years are as follows, identification of such items being made by 
an appropriate letter:

------------------------------------------------------------------------
                                                     M            N
     Taxable year of deduction or credit        Corporation  Corporation
                                               (transferor)   (acquirer)
------------------------------------------------------------------------
1957.........................................      $500(g)       $200(h)
1958.........................................       300(i)        400(j)
1959.........................................       600(k)        100(m)
------------------------------------------------------------------------

    (iii) The recovery exclusions in respect of such taxable years, 
computed in accordance with Sec. 1.111-1(b)(2), are assumed to be as 
follows:

------------------------------------------------------------------------
                                                     M            N
                 Taxable year                   Corporation  Corporation
                                               (transferor)   (acquirer)
------------------------------------------------------------------------
1957.........................................         $400          $150
1958.........................................          200           300
1959.........................................          500            75
------------------------------------------------------------------------

    (iv) The recoveries of the above-mentioned section 111 items by the 
two corporations are as follows:

------------------------------------------------------------------------
                                                     M            N
           Taxable year of recovery             Corporation  Corporation
                                               (transferor)   (acquirer)
------------------------------------------------------------------------
1958.........................................      $25 (g)       $50 (h)
1959.........................................       50 (g)        20 (h)
                                                    30 (i)        15 (j)
1960.........................................  ............      350 (g)
                                                                 225 (i)
                                                                 550 (k)
                                                                 100 (h)
                                                                 350 (j)
                                                                  85 (m)
------------------------------------------------------------------------

    (2) M Corporation's 1958 recovery.

Total recovery of section 111 items for 1957.....................    $25
  Less: Recovery exclusion for 1957..............................    400
                                                                  ------
    Amount included in gross income of M Corporation for 1958....      0
                                                                  ------
 

    (3) M Corporation's 1959 recoveries.

(i) Total recovery of section 111 items for 1957.................   $50
  Less: Recovery exclusion for 1957.......................   $400
  Minus excludable recovery...............................     25
                                                           -------
                                                            .....    375
    Amount included in gross income of M Corporation for 1959....      0
(ii) Total recovery of section 111 items for 1958................     30
  Less: Recovery exclusion for 1958..............................    200
                                                           --------
    Amount included in gross income of M Corporation for 1959....      0
 

    (4) N Corporation's 1958 recovery.

Total recovery of section 111 items for 1957.....................    $50
  Less: Recovery exclusion for 1957..............................    150
                                                                  ------
    Amount included in gross income of N Corporation for 1958....      0
 

    (5) N Corporation's 1959 recoveries.

(i) Total recovery of section 111 items for 1957.................   $20
  Less: Recovery exclusion for 1957.......................   $150
  Minus excludable recovery in 1958.......................     50
                                                           -------

[[Page 446]]

 
                                                            .....    100
    Amount included in gross income of N Corporation for 1959....      0
(ii) Total recovery of section 111 items for 1958................     15
  Less: Recovery exclusion for 1958..............................    300
                                                           --------
    Amount included in gross income of N Corporation for 1959....      0
 

    (6) N Corporation's 1960 recoveries.

(i) Total recovery of section 111 items of M Corporation for 1957   $350
  Less: Recovery exclusion of M Corporation for 1957.............  $400
    Minus:
      Excludable recovery in 1959..................    $50
      Excludable recovery in 1958..................     25
                                                    -------
                                                     .....     75
                                                     .....  .....    325
      Amount included in gross income of N Corporation for 1960..     25
(ii) Total recovery of section 111 items of M Corporation for       225
 1958............................................................
  Less: Recovery exclusion of M Corporation for 1958......   $200
    Minus excludable recovery in 1959.....................     30
                                                    -------
                                                            .....   170
      Amount included in gross income of N Corporation for 1960..     55
(iii) Total recovery of section 111 items of M Corporation for       550
 1959............................................................
  Less: Recovery exclusion of M Corporation for 1959.............    500
                                                    --------
      Amount included in gross income of N Corporation for 1960..     50
(iv) Total recovery of section 111 items of N Corporation for       100
 1957............................................................
  Less: Recovery exclusion of N Corporation for 1957......  $150
    Minus:
      Excludable recovery in 1959..................    $20
      Excludable recovery in 1958..................     50
                                                    -------
                                                     .....     70
                                                     .....  .....    80
        Amount included in gross income of N Corporation for 1960     20
(v) Total recovery of section 111 items of N Corporation for 1958  $350
  Less: Recovery exclusion of N Corporation for 1958......   $300
  Minus excludable recovery in 1959.......................     15
                                                    -------
                                                            .....   285
    Amount included in gross income of N Corporation for 1960....     65
(vi) Total recovery of section 111 items of N Corporation for         85
 1959............................................................
  Less: Recovery exclusion of N Corporation for 1959.............     75
                                                    --------
    Amount included in gross income of N Corporation for 1960....     10
 

    (7) Summary of recoveries included in gross income of N Corporation 
for 1960.

(i) Recovery of M Corporation items for:
  1957....................................................    $25
  1958....................................................     55
  1959....................................................     50
                                                           --------
                                                            .....   $130
                                                                  ------
(ii) Recovery of N corporation items for:
  1957....................................................     20
  1958....................................................     65
  1959....................................................     10
                                                           --------
                                                            .....     95
                                                                  ------
    Total amount included in gross income........................    225
 


[T.D. 6559, 26 FR 2984, Apr. 7, 1961]



Sec. 1.381(c)(13)-1  Involuntary conversions.

    (a) Carryover requirement--(1) General rule. Section 381(c)(13) 
requires that after the date of distribution or transfer the acquiring 
corporation, in a transaction to which section 381(a) applies, shall be 
treated as the distributor or transferor corporation for purposes of 
applying section 1033, relating to involuntary conversions. This rule 
shall apply even though the property similar or related in service or 
use to the property converted, or the stock of a corporation owning such 
similar property, is purchased by the acquiring corporation after the 
date of distribution or transfer and is not received from the 
distributor or transferor corporation in the transaction to which 
section 381(a) applies. Accordingly, if any factor essential to the 
application of section 1033 occurs on or before the date of distribution 
or transfer and any other such factor also occurs after that date, then, 
in accordance with section 381(c)(13) and this section, the provisions 
of section 1033 shall apply to the acquiring corporation in the same 
manner that they would have applied to the distributor or transferor 
corporation in the absence of the distribution or transfer. For purposes 
of this section, the terms involuntary conversion and disposition of the 
converted property shall have the meaning ascribed to them by the 
regulations under section 1033.
    (2) Application to other transactions. The provisions of this 
section shall apply to any transaction which, under provisions of the 
Internal Revenue Code of 1954, is treated as though it were an 
involuntary conversion within the meaning of section 1033. See, for 
example, section 1071, relating to gain from a sale or exchange to 
effectuate

[[Page 447]]

the policies of the Federal Communications Commission; and sections 
1332(b)(3) and 1333(3), relating to war loss recoveries.
    (b) Conversion into similar property. Section 1033(a)(1) provides 
that no gain shall be recognized if property is involuntarily converted 
only into property which is similar or related in service or use to the 
property so converted. If there is a disposition of property of a 
distributor or transferor corporation and, subsequent to the date of 
distribution or transfer, property similar or related in service or use 
to the property disposed of is received by the acquiring corporation as 
compensation for the property so disposed of, then no gain shall be 
recognized to the acquiring corporation, provided that no gain would 
have been recognized under section 1033(a)(1) if the similar property 
had been received directly by the distributor or transferor corporation.

    Example. Property of S Corporation with an adjusted basis of $100 is 
condemned by the local government. Shortly after the property is so 
condemned, S Corporation liquidates and distributes its assets to P 
Corporation in a distribution to which section 381(a) applies. 
Subsequent to the date of distribution, P Corporation receives from the 
government (in settlement of the condemnation proceedings) property with 
a market value of $500 which is similar or related in service or use to 
the property so condemned. No gain is recognized to either corporation 
upon P Corporation's receipt of the similar property, and the property 
so received has a basis of $100 in the hands of P Corporation on the 
date of its acquisition.

    (c) Conversion into money or dissimilar property when disposition 
occurs after December 31, 1950--(1) General rule. Section 1033(a)(3) and 
Sec. 1.1033(a)-2 provide rules for involuntary conversions of property 
into money or dissimilar property where the disposition of the converted 
property occurs after December 31, 1950. In such a case, the gain on the 
conversion, if any, shall be recognized, at the election of the 
taxpayer, only to the extent that the amount realized on the conversion 
exceeds the cost of other property purchased by the taxpayer which is 
similar or related in service or use to the property so converted, or 
exceeds the cost of stock purchased by the taxpayer in the acquisition 
of control of a corporation owning such other property, provided (i) the 
taxpayer purchases such other property or stock for the purpose of 
replacing the property so converted and (ii) the purchase occurs during 
the period of time specified in section 1033(a)(3)(B). The provisions of 
this paragraph shall apply to involuntary conversions where the 
disposition of the property occurs after December 31, 1950, and where 
the election to have section 1033(a)(3) apply to the treatment of the 
gain upon the conversion is contingent upon activities of both the 
distributor or transferor corporation and the acquiring corporation. For 
purposes of section 381(c)(13), the period of time specified in section 
1033(a)(3)(B) shall be determined by taking into account taxable years 
of, and extensions of time granted to, both the distributor or 
transferor corporation and the acquiring corporation.
    (2) Replacement period. The period during which the purchase of 
similar property or stock must be made in order to prevent the 
recognition of gain on the involuntary conversion terminates 2 years 
(or, in the case of a disposition occurring before Dec. 31, 1969, 1 
year) after the close of the first taxable year in which any part of the 
gain upon the conversion is realized, or at the close of such later date 
as may be designated pursuant to an application of the taxpayer. See 
paragraph (c)(3) of Sec. 1.1033(a)-2. Therefore, if, in a case to which 
this subparagraph applies, the first taxable year in which gain is 
realized is the taxable year of the distributor or transferor 
corporation ending with the close of the date of distribution or 
transfer, the acquiring corporation will have a maximum of only 2 years 
(or, in the case of a disposition occurring before Dec. 31, 1969, 1 
year) after that date in which to purchase the similar property or 
stock, unless an extension of time has been granted upon application by 
the distributor, transferor, or acquiring corporation within the time 
prescribed. See paragraph (a) of Sec. 1.381(b)-1 as to the termination 
of the taxable year of the distributor or transferor corporation. See 
paragraph (c)(3) of Sec. 1.1033(a)-

[[Page 448]]

2 as to applications to extend the period within which to replace the 
converted property. In addition to the information otherwise required 
under paragraph (c)(3) of Sec. 1.1033(a)-2, the application shall 
contain sufficient detail in connection with the distribution or 
transfer to establish that section 381(c)(13) applies to the involuntary 
conversion involved.
    (3) Examples. The application of this paragraph may be illustrated 
by the following examples:

    Example (1). A and B Corporations compute their taxable income on 
the basis of the calendar year, and both corporations use the cash 
method of accounting. During 1970 property of A Corporation is destroyed 
by fire, and in January 1971, A Corporation receives $15,000 from an 
insurance company as compensation for its loss of property. The adjusted 
basis of the property on the date of destruction is $10,000; as a 
consequence, A Corporation realizes a gain of $5,000 on the involuntary 
conversion. On June 30, 1971, B Corporation acquires all of the assets 
of A Corporation in a reorganization to which section 381(a) applies. In 
accordance with paragraph (c)(2) of Sec. 1.1033(a)-2, A Corporation 
reports in its return for the short taxable year ending June 30, 1971, 
all the details in connection with the involuntary conversion but does 
not include the realized gain in gross income, thereby electing to have 
the gain recognized only to the extent provided in section 1033(a)(3). 
On June 15, 1973, B Corporation purchases for $20,000 property which is 
similar or related in service or use to the property previously 
destroyed. In its return for 1973, B Corporation reports all of the 
details in connection with its replacement of the property, as required 
by paragraph (c)(2) of Sec. 1.1033(a)-2. As a result of this 
replacement by B Corporation, none of the gain realized by A Corporation 
is recognized. The replacement property which is purchased by B 
Corporation has a basis to that corporation of $15,000 on the date of 
its purchase, that is, the cost of such property ($20,000) decreased by 
the amount of gain not recognized to A Corporation on the involuntary 
conversion ($5,000).
    Example (2). Assume the same facts as in Example (1), except that B 
Corporation does not purchase similar property on or before June 30, 
1973, and does not apply on or before that date (in accordance with 
paragraph (c)(3) of Sec. 1.1033(a)-2) for an extension of time in which 
to make a replacement. In such event, the gain realized by A Corporation 
is recognized to that corporation for its taxable year ending June 30, 
1971. A Corporation's tax liability for such taxable year must be 
recomputed in accordance with paragraph (c)(2) of Sec. 1.1033(a)-2 in 
order to reflect this additional income.
    Example (3). Assume the same facts as in Example (1), except that 
the property of A Corporation is destroyed in 1968, A Corporation 
receives the $15,000 from an insurance company in January 1969, B 
Corporation acquires all of the assets of A Corporation on June 30, 
1969, and A Corporation's return is filed for the short taxable year 
ending June 30, 1969. B Corporation would have to purchase property 
which is similar or related in service or use to the property previously 
destroyed by June 30, 1970, in order to take advantage of the provisions 
of section 1033.
    Example (4). M and N Corporations compute their taxable income on 
the basis of the calendar year, and both corporations use the cash 
method of accounting. During 1970, property of M Corporation is 
destroyed by fire. The adjusted basis of the property on the date of 
destruction is $10,000. The property is insured against loss by fire, 
but the insurance claim is not satisfied on or before June 30, 1971, the 
date on which N Corporation acquires all of the assets (including the 
insurance claim) of M Corporation in a reorganization to which section 
381(a) applies. On September 1, 1972, N Corporation receives $15,000 
from the insurance company as compensation for the fire loss suffered by 
M Corporation. Upon receipt of the insurance proceeds, N Corporation 
realizes a gain of $5,000 upon the involuntary conversion; however, in 
its return for 1972, N Corporation elects under the provisions of 
paragraph (c)(2) of Sec. 1.1033(a)-2 to have the gain recognized only 
to the extent provided by section 1033(a)(3). On December 30, 1974, N 
Corporation purchases for $20,000 property which is similar or related 
in service or use to the property previously destroyed in the hands of M 
Corporation. As a result of this replacement by N Corporation, none of 
the gain realized by N Corporation in 1972 is recognized. The 
replacement property which is purchased by N Corporation has a basis to 
that corporation of $15,000 on the date of its purchase, that is, the 
cost of such property ($20,000) decreased by the amount of gain not 
recognized to N Corporation on the involuntary conversion ($5,000).
    Example (5). R and S Corporations compute their taxable income on 
the basis of the calendar year, and both corporations use the cash 
method of accounting. During 1970 property of R Corporation is destroyed 
by fire. The adjusted basis of the property on the date of destruction 
is $10,000. In anticipation of taking the benefit of section 1033(a)(3), 
R Corporation purchases for $20,000 on June 1, 1971, property which is 
similar or related in service or use to the destroyed property. In its 
return for 1971, R Corporation reports all

[[Page 449]]

of the details in connection with the replacement of the property, as 
required by paragraph (c)(2) of Sec. 1.1033(a)-2. The property 
destroyed in 1970 is insured against loss by fire, but the insurance 
claim is not satisfied on or before March 1, 1972, the date on which S 
Corporation acquires all of the assets (including the insurance claim) 
of R Corporation in a reorganization to which section 381(a) applies. On 
October 1, 1972, S Corporation receives $12,000 from the insurance 
company as compensation for the fire loss suffered by R Corporation. 
Upon receipt of the insurance proceeds, S Corporation realizes a gain of 
$2,000 upon the involuntary conversion; however, in its return for 1972, 
S Corporation elects under the provisions of paragraph (c)(2) of Sec. 
1.1033(a)-2 to have the gain recognized only to the extent provided by 
section 1033(a)(3). As a result of the replacement by R Corporation, 
none of the gain realized by S Corporation in 1972 is recognized. 
Assuming there are no adjustments for depreciation, the replacement 
property has a basis on October 1, 1972, of $18,000, that is, the cost 
of such property ($20,000) decreased by the amount of gain not 
recognized to S Corporation on the involuntary conversion ($2,000)

    (d) Conversion into money when disposition occurs before January 1, 
1951. Section 1033(a)(2) provides that, if property is disposed of in an 
involuntary conversion before January 1, 1951, and money is received as 
compensation for the conversion, no gain shall be recognized if such 
money is forthwith expended in the acquisition of other property similar 
or related in service or use to the property so converted, or in the 
acquisition of control of a corporation owning such other property, or 
in the establishment of a replacement fund. That section also provides 
that, if any part of the money is not so expended, the gain, if any, 
shall be recognized to the extent of the money which is not so expended. 
For example, if, pursuant to section 381(c)(13) and section 1033(a)(2), 
property of a distributor or transferor corporation is disposed of 
before January 1, 1951, in an involuntary conversion, and the proceeds 
from the conversion are received by the acquiring corporation so that 
the gain on the conversion is realized by that corporation, the 
acquiring corporation may avoid recognition of the gain if it complies 
with the provisions of section 1033(a)(2) for nonrecognition of gain. 
Thus, the acquiring corporation must forthwith expend the proceeds in 
the acquisition of similar property or stock, or in the establishment of 
a replacement fund, in order to avoid recognition of the gain, if the 
disposition occurred before January 1, 1951. See the provisions of 
Sec. Sec. 1.1033(a)-3 and 1.1033(a)-4 relating to involuntary 
conversions and replacement funds when disposition of the converted 
property occurred before January 1, 1951.
    (e) Successive acquiring corporations. An acquiring corporation 
which, in a transaction to which section 381(a) applies, acquires the 
assets of a corporation which previously acquired the assets of another 
corporation in a transaction to which section 381(a) applies, shall be 
treated as such other corporation for purposes of applying sections 
381(c)(13) and 1033 (relating to involuntary conversions). Thus, for 
example, if any factor essential to the application of section 1033 
occurs on or before the date of distribution or transfer in one 
transaction to which section 381(a) applies, and any other such factor 
occurs after the date of distribution or transfer in a subsequent 
transaction to which section 381(a) applies, then the acquiring 
corporation in such subsequent transaction shall be treated as the first 
distributor or transferor corporation subject to the rules and 
limitations of this section for purposes of sections 381(c)(13) and 
1033.

[T.D. 6552, 26 FR 1989, Mar. 8, 1961, as amended by T.D. 7075, 35 FR 
17995, Nov. 24, 1970]



Sec. 1.381(c)(14)-1  Dividend carryover to personal holding company.

    (a) Carryover requirement. Section 381(c)(14) provides that an 
acquiring corporation shall succeed to and take into account the 
dividend carryover (described in section 564) of a distributor or 
transferor corporation in computing its dividends paid deduction under 
section 561 for taxable years ending after the date of distribution or 
transfer for which the acquiring corporation is a personal holding 
company under section 542. To determine the amount of such dividend 
carryover and to integrate it with the dividend carryover of the 
acquiring corporation in computing the dividends paid deduction for 
taxable years ending after the date of distribution or transfer, it is 
necessary to apply the provisions of

[[Page 450]]

section 564 and Sec. 1.564-1 in accordance with this section.
    (b) Manner of computing dividend carryover--(1) Preceding taxable 
years. If the acquiring corporation is a personal holding company under 
section 542 for its first taxable year ending after the date of 
distribution or transfer, the taxable year of the distributor or 
transferor corporation ending with such date is a first preceding 
taxable year for purposes of section 564, and the taxable year of the 
distributor or transferor corporation immediately preceding such first 
preceding year is a second preceding taxable year for purposes of 
section 564. If the acquiring corporation is a personal holding company 
for its second taxable year ending after the date of distribution or 
transfer, the taxable year of the distributor or transferor corporation 
ending with such date is a second preceding taxable year for purposes of 
section 564.
    (2) Determination of dividends paid deduction and taxable income. 
The dividends paid deduction of any distributor or transferor 
corporation (determined under section 561 but without regard to any 
dividend carryover) and the taxable income of any such corporation 
(adjusted as provided in section 545(b)) for any taxable year ending on 
or before the date of distribution or transfer shall be determined 
without reference to any dividends paid deduction, or taxable income, of 
the acquiring corporation or any other distributor or transferor 
corporation; in like manner, the dividends paid deduction and the 
taxable income of the acquiring corporation for any such taxable year 
shall be determined without reference to any dividends paid deduction, 
or taxable income, of a distributor or transferor corporation.
    (3) Computation of dividend carryover. (i) For the purpose of 
determining the dividend carryover to the first taxable year of the 
acquiring corporation ending after the date of distribution or transfer, 
the amount of the dividend carryover from the distributor or transferor 
corporation shall be determined under section 564 without reference to 
the dividends paid deduction or taxable income of the acquiring 
corporation or any other corporation. If two or more transactions to 
which section 381(a) applies have the same date of distribution or 
transfer, or if a particular taxable year of the acquiring corporation 
is the first taxable year ending after the dates of distribution or 
transfer of two or more such transactions occurring on different dates, 
the amount of the dividend carryover from each distributor or transferor 
corporation shall be determined separately as provided in the preceding 
sentence. Except as provided in subdivision (iii) of this subparagraph, 
the aggregate of the dividend carryovers from each distributor or 
transferor corporation and the dividend carryover of the acquiring 
corporation (computed without regard to this section) shall constitute 
the dividend carryover under section 561(a)(3) of the acquiring 
corporation for its first taxable year ending after the date (or dates) 
of distribution or transfer.
    (ii) For the purpose of determining the dividend carryover to the 
second taxable year of the acquiring corporation ending after the date 
(or dates) of distribution or transfer, the excess, if any, of the 
dividends paid deduction (determined under section 561 without regard to 
any dividend carryover) over the taxable income (adjusted as provided in 
section 545(b)) for the taxable year of each distributor or transferor 
corporation and the acquiring corporation referred to as a second 
preceding taxable year shall be determined separately without reference 
to the dividends paid deduction or taxable income of any other of such 
corporations. The excesses thus determined shall be aggregated, and such 
aggregate shall be--
    (a) Increased by the excess of the dividends paid deduction 
(determined without regard to any dividend carryover) over the taxable 
income (adjusted as provided in section 545(b)), or
    (b) Reduced by the excess of the taxable income (adjusted as 
provided in section 545(b)) over the dividends paid deduction 
(determined without regard to any dividend carryover),

for the first preceding taxable year of the acquiring corporation. 
Except as provided in subdivision (iii) of this subparagraph, the amount 
thus determined shall constitute the dividend carryover under section 
561(a)(3) of the acquiring corporation for its second

[[Page 451]]

taxable year ending after the date (or dates) of distribution or 
transfer.
    (iii) If a particular taxable year of the acquiring corporation is 
its first taxable year ending after the date (or dates) of distribution 
or transfer of one or more transactions to which section 381(a) applies, 
and if the same taxable year of the acquiring corporation is also its 
second taxable year ending after the date (or dates) of distribution or 
transfer of one or more other transactions to which section 381(a) 
applies, then, for the purpose of determining the dividend carryover to 
such taxable year of the acquiring corporation, the rules contained in 
both subdivisions (i) and (ii) of this subparagraph shall be applied. 
Insofar as such taxable year constitutes the first taxable year ending 
after the date (or dates) of distribution or transfer of any 
transaction, the amount of the dividend carryover from any distributor 
or transferor corporation involved in such transaction shall be 
determined separately as provided in subdivision (i) of this 
subparagraph. Insofar as such taxable year constitutes the second 
taxable year ending after the date (or dates) of distribution or 
transfer of any transaction, the amount of the dividend carryover from 
any distributor or transferor corporation involved in the transaction 
and the acquiring corporation shall be determined as provided in 
subdivision (ii) of this subparagraph. The aggregate of the dividend 
carryovers thus determined shall constitute the dividend carryover under 
section 561(a)(3) of the acquiring corporation for such taxable year. 
See Example (4) in paragraph (c) of this section.
    (c) Illustrations. The rules set forth in paragraphs (a) and (b) of 
this section may be illustrated by the following examples:

    Example (1). (i) Facts. N Corporation acquired on June 30, 1960, all 
the assets of M Corporation in a reorganization to which section 381(a) 
applies. Both corporations compute taxable income on the basis of the 
calendar year. N Corporation is a personal holding company for its 
taxable years ending December 31, 1960, and December 31, 1961.
    (ii) Dividend carryover to N Corporation's taxable year ending 
December 31, 1960. With respect to N Corporation's taxable year ending 
December 31, 1960, the taxable years referred to as first preceding 
taxable years and second preceding taxable years are--
    (a) M Corporation's taxable years ending June 30, 1960, and December 
31, 1959, respectively; and
    (b) N Corporation's taxable years ending December 31, 1959, and 
December 31, 1958, respectively.


The dividend carryover to N Corporation's taxable year ending December 
31, 1960, is $22,000 computed as follows, assuming the dividends paid 
deduction before dividend carryovers, and the taxable income after 
section 545(b) adjustments, to be as stated in the computation:

                                                                          M Corporation N Corporation
Second preceding taxable year:
  Dividends paid deduction..................................      $25,000  ...........      $12,000
  Taxable income............................................       15,000  ...........       13,000
                                                             =============             -------------
  Excess dividends paid deduction........................................      $10,000
First preceding taxable year:
  Dividends paid deduction..................................       23,000  ...........       20,000
  Taxable income............................................       21,000  ...........       10,000
                                                             =============             -------------
  Excess dividends paid deduction...........................        2,000  ...........      $10,000
Separate dividend carryovers................................       12,000  ...........       10,000
----------------------------------------------------------------------------------------------------------------

The aggregate dividend carryover of $22,000 is the sum of $12,000 (the 
separate dividend carryover from M Corporation) and $10,000 (the 
separate dividend carryover from N Corporation's own preceding taxable 
years).
    (iii) Dividend carryover to N Corporation's taxable year ending 
December 31, 1961. With respect to N Corporation's taxable year ending 
December 31, 1961, the first preceding taxable year is N Corporation's 
taxable year ending December 31, 1960; and the taxable years referred to 
as second preceding taxable years are M Corporation's taxable year 
ending June 30, 1960, and N Corporation's taxable year ending December 
31, 1959. The dividend carryover to N Corporation's taxable year ending 
December 31, 1961, is $17,000 computed as follows, assuming the 
dividends paid deduction before dividend carryovers, and the taxable 
income after section 545(b) adjustments, to be as stated in the 
computation:

[[Page 452]]



------------------------------------------------------------------------
                                                     M            N
         Second preceding taxable year          Corporation  Corporation
------------------------------------------------------------------------
Dividends paid deduction......................      $23,000      $20,000
Taxable income................................       21,000       10,000
                                               -------------------------
Separate excess of dividends paid deduction           2,000       10,000
 over taxable income..........................
------------------------------------------------------------------------

The aggregate excess of dividends paid deduction over taxable income for 
the second preceding taxable year is $12,000, the sum of $2,000 
(separate excess from N Corporation) and $10,000 (separate excess from N 
Corporation). Such aggregate excess is increased by the excess dividends 
paid deduction, or is reduced by the excess of taxable income, for the 
first preceding taxable year as follows:

Aggregate excess of dividends paid deduction for  ..........     $12,000
 second preceding taxable year..................
Dividends paid deduction of N Corporation for        $50,000
 first preceding taxable year...................
Taxable income of N Corporation for first             45,000
 preceding taxable year.........................
                                                 ------------
                                                  ..........      $5,000
Dividend carryover to N Corporation's taxable     ..........      17,000
 year ending December 31, 1961..................
------------------------------------------------------------------------

    Example (2). (i) Facts. X Corporation is organized on May 1, 1956, 
and computes its taxable income on the basis of the fiscal year ending 
April 30. Y Corporation and Z Corporation are both organized on January 
1, 1955, and both compute their taxable income on the basis of the 
calendar year. On July 31, 1957, X Corporation and Y Corporation 
transfer all their assets to Z Corporation in a statutory merger to 
which section 381(a) applies. For its taxable years ending December 31, 
1957, and December 31, 1958, Z Corporation is a personal holding 
company.
    (ii) Dividend carryover to Z Corporation's taxable year ending 
December 31, 1957. With respect to Z Corporation's taxable year ending 
December 31, 1957, the taxable years referred to as first preceding 
taxable years and second preceding taxable years are--
    (a) X Corporation's taxable years ending July 31, 1957, and April 
30, 1957, respectively;
    (b) Y Corporation's taxable years ending July 31, 1957, and December 
31, 1956, respectively; and
    (c) Z Corporation's taxable years ending December 31, 1956, and 
December 31, 1955, respectively.


The dividend carryover to Z Corporation's taxable year ending December 
31, 1957, is $40,000 computed as follows, assuming the dividends paid 
deduction before dividend carryovers, and the taxable income after 
section 545(b) adjustments, to be as stated in the computation:

                                                      X Corporation Y Corporation Z Corporation
Second preceding taxable year:
  Dividends paid deduction........      $56,000  ...........      $19,000  ...........       $6,000
  Taxable income..................       24,000  ...........       17,000  ...........        5,000  ...........
                                   -------------             -------------             -------------
    Excess.....................................      $32,000  ...........       $2,000  ...........      $1,000
First preceding taxable year:
  Dividends paid deduction........        9,000  ...........        4,000  ...........       10,000
  Taxable income..................        7,000  ...........        8,000  ...........        5,000
                                   -------------             -------------             -------------
    Excess.....................................        2,000  ...........      (4,000)  ...........        5,000
                                   -------------             -------------             --------------
Separate dividend carryovers...................       34,000  ...........            0  ...........       6,000
----------------------------------------------------------------------------------------------------------------
The aggregate dividend carryover of $40,000 is the sum of $34,000 (the separate dividend carryover from X
  Corporation) and $6,000 (the separate dividend carryover from Z Corporation's own preceding taxable years).

    (iii) Dividend carryover to Z Corporation's taxable year ending 
December 31, 1958. With respect to Z Corporation's taxable year ending 
December 31, 1958, the first preceding taxable year is Z Corporation's 
taxable year ending December 31, 1957; and the taxable years referred to 
as second preceding taxable years are X Corporation's taxable year 
ending July 31, 1957, Y Corporation's taxable year ending July 31, 1957, 
and Z Corporation's taxable year ending December 31, 1956. The dividend 
carryover to Z Corporation's taxable year ending December 31, 1958, is 
$1,000 computed as follows, assuming the dividends paid deduction before 
dividend carryovers, and the taxable income after section 545(b) 
adjustments, to be as stated in the computation:

------------------------------------------------------------------------
                                        X            Y            Z
                                   Corporation  Corporation  Corporation
------------------------------------------------------------------------
Second preceding taxable year:
  Dividends paid deduction.......       $9,000       $4,000      $10,000
  Taxable income.................        7,000        8,000        5,000
                                  --------------------------------------

[[Page 453]]

 
Separate excess of dividends paid        2,000            0        5,000
 deduction over taxable income...
 
------------------------------------------------------------------------

The aggregate excess of dividends paid deduction over taxable income for 
the second preceding taxable year is $7,000, the sum of $2,000 (separate 
excess from X Corporation) and $5,000 (separate excess from Z 
Corporation). Such aggregate excess is increased by the excess dividends 
paid deduction, or is reduced by the excess of taxable income, for the 
first preceding taxable year as follows:

Aggregate excess of dividends paid deduction for     ..........   $7,000
 second preceding taxable year.....................
Dividends paid deduction of Z Corporation for first    $102,000
 preceding taxable year............................
Taxable income of Z Corporation for first preceding     108,000  (6,000)
 taxable year......................................
                                                    --------------------
Dividend carryover to Z Corporation's taxable year   ..........    1,000
 ending December 31, 1958..........................
 

    Example (3). Assume the facts stated in Example (2), except that Y 
Corporation transferred all its assets to Z Corporation on May 31, 1957. 
Assume also that the facts for Y Corporation's taxable year ending May 
31, 1957, are otherwise the same as those stated for its taxable year in 
Example (2) ending July 31, 1957. In such case, the dividend carryovers 
to Z Corporation's taxable years ending on December 31, 1957, and 
December 31, 1958, are the same as in Example (2) notwithstanding the 
fact that the transfers from X Corporation and Y Corporation occurred on 
the different dates.
    Example (4). (i) Facts. T Corporation acquired on June 30, 1960, all 
the assets of U Corporation in a statutory merger to which section 
381(a) applies, and in a like transaction acquired on June 30, 1961, all 
the assets of V Corporation. Such corporations all compute taxable 
income on the basis of the calendar year. T Corporation is a personal 
holding company for its taxable years 1960 and 1961.
    (ii) Dividend carryover to T Corporation's taxable year 1960. With 
respect to T Corporation's taxable year ending December 31, 1960, the 
taxable years referred to as first preceding taxable years and second 
preceding taxable years are--
    (a) U Corporation's taxable years ending June 30, 1960, and December 
31, 1959, respectively; and
    (b) T Corporation's taxable years ending December 31, 1959, and 
December 31, 1958, respectively.


The dividend carryover to T Corporation's taxable year ending December 
31, 1960, is $7,000 computed as follows, assuming the dividends paid 
deduction before dividend carryovers, and the taxable income after 
section 545(b) adjustments, to be as stated in the computation:

                                                                          U Corporation T Corporation
Second preceding taxable year:
  Dividends paid deduction..................................      $16,000  ...........      $10,000
  Taxable income............................................       12,000  ...........       13,000
                                                             -------------             -------------
    Excess...............................................................       $4,000  ...........           0
First preceding taxable year:
  Dividends paid deduction..................................        7,000  ...........       17,000
  Taxable income............................................        5,000  ...........       16,000
                                                             -------------             -------------
    Excess...............................................................        2,000  ...........       $1,000
                                                             -------------             --------------
Separate dividend carryovers.............................................        6,000  ...........        1,000
----------------------------------------------------------------------------------------------------------------

The aggregate dividend carryover of $7,000 is the sum of $6,000 (the 
separate dividend carryover from U Corporation) and $1,000 (the separate 
dividend carryover from T Corporation's own first preceding taxable 
year).
    (iii) Dividend carryover to T Corporation's taxable year 1961. 
Inasmuch as T Corporation's taxable year 1961 is the second taxable year 
ending after the date of distribution or transfer from U Corporation, 
paragraph (b)(3)(ii) of this section governs the determination of the 
dividend carryover from taxable years of T Corporation and U 
Corporation. On the other hand, inasmuch as T Corporation's taxable year 
1961 is the first taxable year ending after the date of distribution or 
transfer from V Corporation, paragraph (b)(3)(i) governs the 
determination of the dividend carryover from taxable years of V 
Corporation.
    (a) Application of paragraph (b)(3)(ii) of this section. With 
respect to T Corporation's taxable year 1961, the first preceding 
taxable year is T Corporation's taxable year ending December 31, 1960; 
and the taxable years referred to as second preceding taxable year

[[Page 454]]

are T Corporation's taxable year ending December 31, 1959, and U 
Corporation's taxable year ending June 30, 1960. The dividend carryover 
from taxable years of T Corporation and U Corporation is $1,500 computed 
as follows, assuming the dividends paid deduction before dividend 
carryovers, and the taxable income after section 545(b) adjustments, to 
be as stated in the computation:

------------------------------------------------------------------------
                                                     U            T
         Second preceding taxable year          Corporation  Corporation
------------------------------------------------------------------------
Dividends paid deduction......................       $7,000      $17,000
Taxable income................................        5,000       16,000
                                               -------------------------
Separate excess of dividends paid deduction           2,000        1,000
 over taxable income..........................
------------------------------------------------------------------------

The aggregate excess of dividends paid deduction over taxable income for 
the second preceding taxable year is $3,000, the sum of $2,000 (separate 
excess from U Corporation) and $1,000 (separate excess from T 
Corporation). Such aggregate is increased by the excess dividends paid 
deduction, or is reduced by the excess of taxable income, for the first 
preceding taxable year as follows:

 
                                                                  T
                                                             Corporation
 
Aggregate excess of dividends paid deduction for second           $3,000
 preceding taxable year....................................
First preceding taxable year:
  Dividends paid deduction of T Corporation....     $21,000
  Taxable income of T Corporation..............      22,500
  Excess taxable income....................................      (1,500)
                                                -------------
Separate dividend carryover (without regard to V                   1,500
 Corporation)..............................................
 

    (b) Application of paragraph (b)(3)(i) of this section. With respect 
to T Corporation's taxable year 1961, V Corporation's taxable year 
ending June 30, 1961, is a first preceding taxable year, and its taxable 
year ending December 31, 1960, is a second preceding taxable year. The 
separate dividend carryover from V Corporation is $8,000 computed as 
follows, assuming the dividends paid deduction before dividend 
carryovers, and the taxable income after section 545(b) adjustments, to 
be as stated in the computation:

 
                                                       V Corporation
          Second preceding taxable year
 
 
Dividends paid deduction.........................     $11,000
Taxable income...................................       6,000
  Excess.........................................  ..........     $5,000
First preceding taxable year:
  Dividends paid deduction.......................      $9,000
  Taxable income.................................       6,000
                                                  ------------
  Excess.........................................       3,000
                                                              ----------
Separate dividend carryover from V Corporation...  ..........      8,000
 

    (c) Dividend carryover. The dividend carryover to T Corporation's 
taxable year 1961 is $9,500, the sum of $8,000 (the separate dividend 
carryover from V Corporation) and $1,500 (the aggregate dividend 
carryover from T Corporation and U Corporation).

    (d) Successive carryovers. The provisions of this section shall 
apply for the purpose of determining a dividend carryover to an 
acquiring corporation which, in a distribution or transfer to which 
section 381(a) applies, acquires the assets of a distributor or 
transferor corporation which has previously acquired the assets of 
another corporation in a transaction to which section 381(a) applies; 
even though, in computing the dividend carryover to such second 
acquiring corporation, it is necessary to take into account the 
deduction for dividends paid, and the adjusted taxable income, of the 
first distributor or transferor corporation.
    (e) Acquiring corporation not receiving all the assets. The dividend 
carryover acquired from a distributor or transferor corporation by an 
acquiring corporation in a transaction to which section 381(a) applies 
is not reduced by reason of the fact that the acquiring corporation does 
not acquire 100 percent of the assets of the distributor or transferor 
corporation.
    (f) Dividends paid after the close of taxable year. A transaction to 
which section 381(a) applies does not prevent the application of section 
563(b) to a dividend paid by a distributor or transferor corporation 
after the close of its taxable year ending with the date of distribution 
or transfer but on or before the 15th day of the third month following 
the close of such taxable year. However, dividends paid by the acquiring 
corporation may not be taken into account under section 563(b) for the 
purpose of determining the dividends paid deduction of the distributor 
or transferor corporation for its taxable year ending with the date of 
distribution or transfer.

[T.D. 6532, 26 FR 406, Jan. 19, 1961]



Sec. 1.381(c)(15)-1  Indebtedness of certain personal holding companies.

    (a) Qualified indebtedness--(1) Carryover requirement. If, in a 
transaction to which section 381(a) applies, the acquiring corporation 
assumes liability for

[[Page 455]]

any indebtedness which was qualified indebtedness (as defined in section 
545(c) and Sec. 1.545-3) in the hands of the distributor or transferor 
corporation immediately before the assumption of such indebtedness, 
then, under section 381(c)(15), in computing its undistributed personal 
holding company income for any taxable year beginning after December 31, 
1963, and ending after the date of distribution or transfer, the 
acquiring corporation shall be considered the distributor or transferor 
corporation for purposes of computing the deduction under section 545(c) 
and Sec. 1.545-3. Such deduction shall be allowed to the acquiring 
corporation in accordance with section 545(c) and Sec. 1.545-3.
    (2) Successive transactions to which section 381(a) applies. If in a 
transaction to which section 381(a) applies, an acquiring corporation 
assumes liability for qualified indebtedness, such acquiring corporation 
shall be deemed to have incurred such qualified indebtedness for the 
purpose of applying section 381(c)(15) to any subsequent transaction in 
which such acquiring corporation is the distributor or transferor 
corporation.
    (b) Pre-1934 indebtedness--(1) Carryover requirement. If, in a 
transaction to which section 381(a) applies, the acquiring corporation 
assumes liability for any indebtedness incurred, or assumed, before 
January 1, 1934, by a distributor or transferor corporation, then under 
section 381(c)(15) the acquiring corporation shall be allowed, in 
computing its undistributed personal holding company income for any 
taxable year ending after the date of distribution or transfer, a 
deduction under section 545(b)(7) for amounts used or irrevocably set 
aside to pay or to retire such indebtedness. Such deduction shall be 
allowed to the acquiring corporation in accordance with section 
545(b)(7) and paragraph (g) of Sec. 1.545-2 as though the indebtedness 
had been incurred, or assumed, by the acquiring corporation before 
January 1, 1934.
    (2) Successive transactions to which section 381(a) applies. If, in 
a transaction to which section 381(a) applies, an acquiring corporation 
assumes liability for indebtedness described in subparagraph (1) of this 
paragraph, such acquiring corporation shall be deemed to have incurred 
the indebtedness before January 1, 1934, for the purpose of applying 
section 381(c)(15) to any subsequent transaction in which such acquiring 
corporation is the distributor or transferor corporation.
    (c) Special rule. For purposes of this section, if, in a transaction 
otherwise described in this section, an acquiring corporation acquires 
real estate--(1) of which the distributor or transferor corporation is 
the legal or equitable owner immediately before the acquisition, and (2) 
which is subject to indebtedness that, with respect to the distributor 
or transferor corporation, is indebtedness described in this section 
immediately before the acquisition, then the acquiring corporation will 
be treated as having assumed such indebtedness, provided it shows to the 
satisfaction of the Commissioner that under all the facts and 
circumstances it bears the burden of discharging such indebtedness.

[T.D. 6949, 33 FR 5524, Apr. 9, 1968; 33 FR 6091, Apr. 20, 1968]



Sec. 1.381(c)(16)-1  Obligations of distributor or transferor 
corporation.

    (a) Deduction allowed to acquiring corporation. (1) If, in a 
transaction to which section 381(a) applies, the acquiring corporation 
assumes an obligation of a distributor or transferor corporation which 
gives rise to a liability after the date of distribution or transfer and 
if the distributor or transferor corporation would be entitled to deduct 
such liability in computing taxable income were it paid or accrued after 
that date by such corporation, then, under the provisions of section 
381(c)(16) and this section, the acquiring corporation shall be entitled 
to deduct such liability as if it were the distributor or transferor 
corporation. However, in the case of a transaction to which section 
381(a)(2) applies, section 381(c)(16) shall not apply to an obligation 
which is reflected in the amount of consideration, that is, the stock, 
securities, or other property, transferred by the acquiring corporation 
to a transferor corporation or its shareholders in exchange for the 
property of that transferor corporation. An obligation which is so 
reflected in the amount of consideration will be treated as an item or 
tax attribute not specified in section

[[Page 456]]

381(c)(16). Such an obligation is subject to section 381(c)(4). See 
subparagraph (2) of this paragraph. Any deduction allowed under section 
381(c)(16) to the acquiring corporation shall be taken by that 
corporation in the taxable year ending after the date of distribution or 
transfer in which the liability is paid or accrued by that corporation, 
as the case may be.
    (2) In order to determine whether, in the case of obligations of a 
distributor or transferor corporation assumed by an acquiring 
corporation, section 381(c)(16) and this section, or section 381(c)(4) 
and the regulations thereunder, apply, the following rules shall govern:
    (i) If the obligation gave rise to a liability before the date of 
distribution or transfer, see section 381(c)(4) and the regulations 
thereunder.
    (ii) If the obligation gives rise to a liability after the date of 
distribution or transfer, and the obligation was not reflected in the 
amount of consideration transferred by the acquiring corporation to the 
distributor or transferor corporation or its shareholders in exchange 
for the property of the distributor or transferor corporation, then 
section 381(c)(16) and this section shall apply.
    (iii) In the case of a transaction to which section 381(a)(1) 
applies, if the obligation gives rise to a liability after the date of a 
distribution, and the obligation was reflected in the amount of 
consideration transferred by the acquiring corporation to the 
distributor corporation or its shareholders in exchange for the property 
of the distributor corporation, then section 381(c)(16) and this section 
shall apply.
    (iv) In the case of a transaction to which section 381(a)(2) 
applies, if the obligation gives rise to a liability after the date of a 
transfer, and the obligation was reflected in the amount of 
consideration transferred by the acquiring corporation to the transferor 
corporation or its shareholders in exchange for the property of the 
transferor corporation, then see section 381(c)(4) and the regulations 
thereunder.
    (3) The rules of this section apply to obligations assumed by 
agreement of the parties as well as by operation of law.
    (4) For purposes of this section, an obligation of a distributor or 
transferor corporation gives rise to a liability when the liability 
would be accruable by a taxpayer using the accrual method of accounting 
notwithstanding the fact that the distributor or transferor corporation 
is not using the accrual method of accounting. See paragraph (a)(2) of 
Sec. 1.461-1.
    (5) In the case of a transaction to which section 381(a)(2) applies, 
the determination as to whether or not an obligation was reflected in 
the amount of consideration transferred by the acquiring corporation to 
the transferor corporation or its shareholders in exchange for the 
property of the transferor corporation shall be made on the basis of all 
the facts of each particular transfer. Where, on the date of 
distribution or transfer, the parties were aware of the existence of a 
specific obligation and reduced the amount of consideration to be 
transferred by the acquiring corporation by a specific amount because of 
the existence of such obligation, then such obligation shall be 
considered to have been reflected in the amount of consideration 
transferred. In the absence of such facts, it shall be presumed that the 
obligation was not reflected in the amount of consideration transferred.
    (b) Distribution or transfer occurring under the Internal Revenue 
Code of 1939. Subject to the provisions of section 381(c)(16) and this 
section, a corporation which would have been an acquiring corporation 
(under the provisions of paragraph (b) of Sec. 1.381(a)-1) in a 
transaction to which section 381(a) applies if the date of distribution 
or transfer had occurred on or after the effective date of the 
provisions of subchapter C, chapter 1 of the Internal Revenue Code of 
1954, applicable to a liquidation or reorganization, as the case may be, 
shall be entitled to take a deduction for amounts paid or accrued in any 
taxable year beginning after December 31, 1953, in respect of any 
obligation which it has assumed from a corporation which would have been 
a distributor or transferor corporation in such transaction. However, 
this paragraph shall have no application to a

[[Page 457]]

situation described in paragraph (a)(2)(iv) of this section.
    (c) Examples. The application of the foregoing rules may be 
illustrated by the following examples:

    Example (1). X Corporation and Y Corporation compute their taxable 
income on the basis of the calendar year, and both corporations use an 
accrual method of accounting. On December 31, 1954, Y Corporation 
acquires the assets of X Corporation in a transfer to which section 
381(a)(2) applies. By reason of State law, Y Corporation assumes 
responsibility for all of the obligations for which X Corporation is 
then, or may become, liable. The parties have no knowledge of any 
specific obligations of X Corporation which are not yet fixed and 
ascertainable, but it is agreed to reduce the amount of consideration 
that Y Corporation is to transfer in exchange for the assets of X 
Corporation by $5,000 to reflect any unforeseen contingent liabilities 
of X Corporation for which Y Corporation might subsequently become 
liable. After the date of the transfer, a claim for damages on account 
of the alleged negligence of an alleged agent of X Corporation is filed. 
After commencement of legal action by the claimant and in order to 
eliminate the possibility of injury to its business, Y Corporation 
settles the claim in 1955 by paying the claimant the amount of $3,000. 
Assuming that such sum would have been deductible under section 162 if 
paid by X Corporation, Y Corporation is entitled to deduct such sum in 
accordance with the provisions of section 381(c)(16) and this section in 
computing its taxable income for 1955, since the claim gave rise to a 
liability after the date of transfer, the parties were not aware of a 
specific obligation, and the specific obligation was not reflected in 
the consideration transferred by Y Corporation in exchange for the 
assets of X Corporation.
    Example (2). Assume the same facts as in Example (1), except that 
the claim for damages was filed prior to the transfer of X Corporation's 
assets to Y Corporation, but the parties considered the chances for 
recovery by the claimant so remote that no specific amount other than 
the $5,000 reduction in consideration for all contingent liabilities as 
a whole is reflected in the consideration transferred by Y Corporation 
in exchange for the assets of X Corporation. Assuming that such sum 
would have been deductible under section 162 if paid by X Corporation, 
the $3,000 paid by Y Corporation in 1955 is deductible in accordance 
with the provisions of section 381(c)(16) and this section in 1955.
    Example (3). Assume the same facts as in Example (1), except that 
the parties consider the chances of recovery by the claimant of 
sufficient probability that Y Corporation reduces the amount of 
consideration it transfers in exchange for the assets of X Corporation 
by $1,000 in addition to the $5,000 reduction for all other contingent 
liabilities. The $3,000 paid by Y Corporation in 1955 is not deductible 
under section 381(c)(16) and this section, since the specific obligation 
was reflected in the consideration transferred by Y Corporation in 
exchange for the assets of X Corporation. The deductibility of the 
payment is accordingly governed by the provisions of section 381(c)(4) 
and the regulations thereunder. Similarly, if in this case Y Corporation 
had transferred $10,000 less in consideration for the assets of X 
Corporation because of this particular claim, Y Corporation would not be 
entitled to any deduction for the $3,000 paid in 1955 under section 
381(c)(16) and this section, and the deductibility of the payment would 
be governed by the provisions of section 381(c)(4) and the regulations 
thereunder. If the date of transfer of X Corporation's assets had 
occurred prior to the effective date of subchapter C, chapter 1 of the 
Internal Revenue Code of 1954, applicable to a reorganization, no 
deduction would be allowed to Y Corporation under that section.

[T.D. 6750, 29 FR 11267, Aug. 5, 1964]



Sec. 1.381(c)(17)-1  Deficiency dividend of personal holding company.

    (a) Carryover requirement. If a determination (as defined in section 
547(c)) establishes that a distributor or transferor corporation in a 
transaction to which section 381(a) applies is liable for personal 
holding company tax imposed by section 541 (or by a corresponding 
provision of prior income tax law) for any taxable year ending on or 
before the date of distribution or transfer, then in computing such tax 
the deduction described in section 547 shall be allowed pursuant to 
section 381(c)(17) to such corporation for the amount of deficiency 
dividends paid by the acquiring corporation with respect to the 
distributor or transferor corporation. Except as otherwise provided in 
this section, the provisions of section 547 and the regulations 
thereunder apply with respect to a deficiency dividend deduction 
allowable pursuant to section 381(c)(17).
    (b) Deficiency dividends paid by the acquiring corporation with 
respect to the distributor or transferor corporation. A deficiency 
dividend paid by the acquiring corporation with respect to the 
distributor or transferor corporation is a distribution that would 
satisfy the definition of a deficiency dividend under

[[Page 458]]

section 547(d)(1) if paid by the distributor or transferor corporation 
to its own shareholders except that it shall be paid by the acquiring 
corporation to its own shareholders and shall be paid after the date of 
distribution or transfer and on, or within 90 days after, the date of 
the determination but before the acquiring corporation files claim under 
paragraph (c) of this section.
    (c) Claim for deduction. A claim for a deduction under this section 
shall be made by the acquiring corporation on Form 976, and shall be 
filed within 120 days after the date of the determination. The form 
shall contain, or be accompanied by, the information required under 
paragraph (b)(2) of Sec. 1.547-2 in sufficient detail to properly 
identify the facts with the distributor or transferor corporation and 
the acquiring corporation. The statement required with respect to the 
shareholders on the date of payment of the deficiency dividend shall 
relate to the shareholders of the acquiring corporation, and the 
required certified copy of the resolution authorizing the payment of the 
dividend shall be that of the board of directors, or other authority, of 
the acquiring corporation. Necessary changes may be made in Form 976 in 
order to carry out the provisions of this paragraph. The claim shall be 
filed with the district director for the internal revenue district in 
which the return of the distributor or transferor corporation to which 
such claim relates was filed.
    (d) Effect on dividends paid deduction. A deficiency dividend paid 
by the acquiring corporation, which is allowable as a deduction to a 
distributor or transferor corporation pursuant to section 381(c)(17), 
shall not become a part of the dividends paid deduction of the acquiring 
corporation under section 561 for any taxable year.
    (e) Successive transactions to which section 381(a) applies. The 
provisions of this section shall apply in the case of successive 
transactions to which section 381(a) applies. Thus, if X Corporation 
transfers its assets to Y Corporation in a transaction to which section 
381(a) applies and if Y Corporation transfers its assets to Z 
Corporation in a subsequent transaction to which section 381(a) applies, 
then, subject to the provisions of this section, X Corporation may take 
a deficiency dividend deduction for the amount of deficiency dividends 
paid by Z Corporation with respect to X Corporation.
    (f) Example. The provisions of this section may be illustrated by 
the following example:

    Example. M Corporation, a personal holding company, computes its 
taxable income on the basis of the calendar year. On December 31, 1956, 
N Corporation acquires the assets of M Corporation in a transaction to 
which section 381(a) applies. On July 31, 1958, a determination (as 
defined in section 547(c)) establishes that M Corporation is liable for 
the taxable year 1955 for personal holding company tax in the amount of 
$35,500 based on undistributed personal holding company income of 
$42,000 for such taxable year. N Corporation complies with the 
provisions of this section and on September 30, 1958, distributes 
$42,000 to its shareholders as deficiency dividends with respect to M 
Corporation's taxable year 1955. The distribution of $42,000 by N 
Corporation is a taxable dividend under section 316(b)(2) regardless of 
whether N Corporation is a personal holding company for the taxable year 
1958 or whether it had any current or accumulated earnings and profits. 
See Example (3) in paragraph (e) of Sec. 1.316-1. Because N Corporation 
has paid deficiency dividends of $42,000 in accordance with this 
section, M Corporation is entitled to a deficiency dividend deduction of 
$42,000 for the taxable year 1955 and is thus relieved of its liability 
for personal holding company tax of $35,500 for such taxable year. To 
prevent a duplication of deductions, the amount distributed by N 
Corporation in 1958 does not become a part of N Corporation's dividends 
paid deduction under section 561 for any taxable year.

[T.D. 6532, 26 FR 409, Jan. 19, 1961, as amended by T.D. 7604, 44 FR 
18661, Mar. 29, 1979; T.D. 7767, 45 FR 11264, Feb. 6, 1981]



Sec. 1.381(c)(18)-1  Depletion on extraction of ores or minerals from 
the waste or residue of prior mining.

    (a) Carryover requirement. Section 381(c)(18) provides that the 
acquiring corporation in a transaction described in section 381(a) shall 
be considered as though it were the distributor or transferor 
corporation after the date of distribution or transfer for the purpose 
of determining the applicability of section 613(c)(3) (relating to 
extraction of ores or minerals from the ground). Thus, an acquiring 
corporation which has acquired the waste or residue of

[[Page 459]]

prior mining from a distributor or transferor corporation in a 
transaction described in section 381(a) shall be entitled, after the 
date of distribution or transfer, to an allowance for depletion under 
section 611 in respect of ores or minerals extracted from such waste or 
residue if the distributor or transferor corporation would have been 
entitled to such an allowance for depletion in the absence of the 
distribution or transfer. See paragraph (f) of Sec. 1.613-4 to 
determine whether a distributor or transferor corporation is entitled to 
an allowance for depletion with respect to the waste or residue of prior 
mining.
    (b) Application of section 614 to waste or residue of prior mining. 
If, in a transaction described in section 381(a), the acquiring 
corporation acquires waste or residue of prior mining from a distributor 
or transferor corporation, then the acquiring corporation shall be 
considered as though it were the distributor or transferor corporation 
for the purpose of applying section 614 and the regulations thereunder 
to the waste or residue so acquired. Thus, if the distributor or 
transferor corporation was required under paragraph (c) of Sec. 1.614-1 
to treat the waste or residue as part of the mineral deposit from which 
it was extracted and if the acquiring corporation acquires both the 
waste or residue and the mineral deposit from which it was extracted in 
a transaction described in section 381(a), then such waste or residue 
shall be treated as a part of such mineral deposit in the hands of the 
acquiring corporation. On the other hand, if the waste or residue was 
required to be treated as a separate mineral deposit in the hands of the 
distributor or transferor corporation, such waste or residue shall be 
treated as a separate mineral deposit in the hands of the acquiring 
corporation.

[T.D. 6552, 26 FR 1991, Mar. 8, 1961, as amended by T.D. 7170, 37 FR 
5373, Mar. 15, 1972]



Sec. 1.381(c)(19)-1  Charitable contribution carryovers in certain 
acquisitions.

    (a) Carryover requirement. Section 381(c)(19) provides that, in 
computing taxable income for its taxable years which begin after the 
date of distribution or transfer to which section 381(a) applies, the 
acquiring corporation shall take into account any charitable 
contributions made by a distributor or transferor corporation during the 
taxable year ending on the date of distribution or transfer, and in 
certain immediately preceding taxable years, which are in excess of the 
maximum amount deductible for those taxable years under section 
170(b)(2) in the following manner:
    (1) If the taxable year of the distributor or transferor corporation 
ending on the date of distribution or transfer begins before January 1, 
1962, the acquiring corporation shall, in computing taxable income for 
its first 2 taxable years which begin after the date of such 
distribution or transfer, take into account the excess contributions 
made by the distributor or transferor corporation in the taxable year 
ending on the date of distribution or transfer and in the immediately 
preceding taxable year;
    (2) If the taxable year of the distributor or transferor corporation 
ending on the date of distribution or transfer begins after December 31, 
1961, the acquiring corporation shall, in computing taxable income for 
certain taxable years which begin after the date of distribution or 
transfer, take into account the excess contributions made by the 
distributor or transferor corporation in the taxable year ending on such 
date of distribution or transfer and in any of the four taxable years 
immediately preceding such taxable year but excluding any taxable year 
beginning before January 1, 1962 (see paragraph (c)(3) of this section). 
Notwithstanding the preceding sentence, if the taxable year of the 
distributor or transferor corporation ending on the date of distribution 
or transfer begins after December 31, 1961, and before January 1, 1963, 
the acquiring corporation shall, in computing taxable income for its 
first taxable year which begins after the date of distribution or 
transfer, also take into account the excess contributions made by the 
distributor or transferor corporation in the taxable year immediately 
preceding the taxable year of the distributor or transferor corporation 
ending on the date of distribution or transfer (see paragraph (c)(2) of 
this section).

[[Page 460]]


To determine the amount of excess contributions made by a distributor or 
transferor corporation and to integrate them with contributions made by 
the acquiring corporation for the purpose of determining the charitable 
contributions deductible by the acquiring corporation for its taxable 
years beginning immediately after the date of distribution or transfer, 
it is necessary to apply the provisions of section 170(b)(2) and Sec. 
1.170-3 (or, if applicable, section 170(b)(2) and (d)(2) and Sec. 
1.170A-11) in accordance with the conditions and limitations of section 
381(c)(19) and this section. For taxable years beginning before January 
1, 1970, see section 170 for provisions of section 170(b)(2) as referred 
to in this section. For taxable years beginning after December 31, 1969, 
see section 170A for provisions of section 170(b)(2) or (d)(2) as 
referred to in this section. For special rules for applying section 
170(d)(2) with respect to contributions paid, or treated as paid, in 
taxable years beginning before January 1, 1970, see paragraph (d) of 
Sec. 1.170A-11.
    (b) Manner of computing excess charitable contribution carryovers. 
(1) The amount of any charitable contribution made by a distributor or 
transferor corporation in any taxable year ending on or before the date 
of distribution or transfer, or made by the acquiring corporation in any 
taxable year before its taxable year beginning after the date of 
distribution or transfer, in excess of the amount allowable as a 
deduction to such corporation for such taxable year under section 
170(b)(2) shall be determined by taking into account the taxable income 
of, and the contributions made by, that corporation only.
    (2) An acquiring corporation which, in a distribution or transfer to 
which section 381(a) applies, acquires the assets of a distributor or 
transferor corporation which previously acquired the assets of another 
corporation in a transaction to which section 381(a) applies, shall 
succeed to and take into account, subject to the conditions and 
limitations of sections 170 and 381, the charitable contribution 
carryovers available to the first acquiring corporation under sections 
170 and 381, including those derived by such first acquiring corporation 
from its distributor or transferor corporation.
    (3) The excess charitable contributions made by a distributor or 
transferor corporation in its taxable year ending on the date of 
distribution or transfer and in certain immediately preceding taxable 
years (see paragraph (c) of this section) which are not deductible by 
the distributor or transferor corporation because of the 5-percent 
limitation of section 170(b)(2) shall be available to the acquiring 
corporation without diminution by reason of the fact that the acquiring 
corporation does not acquire 100 percent of the assets of the 
distributor or transferor corporation. Thus, if a parent corporation 
owning 80 percent of all classes of stock of its subsidiary corporation 
were to acquire its share of the assets of the subsidiary corporation 
upon a complete liquidation described in paragraph (b)(1)(i) of Sec. 
1.381(a)-1, then, subject to the conditions and limitations of this 
section, 100 percent of the excess contributions made by the subsidiary 
corporation would be available to the acquiring corporation.
    (c) Taxable years to which carryovers apply and amount deductible--
(1) Taxable years beginning before January 1, 1962. If the taxable year 
of the distributor or transferor corporation ending on the date of 
distribution or transfer begins before January 1, 1962:
    (i) The excess charitable contributions made by a distributor or 
transferor corporation in its taxable year immediately preceding that 
ending on the date of distribution or transfer, to the extent not 
deductible by it because of the limitations of section 170(b)(2) in its 
taxable year ending on that date, shall be deductible by the acquiring 
corporation to the extent prescribed by section 170(b)(2) in its first 
taxable year beginning after the date of distribution or transfer. Any 
portion of such excess which is not deductible under this section by the 
acquiring corporation in such first taxable year shall not be deducted 
by that corporation in any other taxable year.
    (ii) The excess charitable contributions made by a distributor or 
transferor corporation in its taxable year ending on the date of 
distribution or transfer shall first be deductible by the

[[Page 461]]

acquiring corporation to the extent prescribed by section 170(b)(2) and 
this section in its first taxable year beginning after that date and 
then, to the extent prescribed by section 170(b)(2) and this section, in 
its second taxable year beginning after that date. Any portion of such 
excess which is not deductible under this section by the acquiring 
corporation in such first and second taxable years shall not be deducted 
by that corporation in any other taxable year.
    (2) Taxable years beginning in 1962. If the taxable year of the 
distributor or transferor corporation ending on the date of distribution 
or transfer begins after December 31, 1961, and before January 1, 1963:
    (i) The excess charitable contributions made by a distributor or 
transferor corporation in its taxable year immediately preceding that 
ending on the date of distribution or transfer, to the extent not 
deductible by it because of the limitations of section 170(b)(2) in its 
taxable year ending on that date, shall be deductible by the acquiring 
corporation to the extent prescribed by section 170(b)(2) in its first 
taxable year beginning after the date of distribution or transfer. Any 
portion of such excess which is not deductible under this section by the 
acquiring corporation in such first year shall not be deducted by that 
corporation in any other taxable year.
    (ii) The excess charitable contributions made by a distributor or 
transferor corporation in its taxable year ending on the date of 
distribution or transfer and beginning after December 31, 1961, and 
before January 1, 1963, shall first be deductible by the acquiring 
corporation to the extent prescribed by section 170(b)(2) and this 
section in its first taxable year beginning after that date and then, to 
the extent prescribed by section 170(b)(2) and this section, in its 
second, third, fourth, and fifth taxable year, in order of time, 
beginning after that date. Any portion of such excess which is not 
deductible under this section by the acquiring corporation in such 5 
taxable years shall not be deducted by that corporation in any other 
taxable year.
    (3) Taxable years beginning after December 31, 1962. (i) If the 
taxable year of the distributor or transferor corporation ending on the 
date of distribution or transfer begins after December 31, 1962, the 
excess charitable contributions made by a distributor or transferor 
corporation in its taxable year ending on the date of distribution or 
transfer and in each of its four immediately preceding taxable years 
(excluding any taxable year beginning before January 1, 1962), to the 
extent not deductible by it because of the limitations of section 
170(b)(2) in its taxable year ending on the date of distribution or 
transfer or its prior taxable years, shall be deductible by the 
acquiring corporation to the extent prescribed by section 170(b)(2) (or, 
if applicable, section 170(d)(2)) and subdivision (ii) of this 
subparagraph, in its taxable years which begin after the date of 
distribution or transfer. However, any portion of the excess charitable 
contributions made by a distributor or transferor corporation in a 
particular taxable year, to which this subparagraph is applicable, which 
is not deductible under this section within the 5 taxable years 
immediately following the taxable year in which the contribution was 
paid by the distributor or transferor corporation shall not be 
deductible by the acquiring corporation in any other taxable year.
    (ii) For purposes of determining the 5 taxable years in which the 
excess contributions may be deducted, all taxable years of the 
distributor or transferor corporation subsequent to the taxable year in 
which the excess contribution was made, including the taxable year 
ending on the date of distribution or transfer shall be treated as 
taxable years of the acquiring corporation.
    (iii) The provisions of this subparagraph may be illustrated by the 
following example:

    Example. X Corporation and Y Corporation both compute taxable income 
on the calendar year basis. X Corporation has excess charitable 
contributions for 1962 and 1964. On December 31, 1966, X Corporation 
distributes all its assets to Y Corporation in a complete liquidation to 
which section 381(a) applies. The excess 1962 charitable contributions 
of X Corporation (to the extent not deductible by X because of the 
limitations of section 170(b)(2) in its taxable years 1963 through 1966) 
may be deducted by Y Corporation only in 1967. Y Corporation's taxable 
year 1967 is

[[Page 462]]

the fifth taxable year succeeding the taxable year 1962 (the year in 
which the excess contributions were made), and the portion of such 
excess contributions which is not deductible in the 5 taxable years 
immediately succeeding 1962 (1963 through 1967) is not deductible by Y 
Corporation in any other taxable year. Any excess charitable 
contributions for 1964 to which Y Corporation may be entitled must be 
deducted by Y Corporation (if deductible at all) in 1967, 1968, and 1969 
since such years are the third, fourth, and fifth taxable years 
succeeding the taxable year 1964 (the year in which the excess 
contributions were paid).

    (4) General rules. No excess charitable contributions made by a 
distributor or transferor corporation shall be deductible by the 
acquiring corporation in its taxable year which includes the date of 
distribution or transfer. In addition, an excess charitable contribution 
made by a distributor or transferor corporation in a taxable year prior 
to the taxable year of the transfer is only deductible by the 
distributor or transferor corporation, subject to the limitations of 
section 170(b)(2) (or, if applicable, section 170(d)(2)), in its 
subsequent taxable years which begin on or before the date of 
distribution or transfer, and by the acquiring corporation in its 
taxable year or years beginning after the date of distribution or 
transfer.
    (d) Rules governing amounts deductible by acquiring corporations. 
(1) In applying the provisions of section 170(b)(2) (or, if applicable, 
section 170(d)(2)) for the purpose of determining the amount of excess 
charitable contributions which are deductible by the acquiring 
corporation in its taxable years beginning after the date of 
distribution or transfer, all taxable years of the distributor or 
tranferor and acquiring corporations which, with respect to a particular 
taxable year beginning after the date of distribution or transfer, 
constitute the same numbered preceding taxable year shall together be 
considered as a 1 taxable year even though the taxable years involved 
may not end on the same date. Thus, for example, all taxable years of 
the distributor or transferor and acquiring corporations which, with 
respect to the first taxable year of the acquiring corporation beginning 
after the date of distribution or transfer, constitutes the second 
preceding taxable year shall together be considered as 1 taxable year 
even though the taxable years involved may not end on the same date. Any 
excess charitable contributions carried over from preceding taxable 
years which are considered as 1 taxable year shall be taken into account 
by the acquiring corporation as one amount, without regard to the extent 
to which the contributions were made by a distributor or transferor 
corporation or the acquiring corporation.
    (2) For purposes of this paragraph, each taxable year of the 
distributor or transferor corporation beginning on or before the date of 
distribution or transfer shall be treated as a preceding taxable year 
with reference to the acquiring corporation's taxable years beginning 
after such date. For example, the taxable year of a distributor or 
transferor corporation which ends on the date of distribution or 
transfer shall be considered a first preceding taxable year with 
reference to the acquiring corporation's first taxable year beginning 
after that date, a second preceding taxable year with reference to the 
acquiring corporation's second taxable year beginning after that date, 
and so forth with respect to succeeding taxable years of the acquiring 
corporation. Also, for example, the taxable year of a distributor or 
transferor corporation which immediately precedes its taxable year 
ending on the date of distribution or transfer shall be considered a 
second preceding taxable year with reference to the acquiring 
corporation's first taxable year beginning after that date.
    (e) Illustration. The application of this section may be illustrated 
by the following example:

    Example. (i) X Corporation is organized on April 1, 1956, and 
computes its taxable income on the basis of the fiscal year ending March 
31. Y Corporation is organized on July 1, 1955, and computes its taxable 
income on the basis of the fiscal year ending June 30. Z Corporation is 
organized on January 1, 1956, and computes its taxable income on the 
basis of the calendar year. On June 30, 1957, X Corporation distributes 
all its assets to Y Corporation in a complete liquidation to which 
section 381(a) applies. On November 30, 1957, Y Corporation transfers 
all its assets to Z Corporation in a statutory merger to which section 
381(a) applies.
    (ii) The 5-percent limitation (computed in the manner prescribed by 
section 170(b)(2)),

[[Page 463]]

the charitable contributions actually paid, and the excess contributions 
with respect to each such corporation during the taxable years involved 
are as follows:

          Name of corporation                   X          X
          Taxable year ending              3-31-57    6-30-57
5-percent limitation...................    $20,000     $9,000
Current contributions..................     32,000     15,000
                                        ----------------------
  (Excess contributions)...............   (12,000)    (6,000)
------------------------------------------------------------------------
          Name of corporation                   Y          Y          Y
          Taxable year ending              6-30-56    6-30-57   11-30-57
5-percent limitation...................    $15,000    $10,000    $18,000
Current contributions..................     29,000          0     17,000
                                        -----------
  (Excess contributions)...............   (14,000)  .........  .........
                                                   ---------------------
  Balance of 5-percent limitation......  .........     10,000      1,000
------------------------------------------------------------------------
          Name of corporation                   Z          Z          Z
          Taxable year ending             12-31-56   12-31-57   12-31-58
5-percent limitation...................    $10,000    $30,000    $58,000
Current contributions..................     40,000     28,000     92,000
                                        -----------
  (Excess contributions)...............   (30,000)  .........  .........
                                                   ---------------------
  Balance of 5-percent limitation......  .........      2,000     56,000
 

    (iii) X Corporation was in existence for two taxable years, in each 
of which it made charitable contributions in excess of the maximum 
amount deductible for those years under section 170(b)(2). The excess 
contributions made in the year ending March 31, 1957, of $12,000, are 
deductible by X Corporation in its short taxable year ending June 30, 
1957, and then by Y Corporation in its short taxable year ending 
November 30, 1957, in each instance in the manner and to the extent 
prescribed by section 170(b)(2) and this section. The excess 
contributions made by X Corporation in the year ending June 30, 1957, of 
$6,000, are deductible by Y Corporation in its short taxable year ending 
November 30, 1957, and then by Z Corporation in its taxable year 1958, 
in each instance in the manner and to the extent prescribed by section 
170(b)(2) and this section.
    (iv) Y Corporation was in existence for three taxable years. In the 
year ended June 30, 1956, its contributions in excess of the amount 
deductible for that year under section 170(b)(2) amounted to $14,000. 
Such excess is deductible by Y Corporation in its taxable year ending 
June 30, 1957, and, together with X Corporation's excess contributions 
of $18,000, in its short taxable year ending November 30, 1957, in each 
instance in the manner and to the extent prescribed by section 170(b)(2) 
and this section. Accordingly, since Y Corporation made no contributions 
in its taxable year ending June 30, 1957, its deduction for that year on 
account of excess contributions carried over is $10,000, an amount equal 
to the 5-percent limitation of section 170(b)(2). The deduction is 
attributable to excess contributions made by Y Corporation in the 
taxable year ended June 30, 1956; thus, the excess of those 
contributions over $10,000, namely, $4,000, is deductible by Y 
Corporation in its short taxable year ending November 30, 1957, in the 
manner and to the extent prescribed by section 170(b)(2) and this 
section. With respect to the short taxable year ending November 30, 
1957, the excess contributions of the second preceding year are X 
Corporation's excess contributions of $12,000 made in the year ending 
March 31, 1957, and Y Corporation's excess contributions of $4,000 made 
in the year ending June 30, 1956, which were not deductible by Y 
Corporation in the taxable year ending June 30, 1957, because of the 5-
percent limitation prescribed by section 170(b)(2), an aggregate of 
$16,000. Inasmuch as Y Corporation's limitation for the short taxable 
year ended November 30, 1957, exceeds the contributions made in that 
year by $1,000, the excess contributions of the second preceding taxable 
year are deductible in the taxable year ending November 30, 1957, to the 
extent of $1,000 and the remainder ($15,000) is not deductible by any 
corporation in any taxable year. The excess contributions of the first 
preceding taxable year, namely, X Corporation's excess contributions 
made in the short taxable year ending June 30, 1957, are deductible by Z 
Corporation in its taxable year 1958, in the manner and to the extent 
prescribed in section 170(b)(2) and this section.
    (v) Z Corporation has been in existence for 3 taxable years. The 
contributions made in 1956 in excess of the amount deductible for that 
year under section 170(b)(2) amounted to $30,000. Such excess is 
deductible by Z Corporation in its taxable year 1957 and, together with 
X Corporation's excess contributions of $6,000 (derived through Y 
Corporation) made in the taxable year ending June 30, 1957, in the 
taxable year 1958, in each instance in the manner and to the extent 
prescribed by section 170(b)(2) and this section. Thus, $2,000 of the 
$30,000 excess contributions made in the year 1956 are deducted in 1957 
and the remainder ($28,000), together with X Corporation's excess 
contributions of $6,000 made in the short taxable year ending June 30, 
1957, are deducted in 1958 since the aggregate of such amounts plus the 
contributions actually made in that year does not exceed the 5-percent 
limitation prescribed by section 170(b)(2).

[T.D. 6552, 26 FR 1992, Mar. 8, 1961, as amended by T.D. 6900, 31 FR 
14642, Nov. 17, 1966; T.D. 7207, 37 FR 20795, Oct. 5, 1972]



Sec. 1.381(c)(21)-1  Pre-1954 adjustments resulting from change in 
method of accounting.

    (a) Carryover requirement. Section 381(c)(21) provides that, in a 
transaction to which section 381(a) applies, an acquiring corporation 
shall take

[[Page 464]]

into account the net amount of any adjustments described in section 
481(b)(4) (relating to adjustments arising from changes in accounting 
methods initiated by the taxpayer attributable to pre-1954 Code years) 
of the distributor or transferor corporation to the extent that such net 
amount of such adjustments has not been taken into account in any 
taxable year, including a short taxable year, by the distributor or 
transferor corporation. The acquiring corporation shall take into 
account in each taxable year beginning with the taxable year ending 
after the date of distribution or transfer the net amount of such 
adjustments in the same manner and at the same time as such net amount 
would have been taken into account by the distributor or transferor 
corporation. Thus, the amount of any such adjustment which the acquiring 
corporation shall take into account in each taxable year shall be the 
same amount that would have been taken into account in each taxable year 
by the distributor or transferor corporation.
    (b) This section may be illustrated by the following example:

    Example. On January 1, 1960, X Corporation, a calendar year 
taxpayer, voluntarily changed its method of accounting giving rise to a 
$50,000 adjustment under section 481(a), of which $20,000 is 
attributable to pre-1954 Code years. Under section 481(b)(4) the $20,000 
adjustment is to be spread over 1960 and the following 9 years at the 
rate of $2,000 each year. On November 1, 1963, all the assets of X 
Corporation are acquired by Y Corporation in a transaction to which 
section 381(a) applies. Y Corporation reports its income on a fiscal 
year ending June 30. X and Y Corporations must take into account the 
$20,000 adjustment at the rate of $2,000 in each taxable year in the 
following time and manner:

                              X Corporation
Calendar years 1960-62 ($2,000x3).................     $6,000
Short taxable year ending Nov. 1, 1963 ($2,000x1).      2,000     $8,000
                                                   -----------
                              Y Corporation
Fiscal years ending:
  June 30, 1964 ($2,000x1)........................      2,000
  June 30, 1965-69 ($2,000x5).....................     10,000     12,000
                                                   ---------------------
                                                    .........     20,000
 

    (c) Successive transactions to which section 381(a) applies. The 
provisions of this section shall apply in the case of successive 
transactions to which section 381(a) applies. Thus, if R Corporation, 
which was taking into account adjustments described in section 
481(b)(4), distributes or transfers its assets to S Corporation in a 
transaction to which section 381(a) applies, and S Corporation was 
required to take into account any remaining portion of such adjustments 
under section 381(c)(21) and this section, and if subsequently S 
Corporation distributes or transfers its assets to T Corporation in a 
transaction to which section 381(a) applies, then T Corporation, under 
section 381(c)(21) and this section, shall take into account any 
remaining portion of such adjustments not previously taken into account 
by R and S Corporations.
    (d) Acquiring corporation not receiving all the assets. The 
adjustments described in this section acquired from a distributor or 
transferor corporation by an acquiring corporation in a transaction to 
which section 381(a) applies is not reduced by reason of the fact that 
the acquiring corporation does not acquire 100 percent of the assets of 
the distributor or transferor corporation.

[T.D. 6553, 26 FR 2171, Mar. 15, 1961]



Sec. 1.381(c)(22)-1  Successor life insurance company.

    (a) Carryover requirement. If in a taxable year beginning after 
December 31, 1957, a distributor or transferor corporation which is a 
life insurance company (as defined in section 801(a)) is acquired by a 
corporation which is a life insurance company (as defined in section 
801(a)), in a transaction to which section 381(a) applies, section 
381(c)(22) provides that the acquiring corporation shall take into 
account the appropriate items which the distributor or transferor 
corporation was required to take into account for purposes of part I, 
subchapter L, chapter 1 of the Code. Furthermore, except as otherwise 
provided by this section, the acquiring corporation shall take into 
account the items described in paragraphs (2) through (21), other than 
paragraphs (14), (15), and (17), of section 381(c) and the regulations 
thereunder. For example, the acquiring corporation shall take into 
account the reserves described in section 810(c) distributed or 
transferred to it as of the close of the date of distribution or 
transfer by the distributor or transferor corporation in accordance

[[Page 465]]

with the provisions of section 381(c)(4) and the regulations thereunder. 
For provisions defining the date of distribution or transfer, see 
paragraph (b) of Sec. 1.381(b)-1.
    (b) Items required to be taken into account by acquiring 
corporation. If a transaction meets the requirements of paragraph (a) of 
this section, the acquiring corporation shall, except as otherwise 
provided, take into account as of the close of the date of distribution 
or transfer the following items of the distributor or transferor 
corporation:
    (1) The operations loss carryovers (as determined under section 
812), subject to conditions and limitations consistent with the 
conditions and limitations prescribed in section 381(c)(1) and the 
regulations thereunder. For example, a loss from operations for a loss 
year of a distributor or transferor corporation which ends on or before 
the last day of a loss year of the acquiring corporation shall be 
considered to be a loss from operations for a year prior to such loss 
year of the acquiring corporation. All references in section 381(c)(1) 
and the regulations thereunder to section 172 shall be construed as 
referring to the appropriate corresponding provisions of section 812. 
Thus, a reference to section 172(b) shall be construed as referring to 
section 812 (b) and (d). In determining the span of years for which a 
loss from operations may be carried, the number of taxable years for 
which the distributor or transferor corporation was authorized to do 
business as an insurance company shall be taken into account. For 
purposes of this determination, the taxable year of the distributor or 
transferor corporation which ends on the date of distribution or 
transfer shall be taken into account even though such taxable year is a 
period of less than 12 months.
    (2)(i) The investment yield and the beginning of the year asset 
balance for the distributor or transferor corporation's taxable year 
ending with the close of the date of distribution or transfer. Such 
items shall be integrated with the investment yield and beginning of the 
year asset balance of the acquiring corporation for its first taxable 
year ending after such date of distribution or transfer for purposes of 
determining the current earnings rate of the acquiring corporation for 
such taxable year. Furthermore, for purposes of determining the average 
earnings rate of the acquiring corporation, the investment yield and 
mean of the assets of the distributor or transferor corporation for its 
4 taxable years immediately preceding its taxable year which closes with 
the date of distribution or transfer shall be integrated with the 
investment yield and mean of the assets of the acquiring corporation for 
such corresponding taxable years.
    (ii) The provisions of this subparagraph may be illustrated by the 
following examples:

    Example (1). X qualified as a life insurance company in 1949. Y 
qualified as a life insurance company in 1951. On June 30, 1961, at 
which time both X and Y were life insurance companies (as defined in 
section 801(a)), X transferred all its assets to Y in a statutory merger 
to which section 361 applies. For its taxable year ending on June 30, 
1961, X had investment yield of $15 and assets at the beginning of such 
taxable year of $450. For purposes of determining its current earnings 
rate for its taxable year ending on December 31, 1961, Y had investment 
yield of $45 (including the $15 of investment yield of X), assets at the 
beginning of such taxable year of $1,250 (including the $450 of X's 
assets at the beginning of its taxable year 1961), and assets at the end 
of such taxable year of $1,750 (after the application of section 
806(a)). Under the provisions of subdivision (i) of this subparagraph, 
the current earnings rate of Y for the taxable year 1961 would be 3 
percent, determined by dividing the investment yield of Y, $45, by the 
mean of the assets of Y, $1,500 ($1,250+$1,750/2). In order to determine 
its average earnings rate and adjusted reserves rate for the taxable 
year 1961, Y would make up the following schedule:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Investment yield                                                        Mean of assets               Current
--------------------------------------------------------------------------------------------------------------------------------------------   earnings
                                                                                           Column 3                               Column 6    rate of Y
                                                                                          (Col. 1 +                              (Col. 4 +  ------------
                                                                                           Col. 2)                                Col. 5)
                         Taxable year                          Column 1--X  Column 2--Y   integrated  Column 4--X  Column 5--Y   integrated    Column 7
                                                                                          investment                              means of    (Col. 3 /
                                                                                            yield                                  assets      Col. 6)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1960.........................................................          $16          $26          $42         $400         $800       $1,200          3.5

[[Page 466]]

 
1959.........................................................           16           24           40          500          750        1,250          3.2
1958.........................................................           17           22           39          650          650        1,300          3.0
1957.........................................................           19           21           40          700          500        1,200          3.3
--------------------------------------------------------------------------------------------------------------------------------------------------------


For the taxable year 1961, Y would have an average earnings rate of 3.2 
percent, computed by taking into account the current earnings rates for 
the taxable year 1961 and each of the 4 taxable years immediately 
preceding such taxable year. The adjusted reserves rate for such taxable 
year would be 3 percent since the current earnings rate of 3 percent for 
1961 is lower than the average earnings rate of 3.2 percent.
    Example (2). The facts are the same as in Example (1), except that 
the taxable year in issue is 1962, and the current earnings rate of Y 
for such taxable year was 3.8 percent. For the taxable year 1962, Y 
would have an average earnings rate of 3.3 percent, computed by taking 
into account only the current earnings rates for the taxable year 1962 
and each of the 4 taxable years immediately preceding such taxable year. 
The adjusted reserves rate for such taxable year would be 3.3 percent 
since the average earnings rate of 3.3 percent is lower than the 1962 
current earnings rate of 3.8 percent.

    (3) To the extent there are any amounts accrued for discounts in the 
nature of interest which have not been included as interest paid under 
section 805(e)(3), the acquiring corporation shall be treated as the 
distributor or transferor corporation for purposes of including such 
amounts as interest paid.
    (4) Any adjustment required by section 806(b) with respect to an 
item described in section 810(c) shall be made by the acquiring 
corporation in its first taxable year which begins after the date of 
distribution or transfer.
    (5) The amount of the deduction provided by section 809(d)(6), as 
limited by section 809(f), for all taxable years of the distributor or 
transferor corporation which end on and before the date of distribution 
or transfer (irrespective of whether or not the distributor or 
transferor corporation claimed this deduction for such taxable years) 
for the purpose of determining the limitation under section 809(d)(6).
    (6)(i) To the extent there are any remaining net increases or net 
decreases in reserves required to be taken into account by the 
distributor or transferor corporation under section 810(d)(1), the 
acquiring corporation shall be treated as the distributor or transferor 
corporation as of its first taxable year which begins after the date of 
distribution or transfer.
    (ii) The provisions of this subparagraph may be illustrated by the 
following example:

    Example. Assume that the amount of an item described in section 
810(c) of X, a life insurance company, at the beginning of the taxable 
year 1959 is $100. Assume that at the end of the taxable year 1959, as a 
result of a change in the basis used in computing such item during the 
taxable year, the amount of the item (computed on the new basis) is $200 
but computed on the old basis would have been $150. Since the amount of 
the item at the end of the taxable year computed on the new basis, $200, 
exceeds the amount of the item at the end of the taxable year computed 
on the old basis, $150, by $50, section 810(d)(1) provides that one-
tenth of the amount of such excess, or $5, shall be taken into account 
by X as a net increase referred to in section 809(d)(2) and paragraph 
(a)(2) of Sec. 1.809-5 in determining gain or loss from operations for 
each of the 10 taxable years immediately following the taxable year 
1959. Assume further that on June 30, 1961, X transferred all its assets 
to Y, a life insurance company, in a statutory merger to which section 
361 applies. Under the provisions of section 810(d)(1), X would include 
$5 as a net increase under section 809(d)(2) and paragraph (a)(2) of 
Sec. 1.809-5 in determining gain or loss from operations for its 
taxable years 1960 and 1961. Thus, the remaining net increase to be 
taken into account by X under section 810(d)(1) is $40 (eight-tenths of 
$50). Accordingly, Y shall take into account $5 as a net increase 
referred to in section 809(d)(2) and paragraph (a)(2) of Sec. 1.809-5 
in determining gain or loss from operations for each of its 8 taxable 
years beginning in 1962 ($5x8=$40).


[[Page 467]]


    (7)(i) The dollar balances in the shareholders surplus account, 
policyholders surplus account, and other accounts provided, however, 
that the acquiring corporation is a stock life insurance company. The 
dollar balance in the policyholders surplus account shall reflect the 
amount (if any) treated as a subtraction from such account by reason of 
the application of the limitation provided under section 815(d)(4) 
immediately prior to the close of the date of distribution or transfer. 
To the extent that any amount must be added to the shareholders surplus 
account as a result of the application of the limitation provided under 
section 815(d)(4), the acquiring corporation shall be treated as the 
distributor or transferor corporation as of its first taxable year which 
begins after the date of distribution or transfer.
    (ii) If the acquiring corporation is a mutual life insurance 
company, the dollar balances in the shareholders surplus account, 
policyholders surplus account, and other accounts shall not be taken 
into account by such acquiring corporation and the distributor or 
transferor corporation shall be subject to the provisions of section 
815(d)(2)(A) as of the close of the date of distribution or transfer.
    (8) To the extent that any amount must be added to the shareholders 
surplus account as a result of an election made under section 815(d)(1) 
by the distributor or transferor corporation, the acquiring corporation 
shall be treated as the distributor or transferor corporation as of its 
first taxable year which begins after the date of distribution or 
transfer.
    (9) The amount of the life insurance reserves at the end of 1958, 
but only for the purpose of applying the limitation provided under 
section 815(d)(4)(B).
    (10) To the extent there are amounts subject to the provisions of 
section 817(d), the acquiring corporation shall be treated as the 
distributor or transferor corporation.
    (11) To the extent there are any installments of tax imposed by 
section 818(e)(3)(A) remaining to be paid, the acquiring corporation 
shall be treated as the distributor or transferor corporation for the 
purpose of paying such installments.
    (12) The capital loss carryovers, subject to conditions and 
limitations consistent with the conditions and limitations prescribed in 
section 381(c)(3) and the regulations thereunder, except that any net 
capital loss of the distributor or transferor corporation for a taxable 
year beginning before January 1, 1959, shall not be taken into account. 
See section 817(c).

[T.D. 6625, 27 FR 12541, Dec. 19, 1962]



Sec. 1.381(c)(23)-1  Investment credit carryovers in certain corporate 
acquisitions.

    (a) Carryover requirement. (1) Section 381(c)(23) requires the 
acquiring corporation in a transaction to which section 381 applies to 
succeed to and take into account under such regulations as may be 
prescribed by the Secretary or his delegate, the investment credit 
carryovers of the distributor or transferor corporation. To determine 
the amount of these carryovers as of the close of the date of 
distribution or transfer, and to integrate them with any carryovers and 
carrybacks of the acquiring corporation for purposes of determining the 
amount of credit allowed by section 38 to the acquiring corporation for 
taxable years ending after the date of distribution or transfer, it is 
necessary to apply the provisions of sections 46, 47, and 48 in 
accordance with the conditions and limitations of this section.
    (2) The investment credit carryovers and carrybacks of the acquiring 
corporation determined as of the close of the date of distribution or 
transfer shall be computed without reference to any unused credit of a 
distributor or transferor corporation. The investment credit carryovers 
of a distributor or transferor corporation as of the close of the date 
of distribution or transfer shall be determined without reference to any 
unused credit of the acquiring corporation.
    (b) Carryback of unused credits. An unused credit of the acquiring 
corporation for any taxable year ending after the date of distribution 
or transfer shall not be carried back in computing the credit allowed by 
section 38 to a distributor or transferor corporation.

[[Page 468]]

However, an unused credit of the acquiring corporation for any such 
taxable year shall be carried back in accordance with section 46(b)(1) 
in computing the credit allowed to the acquiring corporation for a 
taxable year ending on or before the date of distribution or transfer. 
If a distributor or transferor corporation remains in existence after 
the date of distribution or transfer, an unused credit sustained by it 
for any taxable year beginning after such date shall be carried back in 
accordance with section 46(b)(1) in computing the credit allowed by 
section 38 to such corporation for a taxable year ending on or before 
that date, but may not be carried back or over in computing the credit 
allowed by section 38 to the acquiring corporation.
    (c) Computation of carryovers and carrybacks. (1) Subject to the 
modifications set forth in this paragraph, the provisions of Sec. 1.46-
2 shall apply in computing carryovers and carrybacks of unused credits 
to taxable years of the acquiring corporation.
    (2)(i) The investment credit carryovers available to the distributor 
or transferor corporation as of the close of the date of distribution or 
transfer shall first be carried to the first taxable year of the 
acquiring corporation ending after that date. This rule applies whether 
the date of distribution or transfer is on the last day, or any other 
day, of the acquiring corporation's taxable year.
    (ii) The investment credit carryovers available to the distributor 
or transferor corporation as of the close of the date of distribution or 
transfer shall be carried to the acquiring corporation without 
diminution by reason of the fact that the acquiring corporation does not 
acquire 100 percent of the assets of the distributor or transferor 
corporation.
    (3) An unused credit of a distributor or transferor corporation for 
a taxable year which ends on or before the last day of a taxable year of 
the acquiring corporation shall be considered to be an unused credit for 
a year prior to such taxable year of the acquiring corporation. If the 
acquiring corporation has acquired the assets of two or more distributor 
or transferor corporations on the same date of distribution or transfer, 
the unused credit years of the distributor or transferor corporations 
shall be taken into account in the order in which such years terminate. 
If any one of the unused credit years of a distributor or transferor 
corporation ends on the same day as the unused credit year of another 
distributor or transferor corporation, either unused credit year may be 
taken into account before the other.
    (4) The extent to which an investment credit carryover of a 
distributor or transferor corporation or of an acquiring corporation 
from an unused credit year ending before January 1, 1971, may be taken 
into account by the acquiring corporation for a taxable year beginning 
after December 31, 1970, shall be determined without regard to the 
credit earned by the acquiring corporation for such year. Thus, in such 
a case, the amount of unused credit from such unused credit years which 
may be taken into account in a taxable year of the acquiring corporation 
beginning after December 31, 1970, shall be determined solely with 
reference to the limitation based on amount of tax for such taxable year 
(without reduction for the credit earned for such year).
    (d) Computation of carryovers when date of distribution or transfer 
occurs on last day of acquiring corporation's taxable year. The 
computation of the investment credit carryovers from the distributor or 
transferor corporation and from the acquiring corporation in a case 
where the date of distribution or transfer occurs on the last day of a 
taxable year of the acquiring corporation may be illustrated by the 
following example:

    Example. X Corporation and Y Corporation were organized on January 
1, 1971, and each corporation files its return on the calendar year 
basis. On December 31, 1972, X transfers all its assets to Y in a 
statutory merger to which section 361 applies. X's credit earned and its 
limitation based on amount of tax for its taxable years 1971 and 1972 
are as follows:

------------------------------------------------------------------------
                                                            Limitation
     X Corporation's taxable year        Credit earned   based on amount
                                                              of tax
------------------------------------------------------------------------
1971..................................          $10,000           $5,000
1972..................................            5,000            3,000
------------------------------------------------------------------------


Y's credit earned and its limitation based on amount of tax for its 
taxable years 1971 through 1973 are as follows:

[[Page 469]]


------------------------------------------------------------------------
                                                            Limitation
            Y Corporation's              Credit earned   based on amount
                                                              of tax
------------------------------------------------------------------------
1971..................................           $6,000           $5,000
1972..................................            5,000            3,000
1973..................................            3,000           10,000
------------------------------------------------------------------------

The sequence for the allowance of unused credits of X Corporation and Y 
Corporation, and the computation of the carryovers to Y Corporation's 
calendar year 1974, may be illustrated as follows:
    (1) X Corporation's 1971 unused credit.--The carryover to Y 1974 is 
$0, computed as follows:

Unused credit................................................     $5,000
  Excess of X's 1972 limitation based on tax over credit               0
   earned....................................................
                                                              ----------
Carryover to Y's year 1973...................................      5,000
  Excess of Y's 1973 limitation based on tax over credit           7,000
   earned....................................................
                                                              ----------
Carryover to Y's year 1974...................................          0
 

    (2) Y Corporation's 1971 unused credit.--The carryover to Y 1974 is 
$0, computed as follows:

Unused credit................................................     $1,000
  Excess of Y's 1972 limitation based on tax over credit               0
   earned....................................................
                                                              ----------
Carryover to Y's year 1973...................................      1,000
                                                              ==========
  Excess of Y's 1973 limitation based on tax over credit           7,000
   earned....................................................
  Less: X's $5,000 carryover from 1971.......................      5,000
                                                              ----------
                                                                   2,000
                                                              ==========
Carryover to Y's year 1974...................................          0
 

    (3) X Corporation's 1972 unused credit.--The carryover to Y 1974 is 
$1,000, computed as follows:

Unused credit................................................     $2,000
                                                              ==========
  Excess of Y's 1973 limitation based on tax over credit           7,000
   earned....................................................
  Less: X's $5,000 carryover from 1971 and Y's $1,000              6,000
   carryover from 1971.......................................
                                                              ----------
                                                                   1,000
                                                              ==========
  Carryover to Y's year 1974.................................      1,000
 

    (4) Y Corporation's 1972 unused credit.--The carryover to Y 1974 is 
$2,000, computed as follows:

Unused credit................................................     $2,000
                                                              ==========
Excess of Y's 1973 limitation based on tax over credit earned      7,000
Less: X's $5,000 carryover from 1971 Y's $1,000 carryover          7,000
 from 1971 and X's $1,000 carryover from 1972................
                                                              ----------
                                                                       0
                                                              ==========
Carryover to Y's year 1974...................................      2,000
 

    (5) The aggregate of the investment credit carryovers to Y's year 
1974 is $3,000, computed as follows:

X's 1972 unused credit.......................................     $1,000
Y's 1972 unused credit.......................................      2,000
                                                              ----------
    Total....................................................      3,000
 


    (e) Computation of carryovers when date of distribution or transfer 
is not on last day of acquiring corporation's taxable year. (1) If the 
date of distribution or transfer occurs on any day other than the last 
day of a taxable year of the acquiring corporation, the amount which may 
be added to the amount allowable as a credit by section 38 for the first 
taxable year of the acquiring corporation ending after the date of 
distribution or transfer (hereinafter called the ``year of 
acquisition'') shall be determined in the following manner. The year of 
acquisition shall be considered as though it were 2 taxable years. The 
first of such 2 taxable years shall be referred to in this paragraph as 
the preacquisition part year and shall begin with the beginning of the 
year of acquisition and end with the close of the date of distribution 
or transfer. The second of such 2 taxable years shall be referred to in 
this paragraph as the postacquisition part year and shall begin with the 
day following the date of distribution or transfer and shall end with 
the close of the year of acquisition.
    (2) The excess limitation for the year of acquisition (i.e., the 
excess of the limitation based on the amount of tax for such year over 
the amount of credit earned for such year) shall be divided between the 
preacquisition part year and the postacquisition part year in proportion 
to the number of days in each. Thus, if in a statutory merger to which 
section 361 applies Y Corporation, a calendar year taxpayer, acquires 
the assets of X Corporation on June 30, 1975, and Y Corporation has an 
excess limitation of $36,500 for its calendar year 1975, then the excess 
limitation for the preacquisition part year would be $18,100 
($36,500x181/365) and the excess limitation for the postacquisition part 
year would be $18,400 ($36,500x184/365).
    (3) An unused credit of the acquiring corporation shall be carried 
to and applied against the excess limitation for the preacquisition part 
year and then carried to and applied against the excess limitation for 
the postacquisition

[[Page 470]]

part year, whereas an unused credit of the distributor or transferor 
corporation shall not be carried to the preacquisition part year but 
shall only be carried to and applied against the excess limitation for 
the postacquisition part year. For special rule relating to carryovers 
from taxable years ending before January 1, 1971, to taxable years 
beginning after December 31, 1970, see subparagraph (6) of this 
paragraph.
    (4) Though considered as two separate taxable years for purposes of 
this paragraph, the preacquisition part year and the postacquisition 
part year are treated as one taxable year in determining the years to 
which an unused credit is carried under section 46(b)(1).
    (5) The preceding subparagraphs may be illustrated by the following 
example:

    Example. X Corporation and Y Corporation were organized on January 
1, 1971, and each corporation files its return on the calendar year 
basis. On May 1, 1972, X transfers all its assets to Y in a statutory 
merger to which section 361 applies. X's credit earned and its 
limitation based on amount of tax for its taxable years 1971 and ending 
May 1, 1972, are as follows:

------------------------------------------------------------------------
                                                            Limitation
     X Corporation's taxable year        Credit earned   based on amount
                                                              of tax
------------------------------------------------------------------------
1971..................................          $11,000           $5,000
Ending 5-1-72.........................            3,000            6,000
------------------------------------------------------------------------


Y's credit earned and its limitation based on amount of tax for its 
taxable years 1971 and 1972 are as follows:

------------------------------------------------------------------------
                                                            Limitation
     Y Corporation's taxable year        Credit earned   based on amount
                                                              of tax
------------------------------------------------------------------------
1971..................................           $7,000           $3,000
1972..................................            3,000            9,000
------------------------------------------------------------------------

The sequence for the allowance of unused credits of X Corporation and Y 
Corporation, and the computation of carryovers to Y Corporation's 
calendar year 1973, may be illustrated as follows:
    (i) X Corporation's 1971 unused credit. The carryover to Y 1973 is 
$0, computed as follows:

Unused credit................................................     $6,000
  Excess of X's 5-1-72 limitation based on tax over credit         3,000
   earned....................................................
                                                              ----------
Carryover to Y's postacquisition part year 1972..............      3,000
  Excess limitation for Y's postacquisition part year              4,000
   ($6,000x 244/366).........................................
                                                              ==========
Carryover to Y's year 1973...................................          0
 

    (ii) Y Corporation's 1971 unused credit. The carryover to Y 1973 is 
$1,000, computed as follows:

Unused credit................................................     $4,000
  Excess limitation for Y's preacquisition part year               2,000
   ($6,000x122/ 366).........................................
                                                              ----------
Carryover to Y's postacquisition part year...................      2,000
                                                              ==========
  Excess limitation for Y's postacquisition part year              4,000
   ($6,000x 244/366).........................................
  Less: X's $3,000 carryover from 1971.......................      3,000
                                                              ----------
                                                                   1,000
                                                              ==========
  Carryover to Y's year 1973.................................      1,000
 

    (iii) The aggregate of the investment credit carryovers to Y's year 
1973 is $1,000, computed as follows:

X's 1971 unused credit.......................................          0
Y's 1971 unused credit.......................................     $1,000
                                                              ----------
    Total....................................................      1,000
 

    (6) If the year of acquisition is a taxable year beginning after 
December 31, 1970, and if there is an unused credit of the distributor 
or transferor corporation or of the acquiring corporation arising in an 
unused credit year ending before January 1, 1971, which may be carried 
to such year of acquisition (see paragraph (c)(4) of this section), then 
in applying subparagraphs (1), (2), and (3) of this paragraph, in lieu 
of dividing the excess limitation for the year of acquisition between 
the preacquisition and postacquisition part years, only the limitation 
based on the amount of tax for such year (i.e., without reduction for 
the credit earned) shall be divided between the preacquisition and 
postacquisition part years. If there is also an unused credit arising in 
an unused credit year ending after December 31, 1970, which may be 
carried to the year of acquisition, then for the purpose of determining 
the amount of such unused credit which may be taken into account for 
such year of acquisition, the credit earned for the year of acquisition 
shall first be applied against the limitation based on amount of tax for 
the preacquisition part year (reduced by any investment credit 
carryovers to such part year from unused credit years ending before 
January 1, 1971) and the excess, if any, shall then be applied against 
the limitation based on amount of tax for the postacquisition part year 
(also reduced by any investment credit carryovers to such part

[[Page 471]]

year from unused credit years ending before January 1, 1971).
    (7) Subparagraph (6) of this paragraph may be illustrated by the 
following example:

    Example. X Corporation and Y Corporation were organized on January 
1, 1970, and each corporation files its return on the calendar year 
basis. On May 1, 1972, X transfers all its assets to Y in a statutory 
merger to which section 361 applies. X's credit earned and its 
limitation based on amount of tax for its taxable years 1970, 1971, and 
ending May 1, 1972, are as follows:

------------------------------------------------------------------------
                                                            Limitation
     X Corporation's taxable year        Credit earned   based on amount
                                                              of tax
------------------------------------------------------------------------
1970..................................             $300
1971..................................              100
Ending 5-1-72.........................              200
------------------------------------------------------------------------


Y's credit earned and its limitation based on amount of tax for its 
taxable years 1970 through 1972 are as follows:

------------------------------------------------------------------------
                                                            Limitation
     Y Corporation's taxable year        Credit earned   based on amount
                                                              of tax
------------------------------------------------------------------------
1970..................................             $100
1971..................................              200
1972..................................              300             $900
------------------------------------------------------------------------

The sequence for the allowance of unused credits of X Corporation and Y 
Corporation, and the computation of carryovers to Y Corporation's 
calendar year 1973, may be illustrated as follows:
    (i) X Corporation's 1970 unused credit.--The carryover to Y 1973 is 
$0, computed as follows:

Unused credit................................................       $300
                                                              ==========
  X Corporation's 1971 limitation based on tax...............          0
  X Corporation's 5-1-72 limitation based on tax.............          0
                                                              ----------
  Carryover to Y's postacquisition part year 1972............        300
                                                              ==========
  Limitation based on tax for Y's postacquisition part year          600
   1972 ($900x244/366).......................................
                                                              ==========
Carryover to Y's year 1973...................................          0
 

    (ii) Y Corporation's 1970 unused credit.--The carryover to Y 1973 is 
$0, computed as follows:

Unused credit................................................       $100
  Y Corporation's 1971 limitation based on tax...............          0
                                                              ----------
Carryover to Y's preacquisition part year 1972...............        100
                                                              ==========
  Limitation based on tax for Y's preacquisition part year           300
   1972 ($900x122/366).......................................
                                                              ==========
Carryover to Y's postacquisition part year 1972..............          0
 

    (iii) Y Corporation's credit earned for 1972.--The carryover to Y 
1973 is $0, computed as follows:

Credit earned................................................       $300
                                                              ==========
  Limitation based on tax for preacquisition part year 1972          300
   ($900x122/366)............................................
  Less: Y's $100 carryover from 1970.........................        100
                                                              ----------
                                                                    $200
                                                              ==========
Carryover to Y's postacquisition part year 1972..............        100
                                                              ==========
  Limitation based on tax for postacquisition part year 1972         600
   ($900x244/366)............................................
  Less: X's $300 carryover from 1970.........................       $300
                                                              ----------
                                                                     300
                                                              ==========
Carryover to Y's year 1973...................................          0
 

    (iv) X Corporation's 1971 unused credit.--The carryover to Y 1973 is 
$0, computed as follows:

Unused credit................................................       $100
  Excess of X's 1972 limitation based on tax over credit               0
   earned....................................................
                                                              ----------
Carryover to Y's postacquisition part year 1972..............        100
  Limitation based on tax for postacquisition part year 1972         600
   ($900x244/366)............................................
                                                              ==========
  Less:
    X's $300 carryover from 1970.............................        300
    Y's 1972 credit earned for postacquisition part year.....        100
                                                              ----------
                                                                     400
                                                              ==========
                                                                     200
                                                              ==========
Carryover to Y's year 1973...................................          0
 

    (v) Y Corporation's 1971 unused credit.--The carryover to Y 1973 is 
$100, computed as follows:

Unused credit................................................       $200
                                                              ==========
  Limitation based on tax for preacquisition part year 1972          300
   ($900x122/366)............................................
                                                              ==========
  Less:
    Y's $100 carryover from 1970.............................        100
                                                              ----------
    Y's 1972 credit earned for preacquisition part year 1972.        200
                                                              ----------
                                                                     300
                                                              ==========
                                                                       0
                                                              ==========
Carryover to Y's postacquisition part year...................        200
                                                              ==========
  Limitation based on tax for postacquisition part year 1972         600
   ($900x244/366)............................................
                                                              ==========
  Less:
    X's $300 carryover from 1970.............................        300
    Y's 1972 credit earned for postacquisition part year 1972        100
    X's $100 carryover from 1971.............................        100
                                                              ----------
                                                                     500
                                                              ==========
                                                                     100
                                                              ==========
Carryover to Y's year 1973...................................        100
 


[[Page 472]]

    (vi) X Corporation's 5-1-72 unused credit.--The carryover to Y 1973 
is $200, computed as follows:

Unused credit................................................       $200
                                                              ==========
  Limitation based on tax for postacquisition part year 1972         600
   ($900x244/366)............................................
                                                              ==========
  Less:
    X's $300 carryover from 1970.............................        300
    Y's 1972 credit earned for postacquisition part year 1972        100
    X's $100 carryover from 1971, and Y's $100 carryover from        200
     1971....................................................
                                                              ----------
                                                                     600
                                                              ==========
                                                                       0
                                                              ==========
Carryover to Y's year 1973...................................        200
 

    (vii) The aggregate of the investment credit carryovers to Y 1973 is 
$300, computed as follows:

Y's 1971 unused credit.......................................       $100
X's 1972 unused credit.......................................        200
                                                              ----------
    Total....................................................        300
 

    (8) If the year of acquisition is a taxable year to which the 
limitation provided in Sec. 1.46-2(b)(2) (relating to 20- percent 
limitation on carryovers and carrybacks to certain taxable years) 
applies, then for purposes of applying such limitation the 
preacquisition part year and the postacquisition part year shall each be 
considered a fractional part of a year, but, if the date of distribution 
or transfer is not on the last day of a month, the entire month in which 
the date of distribution or transfer occurs shall be considered as 
included in the preacquisition part year and no portion thereof shall be 
considered as included in the postacquisition part year.
    (9) If the acquiring corporation succeeds to the investment credit 
carryovers of two or more distributor or transferor corporations on two 
or more dates of distribution or transfer during the same taxable year 
of the acquiring corporation, the manner in which the unused credits of 
the distributor or transferor corporations shall be applied shall be 
determined consistently with the rules prescribed in paragraph (c) of 
Sec. 1.381(c)(1)-2.
    (f) Successive acquiring corporations. An acquiring corporation 
which, in a distribution or transfer to which section 381(a) applies, 
acquires the assets of a distributor or transferor corporation which 
previously acquired the assets of another corporation in a transaction 
to which section 381(a) applies, shall succeed to and take into account, 
subject to the conditions and limitations of Sec. 1.46-2 and this 
section, the investment credit carryovers available to the first 
acquiring corporation under Sec. 1.46-2 and this section.
    (g) Recomputation of credit allowed by section 38 on certain 
property of acquiring corporation. If section 38 property acquired by an 
acquiring corporation in a transaction to which section 381(a) applies 
is disposed of, or otherwise ceases to be section 38 property (or 
becomes public utility property) with respect to the acquiring 
corporation, before the close of the estimated useful life which was 
taken into account in computing the distributor or transferor 
corporation's qualified investment, see paragraph (e) of Sec. 1.47-3.
    (h) Electing small business corporation. An unused credit of a 
distributor or transferor corporation arising in an unused credit year 
for which such corporation is not an electing small business corporation 
(as defined in section 1371(b)) may not be carried over in a transaction 
to which section 381 applies to a taxable year of the acquiring 
corporation for which such corporation is an electing small business 
corporation and may not be added to the amount allowable as a credit 
under section 38 to the shareholders of the acquiring corporation for 
such taxable year. However, in such a case, a taxable year for which the 
acquiring corporation is an electing small business corporation shall be 
counted as a taxable year for purposes of determining the taxable years 
to which such unused credit may be carried.
    (i) [Reserved]
    (j) Carryover of operating capacity for qualified intercity bus. For 
rules for determining an acquiring corporation's qualified investment 
for the energy credit for a qualified intercity bus, see Sec. 1.48-
9(q)(11).

(Sec. 38(b) (76 Stat. 963, 26 U.S.C. 38(b)), 48(l)(16) (94 Stat. 264, 26 
U.S.C. 48(l)(16)), and 7805 (68A Stat. 917, 26 U.S.C. 7805))

[T.D. 7289, 38 FR 30554, Nov. 6, 1973, as amended by T.D. 7982, 49 FR 
39544, Oct. 9, 1984; 49 FR 41246, Oct. 22, 1984]

[[Page 473]]



Sec. 1.381(c)(24)-1  Work incentive program credit carryovers in certain 
corporate acquisitions.

    The computation of carryovers and carrybacks of unused WIN credits 
in a transaction to which section 381 applies shall be made under the 
principles of Sec. 1.381(c)(23)-1 (relating to the computation of 
carryovers and carrybacks of unused investment credits), except that the 
provisions of paragraph (c)(4) and paragraph (e)(6), (7), and (8) of 
such section shall not apply.

(Secs. 381(c)(23), 76 Stat. 971 (26 U.S.C. 381(c)(23), 381(c)(24)) 85 
Stat. 557 (26 U.S.C. 381(c)(24)), 7805, 68A Stat. 917 (26 U.S.C. 7805))

[T.D. 7289, 38 FR 30557, Nov. 6, 1973]



Sec. 1.381(c)(25)-1  Deficiency dividend of a qualified investment 
entity.

    (a) Carryover requirement. If a distributor or transferor 
corporation in a transaction to which section 381(a) applies--
    (1) Was a qualified investment entity (within the meaning of section 
860(b)) for any taxable year ending on or before the date of 
distribution or transfer, and
    (2) A determination (as defined in section 860(e)) establishes that 
the transferor or distributor corporation is liable for the tax imposed 
by section 11(a), 56(a), 852(b), 857(b)(1), 857(b)(3)(A), or 1201(a) for 
such taxable year,then in determining the liability for such tax the 
deduction described in section 860 shall be allowed pursuant to section 
381(c)(25) to such corporation for the amount of deficiency dividends 
paid by the acquiring corporation with respect to the distributor or 
transferor corporation. Except as otherwise provided in this section, 
the provisions of section 860 and the regulations thereunder apply with 
respect to a deficiency dividend deduction allowable pursuant to section 
381(c)(25).
    (b) Deficiency dividends paid by the acquiring corporation with 
respect to the distributor or transferor corporation. A deficiency 
dividend paid by the acquiring corporation with respect to the 
distributor or transferor corporation must be a distribution that would 
satisfy the definition of a deficiency dividend under section 860(f) if 
paid by the distributor or transferor corporation to its own 
shareholders. The distribution, however, shall be paid by the acquiring 
corporation to its own shareholders. The distribution also shall be paid 
after the date of distribution or transfer and on, or within 90 days 
after, the date of the determination but before the acquiring 
corporation files a claim under paragraph (c) of this section.
    (c) Claim for deduction. A claim for deduction under this section 
shall be made by the acquiring corporation on Form 976 and shall be 
filed within 120 days after the date of the determination. The form 
shall contain, or be accompanied by, the information required under 
Sec. 1.860-2(b)(2) in sufficient detail to properly identify the facts 
with respect to the distributor or transferor corporation and the 
acquiring corporation. The required certified copy of the resolution 
authorizing the payment of the dividend shall be that of the trustees, 
board of directors, or other authority, of the acquiring corporation. 
Necessary changes may be made in Form 976 in order to carry out the 
provisions of this paragraph. The claim shall be filed with the district 
director, or director of the internal revenue service center, with whom 
the return of the distributor or transferor corporation to which the 
claim relates was filed.
    (d) Effect on dividends paid deduction. A deficiency dividend paid 
by the acquiring corporation that is allowable as a deduction to a 
distributor or transferor corporation pursuant to section 381(c)(25) 
shall not become a part of the dividends paid deduction of the acquiring 
corporation under section 561 for any taxable year.
    (e) Successive transactions to which section 381(a) applies. The 
provisions of this section shall apply in the case of successive 
transactions to which section 381(a) applies. Thus, if X corporation 
transfers its assets to Y corporation in a transaction to which section 
381(a) applies and if Y corporation transfers its assets to Z 
corporation in a subsequent transaction to which section 381(a) applies, 
then, subject to the provisions of this section, X corporation may take 
a deficiency dividend deduction for the amount of deficiency

[[Page 474]]

dividends paid by Z corporation with respect to X corporation.

(Sec. 860(l) (92 Stat. 2849, 26 U.S.C. 860(l)); sec. 860(g) (92 Stat. 
2850, 26 U.S.C. 860(g)); and sec. 7805 (68A Stat. 917, 26 U.S.C. 7805))

[T.D. 7767, 46 FR 11264, Feb. 6, 1981, as amended by T.D. 7936, 49 FR 
2106, Jan. 18, 1984]



Sec. 1.381(c)(26)-1  Credit for employment of certain new employees.

    (a) Carryovers and carrybacks. For taxable years beginning before 
January 1, 1984, the computation of carryovers and carrybacks of unused 
targeted jobs credit (new jobs credit in the case of wages paid before 
1979) under section 44B (as in effect prior to enactment of the Tax 
Reform Act of 1984) in a transaction to which section 381(a) applies 
shall be made under the principles of Sec. 1.381(c)(23)-1 (relating to 
the computation of carryovers and carrybacks of unused investment 
credit), except that the provisions of paragraph (c)(4) and paragraph 
(e)(6), (7) and (8) of such section shall not apply.
    (b) Other items. See Sec. 1.51-1(h) for a rule that applies to 
certain transfers of a trade or business in which a member of a targeted 
group is employed.

[T.D. 8062, 50 FR 46003, Nov. 6, 1985]



Sec. 1.381(d)-1  Operations loss carryovers of life insurance companies.

    For the application of part V, subchapter C, chapter 1 of the Code 
to operations loss carryovers of life insurance companies, see section 
812(f) and Sec. 1.812-7 and section 381(c)(22) and Sec. 1.381(c)(22)-
1.

[T.D. 6625, 27 FR 12543, Dec. 19, 1962]



Sec. 1.382-1  Table of contents.

    This section lists the captions that appear in the regulations for 
Sec. Sec. 1.382-1T, 1.382-2, 1.382-2T, and 1.382-3 through 1.382-11.

                        Sec. 1.382-1T [Reserved]

            Sec. 1.382-2 General rules for ownership change.

    (a) Certain definitions for purposes of sections 382 and 383 and the 
regulations thereunder.
    (1) Loss corporation.
    (i) In general.
    (ii) Distributor of transferor loss corporation in a transaction 
under section 381.
    (iii) Separate accounting required for losses and credits of an 
acquiring corporation and a distributor or transferor loss corporation.
    (iv) End of separate accounting for losses and credits of 
distributor or transferor corporation.
    (v) Application to other successor corporations.
    (2) Pre-change loss.
    (3) Stock.
    (i) In general.
    (ii) Convertible stock.
    (4) Testing date.
    (i) In general.
    (ii) Exceptions.
    (5) Successor corporation.
    (6) Predecessor corporation.
    (b) Effective dates.
    (1) In general. [Reserved]
    (2) Rules provided in paragraph (a)(3)(ii) of this section.
    (i) In general.
    (ii) Certain convertible preferred stock.
    (3) Rules provided in paragraph (a)(4) of this section.

  Sec. 1.382-2T Definition of ownership change under section 382, as 
           amended by the Tax Reform Act of 1986 (temporary).

    (a) Ownership change. (1) In general.
    (2) Events requiring a determination of whether an ownership change 
has occurred.
    (i) Testing dates prior to November 5, 1992.
    (ii) Information statement required.
    (iii) Records to be maintained by loss corporation.
    (A) Exception.
    (B) Statement with respect to prior periods.
    (b) Nomenclature and assumptions.
    (c) Computing the amount of increases in percentage ownership. (1) 
In general.
    (2) Example.
    (3) Related and unrelated increases in percentage stock ownership.
    (4) Example.
    (d) Testing period. (1) In general.
    (2) Effect of a prior ownership change.
    (3) Commencement of the testing period.
    (i) In general.
    (ii) Exception for corporations with net unrealized built-in loss.
    (4) Disregarding testing dates.
    (5) Example.
    (e) Owner shift and equity structure shift.
    (1) Owner shift.
    (i) Defined.
    (ii) Transactions between persons who are not 5-percent shareholders 
disregarded.
    (iii) Examples.
    (2) Equity structure shift.
    (i) Tax-free reorganizations.
    (ii) Transactions designated under section 382(g)(3)(B) treated as 
equity structure shifts.

[[Page 475]]

    (iii) Overlap of owner shift and equity structure shift.
    (iv) Examples.
    (f) Definitions. (1) Loss corporation.
    (2) Old loss corporation.
    (3) New loss corporation.
    (4) Successor corporation.
    (5) Predecessor corporation.
    (6) Shift.
    (7) Entity.
    (8) Director ownership interest.
    (9) First tier entity.
    (10) 5-percent owner.
    (11) Public shareholder.
    (12) Public owner.
    (13) Public group.
    (14) Higher tier entity.
    (15) Indirect ownership interest.
    (16) Highest tier entity.
    (17) Next lower tier entity.
    (18) Stock.
    (i) In general.
    (ii) Treating stock as not stock.
    (iii) Treating interests not constituting stock as stock.
    (iv) Stock of the loss corporation.
    (19) Change date.
    (20) Year.
    (21) Old section 382.
    (22) Pre-change loss.
    (23) Unrelated.
    (24) Percentage ownership interest.
    (g) 5-percent shareholder. (1) In general.
    (2) Determination of whether a person is a 5-percent shareholder.
    (3) Determination of the percentage stock ownership interest of a 5-
percent shareholder.
    (4) Examples.
    (5) Stock ownership presumptions in connection with certain 
acquisitions and dispositions of loss corporation stock.
    (i) In general.
    (ii) Example.
    (h) Constructive ownership of stock. (1) In general.
    (2) Attribution from corporations, partnerships, estates and trusts.
    (i) In general.
    (ii) Limitation on attribution from entities with respect to certain 
interests.
    (iii) Limitation on attribution from certain entities.
    (iv) Examples.
    (3) Attribution to corporations, partnerships, estates and trusts.
    (4) Option attribution.
    (i) In general.
    (ii) Examples.
    (iii) Contingencies.
    (iv) Series of options.
    (v) Interests that are similar to options.
    (vi) Actual exercise of options.
    (A) In general.
    (B) Actual exercise within 120 days of deemed exercise.
    (vii) Effect of deemed exercise of options on the outstanding stock 
of the loss corporation.
    (A) Right of obligation to issue stock.
    (B) Right or obligation to acquire outstanding stock by the loss 
corporation.
    (C) Effect on value of old loss corporation.
    (viii) Options that lapse or are forfeited.
    (ix) Option rule inapplicable if pre-change losses are de minimis.
    (x) Options not subject to attribution
    (A) Long-held options with respect to actively traded stock.
    (B) Right to receive or obligation to issue a fixed dollar amount of 
value of stock upon maturity of certain debt.
    (C) Right or obligation to redeem stock of the loss corporation.
    (D) Options exercisable only upon death, disability or mental 
incompetency.
    (E) Right to receive or obligation to issue stock as interest or 
dividends.
    (F) Options outstanding following an ownership change.
    (1) In general.
    (2) Example.
    (G) Right to acquire loss corporation stock pursuant to a default 
under loan agreement.
    (H) Agreement to acquire or sell stock owned by certain shareholders 
upon retirement.
    (I) [Reserved]
    (J) Title 11 of similar case.
    (K)-(Y) [Reserved]
    (xi) Certain transfers of options disregarded.
    (xii) Exercise of an option that has not been treated as stock.
    (xiii) Effective date.
    (5) Stock transferred under certain agreements.
    (6) Family attribution.
    (i) [Reserved]
    (j) Aggregation and segregation rules. (1) Aggregation of public 
shareholders and public owners into public groups.
    (i) Public group.
    (ii) Treatment of public group that is a 5-percent shareholder.
    (iii) Presumption of no cross-ownership.
    (iv) Identification of the public groups treated as 5-percent 
shareholders.
    (A) Analysis of highest tier entities.
    (B) Analysis of other higher tier entities and first tier entities.
    (C) Aggregation of the public shareholders.
    (v) Appropriate adjustments.
    (vi) Examples.
    (2) Segregation rules applicable to transactions involving the loss 
corporation.
    (i) In general.
    (ii) Direct public group.
    (iii) Transactions to which segregation rules apply.
    (A) In general.
    (B) Certain equity structure shifts and transactions to which 
section 1032 applies.

[[Page 476]]

    (1) In general.
    (2) Examples.
    (C) Redemption-type transactions.
    (1) In general.
    (2) Examples.
    (D) Acquisition of loss corporation stock as the result of the 
ownership of a right to acquire stock.
    (1) In general.
    (2) Example.
    (E) Transactions identified in the Internal Revenue Bulletin.
    (F) Issuance of rights to acquire loss corporation stock.
    (1) In general.
    (2) Example.
    (iv) Combination of de minimis public groups.
    (A) In general.
    (B) Example.
    (v) Multiple transactions.
    (A) In general.
    (B) Example.
    (vi) Acquistions made by either a 5-percent shareholder or the loss 
corporation following application of the segregation rules.
    (3) Segregation rules applicable to transactions involving first 
tier entities or higher tier entities.
    (i) Dispositions.
    (ii) Example.
    (iii) Other transactions affecting direct public groups of a first 
tier entity or higher tier entity.
    (iv) Examples.
    (v) Acquistions made by a 5-percent shareholder, a higher tier 
entity, or a first tier entity following application of the segregation 
rules.
    (k) Operating rules. (1) Presumptions regarding stock ownership.
    (i) Stock subject to regulation by the Securities and Exchange 
Commission.
    (ii) Statements under penalties of perjury.
    (2) Actual knowledge regarding stock ownership.
    (3) Duty to inquire as to actual stock ownership in the loss 
corporation.
    (4) Ownership interests structured to avoid the section 382 
limitation.
    (5) Example.
    (6) First tier entity or higher tier entity that is a foreign 
corporation or entity. [Reserved.]
    (l) Changes in percentage ownership which are attributable to 
fluctuations in value. [Reserved]
    (m) Effective date. (1) In general.
    (2) Plan of reorganization.
    (3) Earliest commencement of the testing period.
    (4) Transitional rules.
    (i) Rules provided in paragraph (j) of this section for testing 
dates before September 4, 1987.
    (ii) Example.
    (iii) Rules provided in paragraph (j) of this section for testing 
dates on or after September 4, 1987.
    (iv) Rules provided in paragraphs (f)(18)(ii) and (iii) of this 
section.
    (v) Rules provided in paragraph (a)(2)(ii) of this section.
    (vi) Rules provided in paragraph (h)(4) of this section.
    (vii) Rules provided in paragraph (a)(2)(i) of this section.
    (5) Bankruptcy proceedings.
    (i) In general.
    (ii) Example.
    (6) Transactions of domestic building and loan associations.
    (7) Transactions not subject to section 382.
    (i) Application of old section 382.
    (ii) Effect on testing period.
    (iii) Termination of old section 382. [Reserved]
    (8) Options issued or transferred before January 1, 1987.
    (i) Options issued before May 6, 1986.
    (ii) Options issued on or after May 6, 1986 and before September 18, 
1986.
    (iii) Options issued on or after September 18, 1986 and before 
January 1, 1987.
    (9) Examples.

Sec. 1.382-3 Definitions and rules relating to a 5-percent shareholder.

    (a) Definitions.
    (1) Entity.
    (i) In general.
    (ii) Examples.
    (iii) Effective date.
    (A) In general
    (B) Special rule.
    (C) Example.
    (2) [Reserved]
    (b)-(i) [Reserved]
    (j) Modification of the segregation rules of Sec. 1.382-
2T(j)(2)(iii) in the case of certain issuances of stock.
    (1) Introduction.
    (2) Small issuance exception.
    (i) In general.
    (ii) Small issuance defined.
    (iii) Small issuance limitation.
    (A) In general.
    (B) Class of stock defined.
    (C) Adjustments for stock splits and similar transactions.
    (D) Exception.
    (iv) Short taxable years.
    (3) Other issuances of stock for cash.
    (i) In general.
    (ii) Solely for cash.
    (A) In general.
    (B) Related issuances.
    (iii) Coordination with paragraph (j)(2) of this section.
    (4) Limitation on exempted stock.
    (5) Proportionate acquisition of exempted stock.
    (i) In general.

[[Page 477]]

    (ii) Actual knowledge of greater overlapping ownership.
    (6) Exception for equity structure shifts.
    (7) Transitory ownership by underwriter disregarded.
    (8) Certain related issuances.
    (9) Application to options.
    (10) Issuance of stock pursuant to the exercise of certain options.
    (11) Application to first tier and higher tier entities.
    (12) Certain non-stock ownership interests.
    (13) Examples.
    (14) Effective date.
    (i) In general.
    (ii) Effective date for paragraph (j)(10) of this section.
    (iii) Election to apply this paragraph (j) retroactively.
    (A) Election.
    (B) Amended returns.
    (C) Revised information statements.
    (k) Special rules for certain regulated investment companies.
    (1) In general.
    (2) Effective date.
    (i) General rule.
    (ii) Election to apply prospectively.

             Sec. 1.382-4 Constructive ownership of stock.

    (a) In general. [Reserved]
    (b) Attribution from corporations, partnerships, estates and trusts.
    (1) [Reserved]
    (2) Limitation.
    (c) Attribution to corporations, partnerships, estates and trusts. 
[Reserved]
    (d) Treatment of options as exercised.
    (1) General rule.
    (2) Options treated as exercised.
    (i) Issuance or transfer.
    (ii) Subsequent testing dates.
    (3) The ownership test.
    (4) The control test.
    (i) In general.
    (ii) Operating rules.
    (A) Person and related persons.
    (B) Indirect ownership interest.
    (5) The income test.
    (6) Application of the ownership, control, and income tests.
    (i) In general.
    (ii) Application of ownership test.
    (iii) Application of control test.
    (iv) Application of income test.
    (7) Safe harbors.
    (i) Contracts to acquire stock.
    (ii) Escrow, pledge, or other security agreements.
    (iii) Compensatory options.
    (iv) Options exercisable only upon death, disability, mental 
incompetency or retirement.
    (v) Rights of first refusal.
    (vi) Options designated in the Internal Revenue Bulletin.
    (8) Additional rules.
    (i) Contracts to acquire stock.
    (ii) Indirect transfer of an option.
    (iii) Options related to interests in non-corporate entities.
    (iv) Puts.
    (9) Definition of option.
    (i) In general.
    (ii) Convertible stock.
    (iii) Series of options.
    (iv) General principles of tax law.
    (10) Subsequent treatment of options treated as exercised on a 
change date.
    (i) In general.
    (ii) Alternative look-back rule for options exercised within 3 years 
after change date.
    (11) Transfers not subject to deemed exercise.
    (12) Certain rules regarding non-stock interests as stock.
    (e) Stock transferred under certain agreements. [Reserved]
    (f) Family attribution. [Reserved]
    (g) Definitions.
    (h) Effective date.
    (1) In general. [Reserved]
    (2) Option attribution rules.
    (i) General rule.
    (ii) Special rule for control test.
    (iii) Convertible stock issued prior to July 20, 1988.
    (A) In general.
    (B) Exceptions.
    (1) Nonvoting convertible preferred stock.
    (2) Other convertible stock.
    (iv) Convertible stock issued on or after July 20, 1988, and before 
November 5, 1992.
    (v) Certain options in existence immediately before and after an 
ownership change.
    (vi) Election to apply Sec. 1.382-2T(h)(4).
    (A) In general.
    (B) Additional consequences of election.
    (C) Time and manner of making the election.
    (D) Amended returns.
    (3) Special rule for options subject to attribution under Sec. 
1.382-2T(h)(4).

                  Sec. 1.382-5 Section 382 limitation.

    (a) Scope.
    (b) Computation of value.
    (c) Short taxable year.
    (d) Successive ownership changes and absorption of a section 382 
limitation.
    (1) In general.
    (2) Recognized built-in gains and losses.
    (3) Effective date.
    (e) Controlled groups.
    (f) Effective date.

Sec. 1.382-6 Allocation of income and loss to periods before and after 
              the change date for purposes of section 382.

(a) General rule.
(b) Closing-of-the-books election.
    (1) In general.

[[Page 478]]

    (2) Making the closing-of-the-books election.
    (i) Time and manner.
    (ii) Election irrevocable.
    (3) Special rules relating to consolidated and controlled groups.
    (i) Consolidated groups.
    (ii) Controlled groups.
(c) Operating rules for determining net operating loss, taxable income, 
          net capital loss, modified capital gain net income, and 
          special allocations.
    (1) In general.
    (2) Adjustment to net operating loss.
    (i) Determination of remaining capital gain.
    (ii) Reduction of net operating loss by remaining capital gain.
(d) Coordination with rules relating to the allocation of income under 
          Sec. 1.1502-76(b).
(e) Allocation of certain credits.
(f) Examples.
(g) Definitions and nomenclature.
    (1) Change year.
    (2) Pre-change period.
    (3) Post-change period.
    (4) Modified capital gain net income.
(h) Effective date.

           Sec. 1.382-7 Built-in gains and losses. [Reserved]

                    Sec. 1.382-8 Controlled groups.

    (a) Introduction.
    (b) Controlled group loss and controlled group with respect to a 
controlled group loss.
    (1) In general.
    (2) Presumption regarding net unrealized built-in loss.
    (c) Computation of value.
    (1) Reduction in value by the amount restored.
    (2) Restoration of value.
    (3) Reduction in value by the amount restored.
    (4) Appropriate adjustments.
    (5) Certain reductions in the value of members of a controlled 
group.
    (d) No double reduction.
    (e) Definitions and nomenclature.
    (1) Definitions in Section 382 and the regulations thereunder.
    (2) Controlled group.
    (3) Component member.
    (4) Predecessor and successor corporation.
    (f) Coordination between consolidated groups and controlled groups.
    (g) Examples.
    (h) Time and manner of filing election to restore.
    (1) Statement required.
    (2) Revocation of election.
    (3) Filing by component member.
    (i) [Reserved]
    (j) Effective date.
    (1) In general.
    (2) Transition rule.
    (i) In general.
    (ii) Special transition rules for controlled groups that had 
ownership changes before January 29, 1991.
    (3) Amended returns.

Sec. 1.382-9 Special rules under section 382 for corporations under the 
         jurisdiction of a court in a title 11 or similar case.

    (a) Introduction.
    (b) Application of section 382(1)(5).
    (c) [Reserved]
    (d) Rules for determining whether stock of the loss corporation is 
owned as a result of being a qualified creditor.
    (1) Qualified creditor.
    (2) General rules for determining whether indebtedness is qualified 
indebtedness.
    (i) Definition.
    (ii) Determination of beneficial ownership.
    (iii) Duty of inquiry.
    (iv) Ordinary course indebtedness.
    (3) Treatment of certain indebtedness as continuously owned by the 
same owner.
    (i) In general.
    (ii) Operating rules.
    (iii) Indebtedness owned by beneficial owner who becomes a 5-percent 
shareholder or 5-percent entity.
    (iv) Example.
    (4) Special rule if indebtedness is a large portion of creditor's 
assets.
    (i) In general.
    (ii) Applicable period.
    (iii) Determination of ownership change.
    (iv) Reliance on statement.
    (5) Tacking of ownership periods.
    (i) Transferee treated as owning indebtedness for period owned by 
transferor.
    (ii) Qualified transfer.
    (iii) Exception.
    (iv) Debt-for-debt exchanges.
    (6) Effective date.
    (i) In general.
    (ii) Elections and amended returns.
    (A) Election to apply this paragraph (d) retroactively.
    (B) Election to revoke section 382(l)(5)(H) election.
    (C) Amended returns.
    (e) Option attribution for purposes of determining stock ownership 
under section 382(1)(5)(A)(ii).
    (1) In general.
    (2) Special rules.
    (i) Lapse or forfeiture of options deemed exercised.
    (ii) Actual exercise of options not deemed exercised.
    (iii) Amended returns.
    (3) Examples.
    (4) Effective dates.
    (i) In general.
    (ii) Special rule for interest or dividends.
    (f)-(h) [Reserved]
    (i) Election not to apply section 382(l)(5).

[[Page 479]]

    (j) Value of the loss corporation in an ownership change to which 
section 382(l)(6) applies.
    (k) Rules for determining the value of the stock of the loss 
corporation.
    (1) Certain ownership interests treated as stock.
    (2) Coordination with section 382(e)(2).
    (3) Coordination with section 382(e)(3).
    (4) Coordination with section 382(l)(1).
    (5) Coordination with section 382(l)(4).
    (6) Special rule for stock not subject to the risk of corporate 
business operations.
    (i) In general.
    (ii) Coordination of special rule and other rules affecting value.
    (7) Limitation on value of stock.
    (l) Rules for determining the value of the loss corporation's pre-
change assets.
    (1) In general.
    (2) Coordination with section 382(e)(2).
    (3) Coordination with section 382(e)(3).
    (4) Coordination with section 382(l)(1).
    (5) Coordination with section 382(l)(4).
    (m) Continuity of business requirement.
    (1) Under section 382(1)(5).
    (2) Under section 382(l)(6).
    (n) Ownership change in a title 11 or similar case succeeded by 
another ownership change within two years.
    (1) Section 382(l)(5) applies to the first ownership change.
    (2) Section 382(l)(6) applies to the first ownership change.
    (o) Options not subject to attribution.
    (p) Effective date for rules relating to section 382(l)(6).
    (1) In general.
    (2) Ownership change to which section 382(l)(6) applies occurring 
before March 17, 1994.

                        Sec. 1.382-10 [Reserved]

    Sec. 1.382-10T Special rules for determining time and manner of 
      acquisition of an interest in a loss corporation (temporary).

               Sec. 1.382-11 Effective dates. [Reserved]

[T.D. 8149, 52 FR 29674, Aug. 11, 1987, as amended by T.D. 8264, 54 FR 
38666, Sept. 20, 1989; T.D. 8352, 56 FR 29434, June 27, 1991. 
Redesignated by T.D. 8440, 57 FR 45711, Oct. 5, 1992; T.D. 8490, 58 FR 
51573, Oct. 4, 1993; T.D. 8531, 59 FR 12835, Mar. 18, 1994; T.D. 8530, 
59 FR 12842, Mar. 18, 1994; T.D. 8529, 59 FR 12846, Mar. 18, 1994; T.D. 
8546, 59 FR 32080, June 22, 1994; T.D. 8679, 61 FR 33314, June 27, 1996; 
T.D. 8825, 64 FR 36177, July 2, 1999; T.D. 9063, 68 FR 38177, June 27, 
2003; T.D. 9063, 68 FR 53219, Sept. 9, 2003]



Sec. 1.382-1T  [Reserved]



Sec. 1.382-2  General rules for ownership change.

    (a) Certain definitions for purposes of sections 382 and 383 and the 
regulations thereunder. The following definitions apply for purposes of 
sections 382 and 383 and the regulations thereunder.
    (1) Loss corporation--(i) In general. The term loss corporation 
means a corporation which--
    (A) Is entitled to use a net operating loss carryforward, a capital 
loss carryover, a carryover of excess foreign taxes under section 
904(c), a carryforward of a general business credit under section 39, or 
a carryover of a minimum tax credit under section 53,
    (B) For the taxable year that includes a testing date, as defined in 
paragraph (a)(4) of this section or Sec. 1.382-2T(a)(2)(i), whichever 
is applicable (determined for purposes of this paragraph (a)(1) without 
regard to whether the corporation is a loss corporation), has a net 
operating loss, a net capital loss, excess foreign taxes under section 
904(c), unused general business credits under section 38, or an unused 
minimum tax credit under section 53, or
    (C) Has a net unrealized built-in loss (determined for purposes of 
this paragraph (a)(1) by treating the date on which such determination 
is made as the change date). See section 382(h)(3) for the definition of 
net unrealized built-in loss.

See section 383 and Sec. 1.383-1 for rules relating to a loss 
corporation that has an ownership change and has capital losses, excess 
foreign taxes, general business credits or minimum tax credits. Any 
predecessor or successor to a loss corporation described in this 
paragraph (a)(1) is also a loss corporation.
    (ii) Distributor or transferor loss corporation in a transaction 
under section 381. Notwithstanding that a loss corporation ceases to 
exist under state law, if its net operating loss carryforwards, excess 
foreign taxes, or other items described in section 381(c) are succeeded 
to and taken into account by an acquiring corporation in a transaction 
described in section 381(a),

[[Page 480]]

such loss corporation shall be treated as continuing in existence 
until--
    (A) Any pre-change losses (excluding pre-change credits described in 
Sec. 1.383-1(c)(3)), determined as if the date of such transaction were 
the change date, are fully utilized or expire under either section 172 
or section 1212,
    (B) Any net unrealized built-in losses, determined as if the date of 
such transaction were the change date, may no longer be treated as pre-
change losses, and
    (C) Any pre-change credits (described in Sec. 1.383-1(c)(3)), 
determined as if the date of such transaction were the change date, are 
fully utilized or expire under sections 39, 53, or 904(c).

Following a transaction described in the preceding sentence, the stock 
of the acquiring corporation shall be treated as the stock of the loss 
corporation for purposes of determining whether an ownership change 
occurs with respect to the pre-change losses and net unrealized built-in 
losses that may be treated as pre-change losses of the distributor or 
transferor corporation.
    (iii) Separate accounting required for losses and credits of an 
acquiring corporation and a distributor or transferor loss corporation. 
Except as provided in paragraph (a)(1)(iv) of this section, pre-change 
losses (determined as if the testing date were the change date and 
treating the amount of any net unrealized built-in loss as a pre-change 
loss), that are succeeded to and taken into account by an acquiring 
corporation in a transaction to which section 381(a) applies must be 
accounted for separately from losses and credits of the acquiring 
corporation for purposes of applying this section. See Example (2) of 
Sec. 1.382-2T(e)(2)(iv) of this section.
    (iv) End of separate accounting for losses and credits of 
distributor or transferor loss corporation. The separate tracking of 
owner shifts of the stock of an acquiring corporation required by 
paragraph (a)(1)(iii) of this section with respect to the net operating 
loss carryovers and other attributes described in paragraph (a)(1)(ii) 
of this section ends when a fold-in event occurs. A fold-in event is 
either an ownership change of the distributor or transferor corporation 
in connection with, or after, the transaction to which section 381(a) 
applies, or a period of 5 consecutive years following the section 381(a) 
transaction during which the distributor or transferor corporation has 
not had an ownership change. Starting on the day after the earlier of 
the change date (but not earlier than the day of the section 381(a) 
transaction) or the last day of the 5 consecutive year period, the 
losses and other attributes of the distributor or transferor corporation 
are treated as losses and attributes of the acquiring corporation for 
purposes of determining whether an ownership change occurs with respect 
to such losses. Also, for purposes of determining the beginning of the 
acquiring corporation's testing period, such losses are considered to 
arise either in a taxable year that begins not earlier than the later of 
the day following the change date or the day of the section 381(a) 
transaction, or in a taxable year that begins 3 years before the end of 
the 5 consecutive year period. Pre-change losses of a distributor or 
transferor corporation that are subject to a limitation under section 
382 continue to be subject to the limitation notwithstanding the 
occurrence of a fold-in event. Any ownership change that occurs in 
connection with, or subsequent to, the section 381 transaction may 
result in an additional, lesser limitation with respect to such pre-
change losses. This paragraph (a)(1)(iv) applies to any testing date 
occurring on or after January 29, 1991.
    (v) Application to other successor corporations. This paragraph 
(a)(1) also applies, as the context may require, to successor 
corporations other than successors in section 381(a) transactions. For 
example, if a corporation receives assets from the loss corporation that 
have basis in excess of value, the recipient corporation's basis for the 
assets is determined, directly or indirectly, in whole or in part, by 
reference to the loss corporation's basis, and the amount by which basis 
exceeds value is material, the recipient corporation is a successor 
corporation subject to this paragraph (a)(1). This paragraph (a)(1)(v) 
applies to any testing date occurring on or after January 1, 1997.
    (2) Pre-change loss. The term pre-change loss means--

[[Page 481]]

    (i) Any net operating loss carryforward of the old loss corporation 
to the taxable year ending on the change date or in which the change 
date occurs,
    (ii) Any net operating loss of the old loss corporation for the 
taxable year in which the ownership change occurs to the extent such 
loss is allocable to the period in such year on or before the change 
date.
    (iii) Any recognized built-in loss for any recognition period 
taxable year (within the meaning of 382(h)),
    (iv) Any pre-change capital losses described in Sec. 1.383-
1T(c)(2)(i) and (ii), and
    (v) Any pre-change credits described in 1.383-1T(c)(3).
    (3) Stock--(i) In general. Except as provided in this paragraph 
(a)(3)(i) and Sec. 1.382-2T(f)(18)(ii) and (iii), the term stock means 
stock other than stock described in section 1504(a)(4). Notwithstanding 
the preceding sentence, stock that is not described in section 
1504(a)(4) solely because it is entitled to vote as a result of dividend 
arrearages shall be treated as so described and thus shall not be 
considered stock. Stock described in section 1504(a)(4), however, is not 
excluded for purposes of determining the value of the loss corporation 
under section 382(e). The determination of the percentage of stock of 
any corporation owned by any person shall be made on the basis of the 
relative fair market value of the stock owned by such person to the 
total fair market value of the outstanding stock of the corporation. 
Solely for purposes of determining the percentage of stock owned by a 
person, each share of all the outstanding shares of stock that have the 
same material terms is treated as having the same value. Thus, for 
example, a control premium or blockage discount is disregarded in 
determining the percentage of stock owned by any person. The previous 
two sentences of this paragraph (a)(3)(i) apply to any testing date 
occurring on or after January 29, 1991.
    (ii) Convertible stock. The term stock includes any convertible 
stock. For rules regarding the treatment of certain convertible stock as 
an option, see Sec. 1.382-4(d)(9)(ii).
    (4) Testing date--(i) In general. Except as provided in paragraph 
(a)(4)(ii) of this section, a loss corporation is required to determine 
whether an ownership change has occurred immediately after any owner 
shift, or issuance or transfer (including an issuance or transfer 
described in Sec. 1.382-4(d)(8)(i) or (ii)) of an option with respect 
to stock of the loss corporation that is treated as exercised under 
Sec. 1.382-4(d)(2). Each date on which a loss corporation is required 
to make a determination of whether an ownership change has occurred is 
referred to as a testing date. All computations of increases in 
percentage ownership are to be made as of the close of the testing date 
and any transactions described in this paragraph (a)(4) that occur on 
that date are treated as occurring simultaneously at the close of the 
testing date. See Sec. 1.382-2T(e)(1) for the definition of owner 
shift. The term option, as used in this paragraph (a)(4), includes 
interests that are treated as options under Sec. 1.382-4(d)(9). For 
rules regarding the determination of whether dates prior to November 5, 
1992, are testing dates, see Sec. 1.382-2T(a)(2)(i).
    (ii) Exceptions. A loss corporation is not required to determine 
whether an ownership change has occurred immediately after--
    (A) Any transfer of stock, or an option with respect to stock, of 
the loss corporation in any of the circumstances described in section 
382(l)(3)(B) (death, gift, divorce, etc.); or
    (B) The transfer of an option described in Sec. 1.382-4(d)(11)(i) 
or (ii) (relating to transfers between persons who are not 5-percent 
shareholders or between members of certain public groups).
    (5) Successor corporation. A successor corporation is a distributee 
or transferee corporation that succeeds to and takes into account items 
described in section 381(c) from a corporation as the result of an 
acquisition of assets described in section 381(a). A successor 
corporation also includes, as the context may require, a corporation 
which receives an asset or assets from another corporation if the 
corporation's basis for the asset(s) is determined, directly or 
indirectly, in whole or in

[[Page 482]]

part, by reference to the other corporation's basis and the amount by 
which basis differs from value is, in the aggregate, material. The 
previous sentence of this paragraph (a)(5) applies to any testing date 
occurring on or after January 1, 1997.
    (6) Predecessor corporation. A predecessor corporation is a 
distributor or transferor corporation that distributes or transfers its 
assets to an acquiring corporation in a transaction described in section 
381(a). A predecessor corporation also includes, as the context may 
require, a corporation which transfers an asset or assets to another 
corporation if the transferee's basis for the asset(s) is determined, 
directly or indirectly, in whole or in part, by reference to the 
corporation's basis and the amount by which basis differs from value is, 
in the aggregate, material. The previous sentence of this paragraph 
(a)(6) applies to any testing date occurring on or after January 1, 
1997.
    (b) Effective dates--(1) In general. [Reserved]
    (2) Rules provided in paragraph (a)(3)(ii) of this section--(i) In 
general. Except as provided in paragraph (b)(2)(ii) of this section, the 
rules provided in paragraph (a)(3)(ii) of this section apply with 
respect to any convertible stock.
    (ii) Certain convertible preferred stock. Convertible stock that, 
when issued, would be described in section 1504(a)(4) by disregarding 
subparagraph (D) thereof and by ignoring the potential participation in 
corporate growth that the conversion feature may offer is treated as 
stock described in that section (and thus is not treated as stock for 
the purpose of determining whether an ownership change occurs, but is 
taken into account for the purpose of determining the value of the loss 
corporation immediately before an ownership change; see sections 
382(e)(1) and 382(k)(6)(A)) if--
    (A) The stock was issued on or after July 20, 1988, and prior to 
November 5, 1992; or
    (B) The stock was issued prior to July 20, 1988, and the loss 
corporation makes the election described in Notice 88-67, 1988-1 C.B. 
555, (see Sec. 601.601(d)(2)(ii)(b) of this chapter for availability of 
Cumulative Bulletins (C.B.)) on or before the earlier of the date 
prescribed in the Notice or December 7, 1992.
    (3) Rules provided in paragraph (a)(4) of this section. The rules 
provided in paragraph (a)(4) of this section apply to determine whether 
dates on or after November 5, 1992, are testing dates.

[T.D. 8352, 56 FR 29434, June 27, 1991, as amended by T.D. 8405, 57 FR 
10740, Mar. 30, 1992; 57 FR 24188, June 8, 1992; T.D. 8531, 59 FR 12836, 
Mar. 18, 1994; T.D. 8679, 61 FR 33315, June 27, 1996; T.D. 8825, 64 FR 
36177, 36178, July 2, 1999]



Sec. 1.382-2T  Definition of ownership change under section 382, as 
amended by the Tax Reform Act of 1986 (temporary).

    (a) Ownership change--(1) In general. A corporation is a new loss 
corporation and thus subject to limitation under section 382 only if an 
ownership change has occurred with respect to such corporation. An 
ownership change occurs with respect to a corporation if it is a loss 
corporation on a testing date and, immediately after the close of the 
testing date, the percentage of stock of the corporation owned by one or 
more 5-percent shareholders has increased by more than 50 percentage 
points over the lowest percentage of stock of such corporation owned by 
such shareholders at any time during the testing period. See paragraph 
(a)(2)(i) of this section for the definition of testing date. See 
paragraph (d) of this section for the definition of testing period. See 
Sec. 1.382-2(a)(1) and paragraph (f)(3) of this section for the 
respective definition of loss corporation and new loss corporation. See 
paragraph (g) of this section for the definition of 5-percent 
shareholder. See section 383 and Sec. 1.383-1 for rules relating to 
loss corporations that have an ownership change and have capital loss 
carryovers, excess foreign taxes carried over under section 904(c), 
carryovers of general business credits under section 39, or unused 
minimum tax credits under section 53.
    (2) Events requiring a determination of whether an ownership change 
has occurred--(i) Testing dates prior to November 5, 1992. Except as 
otherwise provided in this paragraph (a)(2)(i), a loss corporation is 
required to determine whether an ownership change has occurred 
immediately after any owner

[[Page 483]]

shift, any equity structure shift, or any transaction in which an option 
with respect to stock of the loss corporation is--
    (A) Transferred to (or by) a 5-percent shareholder (or a person who 
would be 5-percent shareholder if the option were treated as exercised), 
or
    (B) Issued by the loss corporation, a first tier entity, or a higher 
tier entity that owns five percent or more of the loss corporation 
(determined without regard to the application of paragraph (h)(2)(i)(A) 
of this section). Notwithstanding the preceding sentence, any transfer 
of stock of the loss corporation (or an option with respect to such 
stock) in any of the circumstances described in section 382(l)(3)(B), or 
any equity structure shift that is not also an owner shift, is not an 
event that requires the loss corporation to make a determination of 
whether an ownership change has occurred. For purposes of this section, 
each date on which a loss corporation is required to make a 
determination of whether an ownership change has occurred is referred to 
as a testing date, all computations of increases in percentage ownership 
are to be made as of the close of the testing date, and any transactions 
described in this paragraph (a)(2)(i) that occur on that date are 
treated as occurring simultaneously at the close of the testing date. 
See paragraphs (e)(1) and (2) of this section for the respective 
definitions of owner shift and equity structure shift. See paragraphs 
(f)(9) and (14) of this section for the respective definitions of first 
tier entity and higher tier entity. See paragraph (m)(4)(vii) of this 
section for special rules regarding the effective date of the provisions 
of this paragraph (a)(2)(i).
    (ii) Information statement required. A loss corporation must file a 
statement with its income tax return for each taxable year that it is a 
loss corporation in which an owner shift, equity structure shift or 
other transaction described in paragraph (a)(2)(i) of this section 
occurs. The statement must--
    (A) Indicate whether any testing dates occurred during the taxable 
year;
    (B) Identify each testing date, if any, on which an ownership change 
occurred;
    (C) Identify the testing date, if any, that occurred during and 
closest to the end of each of the three month periods ending on March 
31, June 30, September 30 and December 31 during the taxable year, 
regardless of whether an ownership change occurred on the testing date,
    (D) Identify each 5-percent shareholder on each such testing date;
    (E) State the percentage ownership of the stock of the loss 
corporation for each 5-percent shareholder as of each such testing date 
and the increase, if any, in such ownership during the testing period; 
and
    (F) Disclose the extent to which the loss corporation relied upon 
the presumptions regarding stock ownership under paragraph (k)(i) of 
this section to determine whether an ownership change occurred on any 
identified testing date.

See Sec. 1.383-1(k) and paragraph (m)(4)(v) of this section for 
transitional rules regarding the filing of information statements.
    (iii) Records to be maintained by loss corporation. A loss 
corporation shall keep such records as are necessary to determine: (A) 
The identity of its 5-percent shareholders, (B) the percentage of its 
stock owned by each such 5-percent shareholder, and (C) whether the 
section 382 limitation is applicable. Such records shall be retained so 
long as they may be material in the administration of any internal 
revenue law.
    (b) Nomenclature and assumptions. For purposes of the example in 
this section--
    (1) L is a loss corporation, and, if there is more than one loss 
corporation, they are designated as L1, L2, 
L3, etc.
    (2) P is a corporation that is not a loss corporation, and, if there 
is more than one such corporation, they are designated as P1, 
P2, P3, etc.
    (3) HC is a corporation whose assets consist solely of the stock of 
other corporations.
    (4) E is an entity other than a corporation (e.g., a partnership), 
and, if there is more than one such entity, they are designated as 
E1, E2, E3, etc.
    (5) Unless otherwise stated--

[[Page 484]]

    (i) A, B, C, D, AA, BB, CC, and DD are unrelated individuals who own 
interests in corporations or other entities only to the extent expressly 
stated,
    (ii) All corporations have one class of stock outstanding and each 
share of stock has the same fair market value as each other share,
    (iii) The capital structure of the loss corporation and its business 
do not change over time, and
    (iv) The rules of paragraphs (k)(2) and (4) of this section are not 
applicable.
    (6) Public L represents a group of unrelated individuals and 
entities that own direct (and not indirect) stock ownership interests in 
loss corporation L, each of whom owns less than five percent of the 
stock of the loss corporation, and, if there is more than one loss 
corporation, such groups are designated as Public L1, Public 
L2, Public L3, etc.
    (7) Public P represents a group of unrelated individuals and 
entities that own direct (and not indirect) stock ownership interests in 
corporation P, each of whom owns less than five percent of the stock of 
the corporation, and, if there is more than one corporation, such groups 
are designated as Public P1, P2, P3, 
etc.
    (8) Public E represents a group of unrelated individuals and 
entities that own direct (and not indirect) ownership interests in 
entity E, each of whom owns less than five percent of the entity, and, 
if there is more than one entity, such groups are designated as Public 
E1, Public E2, Public E3, etc.
    (c) Computing the amount of increases in percentage ownership--(1) 
In general. In order to determine whether an ownership change has 
occurred on a testing date, the loss corporation must identify each 5-
percent shareholder whose percentage of stock ownership in the loss 
corporation immediately after the close of the testing date has 
increased, compared to such shareholder's lowest percentage of stock 
ownership in such corporation at any time during the testing period. The 
amount of the increase in the percentage of stock ownership in the loss 
corporation of each 5-percent shareholder must be computed separately by 
comparing the percentage ownership of each such 5-percent shareholder 
immediately after the close of the testing date to such shareholder's 
lowest percentage ownership at any time during the testing period. Each 
such increase in the percentage ownership of a 5-percent shareholder is 
then added together with any other such increases of other 5-percent 
shareholders to determine whether an ownership change has occurred. 
Because only those 5-percent shareholders whose percentages of stock 
ownership have increased are taken into account, a 5-percent shareholder 
is disregarded if his percentage of stock ownership, immediately after 
the close of the testing date, has decreased (or has remained the same), 
compared to his lowest percentage ownership interest on any previous 
date during the testing period.
    (2) Example.

    Example. (i) A and B each own 40 percent of the outstanding L stock. 
The remaining 20 percent of the L stock is owned by 100 unrelated 
individuals, none of whom own as much as five percent of L stock 
(``Public L''). C negotiates with A and B to purchase all their stock in 
L.
    (ii) The acquisitions from both A and B are completed on September 
13, 1990. C's acquisition of 80 percent of L stock results in an 
ownership change because C's percentage ownership has increased by 80 
percentage points as of the testing date, compared to his lowest 
percentage ownership in L at any time during the testing period (0 
percent).

    (3) Related and unrelated increases in percentage stock ownership. 
The determination whether an ownership change has occurred is made 
without regard to whether the changes in stock ownership of the loss 
corporation (by one or more 5-percent shareholders) result from related 
or unrelated events.
    (4) Example.

    Example. (i) L has outstanding 200 shares of common stock. A, B and 
C respectively own 100, 50 and 50 shares of the L stock. On January 2, 
1988, A sells 60 shares of L stock to B. Thus, B's percentage ownership 
interest in L increases by 30 percentage points, from 50 shares to 110 
shares. On January 1, 1989, A purchases C's entire interest in L. Thus, 
A's percentage ownership interest in L increases by 25 percentage 
points, compared to his lowest percentage ownership interest in L, from 
40 shares immediately following the January 2, 1988 sale to B to 90 
shares. Even though A's ownership interest in L as of January 1, 1989 
has decreased, compared to his 50 percent ownership interest at the 
beginning of the

[[Page 485]]

testing period, A is a 5-percent shareholder who must be taken into 
account for purposes of the computation required under paragraph (c)(1) 
of this section because his interest in L on that testing date (45 
percent) has increased, compared to his lowest percentage ownership 
interest in L at any time during the testing period (20 percent 
following the sale to B).
    (ii) Accordingly, although A and B jointly have increased their 
aggregate total ownership interest in L between January 2, 1988 and 
January 1, 1989 by only 25 percentage points (i.e., the total ownership 
interest in L held by A and B at all times is not less than a 75 percent 
interest), the total of their separate increases in the percentage stock 
ownership of L, compared to their respective lowest percentage ownership 
interests at any time during the testing period, is 55 percentage 
points. Thus, an ownership change occurs as a result of A's acquisition 
of L stock on January 1, 1989.

    (d) Testing period--(1) In general. Except as otherwise provided in 
paragraphs (d) and (m) of this section, the testing period for any 
testing date is the three-year period ending on the testing date. See 
paragraph (a)(2)(i) of this section for the definition of testing date.
    (2) Effect of a prior ownership change. Following an ownership 
change, the testing period for determining whether a subsequent 
ownership change has occurred shall begin no earlier than the first day 
following the change date of the most recent ownership change. See 
paragraph (f)(19) of this section for the definition of change date.
    (3) Commencement of the testing period--(i) In general. Except as 
otherwise provided in paragraph (d)(3)(ii) of this section, the testing 
period for any loss corporation shall not begin before the earlier of 
the first day of either--
    (A) The first taxable year from which there is a loss or excess 
credit carryforward to the first taxable year ending after the testing 
date, or
    (B) The taxable year in which the testing date occurs.
    (ii) Exception for corporations with net unrealized built-in loss. 
Paragraph (d)(3)(i) of this section shall not apply if the corporation 
has a net unrealized built-in loss (determined after application of 
section 382(h)(3)(B)) on the testing date, unless the loss corporation 
establishes the taxable year in which the net unrealized built-in loss 
first accrued.


In that event, the testing period shall not begin before the earlier 
of--
    (A) The first day of the taxable year in which the net unrealized 
built-in loss first accrued, or
    (B) The day described in paragraph (d)(3)(i) of this section. See 
section 382(h) for the definition of net unrealized built-in loss.
    (4) Disregarding testing dates. Any testing date that occurs before 
the beginning of the testing period shall be disregarded for purposes of 
this section.
    (5) Example.

    Example. (i) A owns all 100 outstanding shares of L stock. A sells 
40 shares to B on January 1, 1988. C purchases 20 shares of L stock from 
A on July 1, 1991. In determining if an ownership change occurs on the 
July 1, 1991 testing date, B's acquisition of L stock is disregarded 
because it occurred before the testing period that ends on such testing 
date. Thus, B's ownership interest in L does not increase during the 
testing period, and no ownership change results from C's acquisition.
    (ii) The facts are the same as in (i), except that throughout the 
period during which B negotiated his stock purchase transaction with A, 
B knew that C intended to attempt to acquire a significant stock 
interest in L. Also, B and C have been partners in a number of 
significant business ventures. The result is the same as in (i).

    (e) Owner shift and equity structure shift--(1) Owner shift--(i) 
Defined. For purposes of this section, an owner shift is any change in 
the ownership of the stock of a loss corporation that affects the 
percentage of such stock owned by any 5-percent shareholder. See 
paragraph (g) of this section for the definition of a 5-percent 
shareholder. An owner shift includes, but is not limited to, the 
following transactions:
    (A) A purchase of disposition of loss corporation stock by a 5-
percent shareholder,
    (B) A section 351 exchange that affects the percentage of stock 
owned by a 5-percent shareholder,
    (C) A redemption or a recapitalization that affects the percentage 
of stock owned by a 5-percent shareholder,
    (D) An issuance of loss corporation stock that affects the 
percentage of

[[Page 486]]

stock owned by a 5-percent shareholder, and
    (E) An equity structure shift that affects the percentage of stock 
owned by a 5-percent shareholder.
    (ii) Transactions between persons who are not 5-percent shareholders 
disregarded. Transfers of loss corporation stock between persons who are 
not 5-percent shareholders of such corporation (and between members of 
separate public groups resulting from the application of the segregation 
rules of paragraphs (j)(2) and (3)(iii) of this section) are not owner 
shifts and thus are not taken into account. See paragraph (h)(4)(xi) of 
this section for a similar rule applicable to transfers of options.
    (iii) Examples.

    Example (1). A has owned all 1000 shares of outstanding L stock for 
more than three years. On June 15, 1988, A sells 300 of his L shares to 
B. This transaction is an owner shift. No other 5-percent shareholder 
has increased his percentage ownership of L stock during the testing 
period. Thus, the owner shift resulting from B's acquisition does not 
result in an ownership change, because B has increased his stock 
ownership in L by only 30 percentage points.
    Example (2). The facts are the same as in Example (1). In addition, 
on June 15, 1989, L issues 100 shares to each of C, D and AA. The stock 
issuance is an owner shift. The transaction, however, does not result in 
an ownership change, because B, C, D and AA (the 5-percent shareholders 
whose stock ownership has increased as of the testing date, compared to 
any other time during the testing period) have increased their 
percentage of stock ownership in L by a total of only 46.2 percentage 
points during the testing period (by 23.1 percentage points [300 shares/
1300 shares] for B, and 7.7 percentage points [100 shares/1300 shares] 
for each of C, D and AA).
    Example (3). All 1000 shares of L stock are owned by a group of 100 
unrelated individuals, none of whom own as much as five percent of L 
stock (``Public L''). Several of the members of Public L sell their L 
stock, amounting to a 30 percent ownership interest in L, to B on June 
15, 1988. The sale of stock to B is an owner shift. Between June 16, 
1988 and June 15, 1989, each of the remaining individuals in Public L 
sells his stock to another person who is not a 5-percent shareholder. 
Under paragraph (e)(1)(ii) of this section, trading activity among the 
members of Public L is disregarded and does not result in an owner 
shift. On June 15, 1989, L issues 100 shares to each of C, D and AA. The 
only sale transactions by members of Public L that are taken into 
account in determining whether an ownership change occurs on June 15, 
1989 are the sales to B on June 15, 1988. Because B, C, D and AA 
together have increased their percentage ownership of L stock as a 
result of B's purchase and the stock issuance by an amount not in excess 
of 50 percentage points during the testing period ending on June 15, 
1988, an ownership change does not occur on that date.
    Example (4). The facts are the same as in Example (2). In addition, 
on December 15, 1989, L redeems 200 of the L shares from A. The 
redemption is an owner shift that results in an ownership change, 
because B, C, D and AA are 5-percent shareholders whose percentage 
ownership of L increase by a total of 54.6 percentage points during the 
testing period (by 27.3 percentage points [300 shares/1100 shares] for B 
and 9.1 percentage points [100 shares/1100 shares] for each of C, D and 
AA).
    Example (5). L is owned entirely by 10,000 unrelated shareholders, 
none of whom owns as much as five percent of the stock of L (``Public 
L''). Accordingly, Public L is L's only 5-percent shareholder. See 
paragraph (j)(1) of this section. There are one million shares of common 
stock outstanding. On December 1, 1988, L issues two million new shares 
of its common stock to members of the public, none of whom owned any L 
stock prior to the issuance. Following the public offering, no 
shareholder of L owns, directly or indirectly, five percent or more of L 
stock. Under paragraph (j)(2) of this section, however, all of the newly 
issued stock is treated as acquired by a 5-percent shareholder (``Public 
NL'') that is unrelated to Public L. Therefore, the public offering 
constitutes an owner shift that results in an ownership change because 
Public NL's percentage of stock ownership in L increased by 66\2/3\ 
percentage points (two million shares acquired in the public offering/
three million shares outstanding following the offering) over its lowest 
percentage ownership during the testing period (0 percent prior to the 
offering).
    Example (6). The facts are the same as in Example (5), except that L 
issues only 500,000 new shares of L stock on December 1, 1988, and 
Public NL's percentage ownership interest in L increases by only 33\1/3\ 
percentage points (500,000 shares acquired in the public offering/1.5 
million shares outstanding following the offering). During the two years 
following December 2, 1988, 14 percent of the stock outstanding on that 
date is sold over a public stock exchange. On December 3, 1990, A 
purchases five percent of L stock (75,000 shares) over a public stock 
exchange. The purchase of five percent of L stock by A is an owner shift 
and is presumed to have been made proportionately from Public L and 
Public NL under paragraph (j)(1)(vi) of this section. Under paragraph 
(e)(1)(ii) of this section, transfers of L stock in transactions not 
involving A (i.e., in transactions among or

[[Page 487]]

between members of separate public groups resulting from the application 
of paragraphs (j)(2) and (3) of this section) are not taken into 
account, and do not constitute owner shifts. (Transfers between members 
of Public NL and Public L, which are treated as separate 5-percent 
shareholders solely by virtue of paragraph (j)(2) of this section, are 
disregarded even if L has actual knowledge of any such transfers.) A and 
Public NL, the only 5-percent shareholders whose interests in L have 
increased during the testing period, have increased their respective 
stock ownership by only 36\2/3\ percentage points--five percentage 
points for A [75,000 shares/1.5 million shares outstanding] and 31\2/3\ 
percentage points for Public NL [((500,000 shares issued in the public 
offering)--(5 percent x 500,000 shares presumed to have been acquired by 
A)) /1.5 million shares outstanding]. Accordingly, there is no ownership 
change with respect to L notwithstanding that, taking into account the 
public trading, a change of more than 50 percentage points in the 
ultimate beneficial ownership of L stock occurred during the three-year 
period ending on the December 3, 1990 testing date.
    Example 7. The facts are the same as in Example 6, except that five 
percent of the L stock has always been owned by P which, in turn, has 
always been owned by Public P. On December 6, 1990, P sells all of its L 
stock over a public stock exchange. Although the trading of P stock 
among persons that are not 5-percent share-holders (without regard to 
the segregation rules of paragraph (j) of this section) are disregarded 
under paragraph (e)(1)(ii) of this section, the disposition of the L 
stock by P is not disregarded because the L stock is transferred in a 
transaction that is subject to paragraph (j)(3)(i) of this section.

    (2) Equity structure shift--(i) Tax-free reorganizations. An equity 
structure shift is any reorganization within the meaning of section 368 
with respect to which the loss corporation is a party to the 
reorganization, except that such term does not include a reorganization 
described in--
    (A) Section 368(a)(1)(D) or (G) unless the requirements of section 
354(b)(1) are met, or
    (B) Section 368(a)(1)(F).
    (ii) Transactions designated under section 382(g)(3)(B) treated as 
equity structure shifts. [Reserved]
    (iii) Overlap of owner shift and equity structure shift. Any equity 
structure shift that affects the percentage of loss corporation stock 
owned by a 5-percent shareholder also constitutes an owner shift. See 
paragraph (e)(i)(E) of this section
    (iv) Examples.

    Example (1). A owns all of the stock of L and B owns all of the 
stock of P. On October 13, 1988, L merges into P in a reorganization 
described in section 368a(1)(A). As a result of the merger, A and B own 
25 and 75 percent, respectively, of the stock of P. The merger is an 
equity structure shift (and, because it affects the percentage of L 
stock owned by 5-percent shareholders, it also constitutes an owner 
shift). On the October 13, 1988 testing date, B is a 5-percent 
shareholder whose stock ownership in the loss corporation following the 
merger has increased by 75 percentage points over his lowest percentage 
of stock ownership in L at any time during the testing period (0 percent 
prior to the merger). Accordingly, an ownership change occurs as a 
result of the merger. P is thus a new loss corporation and L's pre-
change losses are subject to limitation under section 382.
    Example (2). (i) A owns 100 percent of L1 stock and B 
owns 100 percent of L2 stock. On January 1, 1988, 
L1 merges into L2 in a reorganization described in 
section 368(a)(1)(A). Immediately after the merger, A and B own 40 
percent and 60 percent, respectively, of the L2 stock. There 
is an equity structure shift (as well as an owner shift) with respect to 
both L1 and L2 on January 1, 1988.
    (ii) Because the percentage of L2 stock owned by B 
immediately after the merger (60 percent) increases by more than 50 
percentage points over the lowest percentage of the stock of 
L1 owned by B during the testing period (0 percent prior to 
the merger), there is an ownership change with respect to L1. 
L2 is a new loss corporation and thus, under Sec. 1.382-
2(a)(1)(iii) of this section, the pre-change losses of L1 
must be accounted for separately by L2 from the losses of 
L2 (immediately before the ownership change) and are subject 
to limitation under section 382. See Sec. 1.382-2(a)(1)(iv) of this 
section for rules that end separate accounting for L1's pre-
change losses on any testing date occurring on or after January 29, 
1991.
    (iii) L2 is a new loss corporation because it is a 
successor corporation to L1. There is no ownership change 
with respect to L2, however, because A's stock ownership in 
L2 increased by only 40 percentage points (to 40 percent) 
over the amount owned by A prior to the merger (0 percent). Therefore, 
the pre-change losses of L2 are not limited under section 382 
as a result of the merger.
    Example (3). The result in Example (2) would be the same if 
L1 had survived the merger (i.e., L2 merged into 
L1) with A and B owning 40 and 60 percent, respectively, of 
L1 stock. L1's pre-change losses would be 
accounted for separately and limited under section 382 and the pre-
change losses of L2 would be accounted for separately under 
Sec. 1.382-

[[Page 488]]

2(a)(1)(iii) of this section, but would not be limited under section 
382. See Sec. 1.382-2(a)(1)(ii) for the treatment of L2 
following the transaction.
    Example (4). The facts are the same as Example (2), except, instead 
of acquiring L1 in a merger, L2 acquires all of 
the L1 stock from A on January 1, 1988, solely in exchange 
for stock representing a 40 percent interest in L2, in a 
reorganization described in section 368(a)(1)(B). The acquisition of 
stock by L2 is an equity structure shift (as well as an owner 
shift) with respect to L1 that results in an ownership change 
with respect to L1 because the percentage of L1 
stock owned by B immediately after the reorganization (60 percent, by 
virtue of B's ownership of L2, through the operation of the 
constructive ownership rules of paragraph (h) of this section) increases 
by more than 50 percentage points over the lowest percentage of 
L1 stock owned by B at any time during the testing period (0 
percent prior to the reorganization). The acquisition also results in an 
equity structure shift and an owner shift with respect to L2, 
but L2 incurs no ownership change, because A's stock 
ownership in L2 increased by only 40 percentage points over 
the percentage of L2 stock owned by A prior to the 
reorganization (0 percent).

    (f) Definitions. For purposes of this section--
    (1) Loss corporation. See section 382 and Sec. 1.382-2(a)(1) for 
the definition of a loss corporation.
    (2) Old loss corporation. The term old loss corporation means any 
corporation with respect to which there is an ownership change and that 
was a loss corporation immediately before the ownership change.
    (3) New loss corporation. The term new loss corporation means a 
corporation with respect to which there is an ownership change if, 
immediately after such change, it is a loss corporation. A successor 
corporation to the corporation described in the preceding sentence also 
is a new loss corporation.
    (4) Successor corporation. See Sec. 1.382-2(a)(5) for the 
definition of successor corporation.
    (5) Predecessor corporation. See Sec. 1.382-2(a)(6) for the 
definitions of predecessor corporation.
    (6) Shift. As the context may require, a shift means an equity 
structure shift, an owner shift or both.
    (7) Entity. See Sec. 1.382-3(a)(1) for the definition of an entity.
    (8) Direct ownership interest. A direct ownership interest means the 
interest a person owns in an entity, including a loss corporation, 
without regard to the constructive ownership rules of paragraph (h) of 
this section.
    (9) First tier entity. A first tier entity is an entity that, at any 
time during the testing period, owns a five percent or more direct 
ownership interest in the loss corporation.
    (10) 5-percent owner. A 5-percent owner is any individual that, at 
any time during the testing period, owns a five percent or more direct 
ownership interest in a first tier entity or a higher tier entity. See 
paragraph (g) of this section for rules to determine whether, as a 
result of the constructive ownership rules of paragraph (h) of this 
section, a 5-percent owner is a 5-percent shareholder.
    (11) Public shareholder. A public shareholder is any individual, 
entity, or other person with a direct ownership interest in a loss 
corporation of less than five percent at all times during the testing 
period.
    (12) Public owner. A public owner is any individual, entity, or 
other person that, at all times during the testing period, owns less 
than a five percent direct ownership interest in a first tier entity or 
any higher tier entity.
    (13) Public group. A public group is a group of individuals, 
entities, or other persons each of whom owns, directly or 
constructively, less than five percent of the loss corporation. See 
paragraphs (g) and (j) of this section for the rules applicable to 
identify public groups and to determine whether a public group is a 5-
percent shareholder.
    (14) Higher tier entity. A higher tier entity is any entity that, at 
any time during the testing period, owns a five percent or more direct 
ownership interest in a first tier entity or in any higher tier entity.
    (15) Indirect ownership interest. An indirect ownership is an 
interest a person owns in an entity determined solely as a result of the 
application of the constructive ownership rules of paragraph (h) of this 
section and without regard to any direct ownership interest (or other 
beneficial ownership interest) in the entity.
    (16) Highest tier entity. A highest tier entity is a first tier 
entity or a higher tier entity that is not owned, in whole

[[Page 489]]

or in part, at any time during the testing period by a higher tier 
entity.
    (17) Next lower tier entity. The next lower tier entity with respect 
to a first tier entity is the loss corporation. The next lower tier 
entity with respect to a higher tier entity is any first tier entity or 
other higher tier entity in which the higher tier entity owns, at any 
time during the testing period, a five percent or more direct ownership 
interest.
    (18) Stock--(i) In general. For further guidance, see Sec. 1.382-
2(a)(3)(i).
    (ii) Treating stock as not stock. Any ownership interest that 
otherwise would be treated as stock under paragraph (f)(18)(i) of this 
section shall not be treated as stock if--
    (A) As of the time of its issuance or transfer to (or by) a 5-
percent shareholder, the likely participation of such interest in future 
corporate growth is disproportionately small when compared to the value 
of such stock as a proportion of the total value of the outstanding 
stock of the corporation,
    (B) Treating the interest as not constituting stock would result in 
an ownership change, and
    (C) The amount of the pre-change loss (determined as if the testing 
date were the change and treating the amount of any net unrealized 
built-in loss as a pre-change loss) is more than twice the amount 
determined by multiplying
    (1) the value of the loss corporation (as determined under section 
382(e)) on the testing date, by
    (2) the long-term tax exempt rate (as defined in section 382(f)) for 
the calendar month in which the testing date occurs.

Stock that is not treated as stock under this paragraph (f)(18)(ii), 
however, is taken into account for purposes of determining the value of 
the loss corporation under section 382(e).
    (iii) Treating interests not constituting stock as stock. Any 
ownership interest that would not be treated as stock under paragraph 
(f)(18)(i) of this section (other than an option that is subject to 
paragraph (h)(4) of this section) shall be treated as constituting stock 
if--
    (A) As of the time of its issuance or transfer to (or by) a 5-
percent shareholder (or a person who would be a 5-percent shareholder if 
the interest not constituting stock were treated as stock), such 
interest offers a potential significant participation in the growth of 
the corporation,
    (B) Treating the interest as constituting stock would result in an 
ownership change, and
    (C) The amount of the pre-change losses (determined as if the 
testing date were the change date and treating the amount of any net 
unrealized built-in loss as a pre-change loss) is more than twice the 
amount determined by multiplying
    (1) The value of the loss corporation (as determined under section 
382(e)) on the testing date, by
    (2) The long-term tax exempt rate (as defined in section 382(f)) for 
the calendar month in which the testing date occurs.

An ownership interest is that treated as stock under this paragraph 
(f)(18)(iii) is taken into account for purposes of determining the value 
of the loss corporation under section 382(e). See Sec. 1.382-4(d)(12) 
for rules that apply with respect to options and this paragraph 
(f)(18)(iii).
    (iv) Stock of the loss corporation. The stock of the loss 
corporation means stock of such corporation within the meaning of this 
paragraph (f)(18) and, as the context may require, includes any indirect 
ownership interest in the loss corporation.
    (19) Change date. The change date means the date on which a shift 
(or any other transaction described in paragraph (a)(2)(i) of this 
section) that is the last component of an ownership change occurs.
    (20) Year. A year, or any multiple thereof, means a 365-day period 
(or a 366-day period in the case of a leap year), or any multiple 
thereof, unless the year is specifically identified as a taxable year.
    (21) Old section 382. ``Old section 382'' means section 382, as in 
effect prior to the effective date of section 382 in the Tax Reform Act 
of 1986 (the ``Act''), but taking into account section 621(f)(2) of the 
Act.
    (22) Pre-change loss. See section 382 and Sec. 1.382-2(a)(2) for 
the definition of pre-change loss.

[[Page 490]]

    (23) Unrelated. Any two persons are unrelated if the constructive 
ownership rules of paragraph (h) of this section do not apply to treat 
either person as owning stock that is owned, directly or constructively, 
by the other person.
    (24) Percentage ownership interest. A person's percentage ownership 
interest in--
    (i) A corporation shall be determined under the rules of this 
section that are applicable to the determination of a shareholder's 
percentage stock ownership interest in a loss corporation (see 
paragraphs (f)(18)(i) through (iii) of this section),
    (ii) A partnership shall be equal to the relative fair market value 
of such person's partnership interest to the total fair market value of 
all outstanding partnership interests, determined without regard to any 
limited and preferred partnership interest that is described in 
paragraph (h)(2)(ii)(C) of this section,
    (iii) A trust shall be determined in accordance with the principles 
of section 318(a)(2)(B) for determining the constructive ownership of 
stock,
    (iv) An estate shall be determined in accordance with the principles 
of section 318(a)(2)(A) for determining the constructive ownership of 
stock, and
    (v) All other entities shall be determined by reference to the 
person's relative economic interest in the entity, taking into account 
all of the relevant facts and circumstances.
    (g) 5-percent shareholder--(1) In general. Subject to the rules of 
paragraphs (k)(2) and (4) of this section, the term 5-percent 
shareholder means--
    (i) An individual that owns, at any time during the testing period,
    (A) A direct ownership interest in the stock of the loss corporation 
of five percent or more or
    (B) An indirect ownership interest in the stock of the loss 
corporation of five percent or more by virtue of an ownership interest 
in any one first tier entity or higher tier entity,
    (ii) A public group, of either a first tier entity or a higher tier 
entity, identified as a 5-percent shareholder under paragraph 
(j)(1)(iv)(A) or (B) of this section,
    (iii) A public group of the loss corporation identified as a 5-
percent shareholder under paragraph (j)(1)(iv)(C) of this section, and
    (iv) A public group, of the loss corporation, a first tier entity or 
a higher tier entity, identified as a 5-percent shareholder under 
paragraph (j)(2) or (3) of this section. An individual owning five 
percent or more of the stock of the loss corporation at any time during 
the testing period is a 5-percent shareholder notwithstanding that the 
individual may own less than five percent of the stock of the loss 
corporation on the testing date. See paragraph (g)(5)(i)(B) of this 
section for rules permitting a loss corporation to make an adjustment in 
cases described in the preceding sentence.
    (2) Determination of whether a person is a 5-percent shareholder. 
Except as provided in paragraphs (k)(2) and (4) of this section, a 
person shall be treated as constructively owning stock of the loss 
corporation pursuant to paragraph (h)(2) of this section only if the 
loss corporation stock is attributed to such person in the person's 
capacity as a higher tier entity or a 5-percent owner of the first tier 
entity or higher tier entity from which such stock is attributed. See 
paragraph (k)(3) of this section for rules explaining the extent of the 
obligation of the loss corporation to determine the identity of its 5-
percent shareholders. Nothing in this paragraph (g)(2), however, shall 
limit the attribution of loss corporation stock under section 318(a)(2) 
and paragraph (h) of this section to a public owner.
    (3) Determination of the percentage stock ownership interest of a 5-
percent shareholder. Subject to the rules of paragraphs (k)(2) and (4) 
of this section, in determining a 5-percent shareholder's percentage 
ownership interest in the loss corporation, the shareholder's direct 
ownership interest, if any, and each indirect ownership interest that he 
may have in the loss corporation in his capacity as a 5-percent owner of 
any one first tier entity or higher tier entity, if any, are required to 
be added together and taken into account with respect to such 
shareholder only to the extent that each such direct or indirect 
ownership interest constitutes five percent or more of the stock of the 
loss corporation.

[[Page 491]]

    (4) Examples.

    Example (1) (i) Twenty percent of L stock is owned by A, 10 percent 
is owned by P1, 20 percent is owned by E, a joint venture, 
and the remaining 50 percent of L stock is owned by Public L. 
P1 is owned 15 percent by B and 85 percent by Public 
P1. E is owned 30 percent by P2 and 70 percent by 
P3, which, in turn, are owned by Public P2 and 
Public P3, respectively.
    (ii) The ownership structure of L is illustrated by the following 
chart:
[GRAPHIC] [TIFF OMITTED] TC17OC91.002

    (iii) P1 and E, each of which has a direct ownership 
interest in L of five percent or more, are first tier entities. The 
shareholders with direct ownership interests in L who individually own 
less than five percent of L are public shareholders (Public L). B, who 
has a direct ownership interest of five percent or more in 
P1, is a 5-percent owner of P. P2 and 
P3, and P3, each of which has a direct ownership 
interest in a first tier entity (E) of five percent or more, are higher 
tier entities with respect to L and, because neither entity is owned at 
any time during the testing period by a higher tier entity, they also 
are highest tier entities. The shareholders of P2 and 
P3 (Public P2 and Public P3, 
respectively) are public owners of such entities, because none of those 
shareholders own five percent or more of either entity at any time 
during the testing period.
    (iv) A, who has a 20 percent direct ownership interest in L, is a 5-
percent shareholder of L. Because, by application of the constructive 
ownership rules of paragraph (h) of this section, B owns only 1.5 
percent of L stock in his capacity as a 5-percent owner of P1 
(15 percent ownership of P1 x 10 percent ownership of L), B 
is not a 5-percent shareholder of L, even though he is a 5-percent owner 
of P1. Under the rules of paragraph (j) of this section, 
therefore, B is treated as a member of Public P1. See Example 
(3) of paragraph (j)(1)(vi) of this section for a determination

[[Page 492]]

of which public owners and public shareholders constitute public groups 
that are treated as 5-percent shareholders of L.
    Example (2) (i) The facts are the same as in Example (1), except 
that P3 is owned 60 percent by C, 30 percent by 
P4, and 10 percent by Public P3. The stock of 
P4 is owned by a group of persons (Public P4), 
none of whom own five percent or more of the stock of P4.
    (ii) The ownership structure of L is illustrated by the following 
chart:
[GRAPHIC] [TIFF OMITTED] TC17OC91.003

    (iii) The defined terms are the same as in Example (1), except that 
P3 is a higher tier entity, not a highest tier entity, 
because five percent or more of P3 is, in turn, owned by 
another entity (P4 ). P4, which owns five percent 
or more of a higher tier entity (P3), also is a higher tier 
entity and, because it is not owned at any time during any testing 
period by any entity that is also a higher tier entity, P4 is 
a highest tier entity. All of the shareholders of P4, none of 
which own a direct ownership interest of five percent or more in 
P4, are public owners of P4.

[[Page 493]]

    (iv) C is a 5-percent owner of P3 and, under the 
constructive ownership rules of paragraph (h) of this section, C 
indirectly owns 8.4 percent of L ([60 percent ownership of 
P3] x [70 percent ownership of E] x [20 percent ownership of 
L]), in his capacity as a 5-percent owner of P3. B is a 5-
percent owner of P1 and, under the constructive ownership 
rules of paragraph (h) of his section, B owns 1.5 percent of L ([15 
percent ownership of P1] x [10 percent ownership of L]) in 
his capacity as a 5-percent owner of P1. Therefore, C is a 5-
percent shareholder of L, but B is not a 5-percent shareholder of L, 
even though he is a 5-percent owner of P1. See Example (4) of 
paragraph (j)(1)(vi) of this section for a determination of which public 
owners and public shareholders constitute public groups that are treated 
as separate 5-percent shareholders of L.
    Example (3) (i) L is owned 30 percent by A and 70 percent by P. A 
owns six percent of P stock and the balance (94 percent) is owned 
equally by 500 unrelated shareholders (``Public P'').
    (ii) A is a 5-percent shareholder because he directly owns 30 
percent of L. Even though A is a 5-percent owner of P, A's 4.2 percent 
indirect ownership interest in L (six percent ownership interest in P x 
P's 70 percent ownership of L) is generally not taken into account in 
determining A's ownership interest, because such indirect ownership 
interest is less than five percent. Instead, A's 4.2 percent indirect 
interest is treated under paragraph (j)(1)(iv) of this section as owned 
by Public P. If, however, L has actual knowledge of A's less-than-five-
percent indirect ownership interest in L and is thus subject to 
paragraph (k)(2) of this section, or paragraph (k)(4) of this section 
otherwise applies, L must take A's total 34.2 percent ownership interest 
into account in determining A's percentage ownership in L.
    Example (4). The facts are the same as in Example (3), except that A 
owns ten percent of P's stock. Because A's indirect ownership interest 
in L in his capacity as a 5-percent owner of P is five percent or more, 
both A's 30 percent direct ownership interest in L and his seven percent 
indirect ownership interest in L (10 percent ownership interest in P x 
P's 70 percent ownership of L) are taken into account in determining his 
ownership interest in L, without regard to L's actual knowledge or 
whether paragraph (k)(4) of this section applies.
    Example 5 See Sec. 1.382-3(a)(1)(ii) for additional examples with 
respect to the definition of an entity.

    (5) Stock ownership presumptions in connection with certain 
acquisitions, and dispositions of loss corporation stock--(i) In 
general. For purposes of this section--
    (A) If an individual owns less than five percent of the stock of a 
loss corporation during the testing period (excluding the testing date) 
and acquires an amount of such stock so that the individual becomes a 5-
percent shareholder on the testing date, the loss corporation may treat 
any interest in the loss corporation owned by such individual prior to 
that acquisition as owned by a public group during the period of such 
individual's ownership of that interest and as not owned by the 5-
percent shareholder during the same period, and
    (B) If a 5-percent shareholder's percentage ownership interest in 
the loss corporation is reduced to less than five percent, the loss 
corporation may presume that the remaining stock owned by such 5-percent 
shareholder immediately after such reduction is the stock owned by such 
shareholder for each subsequent testing date having a testing period 
that includes the date on which the reduction occurred as long as such 
shareholder continues to own less than five percent of the stock of the 
loss corporation. In that event, such ownership interest shall be 
treated as owned by a separate public group for purposes of the rules of 
paragraph (j)(2)(vi) of this section.
    (ii) Example.

    L has 100,000 shares of stock outstanding. All of the L stock is 
owned equally by 40 unrelated, individual shareholders, including A (who 
owns 2.5 percent of L stock). Because no person owns as much as five 
percent of L stock, Public L is the only 5-percent shareholder of L. See 
paragraph (j)(1) of this section. A purchases 5,000 shares of L stock 
over a public stock exchange on June 8, 1989. The purchase is an owner 
shift. When added to his ownership interest before that date (the 
testing date), A owns 7,500 shares of L stock (7.5 percent). Under 
paragraph (g)(5)(i)(A) of this section, L may treat A and Public L as 
having owned 0 percent and 100 percent, respectively, at all times prior 
to June 8, 1989 (rather than having owned 2.5 percent by A and 97.5 
percent by Public L, even if L has actual knowledge of A's less than 
five percent ownership interest). The increase in A's stock ownership of 
L as of June 8, 1989 thus would be 7.5 percentage points, rather than 
5.0 percentage points, for purposes of determining whether an ownership 
change occurs on that testing date and any subsequent testing date.


[[Page 494]]


    (h) Constructive ownership of stock--(1) In general. Subject to 
certain modifications set forth in this section and section 382(l)(3), 
the constructive ownership rules of section 318(a) generally apply for 
purposes of determining ownership of loss corporation stock.
    (2) Attribution from corporations, partnerships, estates and 
trusts--(i) In general. Stock owned (directly or indirectly) by an 
entity shall be attributed to its owners--
    (A) Except as otherwise provided in this section, by treating the 
stock attributed pursuant to section 318(a)(2) as no longer being owned 
by the entity from which it is attributed, and
    (B) If attribution is from a corporation, without regard to the 50 
percent stock ownership limitation contained in section 318(a)(2)(C).
    (ii) Limitation on attribution from entities with respect to certain 
interests. Section 318(a)(2) shall not apply to treat the stock of the 
loss corporation that is owned directly by a first tier entity (or 
indirectly by any higher tier entity) as being indirectly owned by any 
person that has an ownership interest in the first tier entity (or any 
higher tier entity) to the extent that such interest is (or is 
attributable to)--
    (A) Stock of any such entity that is described in section 
1504(a)(4),
    (B) Any ownership interest in any such entity that does not 
constitute stock under paragraph (f)(18)(ii) of this section, or
    (C) If the entity is not a corporation, any ownership interest in 
any such entity that has characteristics similar to the interests 
described in paragraph (h)(2)(ii)(A) or (B) of this section.

The ownership interests described in this paragraph (h)(2)(ii) shall not 
be taken into account in determining a person's percentage ownership 
interest in an entity under paragraph (f)(24) of this section.
    (iii) Limitation on attribution from certain entities. For purposes 
of this section, except as provided in paragraphs (k)(2) and (4) of this 
section, each of the following shall be treated as an individual who is 
unrelated to any other owner (direct or indirect) of the loss 
corporation--
    (A) Any entity other than a higher tier entity that owns five 
percent or more of the loss corporation stock (determined without regard 
to paragraph (h)(2)(i)(A) of this section) on a testing date, a first 
tier entity or the loss corporation,
    (B) A qualified trust described in section 401(a),
    (C) Any State, any possession of the United States, the District of 
Columbia, the United States (or any agency or instrumentality thereof), 
any foreign government, or any political subdivision of any of the 
foregoing, and
    (D) Any other person designated by the Internal Revenue Service in 
the Internal Revenue Bulletin.

Stock of a loss corporation that is owned by any such person shall thus 
not be attributed to any other person for purposes of this section. See 
paragraph (g)(2) of this section limiting attribution from a first tier 
entity or a higher tier entity to any person that is not a 5-percent 
owner or a higher tier entity.
    (iv) Examples.

    Example (1). All the stock of L is owned by A. B and C respectively 
own 70 and 30 percent of the outstanding P stock. P acquires 60 percent 
of the outstanding L stock from A on July 1, 1988 (a testing date). 
After the acquisition, P is a first tier entity and a higher tier entity 
of L. B and C are each 5-percent owners of P and also are 5-percent 
shareholders of L having a 42 percent and 18 percent stock ownership 
interest in L, respectively, through the operation of the constructive 
ownership rules of paragraph (h) of this section. Because B and C 
together have increased their ownership in L by more than 50 percentage 
points during the testing period ending on the testing date (60 percent 
on the testing date and 0 percent prior thereto), an ownership change 
occurs with respect to L on July 1, 1988.
    Example (2). The facts are the same as in Example (1), except that B 
and C are not shareholders in a corporation, but instead are partners in 
a general partnership, E. B and C respectively own 70 percent and 30 
percent of E. E acquires 60 percent of the L stock on July 1, 1988. The 
results are the same as in Example (1).
    Example (3). The facts are the same as in Example (1), except that 
the acquisition is accomplished in a transaction that qualifies under 
section 351(a). In that transaction, HC is formed through (i) a 
contribution of money by P in exchange for 60 shares of HC common stock 
and (ii) a contribution of all the outstanding shares of L stock plus 
cash by A in exchange for 40 shares of HC common stock and 30 shares of 
HC preferred stock

[[Page 495]]

that is described in section 1504(a)(4). The respective values of each 
share of HC stock, common and preferred, are equal. The stock of L is 
attributed to A through his interest in HC common stock, but not through 
his interest in HC preferred stock (see paragraph (h)(2)(ii)(A) of this 
section). Thus, A is treated as owning indirectly only 40 percent of L. 
B and C are 5-percent shareholders of L having indirect ownership 
interests in L of 42 percent and 18 percent, respectively, through their 
ownership of HC common stock. The results are therefore the same as in 
Example (1).

    (3) Attribution to corporations, partnerships, estates and trusts. 
Except as otherwise provided by regulation under section 382 or by the 
Internal Revenue Service in the Internal Revenue Bulletin, the rules of 
section 318(a)(3) shall not apply in determining the ownership of stock 
under this section.
    (4) Option attribution--(i) In general. Solely for the purpose of 
determining whether there is an ownership change on any testing date, 
stock of the loss corporation that is subject to an option shall be 
treated as acquired on any such date, pursuant to an exercise of the 
option by its owner on that date, if such deemed exercise would result 
in an ownership change. The preceding sentence shall be applied 
separately with respect to--
    (A) Each class of options (i.e., options with terms that are 
identical, issued by the same issuer, and issued on the same date) owned 
by each 5-percent shareholder (or person who would be a 5-percent 
shareholder if the option were treated as exercised), and
    (B) Each 5-percent shareholder, each owner of an option who would be 
a 5-percent shareholder if the option were treated as exercised, and 
each combination of such persons.
    (ii) Examples.

    Example (1). (i) A owns all of the 100 shares of outstanding L 
stock. A grants options for the purchase of his L stock, exercisable for 
10 years from the date of issuance, in the following transactions: An 
option to B for four shares (issued January 1, 1988), an option to C for 
six shares (issued June 1, 1989), and an option to D for 15 shares 
(issued July 30, 1989). On July 30, 1990, A sells 41 shares of his L 
stock to BB.
    (ii) Pursuant to paragraph (a)(2)(i) of this section, the date on 
which each option is acquired is a testing date. The issuance of options 
to acquire L stock to each of B, C, and D is not treated as an 
acquisition of the underlying stock on any such testing date since such 
treatment with respect to any one of the option owners (or any 
combination thereof) would not have resulted in an ownership change on 
any of those testing dates.
    (iii) The date on which BB acquires 41 shares also is a testing 
date. BB's acquisition of 41 percent of the L stock, taken together with 
the shift in ownership that would result if the options held by B, C and 
D were exercised, would result in an ownership change, because the stock 
owned or treated as owned by Public L (a group including only B, the 
sole shareholder who owns less than five percent of L stock), C, D and 
BB would have increased by 66 percentage points (four, six, 15, and 41 
percentage points, respectively) during the testing period. Subject to 
paragraph (h)(4)(ix) of this section, the options are treated as 
exercised and an ownership change occurs on July 30, 1990, pursuant to 
paragraph (h)(4)(i) of this section. Accordingly, no new testing period 
can begin before July 31, 1990. Under paragraph (h)(4)(x)(F) of this 
section, the option attribution rules of paragraph (h)(4)(i) of this 
section shall not be applicable with respect to any of the options owned 
by B, C, and D immediately before the ownership change until such time, 
if any, that such options are transferred to (or by) 5-percent 
shareholder (or a person who would be a 5-percent shareholder if such 
option were exercised). In addition, the subsequent exercise of any of 
those options by A, B, or C (the persons owning such options immediately 
before the ownership change) is disregarded. See paragraph (h)(4)(vi) of 
this section. Also see paragraph (h)(4)(viii) of this section for the 
treatment of options that lapse or are forfeited.
    (iv) The facts are the same as in (i), except that the sale of A's 
41 shares of L stock to BB occurs on July 30, 1995. Because the options 
are treated as exercised and the related stock is treated as acquired on 
the July 30, 1995 testing date, the results are the same as described in 
(iii).
    Example (2) (i) A owns all of the outstanding 100 shares of the 
stock of L. On July 22, 1988, the value of A's stock in L is $500 and 
the following agreements are entered into: (i) A sells 40 shares of his 
L stock to B for $200, (ii) in exchange for $10, A grants B an option to 
acquire the balance of his L stock for $305 at any time before July 22, 
1992, and (iii) L grants A an option to acquire 100 shares of L stock at 
a price of $600 exercisable until such time as B's option is no longer 
outstanding.
    (ii) If the stock subject to the options owned by both A and B were 
treated as acquired on the July 22, 1988 testing date, B would have 
increased his ownership interest

[[Page 496]]

in L by only 50 percentage points to 50 percent ([40 shares purchased + 
60 shares acquired pursuant to the option]/200 outstanding shares of L 
stock, including 100 shares deemed outstanding pursuant to the option 
issued to A by L) as compared with 0 percent prior to July 22, 1988. In 
determining whether the options with respect to the stock of L would, if 
exercised, result in an ownership change, paragraph (h)(4)(i)(B) of this 
section requires that such options be treated as exercised separately 
with respect to each 5-percent shareholder, each person who would be a 
5-percent shareholder if the option were treated as exercised or each 
combination of such persons. Therefore, by treating the option owned by 
A as not having been exercised and the option owned by B as having been 
exercised, B's interest in L increases by 100 percentage points during 
the testing period. An ownership change with respect to L therefore 
results from the transactions occurring on July 22, 1988.

    (iii) Contingencies. Except as provided in paragraph (h)(4)(x)(D) of 
this section, the extent to which an option is contingent or otherwise 
not currently exercisable shall be disregarded for purposes of this 
section.
    (iv) Series of options. For purposes of this section, an option to 
acquire an option with respect to the stock of the loss corporation, and 
each one of a series of such options, shall be considered as an option 
to acquire such stock.
    (v) Interests that are similar to options. For purposes of this 
section,
    (A) An interest that is similar to an option includes, but is not 
limited to, a warrant, a convertible debt instrument, an instrument 
other than debt that is convertible into stock, a put, a stock interest 
subject to risk of forfeiture, and a contract to acquire or sell stock, 
and
    (B) Any such interest shall be treated as an option.
    (vi) Actual exercise of options--(A) In general. The actual exercise 
of any option in existence immediately before and after an ownership 
change, whether or not the option was treated as exercised in connection 
with the ownership change under paragraph (h)(4)(i) of this section, 
shall be disregarded for purposes of this section, but only if the 
option is exercised by the 5-percent shareholder (or person who would 
have been a 5-percent shareholder if the options owned by such person 
had been exercised immediately before the ownership change) who owned 
the option immediately before and after such ownership change.
    (B) Actual exercise within 120 days of deemed exercise. If the 
actual exercise of an option occurs on or before the end of the period 
which is 120 days after the date on which the option is treated as 
exercised under paragraph (h)(4)(i) of this section, the loss 
corporation may elect to treat paragraphs (h)(4)(i) and (vi)(A) of this 
section as not applying to such option and take into account only the 
acquisition of loss corporation stock resulting from the actual exercise 
of the option. An election under this paragraph (h)(4)(vi)(B) shall have 
no effect on the determination of whether an ownership change occurs, 
but shall apply only for the purpose of determining the date on which 
the change date occurs. An election under this paragraph (h)(4)(vi)(B) 
shall be made in the statement described in paragraph (a)(2)(ii) of this 
section.
    (vii) Effect of deemed exercise of options on the outstanding stock 
of the loss corporation--(A) Right or obligation to issue stock. Solely 
for purposes of determining whether an ownership change has occurred 
under paragraph (h)(4)(i) of this section, the deemed exercise of an 
option with respect to unissued stock (or treasury stock) of a 
corporation shall result in a corresponding increase in the amount of 
its total outstanding stock.
    (B) Right or obligation to acquire outstanding stock by the loss 
corporation. Solely for purposes of determining whether an ownership 
change has occurred under paragraph (h)(4)(i) of this section, the 
deemed exercise of a right to transfer outstanding stock to the issuing 
corporation (or a right of the issuing corporation to acquire its stock) 
shall result in a corresponding decrease in the amount of its total 
outstanding stock.
    (C) Effect on value of old loss corporation. The deemed exercise of 
an option with respect to unissued stock (or treasury stock) under 
paragraph (h)(4)(i) of this section shall have no effect on the 
determination of the value of the old loss corporation and the 
computation of the section 382 limitation. See section 382(l)(1)(B) 
disregarding capital contributions made

[[Page 497]]

during the two-year period preceding the change date for purposes of 
computing the section 382 limitation.
    (viii) Options that lapse or are forfeited. If an option that is 
treated as exercised under paragraph (h)(4)(i) of this section lapses 
unexercised or the owner of such option irrevocably forfeits his right 
to acquire stock pursuant to the option, the option shall be treated for 
purposes of this section as if it never had been issued. In that case, 
the loss corporation may file an amended return for prior years (subject 
to any applicable statute of limitations) if the section 382 limitation 
was thus inapplicable. If paragraph (h)(4)(i) of this section applied to 
an option (or options) with respect to a taxable year for which an 
income tax return has not been filed by the date that the option (or 
options) lapses or is irrevocably forfeited, the loss corporation may 
treat paragraph (h)(4)(i) of this section as inapplicable to such option 
(or options).
    (ix) Option rule inapplicable if pre-change losses are de minimis. 
Paragraph (h)(4)(i) of this section shall not apply to treat the stock 
of the loss corporation as acquired by the owner of an option if, on a 
testing date, the amount of pre-change losses (determined as if the 
testing date were a change date and treating the amount of any net 
unrealized built-in loss as a pre-change loss) is less than twice the 
amount determined by multiplying.
    (A) The value of the loss corporation (as determined under section 
382(e)) on the testing date, by
    (B) The long-term tax exempt rate (as defined in section 382(f)) for 
the calendar month in which the testing date occurs.
    (x) Options not subject to attribution. Paragraph (h)(4)(i) of this 
section shall not apply to--
    (A) Long-held options with respect to actively traded stock. Any 
option with respect to stock of the loss corporation which stock is 
actively traded on an established securities market (within the meaning 
of section 1273(b)) for which market quotations are readily available, 
if such option has been continuously owned by the same 5-percent 
shareholder (or a person who would be a 5-percent shareholder if such 
option were exercised) for at least three years, but only until the 
earlier of such time as--
    (1) The option is transferred by or to a 5-percent shareholder (or a 
person who would be a 5-percent shareholder if such option were 
exercised), or
    (2) The fair market value of the stock that is subject to the option 
exceeds the exercise price for such stock on the testing date. For 
purposes of this paragraph (h)(4)(x)(A), options with respect to the 
stock of a loss corporation that are assumed (or substituted) in a 
reorganization and converted into options with respect to the stock of 
another party to the reorganization shall not be treated as transferred, 
provided that there are no changes in the terms of the options, other 
than that the stock that may be acquired pursuant to the option is that 
of another party to the reorganization and that the amount of stock 
subject to the option is adjusted only to reflect the exchange ratio for 
the exchange of stock of the loss corporation in the reorganization.
    (B) Right to receive or obligation to issue a fixed dollar amount of 
value of stock upon maturity of certain debt. Any right to receive or 
obligation to issue stock pursuant to the terms of a debt instrument 
that, in economic terms, is equivalent to nonconvertible debt because 
the right to receive stock of the issuer of a fixed dollar amount is 
based upon the fair market value for such stock determined at or about 
the date the stock is transferred pursuant to such right or obligation 
(i.e., the amount of the stock transferred pursuant to the option is 
equal to a fixed dollar amount, divided by the value of each share of 
such stock at or about the date of the stock transfer). This paragraph 
(h)(4)(x)(B) shall not apply if the method for determining the fair 
market value of the stock of the issuer is intended to or, in fact, 
provides the owner of the debt instrument with a participation in any 
appreciation of any stock of the issuer.
    (C) Right or obligation to redeem stock of the loss corporation. Any 
right or obligation of the loss corporation to redeem any of its stock 
at the time such stock is issued, but only to the extent such stock is 
issued to persons who are not 5-percent shareholders immediately before 
the issuance.

[[Page 498]]

    (D) Options exercisable only upon death, disability or mental 
incompetency. Any option entered into between owners of the same entity 
(or an owner and the entity in which the owner has a direct ownership 
interest) with respect to such owner's ownership interest in the entity 
that is exercisable only upon the death, complete disability or mental 
incompetency of such owner.
    (E) Right to receive or obligation to issue stock as interest or 
dividends. Any right to receive or obligation to issue stock of a 
corporation in payment of interest or dividends by the issuing 
corporation. (For an example illustrating this exception, see paragraph 
(j)(2)(iv)(B) of this section.)
    (F) Options outstanding following an ownership change--(1) In 
general. Any option in existence immediately before and after an 
ownership change, whether or not the option was treated as exercised in 
connection with the ownership change under paragraph (h)(4)(i) of this 
section, but only so long as the option continues to be owned by the 5-
percent shareholder (or person who was treated as a 5-percent 
shareholder) who owned the option immediately before and after such 
ownership change.
    (2) Example (i) A, B, C and D own all of the outstanding 
stock of L. A owns 70 shares of L stock and each of B, C and D own 10 
shares of L stock. On July 12, 1988, L issues warrants to each of its 
shareholders entitling them to acquire an additional 8.5 shares of L 
stock for each share of stock owned. (ii) If B, C and D, but not A, each 
exercise their respective rights to acquire an additional 85 shares of L 
stock (10 shares x 8.5 shares that may be acquired for each share owned) 
on July 12, 1988, their combined ownership interest in L on that date 
would exceed 80 percent (255 shares deemed to be acquired + 30 shares 
actually owned)/355 shares outstanding (actual and deemed)). B, C and D 
thus would increase their ownership interest in L by 50.3 percentage 
points during the testing period, causing an ownership change, because, 
under paragraph (h)(4)(i)(B) of this section, the options are treated as 
exercised if the exercise would cause an ownership change.
    (iii) Following the ownership change, paragraph (h)(4)(i) of this 
section applies to prevent A's right to acquire 595 shares of L stock 
(70 shares x 8.5 shares that may be acquired for each share owned) or 
the rights held by B, C, or D, to be treated as exercised on any 
subsequent testing date, except to the extent that those rights are 
transferred. To the extent any of those options are transferred 
following the ownership change, paragraph (h)(4)(i) of this section will 
apply to any such options on the date of the transfer and on any 
subsequent testing date.

    (G) Right to acquire loss corporation stock pursuant to a default 
under a loan agreement. Any right to acquire stock of a corporation by a 
bank (as that term is defined in section 581), an insurance company (as 
that term is defined in Sec. 1.801-3(a)), or a trust qualified under 
section 401(a) solely as the result of a default under a loan agreement 
entered into in the ordinary course of the trade or business of such 
bank, life insurance company or qualified trust.
    (H) Agreement to acquire or sell stock owned by certain shareholders 
upon retirement. Any option entered into between noncorporate owners of 
the same entity (or a noncorporate owner and the entity in which the 
owner has a direct ownership interest) with respect to such owner's 
ownership interest in the entity, but only if each of such owners 
actively participate in the management of the entity's trade or 
business, the option is issued at a time that the loss corporation is 
not a loss corporation and the option is exercisable solely upon the 
retirement of such owner. An option with terms described in both this 
paragraph (h)(4)(x)(H) and in paragraph (h)(4)(x)(D) of this section 
shall also not be subject to paragraph (h)(4)(i) of this section.
    (I) [Reserved]
    (J) Title 11 or similar case. See Sec. 1.382-9(o) which excepts 
certain options created by or under a plan of reorganization in a title 
11 or similar case from the operation of paragraph (h)(4)(i) of this 
section.
    (K)-(Y) [Reserved]
    (xi) Certain transfers of options disregarded. Transfers of options 
between persons who are not 5-percent shareholders (and between members 
of separate public groups resulting from the application of the 
segregation rules of paragraphs (j)(2) and (3)(iii) of this section) are 
not taken into account. Transfers of options in any of the circumstances 
described in section 382(l)(3)(B) are also disregarded and the 
transferee shall be treated as having owned the option for the period 
that it was owned by the transferor.
    (xii) Exercise of an option that has not been treated as stock. The 
acquisition of

[[Page 499]]

stock pursuant to the actual exercise of an option (other than an option 
described in paragraph (h)(4)(vi)(A) of this section) shall not be 
disregarded.
    (xiii) Effective date. See paragraph (m)(4)(vi) of this section for 
special rules regarding the effective date of the provisions of this 
paragraph (h)(4).
    (5) Stock transferred under certain agreements. Notwithstanding 
paragraph (h)(4) of this section, no shift results solely because under 
section 1058(a)--
    (i) A shareholder transfers stock of a corporation pursuant to an 
agreement that meets the requirements of section 1058(b), or
    (ii) A person having rights under such an agreement exchanges those 
rights for stock identical to the stock transferred pursuant to the 
agreement.
    (6) Family attribution. For purposes of this section--
    (i) Paragraphs (1) and (5)(B) of section 318(a) shall not apply,
    (ii) An individual and all members of his family described in 
section 318(a)(1) shall be treated as one individual,
    (iii) Subject to paragraph (k)(2) of this section, paragraph 
(h)(6)(ii) of this section shall not apply to members of a family who, 
without regard to that paragraph (h)(6)(ii), would not be 5-percent 
shareholders, and
    (iv) If under paragraph (h)(6)(ii) of this section, an individual 
may be treated as a member of more than one family, and each family that 
is treated as one individual is a 5-percent shareholder (or would be 
treated as a 5-percent shareholder if such individual were treated as a 
member of such family), then such individual shall be treated only as a 
member of the family that results in the smallest increase in the total 
percentage stock ownership of the 5-percent shareholders on the testing 
date and shall not be treated as the member of any other family.
    (i) [Reserved]
    (j) Aggregation and segregation rules. For purposes of this section, 
except as provided in paragraphs (k)(2) and (4) of this section--
    (1) Aggregation of public shareholders and public owners into public 
groups--(i) Public group. Under this paragraph (j), a loss corporation 
or other entity can be treated as owned, in whole or in part, by one or 
more public groups. A public group can include public shareholders, 
public owners, and 5-percent owners who are not 5-percent shareholders 
of the loss corporation.
    (ii) Treatment of a public group that is a 5-percent shareholder. 
Each public group that is treated as a 5-percent shareholder under 
paragraph (g)(1)(ii), (iii) or (iv) of this section shall be treated as 
one individual. See paragraph (j)(2)(iv) for a rule combining certain de 
minimis public groups.
    (iii) Presumption of no cross-ownership. The public owners, 5-
percent owners who are not 5-percent shareholders and public 
shareholders in any public group, subject to paragraphs (j)(2)(iii), 
(k)(2) and (k)(4) of this section, are presumed not to be members of any 
other public group. It also is presumed that each such person is 
unrelated to all other shareholders (direct and indirect) of the loss 
corporation. See paragraph (h)(6)(iii) of this section. The members of a 
public group that exists by virtue of its direct ownership interest in 
an entity are presumed not to be members (and not to be related to a 
member) of any other public group that exists at any time by virtue of 
its direct ownership interest in any other entity. To the extent that 
the presumptions adopted in this paragraph (j)(1)(iii) are not 
applicable because the loss corporation has actual knowledge of facts to 
the contrary and is thus subject to paragraph (k)(2) of this section, 
public shareholders, public owners and 5-percent owners who are not 5-
percent shareholders may be aggregated into additional public groups.
    (iv) Identification of the public groups treated as 5-percent 
shareholders--(A) Analysis of highest tier entities. The loss 
corporation must identify first tier entities and higher tier entities 
in order to identify any highest tier entities that must be identified 
under paragraph (k)(3) of this section. The loss corporation must then 
identify any 5-percent owners of each such highest tier entity who 
indirectly own, at any time during the testing period, five percent or 
more of the loss corporation through the ownership interest in such 
highest tier entity. Under paragraph (g)(1)(i)(B) of this section, any 
such 5-

[[Page 500]]

percent owner is a 5-percent shareholder. See paragraph (k)(3) of this 
section for rules explaining the extent of the obligation of the loss 
corporation to determine the identity of its shareholders. Each person 
who has an ownership interest in any highest tier entity and who is not 
treated as a 5-percent shareholder (i.e., persons who are public owners 
or 5-percent owners who are not 5-percent shareholders) is a member of 
the public group of that highest tier entity. A public group, so 
identified, that indirectly owns five percent or more of the loss 
corporation on the testing date is treated under paragraph (g)(1)(ii) of 
this section as a 5-percent shareholder. If the public group so 
identified owns less than five percent of the loss corporation on the 
testing date, such public group is treated as part of the public group 
of the next lower tier entity.
    (B) Analysis of other higher tier entities and first tier entities. 
The analysis and aggregation of public groups described in paragraph 
(j)(1)(iv)(A) of this section is repeated for any next lower tier entity 
and successively for any next lower tier entity of any entity described 
in this paragraph (j)(1)(iv)(B) until applied to each first tier entity.
    (C) Aggregation of the public shareholders. The public shareholders 
are aggregated and, under paragraph (g)(1)(iii) of this section, are 
treated as a public group that is a 5-percent shareholder without regard 
to whether such group, at any time during the testing period, owns five 
percent or more of the loss corporation. For this purpose, if the public 
group of any first tier entity indirectly owns less than five percent of 
the loss corporation on the testing date, and is thus not treated as a 
5-percent shareholder, but is treated as part of the public group of the 
loss corporation under paragraph (j)(1)(iv)(A) or (B) of this section, 
the ownership interest of that group is included in the public group of 
the loss corporation referred to in the preceding sentence.
    (v) Appropriate adjustments. A loss corporation may apply the 
principles of paragraph (g)(5) of this section with respect to--
    (A) Any public group that is treated as a 5-percent shareholder on 
the testing date if such public group, at any time during the testing 
period, was treated as part of the public group of the next lower tier 
entity, or
    (B) Any public group that is treated as part of the public group of 
a next lower tier entity if such public group, at any time during the 
testing period, was part of the public group of a higher tier entity 
that was treated as a 5-percent shareholder and had a direct or indirect 
ownership interest in such lower tier entity.
    (vi) Examples.

    Example (1) (i) All of the stock of L is owned by 1,000 
shareholders, none of whom own as much as five percent of L stock 
(``Public L''). All of the stock of P is owned by 150,000 shareholders, 
none of whom own as much as five percent of P stock (``Public P''). 
Between July 12, 1988 and August 13, 1988, P purchases all of the L 
stock through a series of transactions on the public stock exchange. P's 
percentage of direct stock ownership in L increases from 4.9 percent to 
five percent on July 15, 1988, and from 50 percent to 51 percent on July 
30, 1988.
    (ii) Before July 15, 1988, P is a public shareholder of L. On and 
after July 15, 1988, P is a first tier entity (and a highest tier 
entity) of L. Accordingly, under the rules of paragraph (j)(1) of this 
section, Public P, on and after July 15, 1988, is treated as a public 
group that is a 5-percent shareholder. Each acquisition by P on and 
after such date affects the percentage of L stock that is owned by 
Public P and thus constitutes an owner shift.
    (iii) Immediately after the transaction on July 30, 1988, P owns 51 
percent of L stock. Under paragraph (j)(1)(iv)(A) of this section, 
Public P thus owns 51 percent of L. Under paragraph (j)(1)(iv)(C) of 
this section, Public L, the public group that includes the public 
shareholders of L, is treated as a 5-percent shareholder that owns 49 
percent of L. Under paragraph (j)(1)(iii) of this section, Public L and 
Public P are presumed not to have any common members and it is also 
presumed that no member of either public group is related to any other 
member of either of the two public groups.
    (iv) Assuming that the presumption provided in paragraph (j)(1)(iii) 
of this section (i.e., that no person owns stock in both P and L) is not 
rebutted to any extent, Public P is treated as a 5-percent shareholder 
whose stock ownership in L, as of the July 30, 1988 testing date, has 
increased by 51 percentage points over its lowest percentage of stock 
ownership in L at any time during the testing period (0 percent prior to 
July 12, 1988).

[[Page 501]]

Accordingly, an ownership change with respect to L occurs as a result of 
P's acquisition on July 30, 1988. L is thus a new loss corporation and 
its pre-change losses are subject to limitation under section 382.
    Example (2) (i) All of the stock of P is owned by 1,000 unrelated 
shareholders, none of whom owns as much as five percent of P stock. 
L1 is a wholly owned subsidiary of P. On January 2, 1988, P 
distributes all of the L1 stock pro rata to its shareholders.
    (ii) Prior to the stock distribution, the public owners of P are 
members of a public group (``Public P'') that is treated as a 5-percent 
shareholder owning 100 percent of the stock of L1.
    See paragraph (j)(1)(iv)(A) of this section. Following the stock 
distribution to the P shareholders, L1 is owned by 1,000 
public shareholders that are members of a public group (``Public 
L1'') that is treated as a 5-percent shareholder owning 100 
percent of the stock of L1. See paragraph (j)(1)(iv)(C) of 
this section.
    (iii) Public P and Public L1 are treated as unrelated, 
individual 5-percent shareholders under paragraph (j)(1)(iii) of this 
section. Although the members of one public group are presumed not to be 
members of any other public group under paragraph (j)(1)(iii) of this 
section, L1 has actual knowledge that all of its public 
shareholders immediately following the distribution (Public 
L1) received L1 stock pro rata in respect to the 
outstanding P stock and thus were also members of Public P. Applying 
paragraph (k)(2) of this section, the loss corporation may take into 
account the identity of ownership interests between Public L1 
and Public P to establish that Public L1 did not increase its 
percentage ownership in L1. Accordingly, the transaction 
would not constitute an owner shift.
    Example (3) (i) The facts are the same as in Example (1) of 
paragraph (g)(4) of this section. Thus, 20 percent of L stock is owned 
by A, 10 percent is owned by P1, 20 percent is owned by E, a 
joint venture, and the remaining 50 percent of L stock is owned by 
Public L. P1 is owned 15 percent by B and 85 percent by 
Public P1. E is owned 30 percent by P2 and 70 
percent by P3, which are owned by Public P2 and 
Public P3, respectively. See Example (1)(ii) of paragraph 
(g)(4) of this section for a chart illustrating this ownership 
structure.
    (ii) The public owners of P2 and P3 (Public 
P2 and Public P3, respectively), are public groups 
that are treated as 5-percent shareholders of L, because each such 
public group indirectly owns five percent or more of L stock (six 
percent by Public P2 [(30 percent ownership of E)x(20 percent 
ownership of L)] and 14 percent by Public P3 [(70 percent 
ownership of E)x(20 percent ownership of L)]). The public owners of 
P1 (``Public P1''), who indirectly own 8.5 percent 
of L stock [(85 percent ownership of P1)x(10 percent 
ownership of L)] and B, who indirectly owns 1.5 percent of L and is thus 
included in Public P1 under paragraph (j)(1)(iv)(A) of this 
section, are members of a public group that is treated as a 5-percent 
shareholder of L that owns ten percent of L stock. Finally, the public 
group of L (``Public L'') is a 5-percent shareholder that owns 50 
percent of L. Accordingly, A, Public L, Public P1 (including 
B), Public P2, and Public P3 are the only 5-
percent shareholders of L.
    Example (4) (i) The facts are the same as Example (3) above, except 
that P3 is owned 60 percent by C, 30 percent by 
P4, and 10 percent by P3. The stock of 
P4 is publicly traded and is owned by Public P4. 
The facts are thus the same as in Example (2) in paragraph (g)(4) of 
this section. See Example (2)(ii) of paragraph (g)(4) of this section 
for a chart illustrating this ownership structure.
    (ii) The public owners of P4 (a highest tier entity) are 
members of a public group that indirectly owns 4.2 percent of L ([30 
percent ownership of P3]x[70 percent ownership of E]x[20 
percent ownership of L]). For purposes of identifying public groups that 
are 5-.percent shareholders, L is not required to identify P4 
as a highest tier entity under paragraph (k)(3) of this section because 
P4 does not own five percent or more of L stock. Moreover, 
under paragraph (h)(2)(iii) of this section, P4 generally is 
treated as an individual from which there is no attribution of loss 
corporation stock. The public group of P3 (including 
P4) indirectly owns 5.6 percent of L ([40 percent of 
P3]x[70 percent ownership of E]x[20 percent of L]), and is 
thus a 5-percent shareholder of L. The public groups of P2 
and P1 (both Public P1 and B), respectively, also 
own five percent or more of L stock and are thus 5-percent shareholders 
of L. In addition, the public group of L is a 5-percent shareholder 
regardless of whether it owns five percent of L stock. Accordingly, A, 
Public L, Public P3 (including P4), Public 
P2, and Public P1 (including B), are the only 5-
percent shareholders of L.
    Example (5)(i) On September 4, 1987, L is owned 14 percent by each 
of A and B, 30 percent by each of P1 and P2, four 
percent by each of C and P3, and two percent by each of D and 
AA. P1 is owned 30 percent by each of A, B, and P4 
and 10 percent by D. P2 is owned 70 percent by A, 10 percent 
by each of B and D, six percent by DD and four percent by C. AA owns 100 
percent of the stock of P3. P4 is owned 60 percent 
by C and 20 percent by each of BB and CC.
    (ii) The ownership structure of L is illustrated by the following 
chart:

[[Page 502]]

[GRAPHIC] [TIFF OMITTED] TC17OC91.004

    (iii) In order to identify L's 5-percent shareholders and their 
respective ownership interests in L on September 4, 1987, the rules of 
paragraph (j)(1) of this section apply to identify the public groups 
that are treated as separate 5-percent shareholders. Analysis begins 
with any highest tier entity, such as P4. Each of 
P4's shareholders is a 5-percent owner of P4. 
C4 owns 5.4 percent of L in his capacity as a 5-percent owner 
of P4 and therefore is a 5-percent shareholder. 
Notwithstanding that C actually owns, directly and by attribution, 10.6 
percent of L (four percent directly, 5.4 percent indirectly through 
P4, and 1.2 percent through P2), C's ownership 
interest in L as a 5-percent shareholder is presumed to include only the 
5.4 percent indirect ownership through P4. (Under paragraphs 
(g) and (k)(2) of this section, however, L must account for C's direct 
and indirect ownership interests in determining whether an ownership 
change occurs on any testing date if it has actual knowledge of such 
ownership on or berfore the date that its income tax return is filed for 
the taxable year that includes the testing date). Although BB and CC are 
each 5-percent owners of P4, they are not 5-percent 
shareholders and therefore are members of the public group of 
P4. Because the public group of P4 indirectly owns 
only 3.6 percent of L, it is treated under paragraph (j)(1)(iv)(A) of 
this section as part of the public group of the next lower tier entity, 
P1.
    (iv) With respect to P1, a first tier entity, each of its 
shareholders are 5-percent owners. Because A and B each indirectly own 
nine percent of L as 5-percent owners of P1 and A indirectly 
owns 21 percent of L as a 5-percent owner of P2, they are 
each 5-percent shareholders without regard to their direct

[[Page 503]]

ownership interests in L. A's ownership interest in L as a 5-percent 
shareholder is 44 percent (14 percent directly, nine percent in his 
capacity as a 5-percent owner of P1, and 21 percent in his 
capacity as a 5-percent owner of P2). B's ownership interest 
in L as a 5-percent shareholder is 23 percent (14 percent directly and 
nine percent in his capacity as a 5-percent and nine percent in his 
capacity as a 5-percent owner of P1). B's ownership interest 
as a 5-percent shareholder does not include the three percent interest 
he owns indirectly through P2. (Under paragraphs (g) and 
(k)(2) of this section, however, L must account for B's direct and 
indirect ownership interests, including his three percent interest 
through P2, in determining whether an ownership change occurs 
on any testing date if L has actual knowledge of such ownership on or 
before the date that its income tax return is filed for the taxable year 
that includes the testing date.) D is a 5-percent owner of 
P1. Although D owns eight percent of L (two percent directly, 
three percent indirectly through P1, and three percent 
indirectly through P2), he is not a 5-percent shareholder 
because he does not own five percent or more of L stock either directly 
or in his capacity as a 5-percent owner of either P1 or 
P2. (Under paragraphs (g) and (k)(2) of this section, 
however, L must account for D's direct and indirect ownership interests 
in determining whether an ownership change occurs on any testing date to 
the extent L has actual knowledge of such ownership amounting to five 
percent or more of L stock before the date that its income tax return is 
filed for the taxable year that includes the testing date.) The public 
group of P1 (comprised of the public group of P4 
and D's direct ownership interest in P1) has a 6.6 percent 
interest in L and is therefore treated as a separate 5-percent 
shareholder.
    (v) With respect to highest tier entity P2, D is a 5-
percent owner who is not a 5-percent shareholder for the reason 
described in the preceding subdivision. DD is a 5-percent owner of 
P2, who is not a 5-percent shareholder, because DD indirectly 
owns only 1.8 percent of L. Assuming that L does not have actual 
knowledge of B's and C's direct ownership interest in P2, 
those interests are accounted for in computing the ownership interest 
are accounted for in computing the ownership interest of the public 
group of P2. Therefore, each of P2's shareholders, 
except A who is a 5-percent shareholder in his capacity as a 5-percent 
owner of P2, are treated as members of the public group of 
P2 that owns nine percent of L and is thus treated as a 
separate 5-percent shareholder.
    (vi) Because the direct ownership interest of P3 is less 
than five percent, it is a public shareholder. Therefore, assuming that 
L does not have actual knowledge of C's, D's, or AA's direct and/or 
indirect ownership interests in L, the public group of L is a separate 
5-percent shareholder owning 12 percent of L (comprised of the direct 
ownership interests of C, D, AA and P3).

    (2) Segregation rules applicable to transactions involving the loss 
corporation--(i) In general. For purposes of this section, if--
    (A) A transaction is described in paragraph (j)(2)(iii) of this 
section, and
    (B) The loss corporation has one or more direct public groups 
immediately before and after the transaction,


the stock owned by such direct public group or groups is subject to the 
segregation rules described in paragraph (j)(2)(iii) of this section for 
purposes of determining whether an ownership change has occurred on the 
date of the transaction (and on any subsequent testing date with a 
testing period that includes the date of such transaction). See 
paragraph (j)(3) of this section for the application of the rules of 
this paragraph (j)(2) to transactions involving first tier entities or 
higher tier entities.
    (ii) Direct public group. For purposes of this section, a direct 
public group is any public group of the loss corporation described in 
paragraph (j)(1)(iv)(C) of this section or any public group of the loss 
corporation resulting from the application of paragraph (j)(2)(iii) or 
(j)(3)(i) of this section.
    (iii) Transactions to which segregation rules apply--(A) In general. 
The segregation rules of this paragraph (j)(2)(iii) apply to any 
transaction described in paragraph (j)(2)(iii)(B), (C), (D), (E), or (F) 
of this section in the manner specified. The presumptions adopted by 
this paragraph (j)(2)(iii) shall not apply only if, and to the extent 
that, the loss corporation either has actual knowledge of facts to the 
contrary regarding its stock ownership and is thus subject to paragraph 
(k)(2) of this section, or is subject to paragraph (k)(4) of this 
section. Any direct public group that is required to be identified as a 
result of a transaction described in paragraph (j)(2)(iii) of this 
section shall be treated as a 5-percent shareholder under paragraph 
(g)(1)(iv) of this section without regard to whether such group, at any 
time during the testing period, owns five percent or more of the loss 
corporation stock. To the extent that the presumptions are rebutted, the 
public

[[Page 504]]

shareholders, public owners and 5-percent owners who are not 5-percent 
shareholders may be aggregated into additional public groups. For an 
exception applicable to certain regulated investment companies, see 
Sec. 1.382-3(k)(1).
    (B) Certain equity structure shifts and transactions to which 
section 1032 applies--(1) In general. In the case of--
    (i) A transaction that is an equity structure shift that also is 
described in section 381(a)(2) and in which the loss corporation is a 
party to the reorganization, or
    (ii) A transfer of the stock of the loss corporation (including 
treasury stock) by the loss corporation in any other transaction to 
which section 1032 applies,

each direct public group that exists immediately after such transaction 
shall be segregated so that each direct public group that existed 
immediately before the transaction is treated separately from the direct 
public group that acquires stock of the loss corporation in the 
transaction. The direct public group that acquires stock of the loss 
corporation in the transaction is presumed not to include any members of 
any direct public group that existed immediately before the transaction. 
For purposes of this paragraph (j)(2)(iii)(B), a person is treated as 
acquiring stock of the loss corporation in a reorganization as the 
result of the person's ownership interest in another corporation that 
succeeds to the loss corporation's pre-change losses (determined as if 
the testing date were the change date and treating the amount of any net 
unrealized built-in loss as a pre-change loss) in a transaction to which 
section 381(a)(2) applies. In determining whether a transaction is 
described in section 1032 for purposes of this paragraph (j)(2)(iii)(B), 
the transfer by the loss corporation of any interest not constituting 
stock that is treated as stock under paragraph (f)(18)(iii) of this 
section shall be treated as the transfer of stock. See Sec. 1.382-3(j) 
for exceptions to the segregation rules of this paragraph 
(j)(2)(iii)(B)(1).
    (2) Examples.

    Example (1) (i) P1 owns 60 percent of the stock of L. The 
remaining L stock (40 percent) is owned by Public L. A owns 40 percent 
of the P1 stock. The remaining P1 stock (60 
percent) is owned by Public P1. P2 is a publicly 
traded corporation owned by shareholders who each own less than five 
percent of P2 stock (Public P2).
    (ii) On May 22, 1988, L merges into P2 in a transaction 
described in section 368(a)(1)(A), with the shareholders of L receiving 
an amount of P2 stock equal to 70 percent of the value of 
P2 immediately after the reorganization.
    (iii) Immediately before the merger, L's 5-percent shareholders were 
Public L (40 percent), Public P1 (36 percent), and A (24 
percent). Although the shareholders of P2 (immediately before 
the merger) do not acquire any stock in the merger, they are treated as 
acquiring a direct ownership interest in the loss corporation in the 
reorganization because P2 succeeds to the pre-change losses 
of L in a transaction to which section 381(a)(2) applies. As a result of 
the merger, which constitutes a transaction described in 
(j)(2)(iii)(B)(1) of this section, L's direct public group, Public L, 
must be segregated from the direct public group that would otherwise 
exist after the transaction (Public L and Public P2). Public 
L, the direct public group that exists before the merger, has a 
continuing 28 percent interest in the loss corporation [70 percent of 
P2 shares received in the merger x 40 percent shares of L 
owned prior to the merger] that must be segregated from the interests 
acquired by Public P2.
    (iv) In addition, Public P1, which owns five percent or 
more of the stock of P2 through P1's ownership 
interest in P2, also is segregated from any other public 
group (i.e., both Public L and Public P2) under paragraph 
(j)(1) of this section. Therefore, under paragraphs (j)(1) and (2) of 
this section, Public P2 (excluding the members of Public L 
and Public P1 immediately before the merger) is treated as a 
separate public group and 5-percent shareholder.
    (v) The only 5-percent shareholder whose interest in the loss 
corporation, P2, has increased during the testing period is 
Public P2. Its interest has increased by 30 percentage 
points. Accordingly, no ownership change results from the merger. For 
purposes of measuring the shift in ownership of P2 on any 
subsequent testing date with a testing period that includes May 22, 1988 
(the date on which L merged into P2), Public P2 
will continue to be treated as a direct public group, separate from 
Public L (the members of which own P2 stock as a result of 
the merger) and Public P1.
    Example (2) (i) P and L are each owned by 21 equal shareholders. 
Each of 14 of the shareholders of P and L are owners of both 
corporations (``common owners''). L has actual knowledge of this cross 
ownership. therefore, as a group, these persons own 66\2/3\ percent of 
each of P and L. P stock has a value of $600 and L stock has a value of 
$400.

[[Page 505]]

    (ii) P merges into L under section 368(a)(1)(A) on June 10, 1988. 
Ordinarily, the direct public group of L that exists immediately before 
the transaction would be segregated from the direct public group that 
acquires stock in the merger (the public group of P immediately before 
the merger). In view of the common ownership of P and L, however, a 
third group may be created under paragraph (j)(2)(iii)(A) of this 
section so that L's owners following the merger would be: The common 
owners (66\2/3\ percent), Public L, less the common owners, 13 1/3 
percent), and Public P, less the common owners (20 percent). 
Accordingly, the only 5-percent shareholder increasing its ownership 
interest by 20 percentage points and no ownership change occurs as a 
result of the merger.
    Example (3) (i) L is entirely owned by Public L. L commences and 
completes a public offering of common stock on January 22, 1988, with 
the result that its outstanding stock increases from 100,000 shares to 
300,000 shares. No person owns as much as five percent of L stock 
following the public offering.
    (ii) The public offering of L stock is a transaction to which 
section 1032 applies. Immediately before the public offering, L's only 
5-percent shareholder was Public L, a direct public group. Therefore, 
Public L (as in existence immediately before the transaction) must be 
segregated from the direct public group that would otherwise exist 
immediately after the transaction. Under paragraph (j)(2)(iii)(B)(1) of 
this section, the acquisition of 200,000 shares of L stock in the public 
offering must be treated as acquired by a direct public group (``New 
Public L'') that is separate from Public L. Each such public group is 
treated as an individual that is a separate 5-percent shareholder. See 
paragraphs (g)(1)(iv) and (j)(1)(ii) of this section.
    (iii) As a result of the public offering, L has two 5-percent 
shareholders, Public L and New Public L, which own 33\1/3\ percent and 
66\2/3\ percent of the stock of L, respectively. Because the members of 
New Public L are presumed not to be members of Public L (and not to be 
related to any such members), the ownership interest of New Public L 
immediately prior to the offering of stock was 0 percent.
    (iv) New Public L is a 5-percent shareholder that has increased its 
ownership interest in L by more than 50 percentage points during the 
testing period (by 66\2/3\ percentage points). Thus, there is an 
ownership change with respect to L. For purposes of subsequent 
transactions, Public L and New Public L will not be segregated into two 
public groups because a new testing period commences on the day 
following the change date, January 23, 1988 (i.e., any subsequent 
testing date will not have a testing period that includes the date of 
the public offering).
    Example (4) The facts are the same as in Example (3), but L 
establishes that 60,000 shares of the newly issued L stock were acquired 
by its shareholders of record on the date of the stock issuance (i.e., 
members of Public L, referred to as Acquiring Public L) by persons 
owning 27 percent of the L stock immediately before the stock issuance. 
Accordingly, L has actual knowledge that New Public L acquired no more 
than 140,000 shares of L stock in the public offering. Under paragraphs 
(j)(2)(iii) and (k)(2) of this section, New Public L may be treated as 
having increased its ownership interest in L by 46\2/3\ percentage 
points (140,000 shares acquired in the offering/300,000 shares 
outstanding). L also has actual knowledge that the members of Public L 
owning 27 percent of L stock immediately before the stock issuance 
(27,000 shares/100,000 shares outstanding) own 29 percent of L stock 
immediately after such issuance ([27,000 shares + 60,000 shares acquired 
in the offering]/300,000 shares outstanding). Assuming that L chooses to 
take its actual knowledge into account for purposes of determining 
whether an ownership change occurred on January 22, 1988, Public L is 
segregated into two direct public groups immediately before the stock 
issuance so that the two percentage point increase in the ownership 
interest in L by Acquiring Public L is taken into account. The total 
increased ownership interest in L by New Public L and Acquiring Public L 
on the testing date over their lowest ownership interest during the 
testing period is 48 2/3 percent. Thus, no ownership change occurs with 
respect to L.
    Example (5) (i) L is owned entirely by 10,000 unrelated individuals, 
none of whom own as much as five percent of L stock (``Public L''). P is 
owned entirely by 1,500 unrelated individuals, none of whom own as much 
as five percent of P stock (``Public P''). On December 22, 1988, L 
acquires all of the P stock from Public P in exchange for L stock 
representing 25 percent of the value of L, in a transaction described in 
section 368(a)(1)(B).
    (ii) Under paragraph (j)(2)(iii)(B)(1) of this section, Public L, 
the direct public group that owns L stock immediately before and after 
the transaction to which section 1032 applies, is treated separately 
from Public P, the direct public group that acquires L stock in the 
transaction. Because Public P's percentage ownership interest in L 
increases to only 25 percent (as compared with 0 percent before the 
acquisition), no ownership change occurs. For purposes of determining 
whether an ownership change occurs on any testing date with a testing 
period that includes December 22, 1988, Public L and Public P will 
continue to be treated as separate 5-percent shareholders.
    (iii) See Example (4) in paragraph (j)(3)(iv) of this section for 
the application of paragraph (j)(2)(iii)(B) of this section to a 
reorganization under section 368(a)(1)(B) in which the loss corporation 
is acquired.


[[Page 506]]


    (C) Redemption-type transactions--(1) In general. In the case of a 
transaction in which the loss corporation acquires its stock in exchange 
for property, each direct public group that exists immediately before 
the transaction shall be segregated at that time (and thereafter) so 
that the stock that is acquired in the transaction is treated as owned 
by a separate public group from each public group that owns the stock 
that is not acquired. For purposes of the preceding sentence, the term 
property shall include stock described in section 1504(a)(4) and stock 
described in paragraph (f)(18)(ii) of this section. Each direct public 
group that owned the stock that is acquired in the transaction is 
presumed not to own any such stock immediately after the transaction.

    (2) Examples.

    Example (1). L is entirely owned by Public L. There are 500,000 
shares of L stock outstanding. On July 12, 1988, L acquires 150,000 
shares of its stock for cash. Because L's acquisition is a redemption, 
Public L is segregated into two different public groups immediately 
before the transaction (and thereafter) so that the redeemed interests 
(``Public RL'') are treated as part of a public group that is separate 
from the ownership interests that are not redeemed (``Public CL''). 
Therefore, as a result of the redemption, Public CL's interest in L 
increases by 30 percentage points (from 70 percent (350,000/500,000) to 
100 percent) on the July 12, 1988 testing date. Because the resulting 
increase is not more than 50 percentage points, no ownership change 
occurs. For purposes of determining whether an ownership change occurs 
on any subsequent testing date having a testing period that includes 
such redemption, Public CL is treated as a 5-percent shareholder whose 
percentage ownership interests in L increased by 30 percentage points as 
a result of the redemption.
    Example (2). L is entirely owned by Public L. There are 250,000 
shares of L common stock outstanding. On April 22, 1988, L acquires 
100,000 shares of its outstanding common stock in exchange for 100,000 
shares of preferred stock described in section 1504(a)(4). (The 
transaction thus constitutes a recapitalization within the meaning of 
section 368(a)(1)(E).) As a result of the recapitalization, which is a 
transaction described in paragraph (j)(2)(iii)(C) of this section, 
Public L is segregated into two different public groups immediately 
before the transaction (and thereafter) so that the stock acquired by L 
is treated as owned by a public group (``Public RL'') that is separate 
from the public group that owns the stock that is not so acquired 
(``Public CL''). Therefore, as a result of the transaction, Public CL's 
interest in L increases by 40 percentage points (from 60 percent to 100 
percent). Because the resulting increase is not more than 50 percentage 
points, no ownership change occurs. For purposes of determining whether 
an ownership change occurs on any subsequent testing date with a testing 
period that includes the date of the recapitalization, Public CL is 
treated as a separate 5-percent shareholder whose percentage ownership 
interest increased by 40 percentage points as a result of the redemption 
type transaction.

    (D) Acquisition of loss corporation stock as the result of the 
ownership of a right to acquire stock--(1) In general. In the case of a 
deemed acquisition of stock of the loss corporation as the result of the 
ownership of a right issued by the loss corporation to acquire such 
stock (see paragraph (h)(4) of this section), each direct public group 
that exists immediately after such acquisition shall be segregated so 
that each direct public group that existed immediately before the 
transaction is treated separately from the direct public group that is 
deemed to acquire stock of the loss corporation as a result of the 
ownership of the right to acquire such stock. The direct public group 
that is treated as acquiring stock of the loss corporation in the 
transaction is presumed not to include any members of any direct public 
group that existed immediately before the transaction. In applying the 
rules of paragraph (h)(4) of this section, the segregation rules of this 
paragraph (j)(2)(iii)(D) shall apply before making the determination 
required under that paragraph (h)(4) of this section. See Sec. 1.382-
3(j)(9) for rules relating to this paragraph (j)(2)(iii)(D).
    (2) Example.

     (i) L has 700,000 shares of common stock outstanding. Public L owns 
all of the outstanding L common stock. On May 20, 1988, L issues a class 
of debentures to the public that, in the aggregate, may be converted 
into 300,000 shares of L common stock. On September 7, 1988, 
P1 acquires 210,000 shares of L common stock over a public 
stock exchange. None of the L debentures have been converted as of that 
date.
    (ii) By virtue of L's issuance of convertible debentures, May 20, 
1988 is a testing date. See paragraph (a)(2)(i) of this section. 
Immediately before the issuance of the convertible debentures, L's only 
5-percent shareholder

[[Page 507]]

was Public L, a direct public group. Therefore, under paragraph 
(j)(2)(iii)(D) of this section, Public L must be segregated from the 
direct public group that would otherwise exist immediately after the 
transaction for the purpose of applying paragraph (h)(4) of this 
section, so that any acquisition of L stock through the conversion of 
L's debentures is treated as made by a public group other than Public L 
(``New Public L''). Assuming the largest increase in the total 
percentage stock ownership of New Public L on the testing date (see 
paragraph (h)(4) of this section), New Public L would have increased its 
ownership interest in L by 30 percentage points. Therefore, the stock of 
L would not be treated as acquired pursuant to a deemed conversion of 
the L debentures on May 20, 1988, under paragraph (h)(4) of this 
section, because the conversion would not cause an ownership change.
    (iii) P1's acquisition of L common stock results in 
second testing date. For the purpose of applying paragraph (h)(4) of 
this section, Public L must again be segregated from the direct public 
group that would otherwise result from conversion of the debentures, so 
that a deemed acquisition of L stock through the conversion of L's 
debentures on September 7, 1988 is treated as made by a public group 
other than Public L (``New Public L''). As on the previous testing date, 
New Public L would have increased its ownership interest in L by 30 
percentage points if it were treated as having acquired L common stock 
pursuant to the conversion of the L debentures. The increase in New 
Public L's ownership, taken together with P1's 21 percentage 
point ownership increase in L during the testing period [210,000 shares 
deemed converted/(700,000 (actual) + 300,000 (deemed) shares 
outstanding)], results in an ownership change.

    (E) Transactions identified in the Internal Revenue Bulletin. Any 
transaction that is designated by the International Revenue Service in 
the Internal Revenue Bulletin shall be subject to the rules, as provided 
in such bulletin, similar to the rules described in this paragraph 
(j)(2)(iii).
    (F) Issuance of rights to acquire loss corporation stock--(1) In 
general. In the case of any transaction that is described in paragraph 
(j)(2)(iii)(B), (D) or (E) of this section in which the loss corporation 
issues rights to acquire its stock to the members of more than one 
public group, those rights shall be presumed to be exercised pro rata by 
each such public group as those rights are actually exercised. See Sec. 
1.382-3(j)(10) for an exception to the application of the rule of this 
paragraph (j)(2)(iii)(F)(1) to stock issued on the exercise of a 
transferable option.
    (2) Example.

     (i) L, which has six million shares outstanding, is owned entirely 
by Public L and P is owned entirely by Public P. On November 30, 1988, P 
merges into L in a transaction qualifying under section 368(a)(1)(A) 
with Public P receiving four million shares of L stock as a result of 
the reorganization. Under paragraph (j)(2)(iii)(B) of this section, 
Public L and Public P continue to be treated as separate public groups 
following the merger. Pursuant to the plan of reorganization, L also 
issues an amount of warrants in L stock pro rata to Public L and Public 
P that, if exercised, would result in the issuance of an additional two 
million shares of L stock. On November 30, 1989, when only one-half of 
the outstanding warrants have been exercised, A acquires all of the 
unexercised warrants.
    (ii) Without regard to the warrants distributed in reorganization, 
Public P's ownership interest in L increases by 40 percentage points on 
November 30, 1988, relative to its lowest ownership interest in L at any 
time during the testing period (0 percent prior to the merger). For 
purposes of determining whether an ownership change occurs on November 
30, 1988, the segregation rules of paragraphs (j)(2)(iii)(B) and (D) of 
this section does not require that a third direct public group be 
separately identified and treated as acquiring the warrants, because L 
has actual knowledge that Public L and Public P acquired the distributed 
warrants in proportion to their respective ownership interests in L 
stock. Because the largest increase in the ownership of L on the testing 
date results from treating only Public P as exercising the distributing 
warrants, in which event, its ownership interest would increase by 44.4 
percentage points ([four million shares acquired in the merger + 800,000 
shares deemed acquired]/10.8 million (actual and deemed) shares 
outstanding), the issuance of the warrants by L does not cause an 
ownership change on November 30, 1988.
    (iii) Under paragraph (j)(2)(iii)(F)(1) of this section, each actual 
exercise of warrants to acquire one million shares of L stock between 
November 30, 1988 and November 30, 1989 is treated as made pro rata by 
Public L and Public P (600,000 shares to Public L and 400,000 shares to 
Public P). Accordingly, as a result of the actual exercises of warrants 
during that period the ownership interests of the only 5-percent 
shareholders, Public L and Public P, are proportionately increased.
    (iv) A's acquisition of the all of the outstanding warrants on 
November 30, 1989 requires the determination whether there has been an 
ownership change with respect to L, because A would be 5-percent 
shareholder

[[Page 508]]

under paragraph (g)(1)(i) of this section owning 8\1/3\ percent of the L 
stock if the acquired warrants were exercised (one million shares deemed 
acquired/12 million (actual and deemed) shares outstanding). See 
paragraph (a)(2)(i) of this section. Under paragraph (h)(4)(i) of this 
section, A is not treated as having exercised those warrants, because an 
ownership change would not results. (Public P's 36\2/3\ percentage point 
increase [(four million shares acquired in the merger + 400,000 shares 
deemed acquired)/12 million (actual and deemed) shares outstanding] and 
A's 8\1/3\ percentage point increase is not greater than 50 percentage 
points).

    (iv) Combination of de minimis public groups--(A) In general. 
Notwithstanding paragraph (j)(2)(iii)(A) of this section, any public 
group first identified during a taxable year, as a result of any 
transaction described in paragraph (j)(2)(iii)(B), (D), (E), or (F) of 
this section, that owns less than five percent of loss corporation stock 
may be combined, at the option of the loss corporation, with any other 
such groups also first identified as a result of any such transaction 
that occurs during such taxable year.
    (B) Example.

     (i) L is widely held with no person owning as much as five percent 
of the L stock at any time (``Public L''). L's taxable year ends on 
December 31. On January 1, 1989, L issues a class of debt maturing on 
December 31, 2019 (``Class A Debentures'') with respect to which it will 
semi-annually issue L stock in discharge of its interest obligation. In 
addition, L issues an amount of L stock to the public in two separate 
transactions during 1989. As a percentage of the L stock outstanding at 
the close of L's taxable year on December 31, 1989, L issued .45 percent 
of its stock on each of two dates in payment of interest with respect to 
the Class A Debentures, 4.5 percent of its stock in the first stock 
offering and six percent of its stock in the second stock offering. 
During 1990, L did not issue stock other than in payment of interest 
with respect to the Class A Debentures. As a percentage of L stock 
outstanding on December 31, 1990, L issued .41 percent of its stock on 
each of two dates during 1990 with respect to its outstanding debt.
    (ii) Under paragraph (h)(4)(x)(E) of this section, L's obligation to 
issue stock in satisfaction of the interest with respect to the Class A 
Debentures until December 31, 2019, is not subject to paragraph 
(h)(4)(i) of this section and thus is taken into account only as such 
stock is issued.
    (iii) The application of the segregation rules of paragraphs 
(j)(2)(iii)(B) and (iv) of this section require the identification of at 
least two additional, separate direct public groups during 1989. First, 
the persons who acquire six percent of L stock in a public offering to 
which section 1032 applies must be treated as a separate 5-percent 
shareholder (``Public 1L''). See paragraph (j)(2)(iii)(B) of this 
section. Even though this group was first identified in 1989, it may not 
be combined with other public groups also first identified in 1989 
because it owns five percent or more of L stock. Second, although each 
of the three other issuances of L stock during the year ordinarily 
result in the identification of an additional, separate direct public 
group, each such direct public group may be combined with the two other 
such groups into a single public group (``Public 2L''). As of the end of 
1989, Public 2L would own a total of 5.4 percent of the stock of L.
    (iv) The application of the segregation rules of paragraphs 
(j)(2)(iii)(B) and (iv) of this section require the identification of at 
least one additional, direct public group during 1990. Because each 
additional, direct public group first identified in 1990 acquires less 
than five percent of L stock, they may be combined into a single public 
group (``Public 3L'') owning .82 percent of the stock of L. Public 3L is 
treated as a five percent shareholder even though it owns less than five 
percent of the stock of L. See paragraph (j)(2)(iv)(A) of this section.

    (v) Multiple transactions--(A) In general. If a transaction (or any 
part thereof) is described by more than one subdivision of paragraph 
(j)(2)(iii) of this section, each such subdivision shall apply to the 
transaction (or each part of the transaction) in the manner that results 
in the largest increase in the percentage stock ownership by the 5-
percent shareholders.
    (B) Example.

     (i) All of the common stock of L is owned by 1,000 unrelated 
persons, none of whom owns as much as five percent of the L stock 
(``Public CL''). L has outstanding a class of preferred stock described 
in section 1504(a)(4) that is owned in equal amounts by 500 unrelated 
persons (``Public PL'').
    (ii) On September 4, 1988, L rearranges its capital structure by 
redeeming 70 percent of the common stock owned by 700 of the 
shareholders in exchange for cash. In addition, all of the preferred 
stock is exchanged for a new class of common stock (nonvoting) 
representing 40 percent of the value of L.
    (iii) With respect to the part of the transaction that is treated as 
a redemption under paragraph (j)(2)(iii)(C) of this section (the 
exchange of common stock for cash), Public CL is segregated into two 
different public groups immediately before the transaction (and

[[Page 509]]

thereafter) so that the owners of the redeemed stock (``Public RCL'') 
are treated as part of a public group that is separate from the public 
group comprised of the owners of the stock that is not redeemed 
(``Public CCL''). As a result of the redemption, Public CCL's percentage 
ownership interest in L thus increases by 30 percentage points from 30 
percent to 60 percent (taking into account all transactions occurring on 
the testing date, because the change in ownership is measured under 
paragraph (a)(1)(i) of this section by reference to each 5-percent 
shareholder's ownership interest immediately after the testing date). In 
addition, the exchange of preferred stock for nonvoting common stock is 
a transaction to which section 1032 applies. Under paragraph (j)(2)(v) 
of this section, the part of the transaction to which section 1032 
applies is also subject to the segregation rules in the manner specified 
in paragraph (j)(2)(iii)(B) of this section. Accordingly, Public PL, the 
direct public group that acquires L nonvoting common stock in exchange 
for L preferred stock, must be treated as a separate public group from 
the other direct public groups, Public CCL and Public RCL. As a separate 
public group, Public PL's percentage stock ownership in L increases by 
40 points (as compared to 0 percent prior to the transaction).
    (iv) In summary, Public CCL increases its percentage ownership in L 
by 30 percentage points and Public PL increases its percentage ownership 
by 40 percentage points. Consequently, an ownership change occurs with 
respect to L on September 4, 1988.

    (vi) Acquisitions made by either a 5-percent shareholder or the loss 
corporation following application of the segregation rules. Unless a 
different proportion is established by either the loss corporation or 
the Internal Revenue Service, the acquisition of loss corporation stock 
by either a 5-percent shareholder or the loss corporation on any date on 
which more than one public group of the loss corporation exists by 
virtue of the application of the rules of this paragraph (j)(2) shall be 
treated as being made proportionately from each public group existing 
immediately before such acquisition. See paragraph (g)(5)(i)(B) of this 
section for the application of this paragraph to the ownership interest 
of a 5-percent shareholder that owns less than five percent of the stock 
of the loss corporation on the testing date.
    (3) Segregation rules applicable to transactions involving first 
tier entities or higher tier entities--(i) Dispositions. If a loss 
corporation is owned, in whole or in part, by a public group (or 
groups), the rules of paragraphs (j)(2)(iii)(B) and (iv) of this section 
shall apply to any transaction in which a first tier entity or an 
individual that owns a direct ownership interest in the loss corporation 
of five percent or more transfers a direct ownership interest in the 
loss corporation to public shareholders. Therefore, each direct public 
group that exists immediately after such a disposition shall be 
segregated so that the ownership interests of each public group that 
existed immediately before the transaction are treated separately from 
the public group that acquires stock of the loss corporation as a result 
of the disposition by the individual or first tier entity. The 
principles of this paragraph (j)(3)(i) shall also apply to transactions 
in which an ownership interest in a higher tier entity that owns five 
percent or more of the loss corporation (determined without regard to 
the application of paragraph (h)(2)(i)(A) of this section) or a first 
tier entity is transferred to a public owner or 5-percent owner who is 
not a 5-percent shareholder.
    (ii) Example.

     (A) L is owned equally by Public L, P and E. Public L consists of 
150 equal, unrelated shareholders. P is owned by Public P, a group 
consisting of 1,500 equal, unrelated shareholders. E is a partnership 
and none of its partners are 5-percent owners. On October 22, 1988, E 
sells its entire interest in L over a public stock exchange. No 
individual or entity acquires as much as five percent of L's stock as 
the result of E's disposition of the L stock.
    (B) The disposition of the L stock by E is a transaction that causes 
the segregation of L's direct public group that exists immediately 
before the transaction (Public L) from the direct public group that 
acquires L stock in the transaction (Public EL). As a result, L has 
three 5-percent shareholders, Public L, Public P (through the 
application of paragraph (j)(1) of this section) and Public EL, each of 
which owns 33\1/3\ percent of L stock. Therefore, Public EL is a 5-
percent shareholder that has increased its ownership interest in L by 
33\1/3\ percentage points during the testing period. For purposes of 
subsequent transactions, Public L and Public EL will continue to be 
treated as separate direct public groups until any subsequent testing 
date that does not have a testing period that includes E's disposition 
of L stock.


[[Page 510]]


    (iii) Other transactions affecting direct public groups of a first 
tier entity or higher tier entity. The rules of paragraphs (j)(2)(i), 
(iii), (iv) and (v) of this section shall apply to transactions 
described in such paragraphs that involve either a higher tier entity 
that owns five percent or more of the loss corporation (determined 
without regard to the application of paragraph (h)(2)(i)(A) of this 
section) or a first tier entity. In applying those rules for purposes of 
this paragraph (j)(3)(iii), each direct public group of a first tier 
entity or a higher tier entity is any public group of any such entity 
identified in paragraph (j)(1)(iv)(A) or (B) of this section or 
resulting from the application of this paragraph (j)(3)(iii). The 
principles of paragraph (j)(2)(iii)(C) of this section also shall apply 
to any transaction that has the effect of a redemption-type transaction 
(e.g., an acquisition by the loss corporation of stock in a first tier 
entity).
    (iv) Examples.

    Example (1) The facts are the same as in Example (1) of paragraph 
(j)(2)(iii)(B)(2) of this section, except that Public L and 
P1 own 40 percent and 60 percent, respectively, of the stock 
of HC which, in turn, owns 100 percent of L and HC merges into 
P2. Under paragraph (j)(3)(iii) of this section, the rules of 
paragraph (j)(2)(iii)(B) of this section apply to segregate HC's direct 
public group (Public L) immediately before the merger from the direct 
public group (Public P2) that acquires loss corporation stock 
in the merger. The consequences of the merger of HC into P2 
are thus the same as in Example (1) of paragraph (j)(2)(iii)(B)(2) of 
this section.
    Example (2) (i) Twenty-five individual shareholders each own four 
percent of L (``Public L''). Public L is therefore the only 5-percent 
shareholder of L. Each of the shareholders of L contribute their L stock 
to a newly formed corporation, HC. In exchange for their contribution of 
L stock, HC issues 100 percent of each of its two classes of common 
stock (voting and nonvoting).
    (ii) The formation of HC, a first tier entity of L, is a transaction 
to which section 1032 applies. Under paragraph (j)(3)(iii) of this 
section, the rules of paragraphs (j)(1)(iii) and (j)(2)(iii)(B) of this 
section are applied to this transaction with the result that the 
shareholders of HC, immediately after the issuance of HC stock, are 
presumed not to include any persons that previously had a direct or 
indirect ownership interest in L. The presumption underlying those 
rules, however, is rebutted by establishing that all of the HC stock 
outstanding immediately after the transaction was issued solely in 
exchange for L stock. Thus, Public HC (immediately after the 
transaction) and Public L (immediately before the transaction) would be 
treated owned by the same direct public group.
    Example (3) (i) All of the stock of L is owned by unrelated 
shareholders, none of whom owns as much as five percent of L stock. P 
also is owned by unrelated shareholders, none of whom owns as much as 
five percent of P stock. On November 22, 1988, P incorporates 
P1 with a contribution of P stock. Immediately thereafter, 
P1 acquires all of the properties of L in exchange for its P 
stock in a forward triangular merger qualifying under sections 368 
(a)(1)(A) and (a)(2)(D). The P stock transferred by P1 equals 
45 percent of the total outstanding P stock.
    (ii) Immediately before the merger of L into P1, P's only 
5-percent shareholder was Public P, a direct public group of P. The 
rules of paragraph (j)(2)(iii)(B) of this section thus apply to the 
transaction under paragraph (j)(3)(i) of this section since P, a first 
tier entity, is a party to the reorganization described in such 
paragraph. Although Public P does not acquire any stock in the merger, 
it is treated as acquiring stock in the loss corporation, P1, 
because such corporation succeeds to the pre-change losses of L in a 
transaction to which 381(a) applies. As a result of the merger, Public 
P, the direct public group of P that exists immediately before the 
merger, must be segregated from the direct public groups acquiring P 
stock in the reorganization. Public P is, therefore, treated as 
acquiring 55 percent of the outstanding stock of the loss corporation, 
P1, in the transaction. The transaction, therefore, results 
in an ownership change for P1.
    Example (4) (i) L is owned 20 percent by A and 80 percent by 1,000 
unrelated individuals and entities, none of whom owns as much as five 
percent of L stock (``Public L''). P is owned 10 percent by B, 40 
percent by E, and 50 percent by 5,000 unrelated individuals, none of 
whom owns as much as five percent of P stock (``Public P''). E is owned 
30 percent by C and 70 percent by 30 unrelated individuals, none of whom 
owns as much as five percent of E (``Public E'').
    (ii) On October 31, 1987, P acquires all of the L stock from A and 
Public L in exchange for P stock representing 20 percent of the value of 
P (determined immediately after the acquisition) in a transaction 
described in section 368(a)(1)(B). After the acquisition, P is owned 
eight percent by B, 32 percent by E, four percent by A, and 56 percent 
by 6,000 unrelated individuals, none of whom owns as much as five 
percent of P. Because L is wholly owned by P immediately after the 
acquisition, L, under paragraph (j)(1) of this section, is treated as 
owned as follows: Eight percent by B, 9.6 percent by C (through C's 
ownership

[[Page 511]]

interest in E, a highest tier entity, and E's ownership interest in P, a 
first tier entity), 22.4 percent by Public E (through its ownership 
interest in E and E's ownership interest in P), four percent by A, and 
56 percent by the shareholders who each own less than five percent of L 
through their ownership interest in P.
    (iii) Under paragraph (j)(3)(iii) of this section, the rules of 
paragraph (j)(2)(iii)(B) of this section apply to the reorganization 
since the transaction involved a first tier entity of L. Thus, the 
direct public group of P that exists immediately after the transaction 
must be segregated into two public groups--the direct public group of P 
that existed immediately before the acquisition (Public P) is treated 
separately from the direct public group consisting of the persons who 
acquire P stock in the transaction (Public L). Accordingly, immediately 
after the reorganization, Public P and Public L own 40 percent and 16 
percent of L, respectively. See paragraph (h) of this section. (Under 
paragraph (g)(5)(ii)(B) of this section, L may treat the four percent of 
L stock owned by A immediately after the reorganization as the amount of 
L stock owned by A for each subsequent testing date having a testing 
period that includes the reorganization.)
    (iv) In summary, after applying the rules of paragraphs (j)(1) and 
(3) of this section, L is treated as owned as follows:

------------------------------------------------------------------------
                                                             Percentage
                   5-percent shareholder                      ownership
                                                              interest
------------------------------------------------------------------------
A.........................................................           4.0
B.........................................................           8.0
C.........................................................           9.6
Public E..................................................          22.4
Public P..................................................          40.0
Public L..................................................          16.0
------------------------------------------------------------------------

    (v) The reorganization results in an ownership change, because B, C, 
Public E and Public P, all of whom are 5-percent shareholders, together 
have increased their percentage ownership in L by 80 percentage points 
as compared to their lowest percentage ownership in L at any time during 
the testing period (0 percent prior to the acquisition).

    (v) Acquisitions made by a 5-percent shareholder, a higher tier 
entity, or a first tier entity following application of the segregation 
rules. The rules of paragraph (j)(2)(vi) of this section shall apply to 
the acquisition of an ownership interest in a first tier entity (or 
higher tier entity) if more than one direct public group of any such 
entity are segregated under the rules of this paragraph (j)(3). 
Accordingly, an acquisition by such an entity or a 5-percent shareholder 
of any ownership interest in such an entity shall be treated as made 
proportionately from the direct public groups resulting from the 
application of this paragraph (j)(3).
    (k) Operating rules--(1) Presumptions regarding stock ownership. 
Subject to paragraphs (k)(2) and (4) of this section, for purposes of 
applying paragraphs (f), (g), (h), and (j)(1) of this section--
    (i) Stock subject to regulation by the Securities and Exchange 
Commission. With respect to loss corporation stock that is described in 
Rule 13d-1(d) of Regulation 13D-G (or any rule or regulation to 
generally the same effect), promulgated by the Securities and Exchange 
Commission under the Securities and Exchange Act of 1934 (``registered 
stock''), a loss corporation may rely on the existence and absence of 
filings of Schedules 13D and 13G (or any similar schedules) as of any 
date to identify all of the corporation's shareholders who have a direct 
ownership interest of five percent or more (both individuals and first 
tier entities) on such date. A loss corporation may similarly rely on 
the existence and absence of such filings as of any date with respect to 
registered stock of any first tier entity or any higher tier entity to 
identify the 5-percent owners of any such entities on such date who 
indirectly own five percent or more of the loss corporation stock, and 
are thus 5-percent shareholders, and to identify any higher tier 
entities of such entities.
    (ii) Statements under penalties of perjury. A loss corporation may 
rely on a statement, signed under penalties of perjury, by an officer, 
director, partner, trustee, executor or similar responsible person, on 
behalf of a first tier entity or a higher tier entity to establish the 
extent, if any, to which the ownership interests of any 5-percent owners 
or higher tier entities with respect to such entities have changed 
during a testing period. A loss corporation may not rely on such a 
statement (A) that it knows to be false or (B) that is made by either a 
first tier entity or higher tier entity that owns 50 percent or more of 
the stock of the loss corporation. For purposes of the preceding 
sentence, any first tier entities and higher tier entities that are 
known by the loss corporation to be members of

[[Page 512]]

the same controlled group (within the meaning of section 267(f)) shall 
be treated as one corporation.
    (2) Actual knowledge regarding stock ownership. For purposes of this 
section (other than paragraphs (g)(5) and (j)(1)(v) of this section), to 
the extent that the loss corporation has actual knowledge of stock 
ownership on any testing date (or acquires such knowledge before the 
date that the income tax return is filed for the taxable year in which 
the testing date occurs) by--
    (i) An individual who would be a 5-percent shareholder, but for the 
application of paragraphs (h)(2)(iii), (h)(6)(iii) or (g)(2) of this 
section, or
    (ii) A 5-percent shareholder that would be taken into account, but 
for paragraphs (h)(2)(iii), (h)(6)(iii) or (g)(3) of this section,

the loss corporation must take such stock ownership into account for 
purposes of determining whether an ownership change has occurred on that 
testing date. If a loss corporation acquires such knowledge after such 
income tax return is filed, the loss corporation may take such ownership 
into account for purposes of determining whether an ownership change 
occurred on that testing date and, if appropriate, file an amended 
income tax return (subject to any applicable statute of limitations). To 
the extent the loss corporation has actual knowledge on or after any 
testing date regarding the ownership interest in the loss corporation by 
members of one public group (described in paragraphs (g)(1)(ii), (iii) 
or (iv) of this section) and the ownership interest of those members in 
the loss corporation as members in another such public group, the loss 
corporation may take such ownership into account for purposes of 
determining whether an ownership change occurred on that testing date.
    (3) Duty to inquire as to actual stock ownership in the loss 
corporation. For purposes of this section, the loss corporation is 
required to determine the stock ownership on each testing date (and, 
except as otherwise provided in this section, the changes in the stock 
ownership during the testing period) of--
    (i) Any individual shareholder who has a direct ownership interest 
of five percent or more in the loss corporation,
    (ii) Any first tier entity,
    (iii) Any higher tier entity that has an indirect ownership interest 
of five percent or more in the loss corporation (determined without 
regard to paragraph (h)(2)(i)(A) of this section), and
    (iv) Any 5-percent owner who indirectly owns five percent or more of 
the stock of the loss corporation in his capacity as a 5-percent owner 
in any one first tier entity or higher tier entity.

The loss corporation does not have any obligation to inquire or to 
determine facts relating to the stock ownership of any shareholders 
other than those described in the preceding sentence. In addition, the 
loss corporation does not have any obligation to inquire or to determine 
if the actual facts relating to the stock ownership of any shareholder 
are consistent with the ownership interests of the loss corporation as 
determined by applying the presumptions and other rules of paragraphs 
(g), (h), (j) or (k)(1) of this section.
    (4) Ownership interest structured to avoid the section 382 
limitation. For purposes of this section, if the ownership interests in 
a loss corporation are structured by a person with a direct or indirect 
ownership interest in the loss corporation to avoid treating a person as 
a 5-percent shareholder (or to permit the loss corporation to rely on 
the presumption provided in paragraph (g)(5)(i)(B) of this section) for 
a principal purpose of circumventing the section 382 limitation, then--
    (i) Paragraph (h)(2)(iii) of this section shall not apply with 
respect to the ownership interests so structured and the constructive 
ownership rules of paragraph (h)(2)(i) of this section shall thus apply 
to attribute stock from any entity without regard to the amount of stock 
it owns in the loss corporation or any other corporation,
    (ii) Paragraphs (g)(2) and (3) of this section shall be modified 
with respect to the ownership interests so structured so that the 
ownership interest of a person includes all of an individual's direct 
and indirect ownership in the loss corporation, without regard to 
whether each such interest represents five percent or more of the stock 
of the loss corporation, and

[[Page 513]]

    (iii) Paragraph (g)(5)(i)(B) of this section shall not apply with 
respect to the ownership interests so structured so that the ownership 
interest of a person takes into account his actual ownership interest in 
the loss corporation.

This paragraph (k)(4) shall apply, however, only if application would 
result in an ownership change.
    (5) Example.

     L is owned by 25 individuals who each own four percent of the 
outstanding L stock. A purchases 40 percent of L stock from such 
shareholders on August 13, 1988. Thereafter, B plans to acquire 15 
percent of the L stock. B is advised concerning the potential 
application of section 382 to L. On February 1, 1989, B acquires a 15 
percent interest in L pursuant to a program in which each of four 
corporations, P1 through P4, each of which is 
wholly-owned by B, acquire a 3.75 percent interest in L. A principal 
purpose of acquiring the L stock through four corporations is to avoid 
treating B as owning any ownership interest in L amounting to as much as 
five percent, and thus to circumvent the section 382 limitation by 
avoiding an ownership change. Under paragraph (k)(4) of this section, 
the limitation on the constructive ownership rules of paragraph 
(h)(2)(iii) of this section are disregarded and B is treated as a 5-
percent shareholder owning 15 percent of the stock of L by virtue of his 
ownership interests in P1 through P4, 
notwithstanding paragraph (g)(2) of this section. Accordingly, an 
ownership change occurs with respect to L.

    (6) First tier entity or higher tier entity that is a foreign 
corporation or entity. [Reserved]
    (l) Changes in percentage ownership which are attributable to 
fluctuations in value. [Reserved]
    (m) Effective date--(1) In general. Except as provided in this 
paragraph (m), section 382 shall apply to any ownership change that 
occurs immediately after an owner shift or an equity structure shift 
that occurs after December 31, 1986, or any other event occurring after 
such date that requires the determination of whether an ownership change 
has occurred under paragraph (a)(2)(i) of this section. In the case of 
an equity structure shift (including an equity structure shift that also 
constitutes an owner shift), any equity structure shift completed 
pursuant to a plan of reorganization adopted before January 1, 1987, 
shall be treated as occurring on the date such plan was adopted. 
Therefore, section 382 shall apply to any ownership change occurring 
immediately after--
    (i) An owner shift (excluding an owner shift that also constitutes 
an equity structure shift) that occurs on or after January 1, 1987,
    (ii) An equity structure shift that occurs after December 31, 1986, 
if it is completed pursuant to a plan of reorganization adopted on or 
after January 1, 1987, or
    (iii) Any transfer or issuance of an option, or other interest that 
is similar to an option, that occurs on or after January l, 1987 and 
that is taken into account under paragraph (a)(2)(i) of this section.

With respect to equity structure shifts completed pursuant to plans 
adopted before January 1, 1987, section 382 shall be inapplicable only 
if the equity structure shift that is treated as occurring on the date 
the plan of reorganization for such shift was adopted (or other event 
occurring after the adoption of such plan) results in an ownership 
change before January 1, 1987. In that event, a new testing period for 
the loss corporation shall begin on the day after such ownership change.
    (2) Plan of reorganization. For purposes of paragraph (m)(1) of this 
section, a plan of reorganization shall be treated as adopted on the 
earlier of--
    (i) The first date that the boards of directors of all the parties 
to the reorganization have adopted the plan or have recommended adoption 
to their shareholders, or
    (ii) The date the shareholders approve such reorganization.

If there is an ownership change with respect to a subsidiary as the 
result of a reorganization of the parent, the treatment of the 
subsidiary under this paragraph (m)(2) shall be governed by the 
classification of the parent-level transaction. For purposes of the 
preceding sentence, a corporation shall be treated as a subsidiary of 
another corporation only if the other corporation owns stock in that 
corporation meeting the requirements of section 1504(a)(2).
    (3) Earliest commencement of the testing period. For purposes of 
determining if an ownership change has occurred at any time after May 5, 
1986, the testing period shall begin no earlier than May

[[Page 514]]

6, 1986. Under paragraph (d)(4) of this section, therefore, shifts in 
the ownership of stock of the loss corporation prior to May 6, 1986 are 
disregarded.
    (4) Transitional rules--(i) Rules provided in paragraph (j) of this 
section for testing dates before September 4, 1987. For purposes of 
determining whether an ownership change occurs for any testing date 
before September 4, 1987.
    (A) The rules of paragraph (j)(1) of this section shall apply only 
to stock of the loss corporation acquired after May 5, 1986, by any 
first tier entity or higher tier entity and shall not apply to any stock 
acquired by such an entity on or before that date,
    (B) The rules of paragraph (j)(2) of this section shall apply only 
to equity structure shifts in which more than one corporation is a party 
to the reorganization and shall not apply to any other transactions, and
    (C) The rules of paragraph (j)(3) of this section shall apply only 
to--
    (1) Dispositions of stock acquired by an individual, a first tier 
entity or higher tier entity after May 5, 1986 (and shall not apply to 
dispositions of stock acquired on or before such date), and
    (2) Equity structure shifts in which more than one corporation is a 
party to the reorganization (and shall not apply to any other 
transactions).

For any testing date before September 4, 1987, however, the loss 
corporation is permitted to apply all of the rules of paragraph (j) of 
this section. A loss corporation that applies the rules of paragraph (j) 
of this section under the preceding sentence must apply all of the rules 
of such paragraph in determining whether any ownership change occurs on 
any testing dates after May 5, 1986.
    (ii) Example.

     (i) L is owned entirely by 10,000 unrelated individuals, none of 
whom owns as much as five percent of the stock of L (``Public L''). P is 
owned entirely by 1,000 unrelated individuals, none of whom owns as much 
as five percent of the stock of P (``Public P'').
    (ii) Between March 1, 1987 and June 1, 1987, P acquires 45 percent 
of L stock in a series of transactions. On June 15, 1987, L redeems 20 
percent of the L stock from Public L.
    (iii) Under paragraph (m)(4)(i)(A) of this section, the rules of 
paragraph (j)(1) of this section apply to the acquisitions made by P, 
because they occurred after May 5, 1986. Accordingly, following those 
acquisitions, the stock of L is owned 45 percent by Public P and 55 
percent by Public L. Because the increase in the percentage ownership by 
Public P as a result of P's stock purchases is not more than 50 percent, 
no ownership change occurs as the result of P's purchases.
    (iv) On or after September 4, 1987, the rules of paragraph 
(j)(2)(iii)(C) of this section apply to treat any L stock that is 
redeemed as owned by a public group that is separate from the public 
group owning the stock that is not redeemed. (Under paragraph 
(j)(2)(iii)(C) of this section, the continuing shareholders of Public L, 
who owned 35 percent of the stock of L before the redemption ([55 
percent--20 percent]/100 percent) increase their ownership interest in L 
by 8.8 percentage points as a result of such redemption (43.8 percent--
35 percent)). Those rules, however, do not apply to the June 15, 1987 
redemption because it occurs before the date that paragraph (j)(2)(iii) 
of this section generally is effective. (Until September 4, 1987, 
paragraph (j)(2)(iii) of this section generally is effective only for 
equity structure shifts in which more than one corporation is a party to 
the reorganization.) Solely because of the application of paragraph 
(j)(1) of this section to P's acquisitions of L stock, Public P's 
ownership interest in L as a result of the redemption has increased from 
45 percentage points to 56.2 percentage points which, compared to its 
lowest percentage ownership interest at any time during the testing 
period (0 percent prior to March 1, 1987), is a more than 50 percentage 
point increase thus causing an ownership change with respect to L on 
June 15, 1987.

    (iii) Rules provided in paragraph (j) of this section for testing 
dates on or after September 4, 1987. For purposes of determining whether 
an ownership change occurs for any testing date on or after September 4, 
1987, the rules of paragraphs (j)(2) and (3) of this section shall not 
apply to identify any public group resulting from--
    (A) Any transaction described in such paragraphs (j)(2) and (3), 
unless that transaction is also described in paragraph (m)(4)(i)(B) or 
(C) of this section, or
    (B) Any disposition of stock acquired on or before May 5, 1986, but 
only if such disposition or other transaction occurs before September 4, 
1987. Thus, for example, the rules of paragraph (j)(2)(iii)(D) of this 
section shall apply only to rights to acquire stock of the loss 
corporation issued on or after such date.
    (iv) Rules provided in paragraphs (f)(18)(ii) and (iii) of this 
section. For

[[Page 515]]

purposes of determining whether an ownership change occurs for any 
testing date, the rules of paragraphs (f)(18)(ii) and (iii) of this 
section apply only to stock (or any other ownership interest) that is--
    (A) Issued on or after September 4, 1987, or
    (B) Transferred to (or by) a person who is a 5-percent shareholder 
(or would be a 5-percent shareholder if paragraph (f)(18)(iii) of this 
section were applicable) on or after September 4, 1987.
    (v) Rules provided in paragraph (a)(2)(ii) of this section. The 
information statement required under paragraph (a)(2)(ii) of this 
section is not required to be filed with respect to any taxable year for 
which the due date (including extensions) of the income tax return of 
the loss corporation is on or before October 5, 1987.
    (vi) Rules provided in paragraph (h)(4) of this section. The rules 
provided in paragraph (h)(4) of this section do not apply on any testing 
date on or after November 5, 1992. The rule provided in paragraph 
(h)(4)(viii) of this section applies to the lapse or forfeiture of any 
option treated as exercised under paragraph (h)(4)(i) of this section. 
If an option is treated as exercised under paragraph (h)(4)(i) of this 
section, and the option is actually exercised on a day that is within 
120 days after the date on which the option is treated as exercised, the 
rule provided in paragraph (h)(4)(vi)(B) of this section applies (even 
if the actual exercise of the option occurs on a date on which the rules 
of paragraph (h)(4) of this section would not otherwise apply). Thus, in 
such a case, the loss corporation may elect to treat paragraphs 
(h)(4)(i) and (vi)(A) of this section as not applying to the option and 
take into account only the acquisition of loss corporation stock 
resulting from the actual exercise of the option.
    (vii) Rules provided in paragraph (a)(2)(i) of this section. The 
rules provided in paragraph (a)(2)(i) of this section apply to determine 
whether dates prior to November 5, 1992, are testing dates. For rules 
regarding the determination of whether dates on or after November 5, 
1992, are testing dates, see Sec. 1.382-2(a)(4).
    (5) Bankruptcy proceedings--(i) In general. In the case of a 
reorganization described in section 368(a)(1)(G) or an exchange of debt 
for stock in a title 11 or similar case (within the meaning of section 
368(a)(3)), section 382 shall not apply to any ownership change 
resulting from such a reorganization or proceeding if a petition in such 
case was filed with the court before August 14, 1986. Accordingly, any 
shift in ownership in the loss corporation arising out of such 
reorganization or proceeding shall not be taken into account for 
purposes of determining whether an ownership change occurs on any 
testing date that occurs after December 31, 1986.
    (ii) Example.

     (i) L filed a petition in bankruptcy on September 29, 1985. As a 
result of a title 11 bankruptcy reorganization of L that is confirmed by 
a court on February 2, 1988, there is a shift in the ownership of L so 
that JK increased her interest in L by 24 percentage points relative to 
her lowest ownership interest in L during the testing period. JK is the 
only 5-percent shareholder of L following the reorganization whose 
interest in L increased as a result of the transaction. On December 25, 
1988, GK purchases 42 percent of the outstanding stock of L from 
shareholders other than JK.
    (ii) There is no ownership change on December 25, 1988 because the 
24 percentage point increase in JK's ownership interest in L is not 
taken into account under paragraph (m)(6)(i) of this section.
    (iii) The facts are the same as in (i), except that the acquisitions 
by JK and GK occurred on August 5, 1986 and September 26, 1986, 
respectively. Because paragraph (m)(6)(i) of this section is only 
applicable with respect to the determination of whether an ownership 
change has occurred on any testing date that occurs after December 31, 
1986, there is an ownership change as a result of GK's acquisition on 
September 26, 1986. Accordingly, section 382 is inapplicable to such 
ownership change under paragraph (m)(1) of this section because it 
occurred prior to January 1, 1987. Under paragraph (d)(2) of this 
section, the testing period for determining whether an ownership change 
occurs on any subsequent testing date shall commence no earlier than 
September 27, 1986.

    (6) Transactions of domestic building and loan associations. The 
rules of paragraph (j)(2)(iii)(B) of this section (and the application 
of those rules by virtue of paragraph (j)(3) of this section) shall not 
apply to a public offering of stock

[[Page 516]]

by a domestic building and loan association described in section 591 (or 
any corporation that owns stock in the association meeting the 
requirements of section 1504(a)(2)) prior to January 1, 1989. In the 
case of any transaction described in the preceding sentence, any 
transitory ownership of stock by any entity that is an underwriter shall 
be disregarded so that the rules of paragraph (j)(1) of this section 
shall not apply to treat such stock as owned by the owners of the 
underwriter and thus the rules of paragraph (j)(3)(i) of this section 
shall not apply to the disposition of such stock by the underwriter. For 
purposes of this paragraph (m)(7)--
    (i) Ownership shall be considered transitory only with respect to an 
underwriter acquiring stock in a firm commitment underwriting to the 
extent the stock is disposed of pursuant to the offer (but in no event 
later than sixty (60) days after the initial offering) and,
    (ii) To the extent a transaction may be described both by paragraph 
(j)(2)(iii)(B) of this section and any other provision of paragraph 
(j)(2)(iii) or (3) of this section, paragraph (j)(2)(v)(A) of this 
section shall not apply and the transaction shall be treated as 
described solely by paragraph (j)(2)(iii)(B) of this section.
    (7) Transactions not subject to section 382--(i) Application of old 
section 382. Old section 382 shall not apply to a loss corporation on or 
after the date on which an ownership change occurs, but only if such 
ownership change results in the application of the section 382 
limitation (as defined in section 382(b)) with respect to the loss 
corporation.
    (ii) Effect on testing period. The application of old section 382 to 
a transaction is disregarded for purposes of paragraph (d)(2) of this 
section unless the transaction that results in such application is the 
last component of an ownership change after May 5, 1986 that is not 
subject to section 382 under the effective date rules of this paragraph 
(m) (e.g., an ownership change occurring as the result of an 
individual's purchase of more than 50 percent of L stock on any date on 
or before December 31, 1986).
    (iii) Termination of old section 382. [Reserved]
    (8) Options issued or transferred before January 1, 1987--(i) 
Options issued before May 6, 1986. An option issued before May 6, 1986, 
is subject to the rules of paragraph (h)(4) of this section only if it 
is transferred by (or to) a 5-percent shareholder (or a person who would 
be a 5-percent shareholder if the option were treated as exercised) on 
or after such date. In all other cases, such an option shall not be 
subject to paragraph (h)(4)(i) of this section, but shall be subject to 
paragraph (h)(4)(xii) of this section. Thus, for example, a warrant to 
acquire stock of the loss corporation issued before May 6, 1986 shall 
not be subject to paragraph (h)(4) of this section unless the warrant is 
transferred by (or to) a 5-percent shareholder. The exercise of such a 
warrant, however, would be taken into account as required by this 
paragraph (m)(8)(i) and paragraph (h)(4)(xii) of this section.
    (ii) Options issued on or after May 6, 1986 and before September 18, 
1986. An option issued or transferred on or after May 6, 1986, and 
before September 18, 1986, is subject to the rules of paragraph (h)(4) 
of this section.
    (iii) Options issued on or after September 18, 1986 and before 
January 1, 1987. An option issued or transferred on or after September 
18, 1986, and before January 1, 1987, is subject to the rules of 
paragraph (h)(4) of this section, except that the option shall be 
treated for purposes of this section as if it never had been issued in 
the event that either--
    (A) The option lapses unexercised or is irrevocably forfeited by the 
holder thereof, or
    (B) On the date the option was issued, there was no significant 
likelihood that such option would be exercised within the five-year 
period from the date of such issuance and a purpose for the issuance of 
the option was to cause an ownership change prior to January 1, 1987.
    (9) Examples. The rules of this paragraph (m) may be illustrated by 
the following examples.

    Example (1) (i) A owns all 100 outstanding shares of L stock. A 
sells 11 shares to B on January 1, 1986. The January 1, 1986 testing 
date is disregarded under paragraph (m)(3) of this section. A sells 
another 40 shares to B on

[[Page 517]]

January 1, 1988. B's second stock purchase is an owner shift that does 
not result in an ownership change. B's percentage ownership interest on 
the testing date (51 percent) is only 40 percentage points greater than 
the lowest percentage of L stock owned by B at any time during the 
testing period (11 percent on and after May 6, 1986).
    (ii) The facts are the same as in (i). In addition A sells 20 shares 
of his L stock to C on July 1, 1990. C's stock purchase is an owner 
shift. Because B and C together have increased their respective 
ownership interests in L by 40 and 20 percentage points relative to 
their lowest percentage stock ownership interests in L at any time 
during the testing period, C's purchase causes an ownership change. The 
testing period for any subsequent ownership change begins on the first 
day following C's acquisition, July 2, 1990.
    Example (2) (i) C has owned 100 percent of L since March 22, 1980. 
On October 13, 1986, P merges into L. As a result of the merger, 40 
percent of L stock is acquired by A, the sole shareholder of P. The 
merger of P into L is both an equity structure shift and an owner shift. 
The transaction, however, is not an ownership change with respect to L, 
because A's percentage ownership interest has increased by only 40 
percentage points. On August 22, 1987, B purchases 15 percent of the L 
stock from C. B's purchase constitutes an owner shift resulting in an 
ownership change that is subject to section 382 because the aggregate 
increases in percentage ownership by B and C (respectively 40 percent 
and 15 percent) is more than 50 percentage points.
    (ii) The facts are the same as in (i), except that the plan of 
reorganization is adopted on October 13, 1986, and the merger is 
completed on July 22, 1987. The result is the same as in (i).
    (iii) The facts are the same as in (ii), except that the 
reorganization is completed on August 22, 1987, and B's purchase of the 
L stock occurs one month earlier, on July 22, 1987. Assume that after 
the reorganization on August 22, 1987, A and B own 40 percent and 15 
percent, respectively, of L stock. Although the merger occurred pursuant 
to a plan of reorganization adopted before 1987, L is subject to section 
382 following the equity structure shift, because the merger would not 
have caused an ownership change if it had been completed in 1986 after 
the commencement of the L's testing period.
    (iv) The facts are the same as in (ii), except that B's purchase 
occurs on June 7, 1986. Assume that immediately after the reorganization 
on August 22, 1987, A and B own 40 percent and 15 percent, respectively, 
of L stock. Since the reorganization pursuant to a plan adopted before 
1987, taken together with the other shifts in the ownership of L's stock 
between May 5, 1986, and December 31, 1986, would have caused an 
ownership change, section 382 does not apply as a result of the merger. 
Since an ownership change occurs as a result of the merger, L's testing 
period for purposes of any subsequent ownership change begins on October 
14, 1986.
    (v) The facts are the same as in (iv), except that B makes an 
additional purchase from C of one percent of L's stock on February 14, 
1987. The result is the same as in (iv). B's additional purchase, 
however, is taken into account for the purpose of determining whether 
there is a second ownership change with respect to L.

[T.D. 8149, 52 FR 29675, Aug. 11, 1987, as amended by T.D. 8264, 54 FR 
38666, Sept. 20, 1989; T.D. 8277, 54 FR 52936, Dec. 26, 1989; T.D. 8352, 
56 FR 29434, June 27, 1991; T.D. 8405, 57 FR 10741, Mar. 30, 1992; T.D. 
8407, 57 FR 12210, Apr. 9, 1992; T.D. 8428, 57 FR 38282, Aug. 24, 1992; 
T.D. 8440, 57 FR 45712, Oct. 5, 1992; 57 FR 52827, Nov. 5, 1992; T.D. 
8490, 59 FR 51573, Oct. 4, 1993; T.D. 8531, 59 FR 12837, Mar. 18, 1994; 
T.D. 8679, 61 FR 33315, June 27, 1996; T.D. 8825, 64 FR 36177, July 2, 
1999]



Sec. 1.382-3  Definitions and rules relating to a 5-percent shareholder.

    (a) Definitions--(1) Entity--(i) In general. An entity is any 
corporation, estate, trust, association, company, partnership or similar 
organization. An entity includes a group of persons who have a formal or 
informal understanding among themselves to make a coordinated 
acquisition of stock. A principal element in determining if such an 
understanding exists is whether the investment decision of each member 
of a group is based upon the investment decision of one or more other 
members. However, the participation by creditors in formulating a plan 
for an insolvency workout or a reorganization in a title 11 or similar 
case (whether as members of a creditors' committee or otherwise) and the 
receipt of stock by creditors in satisfaction of indebtedness pursuant 
to the workout or reorganization do not cause the creditors to be 
considered an entity.
    (ii) Examples. The following examples illustrate the provisions of 
paragraph (a)(1)(i) of this section.

    Example 1. (i) L corporation has 1,000 shares of common stock 
outstanding. For the three-year period ending on October 1, 1992, L's 
stock was owned by unrelated individuals, none of whom owned five 
percent or more of L. A group of 20 individuals who previously owned no 
stock (the ``Group'') agree among themselves to acquire more than 5 
percent of L's stock. The Group is not a corporation,

[[Page 518]]

trust, association, partnership or company. On October 1, 1992, pursuant 
to their understanding, the members of the Group purchase 600 shares of 
L common stock from the old shareholders of L (a total of 60 percent of 
L stock), with each member purchasing 30 shares.
    (ii) Before the members of the Group acquired L's stock on October 
1, 1992, no individual or entity owned, directly or indirectly, five 
percent or more of the stock of L. As a result, all shareholders were 
aggregated into a public group and L was considered to be owned by a 
single 5-percent shareholder (``Public L'') in accordance with Sec. 
1.382-2T (g)(1) and (j)(1).
    (iii) Under paragraph (a)(1)(i) of this section, the members of the 
Group have a formal or informal understanding among themselves to make a 
coordinated acquisition of stock and, therefore, the Group is an entity. 
Thus, the acquisition of more than five percent of the stock of L on 
October 1, 1992, by members of the Group is not disregarded under Sec. 
1.382-2T(e)(1)(ii). Because no member of the Group owns, directly or 
indirectly, five percent or more of the stock of L, Sec. Sec. 1.382-2T 
(g)(1) and (j)(1) require that the members of the Group be aggregated 
into a separate public group, which will be presumed to consist of 
persons unrelated to the members of Public L. Because there is a shift 
of more than fifty percentage points in the ownership of L stock during 
the three-year testing period ending on October 1, 1992, an ownership 
change occurs on October 1, 1992, as a result of the Group's purchase of 
the 600 shares.
    Example 2. (i) Prior to October 1, 1992, L's 1,000 shares of 
outstanding stock were owned by unrelated individuals, none of whom 
owned five percent or more of the stock of L. L's management is 
concerned that L may become subject to a takeover bid. In separate 
meetings, L's management meets with potential investors who own no stock 
and are friendly to management to convince them to acquire L's stock 
based on an understanding that L will assemble a group that in the 
aggregate will acquire more than 50 percent of L's stock. On October 1, 
1992, 15 of these investors each purchase 4 percent of L's stock.
    (ii) Under paragraph (a)(1)(i) of this section, the 15 investors 
(the ``Group'') are treated as an entity because the members of the 
Group purchase L stock pursuant to a formal or informal understanding 
among themselves to make a coordinated acquisition of stock. Sections 
1.382-2T (g)(1) and (j)(1) require that on October 1, 1992, the Group be 
aggregated into a separate public group, which has increased its 
ownership of L stock by 60 percentage points over its lowest level of 
ownership in the three-year period ending on October 1, 1992. 
Accordingly, an ownership change occurs on that date.
    Example 3. (i) Prior to October 1, 1992, L's 1,000 shares of 
outstanding stock were owned by unrelated individuals, none of whom 
owned five percent or more of the stock of L. On October 1, 1992, an 
investment advisor advises its clients that it believes L's stock is 
undervalued and recommends that they acquire L stock. Acting on the 
investment advisor's recommendation, 20 unrelated individuals purchase 6 
percent of L's stock in aggregate, with each individual purchasing less 
than 5 percent. Each client's decision was not based upon the investment 
decisions made by one or more other clients.
    (ii) Because there is no formal or informal understanding among the 
clients to make a coordinated acquisition of L stock, their purchase of 
stock is not made by an entity under paragraph (a)(1)(i) of this 
section. As a result, they remain part of the public group which owns L 
stock, and no owner shift results upon their purchase of L stock under 
Sec. 1.382-2T(e)(1)(ii).
    (iii) The result in this example would be the same under paragraph 
(a)(3)(i) of this section if the only additional fact was that the 
investment advisor is also the underwriter (without regard to whether it 
is a firm commitment or best efforts underwriting) for a primary or 
secondary offering of L stock.
    (iv) Assume that the facts are the same except that, instead of an 
investment advisor recommending that clients purchase L stock, the 
trustee of several trusts qualified under section 401(a) sponsored by 
unrelated corporations causes each trust to purchase the L stock. In 
this case, the result is the same, so long as the investment decision 
made on behalf of each trust was not based on the investment decision 
made on behalf of one or more of the other trusts.

    (iii) Effective date. (A) In general. The second, third and fourth 
sentences of paragraph (a)(1)(i) of this section and Examples 1, 2 and 3 
of paragraph (a)(1)(ii) of this section apply to testing dates 
(determined by applying such sentence and examples) on or after November 
20, 1990, but with respect to any group of persons that pursuant to a 
formal or informal understanding among themselves makes a coordinated 
acquisition of stock before November 20, 1990, only if the group 
increases or decreases its ownership of stock of the loss corporation 
relative to its percentage ownership interest at the close of November 
19, 1990, by five percentage points or more on or after November 20, 
1990.
    (B) Special rule. If pursuant to a formal or informal understanding 
among

[[Page 519]]

themselves a group consisting only of regulated investment companies 
under section 851, qualified trusts under section 401, common trust 
funds under section 584, or trusts or estates that are clients of a 
trust department of a bank under section 581, make a coordinated 
acquisition of stock before November 20, 1990, the second, third and 
fourth sentences of paragraph (a)(1)(i) of this section and Examples 1, 
2, and 3 of paragraph (a)(1)(ii) of this section apply for testing dates 
(determined by applying such sentences and examples) on or after 
November 20, 1990, only if the group increases its ownership of stock of 
the loss corporation relative to its percentage ownership interest at 
the close of November 19, 1990, by five percentage points or more on or 
after November 20, 1990.
    (C) Example. The following example illustrates the provisions of 
paragraph (a)(1)(iii) of this section.

    Example. Prior to November 1, 1990, L, a loss, corporation, is owned 
entirely by 1,000 unrelated individuals, none of whom owns as much as 5 
percent of the stock of L (``Public L''). On November 1, 1990, 15 
individuals (the ``Group'') each acquired 3 percent, or 45 percent, in 
total, of L stock pursuant to an understanding among themselves to make 
a coordinated acquisition of stock. The Group is not a corporation, 
trust, association, partnership or company. On March 1, 1992, six 
members of the Group each purchased an additional one percent of L 
stock, or 6 percent, in total, pursuant to the understanding. 
Accordingly, the Group increased its ownership in L stock by 51 
percentage points during the three-year testing period ending on March 
1, 1992. As a result, an ownership change of L occurs on March 1, 1992.
    (2) [Reserved]
    (b)-(i) [Reserved]
    (j) Modification of the segregation rules of Sec. 1.382-
2T(j)(2)(iii) in the case of certain issuances of stock--(1) 
Introduction. This paragraph (j) exempts, in whole or in part, certain 
issuances of stock by a loss corporation from the segregation rules of 
Sec. 1.382-2T(j)(2)(iii)(B). Terms and nomenclature used in this 
paragraph (j), and not otherwise defined herein, have the same meanings 
as in section 382 and the regulations thereunder.
    (2) Small issuance exception--(i) In general. Section 1.382-
2T(j)(2)(iii)(B) does not apply to a small issuance (as defined in 
paragraph (j)(2)(ii) of this section), except to the extent that the 
total amount of stock issued in that issuance and all other small 
issuances previously made in the same taxable year (determined in each 
case on issuance) exceeds the small issuance limitation. This paragraph 
(j)(2) does not apply to an issuance of stock that, by itself, exceeds 
the small issuance limitation.
    (ii) Small issuance defined. ``Small issuance'' means an issuance 
(other than an issuance described in paragraph (j)(6) of this section) 
by the loss corporation of an amount of stock not exceeding the small 
issuance limitation. For purposes of this paragraph (j)(2)(ii), all 
stock issued in the issuance is taken into account, including stock 
owned immediately after the issuance by a 5-percent shareholder that is 
not a direct public group.
    (iii) Small issuance limitation--(A) In general. For each taxable 
year, the loss corporation may, at its option, apply this paragraph 
(j)(2)--
    (1) On a corporation-wide basis, in which case the small issuance 
limitation is 10 percent of the total value of the loss corporation's 
stock outstanding at the beginning of the taxable year (excluding the 
value of stock described in section 1504(a)(4)); or
    (2) On a class-by-class basis, in which case the small issuance 
limitation is 10 percent of the number of shares of the class 
outstanding at the beginning of the taxable year.
    (B) Class of stock defined. For purposes of this paragraph 
(j)(2)(iii), a class of stock includes all stock with the same material 
terms.
    (C) Adjustments for stock splits and similar transactions. 
Appropriate adjustments to the number of shares of a class outstanding 
at the beginning of a taxable year must be made to take into account any 
stock split, reverse stock split, stock dividend to which section 305(a) 
applies, recapitalization, or similar transaction occurring during the 
taxable year.
    (D) Exception. The loss corporation may not apply this paragraph 
(j)(2)(iii) on a class-by-class basis if, during the taxable year, more 
than one class of stock is issued in a single issuance (or in two or 
more issuances that are

[[Page 520]]

treated as a single issuance under paragraph (j)(8)(ii) of this 
section).
    (iv) Short taxable years. In the case of a taxable year that is less 
than 365 days, the small issuance limitation is reduced by multiplying 
it by a fraction, the numerator of which is the number of days in the 
taxable year, and the denominator of which is 365.
    (3) Other issuances of stock for cash--(i) In general. If the loss 
corporation issues stock solely for cash, Sec. 1.382-2T(j)(2)(iii)(B) 
does not apply to such stock in an amount equal (as a percentage of the 
total stock issued) to one-half of the aggregate percentage ownership 
interest of direct public groups immediately before the issuance.
    (ii) Solely for cash--(A) In general. A share of stock is not issued 
solely for cash if--
    (1) The acquiror, as a condition of acquiring that share for cash, 
is required to purchase other stock for consideration other than cash; 
or
    (2) The share is acquired upon the exercise of an option that was 
not issued solely for cash or was not distributed with respect to stock.
    (B) Related issuances. Paragraph (j)(8)(i) of this section (relating 
to the treatment of one or more issuances as a single issuance) does not 
apply in determining whether stock is issued solely for cash.
    (iii) Coordination with paragraph (j)(2) of this section. This 
paragraph (j)(3) does not apply to a small issuance exempted in whole 
from Sec. 1.382-2T(j)(2)(iii)(B) under paragraph (j)(2) of this 
section. In the case of a small issuance exempted in part from Sec. 
1.382-2T(j)(2)(iii)(B) under paragraph (j)(2) of this section, this 
paragraph (j)(3) applies only to the portion of the issuance not so 
exempted, and that portion is treated as a separate issuance for 
purposes of this paragraph (j)(3).
    (4) Limitation on exempted stock. The total amount of stock that is 
exempted from the application of Sec. 1.382-2T(j)(2)(iii)(B) under 
paragraphs (j)(2) and (j)(3) of this section cannot exceed the total 
amount of stock issued in the issuance less the amount of that stock 
owned by a 5-percent shareholder (other than a direct public group) 
immediately after the issuance. Except to the extent that the loss 
corporation has actual knowledge to the contrary, any increase in the 
amount of the loss corporation's stock owned by a 5-percent shareholder 
on the day of the issuance is considered to be attributable to an 
acquisition of stock in the issuance.
    (5) Proportionate acquisition of exempted stock--(i) In general. 
Each direct public group that exists immediately before an issuance to 
which paragraph (j)(2) or (j)(3) of this section applies is treated as 
acquiring its proportionate share of the amount of stock exempted from 
the application of Sec. 1.382-2T(j)(2)(iii)(B) under paragraph (j)(2) 
or (j)(3) of this section.
    (ii) Actual knowledge of greater overlapping ownership. Under the 
last sentence of Sec. 1.382-2T(k)(2), the loss corporation may treat 
direct public groups existing immediately before an issuance to which 
paragraph (j)(2) or (j)(3) of this section applies as acquiring in the 
aggregate more stock than the amount determined under paragraph 
(j)(5)(i) of this section, but only if the loss corporation actually 
knows that the aggregate amount acquired by those groups in the issuance 
exceeds the amount so determined.
    (6) Exception for equity structure shifts. This paragraph (j) does 
not apply to any issuance of stock in an equity structure shift, except 
that paragraph (j)(2) of this section applies (if its requirements are 
met) to the issuance of stock in a recapitalization under section 
368(a)(1)(E).
    (7) Transitory ownership by underwriter disregarded. For purposes of 
Sec. 1.382-2T(g)(1) and (j), and this paragraph (j), the transitory 
ownership of stock by an underwriter of the issuance is disregarded.
    (8) Certain related issuances. For purposes of this paragraph (j), 
two or more issuances (including issuances of stock by first tier or 
higher tier entities) are treated as a single issuance if--
    (i) The issuances occur at approximately the same time pursuant to 
the same plan or arrangement; or
    (ii) A principal purpose of issuing the stock in separate issuances 
rather than in a single issuance is to minimize or avoid an owner shift 
under the rules of this paragraph (j).

[[Page 521]]

    (9) Application to options. The principles of this paragraph (j) 
apply for purposes of applying Sec. 1.382-2T(j)(2)(iii)(D) (relating to 
the deemed acquisition of stock as a result of the ownership of an 
option).
    (10) Issuance of stock pursuant to the exercise of certain options. 
If stock is issued on the exercise of a transferable option issued by 
the loss corporation, Sec. 1.382-2T(j)(2)(iii)(F) does not apply and, 
in applying the last sentence of Sec. 1.382-2T(k)(2), the loss 
corporation must take into account any transfers of the option 
(including transfers described in Sec. 1.382-2T(h)(4)(xi)). Therefore, 
even if transferable options are distributed pro rata to members of 
existing public groups, the actual knowledge exception of Sec. 1.382-
2T(k)(2) applies only to the extent that the loss corporation actually 
knows that the persons acquiring stock on exercise of the options are 
members of a pre-existing public group. Moreover, if transferable 
options are issued to more than one public group, Sec. 1.382-
2T(j)(2)(iii)(F) does not apply to treat the options as exercised pro 
rata by each such public group as the options are actually exercised.
    (11) Application to first tier and higher tier entities. The 
principles of this paragraph (j) apply to issuances of stock by a first 
tier entity or a higher tier entity that owns 5 percent or more of the 
loss corporation's stock (determined without regard to Sec. 1.382-
2T(h)(2)(i)(A)).
    (12) Certain non-stock ownership interests. As the context may 
require, a non-stock ownership interest in an entity other than a 
corporation is treated as stock for purposes of this paragraph (j).
    (13) Examples. The provisions of this paragraph (j) are illustrated 
by the following examples:

    Example 1. (i) L corporation is a calendar year taxpayer. On January 
1, 1994, L has 1,000 shares of a single class of common stock 
outstanding, all of which are owned by a single direct public group 
(Public L). On February 1, 1994, L issues to employees as compensation 
60 new common shares of the same class. On May 1, 1994, L issues 50 new 
common shares of the same class solely for cash. Following each 
issuance, L's stock is owned entirely by public shareholders. No other 
changes in the ownership of L's stock occur prior to May 1, 1994. L 
chooses to determine its small issuance limitation for 1994 on a class-
by-class basis under paragraph (j)(2)(iii)(A)(2) of this section.
    (ii) The February issuance is a small issuance because the number of 
shares issued (60) does not exceed 100, the small issuance limitation 
(10 percent of the number of common shares outstanding on January 1, 
1994). Under paragraph (j)(2) of this section, the segregation rules of 
Sec. 1.382-2T(j)(2)(iii)(B) do not apply to the February issuance. 
Under paragraph (j)(5) of this section, Public L is treated as acquiring 
all 60 shares issued.
    (iii) The May issuance is a small issuance because the number of 
shares issued (50) does not exceed 100, the small issuance limitation 
(10 percent of the number of common shares outstanding on January 1, 
1994). However, under paragraph (j)(2) of this section, only 40 of the 
50 shares issued are exempted from the segregation rules of Sec. 1.382-
2T(j)(2)(iii)(B) because the total number of shares of common stock 
issued in the February and May issuances exceeds 100, the small issuance 
limitation, by 10. Because the May issuance is solely for cash, 
paragraph (j)(3) of this section exempts 5 of the 10 remaining shares 
from the segregation rules of Sec. 1.382-2T(j)(2)(iii)(B) (10 shares 
multiplied by 50 percent, one-half of Public L's 100 percent ownership 
interest immediately before the May issuance--1,060 shares/1,060 
shares). Accordingly, under paragraph (j)(5) of this section, Public L 
is treated as acquiring 45 shares in the May issuance. Section 1.382-
2T(j)(2)(iii)(B) applies to the remaining 5 shares issued, which are 
treated as acquired by a direct public group separate from Public L. 
Each such public group is treated as an individual who is a separate 5-
percent shareholder. See Sec. 1.382-2T (g)(1)(iv) and (j)(1)(ii).
    (iv) Assume that L actually knows that at least 10 shares of the May 
issuance are acquired by members of Public L. The result is the same. 
See paragraph (j)(5)(ii) of this section.
    (v) Assume instead that L actually knows that all 50 shares of the 
May issuance are acquired by members of Public L. Under paragraph 
(j)(5)(ii) of this section, L may treat Public L as acquiring 50 shares 
in the May issuance.
    Example 2. (i) L corporation is a calendar year taxpayer. On January 
1, 1995, L has 1,000 shares of Class A common stock outstanding, the 
aggregate value of which is $1,000. Five hundred shares are owned by one 
direct public group (Public 1), and 500 shares are owned by another 
direct public group (Public 2). On August 1, 1995, L issues 200 shares 
of Class B common stock for $200 cash. A, an individual, acquires 120 
Class B shares in the transaction. The remaining 80 Class B shares are 
acquired by public shareholders. No other changes in ownership of L's 
stock occur prior to August 1, 1995.
    (ii) The August issuance is not a small issuance. The total value of 
the Class B

[[Page 522]]

stock issued ($200) exceeds $100, the small issuance limitation as 
calculated under paragraph (j)(2)(iii)(A)(1) of this section (10 percent 
of the value of L's stock on January 1, 1995). The total number of Class 
B shares issued (200) exceeds 0, the small issuance limitation as 
calculated under paragraph (j)(2)(iii)(A)(2) of this section (10 percent 
of the number of Class B shares outstanding on January 1, 1995). 
Accordingly, paragraph (j)(2) of this section does not apply to the 
August issuance.
    (iii) Paragraph (j)(3) of this section, as limited by paragraph 
(j)(4) of this section, exempts 80 Class B shares from the segregation 
rule of Sec. 1.382-2T(j)(2)(iii)(B). Paragraph (j)(3) of this section, 
without regard to paragraph (j)(4) of this section, would exempt 100 
Class B shares: the product of the 200 Class B shares issued and 50 
percent (one-half of the combined 100 percent pre-issuance ownership 
interest of Public 1 and Public 2). Paragraph (j)(4), however, limits 
the total number of Class B shares that may be excluded to 80 Class B 
shares: the difference between the 200 shares issued and the 120 shares 
acquired by A. Under paragraph (j)(5) of this section, Public 1 and 
Public 2 are treated as acquiring the 80 exempted Class B shares. 
Because Public 1 and Public 2 each owned 500 Class A shares prior to the 
issuance, Public 1 and Public 2 are considered to acquire 40 Class B 
shares each.
    Example 3. (i) L has 1,000 shares of a single class of common stock 
outstanding, all of which are owned by a direct public group (Public L). 
At the same time pursuant to the same plan, L issues 500 shares of its 
stock to its creditors in exchange for its outstanding debt and 500 
shares of its stock to the public for cash. Assume that the separate 
issuances of stock for debt and stock for cash do not have a principal 
purpose of minimizing or avoiding an owner shift. L has no individual 5-
percent shareholders immediately after the issuances.
    (ii) The 500 shares of stock issued by L to its former creditors 
were not issued solely for cash. Therefore, paragraph (j)(3) of this 
section does not apply to those 500 shares, which are treated as owned 
by a public group separate from Public L. See Sec. 1.382-
2T(j)(2)(iii)(B)(1)(ii).
    (iii) Paragraph (j)(3) of this section applies to the 500 shares of 
stock issued by L to the public because that stock was issued solely for 
cash. Because the two issuances occur at the same time pursuant to the 
same plan, they are generally treated as a single issuance for purposes 
of this paragraph (j). See paragraph (j)(8)(i) of this section. The 
treatment of the two issuances as a single issuance does not apply, 
however, for the purpose of determining whether the stock issued to the 
public was issued solely for cash. See paragraph (j)(3)(ii)(B) of this 
section.
    (iv) Paragraph (j)(3) of this section applies to exempt 250 of the 
500 shares issued solely for cash from the segregation rules of Sec. 
1.382-2T(j)(2)(iii)(B) (the product of the 500 shares issued for cash 
and 50 percent (one-half of the 100 percent pre-issuance ownership 
interest of Public L)). The creditors that receive stock in exchange for 
their debt would not be treated as acquiring any of the 250 exempted 
shares even if their exchange of debt for stock occurs prior to the cash 
issuance. Paragraph (j)(5)(i) of this section allocates exempted shares 
among the direct public groups that exist immediately before an 
issuance. Because the issuance for cash and the issuance for debt are 
generally treated as a single issuance, the public group comprised of 
the former creditors of L was not a public group that existed 
immediately before the issuance.
    (v) Three public groups owning L stock exist immediately after the 
two issuances. Public L owns 1,250 shares--the 1,000 shares it owned 
prior to the issuances plus the 250 shares it is treated as acquiring in 
the cash issuance. A separate group comprised of the former creditors of 
L owns the 500 shares issued for debt. A third public group owns the 250 
shares that are not treated as acquired by Public L in the cash 
issuance.
    Example 4. (i) L has 1,000 shares of a single class of common stock 
outstanding, all of which are owned by a direct public group (Public L). 
L issues 1,000 shares pursuant to an offer under which 500 shares must 
be acquired in exchange for debt and the remainder may be acquired for 
cash. Under the terms of the offer, only persons that acquire stock for 
debt are eligible to acquire stock for cash. L has no 5-percent 
shareholders other than direct public groups immediately after the 
issuance.
    (ii) As a condition of acquiring shares for cash, the creditors are 
required to purchase stock for debt. Therefore, paragraph (j)(3) of this 
section does not apply to any part of the issuance because it is not an 
issuance of stock solely for cash. The segregation rules of Sec. 1.382-
2T(j)(2)(iii)(B) apply to treat all 1,000 shares as acquired by a new 
public group separate from Public L.

    (14) Effective date--(i) In general. Except as otherwise provided in 
this paragraph (j)(14), this paragraph (j) applies to issuances or 
deemed issuances of stock in taxable years beginning on or after 
November 4, 1992.
    (ii) Effective date for paragraph (j)(10) of this section. Paragraph 
(j)(10) of this section applies to stock issued on the exercise of an 
option issued on or after November 4, 1992, unless the option was issued 
before May 4, 1993, and the issuer, on or before November 4, 1992,

[[Page 523]]

filed a registration statement with the Securities and Exchange 
Commission (or a comparable document with a State agency regulating 
securities) for the specific purpose of such issuance.
    (iii) Election to apply this paragraph (j) retroactively--(A) 
Election. A loss corporation may elect to apply paragraphs (j)(1) 
through (j)(13) of this section to all issuances or deemed issuances of 
stock to which Sec. 1.382-2T(j)(2)(iii)(B) or (D) applied (or would 
have applied taking paragraph (j)(7) of this section into account) 
occurring in taxable years beginning prior to November 4, 1992. This 
election is made by filing with the loss corporation's first income tax 
return filed more than 60 days after October 4, 1993, the statement, 
``This is an Election to Apply Sec. 1.382-3(j) Retroactively,'' 
accompanied by the amended returns and revised information statements 
described in paragraphs (j)(14)(iii)(B) and (C) of this section. An 
election under this paragraph (j)(14)(iii) is irrevocable.
    (B) Amended returns. If the retroactive application of the rules of 
this paragraph (j) affects the amount of taxable income or loss for a 
prior taxable year, then, except as precluded by the applicable statute 
of limitations, the loss corporation (or the common parent of any 
consolidated group of which the loss corporation was a member for the 
year) must file an amended return for the year that reflects the effects 
of the retroactive application of the rules of this paragraph (j). If 
the statute of limitations precludes the filing of an amended return for 
one or more such prior taxable years, the loss corporation (or the 
common parent) must make appropriate adjustments under the principles of 
section 382(l)(2)(A) in subsequent taxable years to reflect the 
difference between the losses and credits actually used in such prior 
taxable years and the amount that would have been used in those years 
applying the rules of this paragraph (j).
    (C) Revised information statements. If the retroactive application 
of the rules of this paragraph (j) affects the information reported on 
an information statement filed for any prior taxable year pursuant to 
Sec. 1.382-2T(a)(2)(ii), then the loss corporation (or the common 
parent of any consolidated group of which the loss corporation was a 
member for the year) must file a revised information statement for the 
year that reflects the retroactive application of the rules of this 
paragraph (j).
    (k) Special rules for certain regulated investment companies--(1) In 
general. The segregation rules of Sec. 1.382-2T(j)(2) do not apply to 
the issuance (as described in Sec. 1.382-2T(j)(2)(iii)(B)(1)(ii)) or 
the redemption (as described in Sec. 1.382-2T(j)(2)(iii)(C)) of any 
redeemable security, as defined in 15 U.S.C. 80a-2(a)(32), by a 
regulated investment company in the ordinary course of business.
    (2) Effective date--(i) General rule. Paragraph (k)(1) of this 
section applies to testing dates after December 31, 1986. A corporation 
may file an amended return for taxable years ending before August 21, 
1992 (subject to any applicable statute of limitations) to take into 
account paragraph (k)(1) of this section only if corresponding 
adjustments are made in amended returns for all affected taxable years 
ending after December 31, 1986 (subject to any applicable statute of 
limitations).
    (ii) Election to apply prospectively. A corporation may elect to 
apply paragraph (k)(1) of this section only to testing dates on or after 
October 29, 1991. The election must be made on the first return which is 
filed after October 20, 1992 by stating on such return, ``This is an 
Election To Apply Sec. 1.382-3(k)(1) Only to Testing Dates on or After 
October 29, 1991.''

[T.D. 8428, 57 FR 38282, Aug. 24, 1992. Redesignated by T.D. 8440, 57 FR 
45712, Oct. 5, 1992; 57 FR 52827, Nov. 5, 1992; T.D. 8490, 59 FR 51573, 
Oct. 4, 1993]



Sec. 1.382-4  Constructive ownership of stock.

    (a) In general. [Reserved]
    (b) Attribution from corporations, partnerships, estates and trusts. 
(1) [Reserved].
    (2) Limitation. Section 1.382-2T(h)(2)(i)(A) applies solely for 
purposes of determining whether a loss corporation has an ownership 
change.
    (c) Attribution to corporations, partnerships, estates and trusts. 
[Reserved]
    (d) Treatment of options as exercised--(1) General rule. Except as 
provided in

[[Page 524]]

paragraph (d)(2) of this section, an option is not treated as exercised 
under section 382(l)(3)(A).
    (2) Options treated as exercised--(i) Issuance or transfer. For 
purposes of determining whether an ownership change occurs, an option is 
treated as exercised on the date of its issuance or transfer if, on that 
date, the option satisfies--
    (A) The ownership test of paragraph (d)(3) of this section,
    (B) The control test of paragraph (d)(4) of this section, or
    (C) The income test of paragraph (d)(5) of this section.
    (ii) Subsequent testing dates. Except as provided in paragraph 
(d)(10) of this section, an option that is treated as exercised on the 
date of its issuance or transfer is treated as exercised on any 
subsequent testing date (as defined in Sec. 1.382-2(a)(4)) for purposes 
of determining whether an ownership change occurs.
    (3) The ownership test. An option satisfies the ownership test if a 
principal purpose of the issuance, transfer, or structuring of the 
option (alone or in combination with other arrangements) is to avoid or 
ameliorate the impact of an ownership change of the loss corporation by 
providing the holder of the option, prior to its exercise or transfer, 
with a substantial portion of the attributes of ownership of the 
underlying stock.
    (4) The control test--(i) In general. An option satisfies the 
control test if--
    (A) A principal purpose of the issuance, transfer, or structuring of 
the option (alone or in combination with other arrangements) is to avoid 
or ameliorate the impact of an ownership change of the loss corporation, 
and
    (B) The holder of the option and any persons related to the option 
holder have, in the aggregate, a direct and indirect ownership interest 
in the loss corporation of more than 50 percent (determined as if the 
increase in such persons' percentage ownership interest that would 
result from the exercise of the option in question and any other options 
to acquire stock held by such persons, and any other intended increases 
in such persons' percentage ownership interest, actually occurred on the 
date the option is issued or transferred).
    (ii) Operating rules--(A) Person and related persons. For purposes 
of this paragraph (d)(4)--
    (1) The term person includes an individual or entity, but not a 
public group, as defined in Sec. 1.382-2T(f)(13), and
    (2) Persons are related if they bear a relationship specified in 
section 267(b) or 707(b) or if they have a formal or informal 
understanding among themselves to make a coordinated acquisition of 
stock, within the meaning of Sec. 1.382-3(a)(1)(i).
    (B) Indirect ownership interest. The indirect ownership interest 
that the holder of the option and any persons related to the holder have 
in the loss corporation is determined by applying the constructive 
ownership rules of Sec. 1.382-2T(h), other than Sec. 1.382-
2T(h)(2)(i)(A) (which treats stock attributed pursuant to section 
318(a)(2) as no longer being owned by the entity from which it is 
attributed) and Sec. 1.382-2T(h)(4) (which treats options as exercised 
in certain circumstances). If, however, the application of such 
constructive ownership rules without regard to Sec. 1.382-
2T(h)(2)(i)(A) would result in the same stock of the loss corporation 
being owned by two or more such persons, appropriate adjustments must be 
made so that such stock is not counted more than once in computing the 
aggregate ownership interests of such persons.
    (5) The income test. An option satisfies the income test if a 
principal purpose of the issuance, transfer, or structuring of the 
option (alone or in combination with other arrangements) is to avoid or 
ameliorate the impact of an ownership change of the loss corporation by 
facilitating the creation of income (including accelerating income or 
deferring deductions) or value (including unrealized built-in gains) 
prior to the exercise or transfer of the option.
    (6) Application of the ownership, control, and income tests--(i) In 
general. Whether an option satisfies the ownership, control, or income 
test depends on all the relevant facts and circumstances. Among the 
factors that are relevant in applying all three tests are any business 
purposes for the issuance, transfer, or structure of the

[[Page 525]]

option, the likelihood of exercise of the option (taking into account, 
for example, any contingencies to its exercise), transactions related to 
the issuance or transfer of the option, and the consequences of treating 
the option as exercised.
    An option is not treated as exercised under any of the three tests, 
however, if a principal purpose of its issuance, transfer, or 
structuring is to avoid an ownership change by having it treated as 
exercised. Paragraphs (d)(6)(ii), (iii) and (iv) of this section 
describe additional examples of factors that are relevant in applying 
each test. The weight given to any factor depends on all the facts and 
circumstances. The presence or absence of any factor described in this 
paragraph (d)(6) does not create a presumption.
    (ii) Application of ownership test. Among the additional factors 
that are taken into account in applying the ownership test are the 
relationship, at the time of issuance or transfer of the option, between 
the exercise price of the option and the value of the underlying stock, 
whether the option provides its holder or a related person with the 
right to participate in the management of the loss corporation or with 
other rights that ordinarily would be afforded to owners of the 
underlying stock, and the existence of reciprocal options (e.g., a call 
option held by the prospective purchaser and a corresponding put option 
held by the prospective seller). The ability of the holder of an option 
with a fixed exercise price to share in future appreciation of the 
underlying stock is also a relevant factor, but is not sufficient, by 
itself, for the option to satisfy the ownership test. Conversely, the 
fact that the holder of such an option does not bear the risk of loss 
due to declines in value of the underlying stock does not preclude the 
option from satisfying the ownership test.
    (iii) Application of control test. Among the additional factors that 
are taken into account in applying the control test are the economic 
interests in the loss corporation of the option holder or related 
persons and the influence of those persons over the management of the 
loss corporation (in either case, through the option or a related 
arrangement, or through rights in stock).
    (iv) Application of income test. Among the additional factors that 
are taken into account in applying the income test are whether, in 
connection with the issuance or transfer of the option, the loss 
corporation engages in income acceleration transactions or the holder of 
the option or a related person purchases stock (including section 
1504(a)(4) stock) from, or makes a capital contribution or loan to, the 
loss corporation that can reasonably be expected to avoid or ameliorate 
the impact of an ownership change. Examples of income acceleration 
transactions are those outside the ordinary course of the loss 
corporation's business that accelerate income or gain into the period 
prior to the exercise of the option (or defer deductions to the period 
after the exercise of the option). A stock purchase, capital 
contribution, or loan is more probative toward an option satisfying the 
income test the larger the amount received by the loss corporation in 
the transaction or related transactions. A stock purchase, capital 
contribution, or loan is generally not taken into account in applying 
the income test if it is made to enable the loss corporation to continue 
basic operations of its business (e.g., to meet the monthly payroll or 
fund other operating expenses of the loss corporation).
    (7) Safe harbors. Except as provided in paragraph (d)(7)(i) of this 
section, an option described in this paragraph (d)(7) is not treated as 
exercised pursuant to the ownership, control, or income test. The 
failure of an option to be described in this paragraph (d)(7) does not 
affect the determination of whether the option satisfies the ownership, 
income, or control test. The following options are described in this 
paragraph (d)(7):
    (i) Contracts to acquire stock. A stock purchase agreement or a 
similar arrangement, the terms of which are commercially reasonable, in 
which the parties' obligations to complete the transaction are subject 
only to reasonable closing conditions, and which is closed on a change 
date within one year after it is entered into. An option is not exempt 
from the income test of paragraph (d)(5) of this section solely

[[Page 526]]

by reason of its description in this paragraph (d)(7)(i).
    (ii) Escrow, pledge, or other security agreements. An option that is 
part of a security arrangement in a typical lending transaction 
(including a purchase money loan), if the arrangement is subject to 
customary commercial conditions. For this purpose, a security 
arrangement includes, for example, an agreement for holding stock in 
escrow or under a pledge or other security agreement, or an option to 
acquire stock contingent upon a default under a loan.
    (iii) Compensatory options. An option to acquire stock in a 
corporation with customary terms and conditions provided to an employee, 
director, or independent contractor in connection with the performance 
of services for the corporation or a related person (and that is not 
excessive by reference to the services performed) and which--
    (A) Is nontransferable within the meaning of Sec. 1.83-3(d); and
    (B) Does not have a readily ascertainable fair market value as 
defined in Sec. 1.83-7(b) on the date the option is issued.
    (iv) Options exercisable only upon death, disability, mental 
incompetency, or retirement. An option entered into between stockholders 
of a corporation (or a stockholder and the corporation) with respect to 
stock of either stockholder, that is exercisable only upon the death, 
disability, mental incompetency of the stockholder, or, in the case of 
stock acquired in connection with the performance of services for the 
corporation or a related person (and that is not excessive by reference 
to the services performed), the stockholder's retirement.
    (v) Rights of first refusal. A bona fide right of first refusal with 
customary terms, entered into between stockholders of a corporation (or 
between the corporation and a stockholder), and regarding the 
corporation's stock.
    (vi) Options designated in the Internal Revenue Bulletin. An option 
designated by the Internal Revenue Service in the Internal Revenue 
Bulletin as being exempt from one or more of the ownership, control, or 
income tests. See Sec. 601.601(d)(2)(ii) of this chapter (relating to 
the Internal Revenue Bulletin).
    (8) Additional rules--(i) Contracts to acquire stock. For purposes 
of this paragraph (d), a contract is considered to be issued or 
transferred on the date it is entered into or assigned, respectively.
    (ii) Indirect transfer of an option. If an entity is formed or 
availed of for a principal purpose of facilitating an indirect transfer 
of an option by issuing or transferring interests in the entity, an 
issuance or transfer of an interest in the entity will be treated as a 
transfer of the option for purposes of applying the ownership, control, 
and income tests of paragraphs (d)(3) through (5) of this section.
    (iii) Options related to interests in non-corporate entities. The 
rules of this paragraph (d) apply, with appropriate adjustments, to 
options to acquire or transfer interests in non-corporate entities.
    (iv) Puts. In applying the rules of this section to puts, 
appropriate adjustments must be made to take into account that the put 
provides its holder with a right to transfer, instead of acquire, stock.
    (9) Definition of option--(i) In general. Any contingent purchase, 
warrant, convertible debt, put, stock subject to a risk of forfeiture, 
contract to acquire stock, or similar interest is treated as an option 
for purposes of this paragraph (d), regardless of whether it is 
contingent or otherwise not currently exercisable.
    (ii) Convertible stock. Convertible stock is treated as an option 
for purposes of this paragraph (d) (in addition to being treated as 
stock under Sec. 1.382-2(a)(3)(ii)) only if the terms of the conversion 
feature permit or require consideration other than the stock being 
converted.
    (iii) Series of options. For purposes of this paragraph (d), an 
option to acquire an option with respect to the stock of the loss 
corporation, and each one of a series of such options, is treated as an 
option to acquire such stock.
    (iv) General principles of tax law. This paragraph (d) does not 
affect the determination under general principles of tax law (such as 
substance over form) of whether an instrument is an option or stock.
    (10) Subsequent treatment of options treated as exercised on a 
change date--(i)

[[Page 527]]

In general. The following rules apply to options that are treated as 
exercised under paragraph (d)(2) of this section on a change date:
    (A) The option is not treated as exercised under paragraph (d)(2) of 
this section on any testing date after the change date and prior to a 
transfer of the option that would itself (i.e., without regard to the 
purposes for the issuance or any prior transfers of the option) cause 
the option to satisfy the ownership test of paragraph (d)(3) of this 
section, the control test of paragraph (d)(4) of this section, or the 
income test of paragraph (d)(5) of this section; and
    (B) The exercise of the option, if by the person who owned the 
option immediately after the ownership change (or by a transferee of the 
option who acquired the option, directly or indirectly, from that person 
in one or more transfers described in paragraph (d)(11) of this 
section), does not contribute to another ownership change on any testing 
date on or after the date of exercise.
    (ii) Alternative look-back rule for options exercised within 3 years 
after change date. If a loss corporation, on its return, as originally 
filed, for a taxable year that includes a change date, properly treats 
an option as exercised under paragraph (d)(2) of this section on the 
change date, and the option is actually exercised within three years 
after the change date, the loss corporation may treat the rules of 
paragraph (d)(10)(i) of this section as inapplicable to the option and 
instead treat the option as having been exercised on the change date for 
the purpose of determining whether an ownership change occurs on any and 
all testing dates after the change date (filing such amended returns as 
may be necessary for taxable years ending after the change date and 
before the date of exercise of the option). A transfer after the change 
date of an option to which this paragraph (d)(10)(ii) applies is treated 
as a transfer of the stock subject to the option. The exercise of an 
option to which this paragraph (d)(10)(ii) applies is not taken into 
account for the purpose of determining whether an ownership change 
occurs on or after the date of exercise.
    (11) Transfers not subject to deemed exercise. Paragraph (d)(2) of 
this section does not apply to the transfer of an option (including a 
transfer described in paragraph (d)(8)(i) or (ii) of this section), if--
    (i) Neither the transferor nor the transferee is a 5-percent 
shareholder and neither person would be a 5-percent shareholder if all 
options held by that person to acquire stock were treated as exercised;
    (ii) The transfer is between members of separate public groups 
resulting from the application of the segregation rules of Sec. 1.382-
2T(j)(2) and (3)(iii); or
    (iii) The transfer occurs in any of the circumstances described in 
section 382(l)(3)(B) (relating to stock acquired by reason of death, 
gift, divorce, separation, etc.).
    (12) Certain rules regarding non-stock interests as stock. Section 
1.382-2T(f)(18)(iii) does not apply to treat an option (whether or not 
treated as exercised under this paragraph (d)) as stock.
    (e) Stock transferred under certain agreements. [Reserved]
    (f) Family attribution. [Reserved]
    (g) Definitions. The terms and nomenclature used in this section, 
and not otherwise defined herein, have the same meaning as in section 
382 and the regulations thereunder.
    (h) Effective date--(1) In general. [Reserved]
    (2) Option attribution rules--(i) General rule. The rules of 
paragraph (d) of this section apply, instead of the rules of Sec. 
1.382-2T(h)(4), on any testing date on or after November 5, 1992. See 
paragraph (h)(2)(vi) of this section for an election relating to the 
effective date.
    (ii) Special rule for control test. An option issued on or before 
March 17, 1994, or an option issued within 60 days after that date 
pursuant to a plan existing before that date, is not treated as 
exercised under the control test provided in paragraph (d)(4) of this 
section on any testing date prior to a transfer of the option after 
March 17, 1994 that would itself cause the option to satisfy the control 
test.
    (iii) Convertible stock issued prior to July 20, 1988--(A) In 
general. Except as provided in paragraph (h)(2)(iii)(B) of this section, 
convertible stock issued

[[Page 528]]

prior to July 20, 1988, is not treated as an option subject to the rules 
of Sec. 1.382-2T(h)(4) or paragraph (d)(2) of this section.
    (B) Exceptions--(1) Nonvoting convertible preferred stock. 
Convertible stock issued prior to July 20, 1988, is treated as an option 
subject to the rules of Sec. 1.382-2T(h)(4) or paragraph (d)(2) of this 
section if--
    (i) The stock, when issued, would be described in section 1504(a)(4) 
by disregarding subparagraph (D) thereof and by ignoring the potential 
participation in corporate growth that the conversion feature may offer; 
and
    (ii) The loss corporation makes the election described in Notice 88-
67, 1988-1 C.B. 555 (see Sec. 601.601(d)(2)(ii)(b) of this chapter for 
availability of Cumulative Bulletins (C.B.)), on or before the earlier 
of the date prescribed in Notice 88-67 or December 7, 1992.
    (2) Other convertible stock. Convertible stock issued prior to July 
20, 1988, is treated as an option subject to the rules of Sec. 1.382-
2T(h)(4) or paragraph (d)(2) of this section if--
    (i) The terms of the conversion feature permit or require the tender 
of consideration other than the stock being converted; and
    (ii) The loss corporation makes the election described in Notice 88-
67 on or before the date prescribed in the Notice.
    (iv) Convertible stock issued on or after July 20, 1988, and before 
November 5, 1992. Convertible stock issued on or after July 20, 1988, 
and before November 5, 1992, is treated as an option subject to the 
rules of Sec. 1.382-2T(h)(4) or paragraph (d) of this section only if--
    (A) The stock, when issued, would be described in section 1504(a)(4) 
by disregarding subparagraph (D) thereof and by ignoring the potential 
participation in corporate growth that the conversion feature may offer; 
or
    (B) The terms of the conversion feature permit or require the tender 
of consideration other than the stock being converted.
    (v) Certain options in existence immediately before and after an 
ownership change. If an option existed immediately before and after an 
ownership change occurring on a testing date to which Sec. 1.382-
2T(h)(4) applies--
    (A) The option is not treated as exercised under paragraph (d)(2) of 
this section on any testing date after the change date and prior to a 
transfer of the option that would itself cause the option to satisfy the 
ownership test of paragraph (d)(3) of this section, the control test of 
paragraph (d)(4) of this section, or the income test of paragraph (d)(5) 
of this section; and
    (B) Except as provided in Sec. 1.382-2T(m)(4)(vi) (which relates to 
the effective date of the rules provided in Sec. 1.382-2T(h)(4) and 
includes a special rule related to options that are actually exercised 
within 120 days after they are treated as exercised under that section), 
the actual exercise of the option, if by the person who owned the option 
immediately after the ownership change (or by a transferee of the option 
who acquired the option, directly or indirectly, from that person in one 
or more transfers described in paragraph (d)(11) of this section), will 
not contribute to an ownership change on any testing date on or after 
the date of exercise.
    (vi) Election to apply Sec. 1.382-2T(h)(4)--(A) In general. If a 
loss corporation makes an election under this paragraph (h)(2)(vi), 
Sec. Sec. 1.382-2T(a)(2)(i) and (h)(4) (relating to testing dates and 
option attribution) apply (instead of the definition of testing date in 
Sec. 1.382-2(a)(4) and paragraph (d) of this section) for the purpose 
of determining whether an ownership change occurs--
    (1) On any testing date on or before May 17, 1994, or
    (2) In the case of a loss corporation that is under the jurisdiction 
of a court in a title 11 or similar case filed on or before May 17, 
1994, subject to Sec. 1.382-9(o)(1), on any testing date at or before 
the time the plan of reorganization becomes effective.
    (B) Additional consequences of election. If a loss corporation makes 
an election under this paragraph (h)(2)(vi)--
    (1) In determining whether any convertible preferred stock issued by 
the loss corporation during the period that the election is in effect is 
treated as stock or as an option, the convertible preferred stock is 
treated as if it were issued on November 4, 1992, and
    (2) The special effective date for the control test provided in 
paragraph

[[Page 529]]

(h)(2)(ii) of this section does not apply to any option with respect to 
stock of the loss corporation.
    (C) Time and manner of making the election. The election described 
in paragraph (h)(2)(vi)(A) of this section is made by attaching a 
statement to the loss corporation's income tax return for the first 
taxable year ending after November 4, 1992, in which a testing date 
(within the meaning of Sec. 1.382-2T(a)(2)(i)) occurs, or if such 
return is filed on or before May 17, 1994, with its first return filed 
after May 17, 1994. However, a loss corporation that is under the 
jurisdiction of a court in a title 11 or similar case filed on or before 
May 17, 1994, may make the election described in paragraph (h)(2)(vi)(A) 
by attaching a statement to its tax return for its first taxable year 
ending after that date. The statement must say ``THIS IS AN ELECTION 
UNDER Sec. 1.382-4(h)(2)(vi) TO APPLY Sec. 1.382-2T(h)(4) ON OR AFTER 
NOVEMBER 5, 1992.'' Any amended returns required by paragraph 
(h)(2)(vi)(D) of this section must accompany the return with which the 
election is made. An election under paragraph (h)(2)(vi)(A) of this 
section is irrevocable.
    (D) Amended returns. If an election under this paragraph (h)(2)(vi) 
affects the amount of taxable income or loss for a prior taxable year, 
the loss corporation (or the common parent of any consolidated group of 
which the loss corporation was a member for the year) must file an 
amended return for the year that reflects the effect of the election.
    (3) Special rule for options subject to attribution under Sec. 
1.382-2T(h)(4). Section Sec. 1.382-2T(h)(4)(i) does not apply to any 
option designated by the Internal Revenue Service in the Internal 
Revenue Bulletin as being excepted from the operation of Sec. 1.382-
2T(h)(4)(i).

[T.D. 8531, 59 FR 12837, Mar. 18, 1994, as amended by T.D. 8825, 64 FR 
36178, July 2, 1999]



Sec. 1.382-5  Section 382 limitation.

    (a) Scope. Following an ownership change, the section 382 limitation 
for any post-change year is an amount equal to the value of the loss 
corporation multiplied by the long-term tax-exempt rate that applies 
with respect to the ownership change, and adjusted as required by 
section 382 and the regulations thereunder. See, for example, section 
382(b)(2) (relating to the carryforward of unused section 382 
limitation), section 382(b)(3)(B) (relating to the section 382 
limitation for the post-change year that includes the change date), 
section 382(m)(2) (relating to short taxable years), and section 382(h) 
(relating to recognized built-in gains and section 338 gains).
    (b) Computation of value. [Reserved]
    (c) Short taxable year. The section 382 limitation for any post-
change year that is less than 365 days is the amount that bears the same 
ratio to the section 382 limitation determined under section 382(b)(1) 
as the number of days in the post-change year bears to 365. The section 
382 limitation, as so determined, is adjusted as required by section 382 
and the regulations thereunder. This paragraph (c) does not apply to a 
52-53 week taxable year that is less than 365 days unless a return is 
required under section 443 (relating to short periods) for such year.
    (d) Successive ownership changes and absorption of a section 382 
limitation--(1) In general. If a loss corporation has two (or more) 
ownership changes, any losses attributable to the period preceding the 
earlier ownership change are treated as pre-change losses with respect 
to both ownership changes. Thus, the later ownership change may result 
in a lesser (but never in a greater) section 382 limitation with respect 
to such losses. In any case, the amount of taxable income for any post-
change year that can be offset by pre-change losses may not exceed the 
section 382 limitation for such ownership change, reduced by the amount 
of taxable income offset by pre-change losses subject to any earlier 
ownership change(s).
    (2) Recognized built-in gains and losses. [Reserved]
    (3) Effective date. This paragraph (d) applies to taxable years of a 
loss corporation beginning on or after January 1, 1997.
    (e) Controlled groups. See Sec. 1.382-8 for rules for determining 
the value of a loss corporation that is a member of a controlled group.

[[Page 530]]

    (f) Effective date. Except as otherwise provided, this section 
applies to a loss corporation that has an ownership change to which 
section 382(a), as amended by the Tax Reform Act of 1986, applies.

[T.D. 8679, 61 FR 33316, June 27, 1996, as amended by T.D. 8825, 64 FR 
36178, July 2, 1999]



Sec. 1.382-6  Allocation of income and loss to periods before and after 
the change date for purposes of section 382.

    (a) General rule. Except as provided in paragraphs (b) and (d) of 
this section, a loss corporation must allocate its net operating loss or 
taxable income (see section 382(k)(4)), and its net capital loss (see 
section 1222(10)) or modified capital gain net income (as defined in 
paragraph (g)(4) of this section), for the change year between the pre-
change period and the post-change period by ratably allocating an equal 
portion to each day in the year.
    (b) Closing-of-the-books election--(1) In general. Subject to 
paragraphs (b)(3)(ii) and (d) of this section, a loss corporation may 
elect to allocate its net operating loss or taxable income and its net 
capital loss or modified capital gain net income for the change year 
between the pre-change period and the post-change period as if the loss 
corporation's books were closed on the change date. An election under 
this paragraph (b)(1) does not terminate the loss corporation's taxable 
year as of the change date (e.g., the change year is a single tax year 
for purposes of section 172).
    (2) Making the closing-of-the-books election--(i) Time and manner. A 
loss corporation makes the closing-of-the-books election by including 
the following statement on the information statement required by Sec. 
1.382-2T(a)(2)(ii) for the change year: ``THE CLOSING-OF-THE-BOOKS 
ELECTION UNDER Sec. 1.382-6(b) IS HEREBY MADE WITH RESPECT TO THE 
OWNERSHIP CHANGE OCCURRING ON [INSERT DATE].'' The election must be made 
on or before the due date (including extensions) of the loss 
corporation's income tax return for the change year.
    (ii) Election irrevocable. An election under this paragraph (b) is 
irrevocable.
    (3) Special rules relating to consolidated and controlled groups--
(i) Consolidated groups. If an election under this paragraph (b) is made 
with respect to an ownership change occurring in a consolidated return 
year, all allocations under this section with respect to that ownership 
change must be consistent with the election.
    (ii) Controlled groups. If paragraph (b)(3)(i) of this section does 
not apply, and if, as part of the same plan or arrangement, two or more 
members of a controlled group (as defined in section 1563(a), determined 
by substituting ``50 percent'' for ``80 percent'' each place that it 
appears, and without regard to section 1563(a)(4)), have ownership 
changes and continue to be members of the controlled group (or become 
members of the same other controlled group), a closing-of-the-books 
election applies only if the election is made by all members having the 
ownership changes.
    (c) Operating rules for determining net operating loss, taxable 
income, net capital loss, modified capital gain net income, and special 
allocations. For purposes of this section, for the change year--
    (1) In general--(i) Net operating loss or taxable income is 
determined without regard to gains or losses on the sale or exchange of 
capital assets; and
    (ii) Net operating loss or taxable income and net capital loss or 
modified capital gain net income are determined without regard to the 
section 382 limitation and do not include the following items, which are 
allocated entirely to the post-change period--
    (A) Any income, gain, loss, or deduction to which section 
382(h)(5)(A) applies; and
    (B) Any income or gain recognized on the disposition of assets 
transferred to the loss corporation during the post-change period for a 
principal purpose of ameliorating the section 382 limitation.
    (2) Adjustment to net operating loss--(i) Determination of remaining 
capital gain. The amount of modified capital gain net income (defined in 
paragraph (g)(4) of this section) allocated to each period is offset by 
capital losses to which section 382(h)(5)(A) applies and capital loss 
carryovers, subject to the section 382 limitation (in the case of 
modified

[[Page 531]]

capital gain net income allocated to the post-change period).
    (ii) Reduction of net operating loss by remaining capital gain. The 
amount of net operating loss allocated to each period is reduced (but 
not below zero) without regard to the section 382 limitation, first by 
the modified capital gain net income remaining in the same period, and 
then by the modified capital gain net income remaining in the other 
period.
    (d) Coordination with rules relating to the allocation of income 
under Sec. 1.1502-76(b). If Sec. 1.1502-76 applies (relating to the 
taxable year of members of a consolidated group), an allocation of items 
under paragraph (a) or (b) of this section is determined after applying 
Sec. 1.1502-76. Thus, if a short taxable year under Sec. 1.1502-76 is 
a change year for which an allocation under this section is to be made, 
the allocation under this section applies only to the items allocated to 
that short taxable year under Sec. 1.1502-76.
    (e) Allocation of certain credits. The principles of this section 
apply for purposes of allocating, under section 383, excess foreign 
taxes under section 904(c), current year business credits under section 
38, and the minimum tax credit under section 53. The loss corporation 
must use the same method of allocation (ratable allocation or closing-
of-the-books) for purposes of sections 382 and 383.
    (f) Examples. The rules of this section are illustrated by the 
following examples:

    Example 1. (i) Assume that the loss corporation, L, a calendar year 
taxpayer with a May 26, 1995, change date, determines a section 382 
limitation under section 382(b)(1) of $100,000. Thus, for the change 
year, its section 382 limitation is $100,000 x (219/365)=$60,000. L 
makes the closing-of-the- books election under paragraph (b) of this 
section.
    (ii) Assume that L has a $150,000 capital loss carryover (from its 
1994 taxable year) and a $300,000 net operating loss carryover (from its 
1994 taxable year) to the change year. L recognizes, in the pre-change 
period, $200,000 of ordinary loss, and, in the post-change period, 
$150,000 of capital gain and $100,000 of ordinary income. Assume that 
section 382(h) does not apply to the capital gain or the ordinary 
income.
    (iii) L has a $100,000 net operating loss for the change year 
($200,000 pre-change loss less $100,000 post-change income), as 
determined under paragraph (c)(1)(i) of this section. Because L has no 
current year capital losses, L's $150,000 capital gain recognized in the 
post-change period is its modified capital gain net income for the 
change year (as defined at paragraph (g)(4) of this section). L 
allocates $100,000 of net operating loss to the pre-change period and 
$150,000 of modified capital gain net income to the post-change period.
    (iv) Under paragraph (c)(2)(i) of this section, L uses its capital 
loss carryover to offset its modified capital gain net income allocated 
to the post-change period, subject to its section 382 limitation. L's 
section 382 limitation is $60,000, so L uses $60,000 of its capital loss 
carryover to offset $60,000 of its $150,000 modified capital gain net 
income. L has absorbed its entire section 382 limitation for the change 
year and has $90,000 of modified capital gain net income remaining in 
the post-change period.
    (v) Under paragraph (c)(2)(ii) of this section, L offsets its 
$100,000 net operating loss allocated to the pre-change period by the 
$90,000 of modified capital gain net income remaining in the post-change 
period, without regard to the section 382 limitation, thereby reducing 
its pre-change net operating loss to $10,000.
    (vi) From its 1994 taxable year, L will carry over $90,000 of 
capital loss and $300,000 of net operating loss to its 1996 taxable 
year. From its 1995 taxable year, L will carry over $10,000 of net 
operating loss subject to the section 382 limitation to its 1996 taxable 
year.
    Example 2. (i) Assume the facts of Example 1, except that L does not 
make the closing-of-the-books election under paragraph (b) of this 
section.
    (ii) L ratably allocates its $100,000 net operating loss and its 
$150,000 of modified capital gain net income for the change year. 
$40,000 of net operating loss ($100,000 x (146/365)) and $60,000 of 
modified capital gain net income ($150,000 x (146/365)) are allocated to 
the pre-change period. $60,000 of net operating loss ($100,000 x (219/
365)) and $90,000 of modified capital gain net income ($150,000 x (219/
365)) are allocated to the post-change period.
    (iii) Under paragraph (c)(2)(i) of this section, L uses its capital 
loss carryovers to offset modified capital gain net income. The capital 
loss carryovers offset the $60,000 modified capital gain net income 
allocated to the pre-change period without limitation. Subject to the 
section 382 limitation, the remaining $90,000 of capital loss carryovers 
offset the modified capital gain net income allocated to the post-change 
period. Accordingly, L uses $60,000 of its capital loss carryovers to 
offset $60,000 of its $90,000 modified capital gain net income allocated 
to the post-change period. L has absorbed its entire section 382 
limitation for the change year.

[[Page 532]]

    (iv) Under paragraph (c)(2)(ii) of this section, L's $60,000 net 
operating loss allocated to the post-change period is offset by its 
remaining $30,000 of post-change modified capital gain net income, 
reducing its post-change net operating loss to $30,000.
    (v) From its 1994 taxable year, L will carry over $30,000 of capital 
loss and $300,000 of net operating loss to its 1996 taxable year. From 
its 1995 taxable year, L will carry over $70,000 of net operating loss 
($40,000 pre-change +$30,000 post-change) to its 1996 taxable year. The 
$40,000 pre-change portion of that carryover is subject to the section 
382 limitation.

    (g) Definitions and nomenclature. The terms and nomenclature used in 
this section and not otherwise defined herein have the same meanings as 
in sections 382 and 383 and the regulations thereunder. For purposes of 
this section:
    (1) Change year. A loss corporation's taxable year that includes the 
change date is its change year.
    (2) Pre-change period. The pre-change period is the portion of the 
change year ending on the close of the change date.
    (3) Post-change period. The post-change period is the portion of the 
change year beginning with the day after the change date.
    (4) Modified capital gain net income. A loss corporation's modified 
capital gain net income is the excess of the gains from sales or 
exchanges of capital assets over the losses from such sales or exchanges 
for the change year, determined by excluding any short-term capital 
losses under section 1212.
    (h) Effective date. This section applies to ownership changes 
occurring on or after June 22, 1994.

[T.D. 8546, 59 FR 32080, June 22, 1994]



Sec. 1.382-7  Built-in gains and losses. [Reserved]



Sec. 1.382-8  Controlled groups.

    (a) Introduction. This section provides rules to adjust the value of 
a loss corporation that is a member of a controlled group of 
corporations on a change date so that the same value is not included 
more than once in computing the limitations under section 382 for the 
loss corporations that are members of the controlled group. In general, 
the adjustment is made under paragraph (c) of this section by reducing 
the value of the loss corporation by the value of the stock of each 
component member of the controlled group that the loss corporation owns 
immediately after the ownership change. The loss corporation's value 
may, however, be increased under paragraph (c) of this section by any 
amount of value that the other member elects to restore to the loss 
corporation.
    (b)(1) Controlled group loss and controlled group with respect to a 
controlled group loss--(1) In general. A controlled group loss is a pre-
change loss (or a net unrealized built-in loss) of a loss corporation 
that is attributable to a taxable year of the corporation with respect 
to which the corporation is a component member of a controlled group (as 
defined by paragraphs (e)(2) and (3) of this section). The controlled 
group with respect to each controlled group loss is composed of the loss 
corporation and each other corporation that is a component member of a 
controlled group that includes the loss corporation both--
    (1)(i) With respect to the taxable year to which the controlled 
group loss is attributable; and
    (1)(ii) On the date the loss corporation has an ownership change.
    (2) Presumption regarding net unrealized built-in loss. For purposes 
of determining whether a net unrealized built-in loss of a loss 
corporation is attributable to a taxable year (the determination year) 
with respect to which the corporation is a component member of a 
controlled group, the built-in loss in a prior change date asset is 
deemed to be attributable to a period ending before the determination 
year. A prior change date asset is any asset held by the loss 
corporation at all times during the period beginning on the change date 
of its most recent ownership change after 1986 (the first change date), 
and ending on the first day of the determination year. The built-in loss 
in a prior change date asset is the amount by which the adjusted basis 
of the asset on the first change date exceeds the fair market value of 
the asset on that date. The principles of this paragraph (b)(2) also 
apply to items described in section 382(h)(6)(B).

[[Page 533]]

    (c) Computation of value. For purposes of computing the limitation 
under section 382 with respect to each controlled group loss, the value 
of the stock of each component member of the controlled group with 
respect to that loss is determined immediately before the ownership 
change, and is adjusted by applying the following rules:
    (1) Reduction in value. The value of the stock of each component 
member is reduced by the value (immediately before the ownership change 
and without regard to any restoration of value or other adjustment under 
this section) of the stock of any other component member directly owned 
by the component member immediately after the ownership change.
    (2) Restoration of value. After the value of the stock of each 
component member is reduced pursuant to paragraph (c)(1) of this 
section, the value of the stock of each component member is increased by 
the amount of value, if any, restored to the component member by another 
component member (the electing member) pursuant to this paragraph 
(c)(2). The electing member may elect to restore value to another 
component member in an amount that does not exceed the lesser of--
    (i) The sum of--
    (A) The value, determined immediately before the ownership change, 
of the electing member's stock (after adjustment under paragraph (c)(1) 
of this section and before any restoration of value under this paragraph 
(c)(2)); plus
    (B) Any amount of value restored to the electing member by another 
component member under this paragraph (c)(2); or
    (ii) The value, determined immediately before the ownership change, 
of the electing member's stock (without regard to any adjustment under 
this section) that is directly owned by the other component member 
immediately after the ownership change.
    (3) Reduction in value by the amount restored. The value of the 
stock of the electing member is reduced by any amount of value that the 
electing member elects to restore under paragraph (c)(2) of this section 
to another component member.
    (4) Appropriate adjustments. Appropriate additional adjustments 
consistent with paragraphs (c)(1), (2), and (3) of this section must be 
made to prevent any duplication of value. Thus, for example, adjustments 
must be made to reflect--
    (i) Any indirect ownership interest in another component member;
    (ii) Any cross ownership of stock by component members of the 
controlled group with respect to the controlled group loss; and
    (iii) Any value used to determine a limitation under section 382 
with respect to controlled group losses from the same period.
    (5) Certain reductions in the value of members of a controlled 
group. A loss corporation that has an ownership change is required to 
make adjustments consistent with this paragraph (c) with respect to its 
stock if the stock of another corporation in which it had a direct or 
indirect ownership interest was disposed of before the ownership change, 
and;
    (i) Both corporations were component members of a controlled group--
    (A) With respect to a taxable year to which a controlled group loss 
of the loss corporation is attributable; and
    (B) At any time during the 2 year period before the ownership 
change; and
    (ii) Both corporations are component members of a controlled group 
at any time during the 2 year period following the ownership change.
    (d) No double reduction. To the extent consistent with the purposes 
of this section, section 382 and this section shall not be applied to 
duplicate a reduction in the value of a loss corporation. Thus, for 
example, if the value of a loss corporation is reduced under section 
382(l)(1) to reflect a capital contribution of stock of a component 
member, it is not again reduced by such amount under paragraph (c)(1) of 
this section. If this paragraph (d) applies to prevent a reduction in 
value from being duplicated, the application of the other rules of this 
section, such as those relating to the restoration of value, is 
correspondingly limited in a manner consistent with the principles of 
this section.
    (e) Definitions and nomenclature--(1) Definitions in section 382 and 
the regulations thereunder. Except as otherwise

[[Page 534]]

provided, the definitions and nomenclature contained in section 382 and 
the regulations thereunder apply to this section.
    (2) Controlled group. Controlled group has the same meaning as in 
section 1563(a), determined by substituting ``50 percent'' for ``80 
percent'' each place that it appears, and without regard to section 
1563(a)(4).
    (3) Component member. Component member has the same meaning as in 
section 1563(b), determined by substituting ``December 31 (or the change 
date, if earlier)'' for ``December 31'' each place it appears, and 
without regard to section 1563 (b)(2), (b)(3)(C), and (b)(4).
    (4) Predecessor and successor corporation. As the context may 
require, a reference to a corporation, or component member includes a 
reference to a predecessor or successor corporation.
    (f) Coordination between consolidated groups and controlled groups. 
Some or all of the component members of a controlled group may also be 
members of a consolidated group, and a controlled group loss may be 
subject to a consolidated section 382 limitation or subgroup section 382 
limitation determined under Sec. 1.1502-93. Except as otherwise 
provided in this paragraph (f) and Sec. Sec. 1.1502-91 through 1.1502-
99, Sec. 1.1502-93 applies instead of this section when both sections, 
by their terms, are otherwise applicable. This section is applicable and 
may require an adjustment to value if a member of a consolidated group, 
a loss group, or loss subgroup (as those terms are defined in Sec. Sec. 
1.1502-1(h) and 1.1502-91) is also a component member of a controlled 
group with respect to a controlled group loss. Solely for purposes of 
applying this section, a consolidated group, loss group, or loss 
subgroup is treated as a single corporation. Thus to determine the 
limitation with respect to any portion of the pre-change consolidated 
attributes or pre-change subgroup attributes of the loss group or loss 
subgroup that is a controlled group loss, the consolidated section 382 
limitation or subgroup section 382 limitation is computed by treating 
the loss group or the loss subgroup as a single corporation, and 
adjusting value in accordance with paragraph (c) of this section. See 
paragraph (g) Example 4 of this section.
    (g) Examples. For purposes of the examples in this section, unless 
otherwise stated, the nomenclature and assumptions of the examples in 
Sec. 1.382-2T(b) apply, all corporations file separate income tax 
returns on a calendar year basis, the only 5-percent shareholder of a 
corporation is a public group, and the facts set forth the only owner 
shifts with respect to the corporations during the testing period.

    Example 1. Controlled group with respect to a controlled group loss. 
(a) Public L owns all of the L stock, L and Public L1 own 30 percent and 
70 percent, respectively, of the L1 stock, and L1 owns all of the 
corporation T stock. L1 has a net operating loss arising in Year 1 that 
is carried over to Year 4. L has a net operating loss arising in Year 2 
that is carried over to Year 4. On August 1, Year 3, L acquires 30 
percent of the stock of L1, thereby increasing its percentage ownership 
interest in L1 to 60 percent. On December 1, Year 3, L1 purchases all of 
the stock of corporation S from Public S. On November 1, Year 4, P 
acquires all of the L stock. The acquisition by P of all of the L stock 
on November 1, Year 4, causes ownership changes of both L and L1 under 
the rules of Sec. 1.382-2T. The following is a graphic illustration of 
these facts.

[[Page 535]]

[GRAPHIC] [TIFF OMITTED] TR02JY99.019

    (b)(1) Under paragraph (b) of this section, the Year 1 net operating 
loss carryover of L1 is a controlled group loss because L1 is a 
component member of a controlled group with respect to Year 1, the year 
to which the loss is attributable. L1 and T compose a controlled group 
with respect to the net operating loss carryover because L1 and T are

[[Page 536]]

component members of a controlled group both--
    (A) With respect to the taxable year to which L1's net operating 
loss carryover is attributable (i.e., Year 1); and
    (B) On November 1, Year 4, L1's change date. Although L and S are 
component members of L1's controlled group on L1's change date, they are 
not component members of the controlled group with respect to the Year 1 
net operating loss carryover because they were not component members 
with respect to the year to which the net operating loss carryover is 
attributable.
    (2) The value of L1's stock must therefore be adjusted in accordance 
with paragraph (c) of this section to take into account an adjustment 
with respect to the T stock (but not the S stock) in computing L1's 
limitation under section 382 with respect to its net operating loss 
carryover.
    (c) Although L is a member of a controlled group composed of L, L1, 
S, and T on November 1, Year 4, L's change date, it is not a component 
member of a controlled group with respect to Year 2, the taxable year to 
which its net operating loss carryover is attributable. Therefore, L's 
Year 2 net operating loss carryover is not a controlled group loss under 
paragraph (b) of this section and the value of L's stock is not adjusted 
in accordance with paragraph (c) of this section to compute L's 
limitation under section 382 with respect to the Year 2 net operating 
loss carryover.
    Example 2. Adjustments to value of the controlled group members. (a) 
Since Year 1, A has owned all of the stock of L, L and B have owned 80 
percent and 20 percent, respectively, of the stock of corporation P, and 
P and C have owned 75 percent and 25 percent, respectively, of the stock 
of L1. L and L1 each has a net operating loss for the Year 6 taxable 
year that is carried over to its respective Year 7 taxable year. On 
December 1, Year 7, A sells all of the L stock to D. The sale results in 
ownership changes of both L and L1. Immediately before the ownership 
changes, the total value of the L1 stock is $40, the total value of the 
P stock (including the value of its L1 stock) is $100, and the total 
value of the L stock (including the value of the P stock) is $200. The 
following is a graphic illustration of these facts.

[[Page 537]]

[GRAPHIC] [TIFF OMITTED] TR02JY99.020

    (b) Under paragraph (b) of this section, the Year 6 net operating 
loss carryovers of each of L and L1 are controlled group losses because 
each of L and L1 is a component member of a controlled group with 
respect to Year 6, the year to which the losses are attributable. L, P, 
and L1 compose controlled groups with respect to both Year 6 net 
operating loss carryovers because L, P, and L1 are component members of 
a controlled group both--
    (1) With respect to the taxable years to which the net operating 
loss carryovers are attributable (i.e., Year 6); and
    (2) On December 1, Year 7, the change date.
    (c) The value of the stock of L1 for purposes of determining its 
limitation under section 382 with respect to its net operating loss 
carryover from Year 6 is $40. L1 does not elect to restore any value to 
P under paragraph (c)(2) of this section.
    (d) The value of the stock of P ($100) is reduced under paragraph 
(c)(1) of this section by the value of the stock of L1 that it directly 
owns, $30 (75%x$40). Following the adjustment, the value of the stock of 
P is $70. P elects to restore this entire $70 of value to L.
    (e) The value of the stock of L, $200, is reduced under paragraph 
(c)(1) of this section by the value of the stock of P it directly owns, 
i.e., $80 (80%x$100), and increased under paragraph (c)(2) of this 
section by the amount P elects to restore to L, i.e., $70. Thus, the 
value of the L stock for purposes of determining L's limitation under 
section 382 with respect to its net operating loss carryover from Year 6 
is $190 ($200-$80+$70).
    Example 3. Limitation on restoration of value. (a) The facts are the 
same as in Example 2, except that L1 elects to restore $20 to P. For 
purposes of determining L1's limitation under section 382 with respect 
to the Year 6 net operating loss carryover, the value of the stock of L1 
is $20 ($40-$20) because the value of its stock is reduced under 
paragraph (c)(3) of this section by the $20 of value it elects to 
restore to P.

[[Page 538]]

    (b) The value of the stock of P ($100) is reduced under paragraph 
(c)(1) of this section by the value of the L1 stock it directly owns 
($30), and is increased under paragraph (c)(2) of this section by the 
value that L1 elects to restore to P ($20). Thus, the value of the P 
stock is $90 ($100-$30+$20).
    (c)(1) P elects to restore to L the maximum value permitted under 
this section. The value of the stock of L, $200, is reduced under 
paragraph (c)(1) of this section by the value of the P stock it directly 
owns ($80), and is increased by the value that P elects to restore to L. 
P may elect to restore to L the lesser of--
    (A) The sum of the value of its stock immediately after adjustment 
under paragraph (c)(1) of this section (i.e., $70) plus the value 
restored to it by L1 (i.e., $20) (a total of $90); or
    (B) The value of the P stock (without regard to the adjustment 
required by paragraphs (c)(1) and (2) of this section) that is directly 
owned by L immediately before the ownership change (i.e., $80).
    (2) Thus, $80 is the maximum amount that P may elect to restore to 
L. Following the restoration of value by P, the value of the L stock for 
purposes of determining L's limitation under section 382 is $200 ($200 -
$80 + $80).
    Example 4. Coordination with consolidated return regulations. (a) P 
and its wholly owned subsidiary L file a consolidated return. L owns 79 
percent of the outstanding stock of L1. P acquired the stock of L in 
Year 1 and L acquired the stock of L1 in Year 2. The P consolidated 
group has a consolidated net operating loss arising in the Year 6 
consolidated return year that is carried over to Year 8. L1 has a net 
operating loss arising in its Year 6 taxable year that is also carried 
over to Year 8. On January 1, Year 8, the P consolidated group has an 
ownership change under Sec. 1.1502-92(b)(1)(i) and L1 has an ownership 
change under Sec. 1.382-2T.
    (b)(1) Under paragraph (b) of this section, the Year 6 net operating 
loss carryover of the P group is a controlled group loss because P, L, 
and L1 are component members of a controlled group with respect to Year 
6, the year to which the loss is attributable. P, L, and L1 compose a 
controlled group with respect to the Year 6 net operating loss carryover 
of the P loss group because they are component members of a controlled 
group both--
    (A) With respect to the taxable years to which the net operating 
loss carryover is attributable (i.e., Year 6); and -
    (B) On January 1, Year 8, the P group's change date.
    (2) Because P and L compose a loss group (within the meaning of 
Sec. 1.1502-91(c)) with respect to its Year 6 net operating loss 
carryover, the P loss group must compute a consolidated section 382 
limitation with respect to its Year 6 net operating loss carryover as a 
result of the ownership change.
    (c) In computing the consolidated section 382 limitation under Sec. 
1.1502-93 with respect to the Year 6 net operating loss carryover, the 
value of the P stock immediately before the ownership change is reduced 
under paragraphs (c)(1) and (f) of this section by the value immediately 
before the ownership change of the L1 stock directly owned by L 
immediately after the ownership change. L1 may, however, elect to 
restore such value to the P consolidated group to the extent permitted 
under paragraph (c)(2) of this section.
    Example 5. Appropriate adjustments for indirect ownership interest. 
(a) Individual A owns all of the stock of L, L owns an 80 percent 
interest in the capital and profits of partnership PS, and PS owns 75 
percent of the stock of L1. Both L and L1 have net operating losses for 
the Year 1 taxable year that are carried over to their respective Year 2 
taxable years. On December 19, Year 2, A sells all of the L stock to an 
unrelated individual. The sale results in an ownership change of L and 
L1.
    (b) Under paragraph (b) of this section, the Year 1 net operating 
loss carryovers of each of L and L1 are controlled group losses because 
each of L and L1 is a component member of a controlled group with 
respect to Year 1, the year to which the losses are attributable. L and 
L1 compose controlled groups with respect to each corporation's net 
operating loss carryovers because L and L1 are component members of a 
controlled group both--
    (1) With respect to the taxable years to which the net operating 
loss carryovers are attributable (i.e., Year 1); and
    (2) On December 19, Year 2, the change date.
    (c) L has an indirect ownership interest in L1 which, under 
paragraph (c)(4) of this section, must be taken into account in applying 
this section. As a result, the value of the L stock for purposes of 
determining its limitation under section 382 with respect to the Year 1 
net operating loss carryover must be reduced by the value of L's 
indirect ownership interest in the L1 stock (60 percent) that it owns 
through PS immediately before the ownership change, and is increased by 
the amount (if any) that L1 elects to restore to L under paragraph 
(c)(2) of this section. The value of L1 is reduced under paragraph 
(c)(3) of this section to the extent that L1 elects to restore value to 
L.

    (h) Time and manner of filing election to restore--(1) Statement 
required. The election to restore value described in paragraph (c)(2) of 
this section must be in the form set forth below. It must be signed on 
behalf of both the electing member and the corporation to which

[[Page 539]]

such value is restored by persons authorized to sign their respective 
income tax returns. (The common parent of a consolidated group must make 
the election on behalf of the group.) It must be filed by the loss 
corporation with its income tax return for the taxable year in which the 
ownership change occurs (or with an amended return for such year filed 
on or before the due date (including extensions) of the income tax 
return of any component member with respect to the taxable year in which 
the ownership change occurs). The statement must provide that: ``THIS IS 
AN ELECTION UNDER Sec. 1.382-8 OF THE INCOME TAX REGULATIONS TO RESTORE 
ALL OR PART OF THE VALUE OF [insert name and E.I.N. of the electing 
member] TO [insert name and E.I.N. of the corporation to which value is 
restored]. The statement must also--
    (i) Identify the change date for the loss corporation in connection 
with which the election is made;
    (ii) State the value of the electing member's stock (without regard 
to any adjustment under paragraph (c) of this section) immediately 
before the ownership change;
    (iii) State the amount of any reduction required under paragraph 
(c)(1) of this section with respect to stock of the electing member that 
is owned directly or indirectly by the corporation to which value is 
restored;
    (iv) State the amount of value that the electing member elects to 
restore to the corporation; and
    (v) State whether the value of either component member's stock was 
adjusted pursuant to paragraph (c)(4) of this section.
    (2) Revocation of election. An election made under this section is 
revocable only with the consent of the Commissioner.
    (3) Filing by component member. An electing member must attach a 
copy of the statement described in paragraph (h)(1) of this section to 
its income tax return (or amended return) for the taxable year which 
includes the change date in connection with which the election is made.
    (i) References to former temporary regulations. As the context 
requires, a reference in this section to Sec. 1.382-8 includes a 
reference to Sec. 1.382-8T in effect prior to June 25, 1999, as 
contained in 26 CFR part 1 revised as of April 1, 1999, a reference to 
Sec. Sec. 1.1502-91, 1.1502-92, 1.1502-93, and Sec. Sec. 1.1502-91 
through 1.1502-99 includes a reference to Sec. Sec. 1.1502-91A, 1.1502-
92A, 1.1502-93A and Sec. Sec. 1.1502-91A through 1.1502-99A.
    (j) Effective date--(1) In general. This section applies to a loss 
corporation that has an ownership change with respect to a controlled 
group loss on or after January 1, 1997.
    (2) Transition rule--(i) In general. The members of a controlled 
group on January 1, 1997, that have had an ownership change with respect 
to a controlled group loss before January 1, 1997, must determine the 
limitations under section 382 for any post-change year with respect to 
controlled group losses by using a reasonable method to preclude the 
value of stock of a component member that was owned directly or 
indirectly by another member immediately after an ownership change from 
being taken into account more than once in determining the limitations 
under section 382 with respect to controlled group losses. If such a 
reasonable method was not used for a post-change year, subject to the 
exception in paragraph (j)(3) of this section, the members of the 
controlled group described in the preceding sentence must reduce their 
limitations under section 382 for post-change years for which the income 
tax return is filed after January 1, 1997, to recapture, as quickly as 
possible, any limitation that members took into account in excess of the 
amount that would be allowable under this section.
    (ii) Special transition rule for controlled groups that had 
ownership changes before January 29, 1991. For purposes of this section, 
in the case of an ownership change occurring before January 29, 1991, 
the controlled group with respect to a controlled group loss does not 
include a corporation that is not a component member of the controlled 
group on January 29, 1991. Thus, in the case of an ownership change 
occurring before January 29, 1991, paragraph (c) of this section does 
not require that a loss corporation that is a component member of a 
controlled group to disregard the value of stock of another corporation

[[Page 540]]

directly owned immediately after the ownership change in determining the 
value of its own stock unless the other corporation is a component 
member of the controlled group on January 29, 1991.
    (3) Amended returns. A taxpayer that has had an ownership change 
before January 1, 1997, may file an amended return for any taxable year 
to modify the amount of a limitation under section 382 with respect to a 
controlled group loss only if--
    (i) The modification complies with the rules contained in this 
section for computing a limitation under section 382;
    (ii) Any other component member of the controlled group with respect 
to the controlled group loss who elects to restore value and whose 
taxable income is affected by the election to restore value also files 
amended returns that comply with such rules; and
    (iii) Corresponding adjustments are made in amended returns for all 
taxable years ending after December 31, 1986.

[T.D. 8679, 61 FR 33316, June 27, 1996, as amended by T.D. 8825, 64 FR 
36178, July 2, 1999]



Sec. 1.382-9  Special rules under section 382 for corporations under the 
jurisdiction of a court in a title 11 or similar case.

    (a) Introduction. Either section 382(l)(5) or section 382(l)(6) may 
apply to an ownership change which occurs in a title 11 or similar case 
(as defined in section 368(a)(3)(A)) if the transaction resulting in the 
ownership change is ordered by the court or is pursuant to a plan 
approved by the court. Terms and nomenclature used in this section, and 
not otherwise defined herein (including the nomenclature and assumptions 
in Sec. 1.382-2T(b) relating to the examples) have the same respective 
meanings as in section 382 and the regulations thereunder.
    (b) Application of section 382(l)(5). section 382(a) does not apply 
to any ownership change if--
    (1) The old loss corporation is (immediately before the ownership 
change) under the jurisdiction of the court in a title 11 or similar 
case; and
    (2) The pre-change shareholders and qualified creditors of the old 
loss corporation (determined immediately before the ownership change) 
own (after the ownership change and as a result of being pre-change 
shareholders or qualified creditors immediately before the ownership 
change) stock of the new loss corporation (or stock of a controlling 
corporation if also in bankruptcy) that meets the requirements of 
section 1504(a)(2) (determined by substituting ``50 percent'' for ``80 
percent'' each place it appears).
    (c) [Reserved]
    (d) Rules for determining whether stock of the loss corporation is 
owned as a result of being a qualified creditor--(1) Qualified creditor. 
A qualified creditor is the beneficial owner, immediately before the 
ownership change, of qualified indebtedness of the loss corporation. A 
qualified creditor owns stock of the new loss corporation (or a 
controlling corporation) as a result of being a qualified creditor only 
to the extent that the qualified creditor receives stock in full or 
partial satisfaction of qualified indebtedness (including interest 
accrued on such indebtedness) in a transaction that is ordered by the 
court or is pursuant to a plan approved by the court in a title 11 or 
similar case. For purposes of this paragraph (d)(1), ownership of stock 
after the ownership change is determined without applying the 
attribution rules generally applicable under section 382(l)(3)(A) or 
Sec. 1.382-2T(h).
    (2) General rules for determining whether indebtedness is qualified 
indebtedness--(i) Definition. Indebtedness of the loss corporation is 
qualified indebtedness if it--
    (A) Has been owned by the same beneficial owner since the date that 
is 18 months before the date of the filing of the title 11 or similar 
case; or
    (B) Arose in the ordinary course of the trade or business of the 
loss corporation and has been owned at all times by the same beneficial 
owner.
    (ii) Determination of beneficial ownership. For purposes of 
paragraph (d)(2)(i) of this section, beneficial ownership of 
indebtedness is determined without applying attribution rules.
    (iii) Duty of inquiry. The loss corporation must determine that 
indebtedness

[[Page 541]]

that the loss corporation treats as qualified indebtedness, other than 
indebtedness to which paragraph (d)(3)(i) of this section applies, has 
been owned for the requisite period by the beneficial owner who owns the 
indebtedness immediately before the ownership change. The loss 
corporation may rely on a statement, signed under penalties of perjury, 
by a beneficial owner regarding the amount of indebtedness the 
beneficial owner owns and the length of time that the beneficial owner 
has owned the indebtedness.
    (iv) Ordinary course indebtedness. For purposes of this paragraph 
(d)(2), indebtedness arises in the ordinary course of the loss 
corporation's trade or business only if the indebtedness is incurred by 
the loss corporation in connection with the normal, usual, or customary 
conduct of business, determined without regard to whether the 
indebtedness funds ordinary or capital expenditures of the loss 
corporation. For example, indebtedness (other than indebtedness acquired 
for a principal purpose of being exchanged for stock) arises in the 
ordinary course of the loss corporation's trade or business if it is 
trade debt; a tax liability; a liability arising from a past or present 
employment relationship, a past or present business relationship with a 
supplier, customer, or competitor of the loss corporation, a tort, a 
breach of warranty, or a breach of statutory duty; or indebtedness 
incurred to pay an expense deductible under section 162 or included in 
the cost of goods sold. A claim that arises upon the rejection of a 
burdensome contract or lease pursuant to the title 11 or similar case is 
treated as arising in the ordinary course of the loss corporation's 
trade or business if the contract or lease so arose.
    (3) Treatment of certain indebtedness as continuously owned by the 
same owner--(i) In general. For purposes of paragraph (d)(2) of this 
section, a loss corporation may treat indebtedness as always having been 
owned by the beneficial owner of the indebtedness immediately before the 
ownership change if the beneficial owner is not, immediately after the 
ownership change, either a 5-percent shareholder or an entity through 
which a 5-percent shareholder owns an indirect ownership interest in the 
loss corporation (a 5-percent entity). This paragraph (d)(3)(i) does not 
apply to indebtedness beneficially owned by a person whose participation 
in formulating a plan of reorganization makes evident to the loss 
corporation (whether or not the loss corporation had previous knowledge) 
that the person has not owned the indebtedness for the requisite period.
    (ii) Operating rules. For purposes of paragraph (d)(3)(i) of this 
section: (A) If a loss corporation has actual knowledge of a coordinated 
acquisition of its indebtedness by a group of persons, through a formal 
or informal understanding among themselves, for a principal purpose of 
exchanging the indebtedness for stock, the indebtedness (and any stock 
received in exchange therefor) is treated as owned by an entity. A 
principal element in determining if an understanding exists among 
members of a group is whether the investment decision of each member is 
based upon the investment decision of one or more other members.
    (B) If the loss corporation has actual knowledge regarding stock 
ownership described in Sec. 1.382-2T(k)(2), the loss corporation must 
take that ownership into account in determining which beneficial owners 
of indebtedness are, immediately after the ownership change, 5-percent 
shareholders or 5-percent entities. The loss corporation is not required 
to take into account an ownership interest described in Sec. 1.382-
2T(k)(4) unless the loss corporation has actual knowledge of the 
ownership interest.
    (C) The term 5-percent shareholder includes any person who is a 5-
percent shareholder of the loss corporation within the meaning of Sec. 
1.382-2T(g), without regard to the option attribution rules of section 
382(l)(3)(A) or Sec. 1.382-4(d) (or, if applicable, Sec. 1.382-
2T(h)(4)).
    (D) Paragraph (d)(3)(i) of this section does not apply to 
indebtedness if the loss corporation has actual knowledge immediately 
after the ownership change that the exercise of an option to acquire or 
dispose of stock of the loss corporation would cause the beneficial 
owner of the indebtedness immediately before the ownership change to

[[Page 542]]

be, after the ownership change, either a 5-percent shareholder or a 5-
percent entity. An interest that is treated as an option under Sec. 
1.382-4(d)(9) (or Sec. 1.382-2T(h)(4)(v) if applicable) is treated as 
an option for purposes of this paragraph (d)(3)(ii)(D).
    (iii) Indebtedness owned by beneficial owner who becomes a 5-percent 
shareholder or 5-percent entity. If the beneficial owner of indebtedness 
immediately before the ownership change is a 5-percent shareholder or 5-
percent entity immediately after the ownership change, the general rules 
of paragraph (d)(2) of this section apply to determine whether the 
indebtedness has been owned for the requisite period by the beneficial 
owner.
    (iv) Example. The following example illustrates paragraph (d)(3) of 
this section.

     (A)(1) L is a loss corporation in a title 11 case. The plan of 
reorganization of L approved by the bankruptcy court provides for the 
satisfaction of claims by the issuance of new L common stock to its 
creditors as follows:

A--2 percent
B--7.5 percent
C--2.5 percent
P1--3 percent
P2--10 percent
P3--4.9 percent
P4--4.9 percent
P5--4.9 percent

    (2) P2 is owned by Public P2. B owns 10 percent of the stock of P1 
and L has no actual knowledge of this ownership. L has actual knowledge 
that D owns P3, P4 and P5. In addition, L has actual knowledge, 
immediately after the ownership change, that C owns an option to acquire 
newly-issued stock of L that, if exercised, would increase C's 
percentage ownership of L stock from 2.5 percent to 8 percent. An 
ownership change of L occurs on the date the plan becomes effective.
    (B) Under paragraph (d)(3)(i) of this section, L may treat the 
indebtedness owned by A and P1 immediately before the ownership change 
as always having been owned by A and P1. Neither A nor P1 is a 5-percent 
shareholder immediately after the ownership change. Further, because P1 
owns less than 5 percent of the L stock (and L has no actual knowledge 
of B's ownership interest in P1), P1 is treated as an individual, and 
the L stock owned by P1 is not attributed to any other person, including 
B. See Sec. 1.382-2T(h)(2)(iii). Therefore, P1 is not a 5-percent 
entity.
    (C) Paragraph (d)(3)(i) of this section does not apply to the 
indebtedness owned by B, C, P2, P3, P4, or P5. B is a 5-percent 
shareholder immediately after the ownership change. L has actual 
knowledge immediately after the ownership change that the exercise of 
C's option would cause C to be a 5-percent shareholder immediately after 
the ownership change. (L does not take into account the effect of the 
exercise of the option, however, in determining the percentage stock 
ownership of any person other than C because the deemed exercise would 
not cause any other person to be a 5-percent shareholder or a 5-percent 
entity after the ownership change.) P2 is a 5-percent entity, because 
Public P2, a 5-percent shareholder, owns an indirect ownership interest 
in L through P2. P3, P4, and P5 are 5-percent entities because D, a 5-
percent shareholder, owns an indirect ownership interest in L through 
P3, P4, and P5. Because L has actual knowledge that D would be a 5-
percent shareholder but for the application of Sec. 1.382-
2T(h)(2)(iii), that section does not apply to P3, P4, or P5. See Sec. 
1.382-2T(k)(2). Thus, under Sec. 1.382-2T(h)(2)(i), the L stock owned 
by P3, P4, and P5 is attributed to D, and D is a 5-percent shareholder. 
Because paragraph (d)(3)(i) of this section does not apply to the 
indebtedness owned by B, C, P2, P3, P4, and P5, L may treat as qualified 
indebtedness only indebtedness that it determines had been owned by such 
persons for the requisite period. See paragraph (d)(2)(iii) of this 
section.

    (4) Special rule if indebtedness is a large portion of creditor's 
assets--(i) In general. Indebtedness is not qualified indebtedness if--
    (A) The beneficial owner of the indebtedness is a corporation or 
other entity that had an ownership change on any day during the 
applicable period;
    (B) The indebtedness represents more than 25 percent of the fair 
market value of the total gross assets (excluding cash or cash 
equivalents) of the beneficial owner on its change date; and
    (C) The beneficial owner is a 5-percent entity immediately after the 
ownership change of the loss corporation (determined by applying the 
rules of paragraph (d)(3) of this section).
    (ii) Applicable period. For purposes of paragraph (d)(4)(i) of this 
section, the term applicable period means the period beginning on the 
day 18 months before the filing of the title 11 or similar case (or the 
day on which the beneficial owner acquired the indebtedness, if later) 
and ending with the change date of the loss corporation.

[[Page 543]]

    (iii) Determination of ownership change. For purposes of paragraph 
(d)(4)(i) of this section, the determination whether a beneficial owner 
of indebtedness has an ownership change is made under the principles of 
section 382 and the regulations thereunder, without regard to whether 
the beneficial owner is a loss corporation and by beginning the testing 
period no earlier than the latest of the day three years before the 
change date, the day 18 months before the filing of the title 11 or 
similar case, or the day on which the beneficial owner acquired the 
indebtedness.
    (iv) Reliance on statement. Paragraph (d)(4)(i) of this section does 
not apply to indebtedness if the loss corporation obtains a statement, 
signed under penalties of perjury, by the beneficial owner of the 
indebtedness that states that paragraph (d)(4)(i) of this section does 
not apply to the indebtedness.
    (5) Tacking of ownership periods--(i) Transferee treated as owning 
indebtedness for period owned by transferor. To determine whether 
indebtedness transferred in a qualified transfer is qualified 
indebtedness, the transferee is treated as having owned the indebtedness 
for the period that it was owned by the transferor.
    (ii) Qualified transfer. For purposes of paragraph (d)(5)(i) of this 
section, a transfer of indebtedness is a qualified transfer if--
    (A) The transfer is between parties who bear a relationship to each 
other described in section 267(b) or 707(b) (substituting at least 80 
percent for more than 50 percent each place it appears in section 267(b) 
(and section 267(f)(1)) or 707(b));
    (B) The transfer is a transfer of a loan within 90 days after its 
origination, pursuant to a customary syndication transaction;
    (C) The transfer is a transfer of newly incurred indebtedness by an 
underwriter that owned the indebtedness for a transitory period pursuant 
to an underwriting;
    (D) The transferee's basis in the indebtedness is determined under 
section 1014 or 1015 or with reference to the transferor's basis in the 
indebtedness;
    (E) The transfer is in satisfaction of a right to receive a 
pecuniary bequest;
    (F) The transfer is pursuant to any divorce or separation instrument 
(within the meaning of section 71(b)(2));
    (G) The transfer is pursuant to a subrogation in which the 
transferee acquires a claim against the loss corporation by reason of a 
payment to the claimant pursuant to an insurance policy or a guarantee, 
letter of credit or similar security arrangement; or
    (H) The transfer is a transfer of an account receivable in a 
customary commercial factoring transaction made within 30 days after the 
account arose to a transferee that regularly engages in such 
transactions.
    (iii) Exception. A transfer of indebtedness is not a qualified 
transfer for purposes of paragraph (d)(5)(i) of this section if the 
transferee acquired the indebtedness for a principal purpose of 
benefiting from the losses of the loss corporation by--
    (A) Exchanging the indebtedness for stock of the loss corporation 
pursuant to the title 11 or similar case; or
    (B) Selling the indebtedness at a profit that reflects the 
expectation that, by reason of section 382(l)(5), section 382(a) will 
not apply to any ownership change resulting from the title 11 or similar 
case.
    (iv) Debt-for-debt exchanges. If the loss corporation satisfies its 
indebtedness with new indebtedness, either through an exchange of new 
indebtedness for old indebtedness or a change in the terms of 
indebtedness that results in an exchange under section 1001--
    (A) The owner of the new indebtedness is treated as having owned 
that indebtedness for the period that it owned the old indebtedness; and
    (B) The new indebtedness is treated as having arisen in the ordinary 
course of the trade or business of the loss corporation if the old 
indebtedness so arose.
    (6) Effective date--(i) In general. This paragraph (d) applies to 
ownership changes occurring on or after March 17, 1994.
    (ii) Elections and amended returns--(A) Election to apply this 
paragraph (d) retroactively. A loss corporation may elect to apply this 
paragraph (d) to an ownership change occurring prior to March 17, 1994. 
This election must be made by

[[Page 544]]

the later of the due date (including any extensions of time) of the loss 
corporation's tax return for the taxable year which includes the change 
date or the date that the loss corporation files its first tax return 
after May 16, 1994. The election is made by attaching the following 
statement to the return: ``This is an Election to Apply Sec. 1.382-9(d) 
Retroactively with Respect to the Ownership Change on [Insert Date of 
Ownership Change] That Occurred in Connection with the Title 11 or 
Similar Case filed on [Insert Date of Filing].'' This statement must be 
accompanied by the amended returns described in paragraph (d)(6)(ii)(C) 
of this section. An election under this paragraph (d)(6) is irrevocable.
    (B) Election to revoke section 382(l)(5)(H) election. A loss 
corporation may elect to revoke a prior election made under section 
382(l)(5)(H) with respect to an ownership change occurring before March 
17, 1994 by including the following statement with its election to apply 
Sec. 1.382-9(d) retroactively: ``This is an Election to Revoke a Prior 
Election Made Under Section 382(l)(5)(H) With Respect to the Ownership 
Change on [Insert Date of Ownership Change] That Occurred in Connection 
With the Title 11 or Similar Case Filed on [Insert Date of Filing].''
    (C) Amended returns. If the retroactive application of this 
paragraph (d) affects the amount of taxable income or loss for a prior 
taxable year, then, except as precluded by the applicable statute of 
limitations, the loss corporation (or the common parent of any 
consolidated group of which the loss corporation was a member for the 
year) must file an amended return for the year that reflects the effects 
of the retroactive application of the rules of this paragraph (d). If 
the statute of limitations precludes the filing of an amended return for 
one or more such prior taxable years, the loss corporation (or the 
common parent) must make appropriate adjustments under the principles of 
section 382(l)(2)(A) in subsequent taxable years to reflect the 
difference between the losses and credits actually used in such prior 
taxable years and the amount that would have been used in those years 
applying the rules of this paragraph (d).
    (e) Option attribution for purposes of determining stock ownership 
under section 382(l)(5)(A)(ii)--(1) In general. Solely for purposes of 
determining whether the stock ownership requirements of section 
382(l)(5)(A)(ii) are satisfied at the time of an ownership change, stock 
of the loss corporation (or of a controlling corporation if also in 
bankruptcy) that is subject to an option is treated as acquired at that 
time, pursuant to an exercise of the option by its owner, if such deemed 
exercise would cause the pre-change shareholders and qualified creditors 
of the loss corporation to own (after such ownership change and as a 
result of being pre-change shareholders or qualified creditors 
immediately before such change) less than an amount of such stock 
sufficient to satisfy the ownership requirements of section 
382(l)(5)(A)(ii). An option that is owned as a result of being a pre-
change shareholder or qualified creditor and that, if exercised, would 
result in the ownership of stock by a pre-change shareholder or 
qualified creditor is not treated as exercised under this paragraph (e). 
For purposes of this paragraph (e)(1), rules similar to those option 
attribution rules under Sec. 1.382-2T(h)(4)(iii), (iv), (v), (vii), and 
(x)(A), (B) (except with respect to a debt instrument that was issued 
after the filing of the petition in the title 11 or similar case), (D), 
(E) (except with respect to a right to receive or obligation to issue 
stock as interest or dividends on a debt instrument or stock that was 
issued after the filing of the petition in the title 11 or similar 
case), (G), (H), and (Z), apply.
    (2) Special rules--(i) Lapse or forfeiture of options deemed 
exercised. A loss corporation may apply rules similar to the rules of 
Sec. 1.382-2T(h)(4)(viii) with respect to an option except to the 
extent any person owning the option at any time on or after the change 
date acquires additional stock or an option to acquire additional stock 
during the period of time on or after the ownership change and on or 
before the lapse or forfeiture of the option.
    (ii) Actual exercise of options not deemed exercised. In determining 
whether the ownership change pursuant to the plan of reorganization 
qualifies

[[Page 545]]

under section 382(l)(5), a loss corporation may take into account stock 
acquired pursuant to the actual exercise of an option issued pursuant to 
the plan of reorganization if that option was not deemed exercised under 
paragraph (e)(1) of this section. However, this paragraph (e)(2)(ii) 
applies only if the option is actually exercised within the 3 years of 
the ownership change by the 5-percent shareholder who, as a result of 
being a pre-change shareholder or qualified creditor, acquired the 
option under the plan.
    (iii) Amended returns. A loss corporation may file an amended return 
for a prior taxable year (subject to any applicable statute of 
limitations) if it determines that section 382(l)(5) applies to an 
ownership change as a result of the operation of paragraph (e)(2)(i) or 
(ii) of this section, but only if the loss corporation makes 
corresponding adjustments on amended returns for all affected taxable 
years (subject to any applicable statute of limitations).
    (3) Examples. In each of the examples in this paragraph (e)(3), 
assume that there is an ownership change of loss corporation L on the 
date the plan of reorganization is effective.

    Example 1. L is a loss corporation in a title 11 case. The plan of 
reorganization of L approved by the bankruptcy court provides for the 
cancellation of all existing L stock, the issuance of 100 shares of new 
L common stock to qualified creditors, and the issuance of an option to 
a new investor to acquire, at any time during the next 3 years, 90 
shares of new L common stock from L at its fair market value on the date 
the plan becomes effective. Under paragraph (e)(1) of this section, on 
the date the plan becomes effective, the option held by the new investor 
is deemed exercised if the exercise would cause the qualified creditors 
of L to own less than 50 percent of the total voting power or value of 
the L stock after the ownership change. Because the qualified creditors 
would receive at least 50 percent of the voting power and value of the 
new L common stock even if the option were deemed exercised, the stock 
ownership requirements of section 382(l)(5)(A)(ii) are satisfied.
    Example 2. The facts are the same as in Example 1, except that L 
issues an option to the new investor to acquire 110 shares of new L 
common stock. This option is deemed exercised under paragraph (e)(1) of 
this section on the date the plan becomes effective, because, as a 
result of the deemed exercise, the qualified creditors would own only 
100 of 210 shares of the new L common stock (approximately 48 percent) 
after the ownership change. Accordingly, the stock ownership 
requirements of section 382(l)(5)(A)(ii) are not satisfied and section 
382(a) applies to the ownership change.
    Example 3. (a) L is a loss corporation in a title 11 case. The plan 
of reorganization of L approved by the bankruptcy court provides for the 
cancellation of all existing L stock, the issuance of new L common stock 
and 5-year options to acquire L common stock as follows:
    (i) To qualified creditors--100 shares of stock and options to 
acquire 50 shares;
    (ii) To a new investor--options to acquire 110 shares.
    (b) Under paragraph (e)(1) of this section, the option held by the 
new investor is deemed exercised on the date the plan becomes effective 
because the exercise would cause the qualified creditors of L to own 
less than 50 percent of the total voting power and value of the L stock 
after the ownership change (100 of 210 shares or approximately 48 
percent). Accordingly, the stock ownership requirements of section 
382(l)(5)(A)(ii) are not satisfied initially and section 382(a) applies 
to the ownership change.
    (c) Assume, however, that the qualified creditors actually exercise 
enough options that were acquired pursuant to the plan of reorganization 
to purchase 30 additional shares during the 3 year period after the plan 
becomes effective. Under paragraph (e)(2)(ii) of this section, L may 
take into account the 30 shares purchased by the qualified creditors by 
the exercise of the options in determining whether the stock ownership 
requirements of section 382(l)(5)(A)(ii) were satisfied on the date the 
plan of reorganization became effective. If L takes such purchases into 
account, the qualified creditors of L are deemed to own as of the date 
of the ownership change more than 50 percent of the total voting power 
or value of the L stock after the ownership change (130 of 240 shares or 
approximately 54 percent), with the result that the stock ownership 
requirements of section 382(l)(5)(A)(ii) are satisfied and section 
382(l)(5) applies to the ownership change as of the effective date of 
the plan.
    (d) Assume instead that the qualified creditors acquire 30 
additional shares by exercise of options more than 3 years after the 
plan becomes effective. Such exercise is not taken into account under 
paragraph (e)(2)(ii) of this section for purposes of determining whether 
the stock ownership requirements of section 382(l)(5)(A)(ii) are 
satisfied as of the effective date of the plan. Thus, the qualified 
creditors are deemed to own less than 50 percent of the total voting 
power and value of the L stock after the ownership change (100 of 210 
shares) and section 382(l)(5) does not apply to the ownership change.

[[Page 546]]

    (e) Assume instead that, during the 3 year period after the plan 
becomes effective, the new investor exercises part of his option and 
purchases 105 shares of stock. The exercise causes a lapse of the rights 
to acquire the remaining 5 shares of stock. Also during that time, the 
qualified creditors exercise part of their options and acquire 6 
additional shares of stock. Under paragraph (e)(2)(i) of this section, L 
may treat the lapse of that part of the new investor's option to acquire 
5 shares of stock as if that part of the option had never been issued 
for purposes of determining whether the stock ownership requirements of 
section 382(l)(5)(A)(ii) are satisfied as of the effective date of the 
plan. Also, under paragraph (e)(2)(ii) of this section, L may take into 
account the 6 shares purchased by the qualified creditors by the 
exercise of the options in determining whether the stock ownership 
requirements of section 382(l)(5)(A)(ii) are satisfied as of the 
effective date of the plan. If L takes all of this information into 
account, the qualified creditors are deemed to own more than 50 percent 
of the total voting power or value of the L stock after the ownership 
change (106 of 211 shares or approximately 50.2 percent) and section 
382(l)(5) applies to the ownership change as of the effective date of 
the plan.

    (4) Effective dates--(i) In general. This paragraph (e) applies to 
ownership changes occurring on or after September 5, 1990.
    (ii) Special rule for interest or dividends. Rules similar to the 
rules of Sec. 1.382-2T(h)(4)(x)(E) (relating to option attribution for 
purposes of determining whether an ownership change occurs) apply to a 
right to receive or obligation to issue stock as interest or dividends 
on a debt instrument or stock that was issued after the filing of the 
petition in the title 11 or similar case for ownership changes occurring 
before April 8, 1992.
    (f)-(h) [Reserved]
    (i) Election not to apply section 382(l)(5). Under section 
382(l)(5)(H), a loss corporation may elect not to have the provisions of 
section 382(l)(5) apply to an ownership change in a title 11 or similar 
case. This election is irrevocable and must be made by the due date 
(including any extensions of time) of the loss corporation's tax return 
for the taxable year which includes the change date. The election is to 
be made by attaching the following statement to the tax return of the 
loss corporation for that taxable year: ``This is an Election Under 
Sec. 1.382-9(i) not to Apply the Provisions of Section 382(l)(5) to the 
Ownership Change Occurring Pursuant to a Plan of Reorganization 
Confirmed by the Court on [Insert Confirmation Date].''
    (j) Value of the loss corporation in an ownership change to which 
section 382(l)(6) applies. Section 382(l)(6) applies to any ownership 
change occurring pursuant to a plan of reorganization in a title 11 or 
similar case to which section 382(l)(5) does not apply. In such case, 
the value of the loss corporation under section 382(e) is equal to the 
lesser of--
    (1) The value of the stock of the loss corporation immediately after 
the ownership change (determined under the rules of paragraph (k) of 
this section); or
    (2) The value of the loss corporation's pre-change assets 
(determined under the rules of paragraph (l) of this section).
    (k) Rules for determining the value of the stock of the loss 
corporation--(1) Certain ownership interests treated as stock. For 
purposes of paragraph (j)(1) of this section--
    (i) Stock includes stock described in section 1504(a)(4) and any 
stock that is not treated as stock under Sec. 1.382-2T(f)(18)(ii) for 
purposes of determining whether a loss corporation has an ownership 
change; and
    (ii) Stock does not include an ownership interest that is treated as 
stock under Sec. 1.382-2T(f)(18)(iii) for purposes of determining 
whether a loss corporation has an ownership change.
    (2) Coordination with section 382(e)(2). In the case of a redemption 
or other corporate contraction occurring after and in connection with 
the ownership change, the value of the stock of the loss corporation 
under paragraph (j)(1) of this section is reduced under section 
382(e)(2).
    (3) Coordination with section 382(e)(3). If the loss corporation is 
a foreign corporation, in determining the value of the stock under 
paragraph (j)(1) of this section, only items treated as connected with 
the conduct of a trade or business in the United States are taken into 
account.
    (4) Coordination with section 382(l)(1). Section 382(l)(1) does not 
apply in determining the value of the stock of the

[[Page 547]]

loss corporation under paragraph (j)(1) of this section.
    (5) Coordination with section 382(l)(4). If, immediately after the 
ownership change, the loss corporation has substantial nonbusiness 
assets (as determined under section 382(l)(4)(B) taking into account 
only those assets the loss corporation held immediately before the 
ownership change), the value of the stock of the loss corporation under 
paragraph (j)(1) of this section is reduced by the excess of the value 
of such nonbusiness assets over those assets' share of the loss 
corporation's indebtedness (determined under section 382(l)(4)(D) taking 
into account the loss corporation's assets and liabilities immediately 
after the ownership change).
    (6) Special rule for stock not subject to the risk of corporate 
business operations--(i) In general. The value of the stock of the loss 
corporation under paragraph (j)(1) of this section is reduced by the 
value of stock that is issued as part of a plan one of the principal 
purposes of which is to increase the section 382 limitation without 
subjecting the investment to the entrepreneurial risks of corporate 
business operations.
    (ii) Coordination of special rule and other rules affecting value. 
If the value of the loss corporation is modified under another rule 
affecting value, appropriate adjustments are to be made so that such 
modification is not duplicated under this paragraph (k)(6).
    (7) Limitation on value of stock. For purposes of paragraph (j)(1) 
of this section, the value of stock of the loss corporation issued in 
connection with the ownership change cannot exceed the cash and the 
value of any property (including indebtedness of the loss corporation) 
received by the loss corporation in consideration for the issuance of 
that stock.
    (l) Rules for determining the value of the loss corporation's pre-
change assets--(1) In general. Except as otherwise provided in this 
paragraph (l), the value of the loss corporation's pre-change assets is 
the value of its assets (determined without regard to liabilities) 
immediately before the ownership change.
    (2) Coordination with section 382(e)(2). Section 382(e)(2) does not 
apply in determining the value of the pre-change assets of the loss 
corporation under paragraph (j)(2) of this section.
    (3) Coordination with section 382(e)(3). If the loss corporation is 
a foreign corporation, in determining the value of the pre-change assets 
under paragraph (j)(2) of this section, only assets treated as connected 
with the conduct of a trade or business in the United States are taken 
into account.
    (4) Coordination with section 382(l)(1). For purposes of paragraph 
(j)(2) of this section, the value of the pre-change assets of the loss 
corporation is determined without regard to the amount of any capital 
contribution to which section 382(l)(1) applies. For purposes of 
applying this paragraph (l)(4), the receipt of cash or property by the 
loss corporation in exchange for the issuance of indebtedness is 
considered a capital contribution if it is part of a plan one of the 
principal purposes of which is to increase the value of the loss 
corporation under paragraph (j) of this section.
    (5) Coordination with section 382(l)(4). If, immediately after the 
ownership change, the loss corporation has substantial nonbusiness 
assets (as determined under section 382(l)(4)(B) taking into account 
only those assets the loss corporation held immediately before the 
ownership change), the value of the loss corporation's pre-change assets 
is reduced by the value of the nonbusiness assets.
    (m) Continuity of business requirement--(1) Under section 382(l)(5). 
If section 382(l)(5) applies to an ownership change of a loss 
corporation, section 382(c) and the regulations thereunder do not apply 
with respect to the ownership change.
    (2) Under section 382(l)(6). If section 382(l)(6) applies to an 
ownership change of a loss corporation, section 382(c) and the 
regulations thereunder apply to the ownership change.
    (n) Ownership change in a title 11 or similar case succeeded by 
another ownership change within two years--(1) Section 382(l)(5) applies 
to the first ownership change. If section 382(l)(5) applies to an 
ownership change and, within the two-year period immediately following 
such ownership change, a second ownership change occurs, section 
382(l)(5) cannot apply to the second ownership

[[Page 548]]

change and the section 382(a) limitation with respect to the second 
ownership change is zero.
    (2) Section 382(l)(6) applies to the first ownership change. If the 
value of a loss corporation in an ownership change was determined under 
section 382(l)(6) and a second ownership change occurs within the two-
year period immediately following the first ownership change, the value 
of the loss corporation under section 382(e) with respect to the second 
ownership change is not reduced under section 382(l)(1) for any increase 
in value of the loss corporation previously taken into account under 
section 382(l)(6) with respect to the first ownership change.
    (o) Treatment of certain options for ownership change purposes--(1) 
Neither Sec. 1.382-2T(h)(4)(i) nor Sec. 1.382-4(d) (relating to the 
treatment of options as exercised) applies to the following options to 
acquire stock of a loss corporation reorganized pursuant to a plan of 
reorganization that is confirmed in a title 11 or similar case (within 
the meaning of section 368(a)(3)(A)) but only until the time the plan 
becomes effective--
    (i) Any option created by the solicitation or receipt of acceptances 
to the plan;
    (ii) The option created by the confirmation of the plan; and
    (iii) Any option created under the plan.
    (2) This paragraph (o) generally applies to any testing date 
occurring on or after September 5, 1990. However, this paragraph (o) 
does not apply on any testing date occurring on or after April 8, 1992, 
if, in connection with the plan of reorganization, the loss corporation 
issues stock (including stock described in section 1504(a)(4)) or 
otherwise receives a capital contribution before the effective date of 
the plan for a principal purpose of using before the effective date 
losses and credits that would be subject to limitation under section 
382(a) or would be eliminated under section 382(l)(5)(B) or (C) if this 
paragraph (o) did not apply on the testing date. A loss corporation may 
elect to apply this paragraph (o) to any testing date occurring before 
September 5, 1990, by filing a statement substantially similar to the 
following with its income tax return: ``THIS IS AN ELECTION TO APPLY 
Sec. 1.382-3(o) (OR Sec. 1.382-9(o) AFTER REDESIGNATION) FOR TESTING 
DATES PRIOR TO SEPTEMBER 5, 1990, TO OPTIONS CREATED BY OR UNDER A PLAN 
OF REORGANIZATION CONFIRMED IN A TITLE 11 OR SIMILAR CASE.'' A loss 
corporation may elect to not apply this paragraph (o) to testing dates 
occurring on or after September 5, 1990, to April 8, 1992, by filing a 
statement substantially similar to the following with its income tax 
return: ``THIS IS AN ELECTION TO NOT APPLY Sec. 1.382-3(o) (OR Sec. 
1.382-9(o) AFTER REDESIGNATION) FOR TESTING DATES OCCURRING ON OR AFTER 
SEPTEMBER 5, 1990, TO APRIL 8, 1992, TO OPTIONS CREATED BY OR UNDER A 
PLAN OF REORGANIZATION CONFIRMED IN A TITLE 11 OR SIMILAR CASE.''
    (p) Effective date for rules relating to section 382(l)(6)--(1) In 
general. Paragraphs (i), (j), (k), (l), (m)(2), and (n)(2) of this 
section apply to any ownership change occurring on or after March 17, 
1994.
    (2) Ownership change to which section 382(l)(6) applies occurring 
before March 17, 1994. In the case of an ownership change occurring 
before March 17, 1994, the loss corporation may elect to apply the rules 
of paragraphs (j), (k), (l), (m)(2), and (n)(2) of Sec. 1.382-9 in 
their entirety. The election must be made by the later of the due date 
(including any extensions of time) of the loss corporation's tax return 
for the taxable year which includes the change date or the date that the 
loss corporation files its first tax return after May 16, 1994. The 
election is made by attaching the following statement to the return: 
``This is an Election to Apply Sec. Sec. 1.382-9 (j), (k), (l), (m)(2), 
and (n)(2) of the Income Tax Regulations to the Ownership Change 
Occurring Pursuant to a Plan of Reorganization Confirmed by the Court on 
[Insert Confirmation Date].'' In connection with making this election, 
on the same return the loss corporation may also elect not to apply 
section 382(l)(5) to the ownership change under paragraph (i) of this 
section (if the loss corporation has not already done so pursuant to 
Sec. 301.9100-7T(a) of this chapter). If, under the applicable statute 
of limitations, the loss corporation may file amended returns for the 
year

[[Page 549]]

of the ownership change and all subsequent years (an open year), an 
electing loss corporation must file an amended return for each prior 
affected year to reflect the elections. If, under the applicable statute 
of limitations, the loss corporation may not file an amended return for 
the year of the ownership change or any subsequent year (a closed year), 
an electing loss corporation must file an amended return for each 
affected open year to reflect the elections and the section 382 
limitation resulting from the ownership change must be appropriately 
adjusted for the earliest open year (or years) to reflect the difference 
between the amount of pre-change losses actually used in closed years 
and the amount of pre-change losses that would have been used in such 
years applying the rules of paragraphs (j), (k), (l), (m)(2), (n)(2) of 
this section to the ownership change.

[T.D. 8388, 57 FR 346, Jan. 6, 1992; T.D. 8407, 57 FR 12210, Apr. 9, 
1992. Redesignated by T.D. 8440, 57 FR 45712, 45713, Oct. 5, 1992; 57 FR 
52827, Nov. 5, 1992; T.D. 8531, 59 FR 12840, Mar. 18, 1994; T.D. 8530, 
59 FR 12843, Mar. 18, 1994; T.D. 8529, 59 FR 12846, Mar. 18, 1994]



Sec. 1.382-10  [Reserved]



Sec. 1.382-10T  Special rules of determining time and maner of 
acquisition of an interest in a loss corporation (temporary).

    (a) Distributions from qualified trusts--(1) In general. For 
purposes of Sec. 1.382-2T, if a qualified trust described in section 
401(a) (qualified trust) distributes an ownership interest in an entity 
(as defined in Sec. 1.382-3(a)(1)), then for testing dates on or after 
the date of the distribution, the distributed ownership interest is 
treated as having been acquired by the distributee on the date and in 
the manner acquired by the trust and not as having been acquired or 
disposed of by the trust. The distribution does not cause the day of the 
distribution to be a testing date.
    (2) Accounting for dispositions--(i) General rule. For purposes of 
this paragraph (a), in order to determine which ownership interest in an 
entity is distributed from a qualified trust, a loss corporation must 
either specifically identify the ownership interests that are the 
subject of all dispositions by the qualified trust of ownership 
interests in an entity, or apply the first-in, first-out (FIFO) method 
to all such dispositions.
    (ii) Special rules. For purposes of this paragraph (a)(2):
    (A) The FIFO method must be applied on a class-by-class basis; and
    (B) The term dispositions includes distributions, sales, and other 
transfers.
    (3) Examples. The following examples illustrate the principles of 
this paragraph (a). For purposes of these examples, unless otherwise 
stated, the nomenclature and assumptions of the examples in Sec. 1.382-
2T(b) apply, all corporations file separate income tax returns on a 
calendar year basis, the only 5-percent shareholder of a loss 
corporation is a public group, and the facts set forth the only 
acquisitions of stock by any participants in a qualified plan and the 
only owner shifts with respect to the loss corporation during the 
testing period. The examples are as follows:

    Example 1. (i) Facts. In 1994, E, a qualified trust established 
under Plan F, acquires 10 percent of L stock. A is a participant in Plan 
F. On January 1, 2002, A acquires 4 percent of L stock, and B, who is 
not a participant or a beneficiary of a participant in Plan F, acquires 
5 percent of L stock. On January 1, 2004, E distributes 2 percent of L 
stock to A. On July 1, 2004, A acquires 1 percent of L stock.
    (ii) Analysis. January 1, 2002, is a testing date because B's 
acquisition of 5 percent of L stock causes an increase in the percentage 
ownership of B, a 5-percent shareholder. As of the close of that testing 
date, A is treated as owning only 4 percent of L stock. Therefore, A is 
treated as a member of the public group of L. In addition, E is treated 
as owning 10 percent of L stock that it acquired in 1994.
    (iii) As a result of the application of paragraph (a)(1) of this 
section to E's distribution of 2 percent of L stock to A on January 1, 
2004, for testing dates on and after January 1, 2004, A is treated as 
having acquired that 2 percent interest in L in 1994, and E is treated 
as having acquired only 8 percent of L stock in 1994. Because there are 
no owner shifts on January 1, 2004, that date is not a testing date.
    (iv) July 1, 2004, is a testing date because on that date A, a 5-
percent shareholder, acquires 1 percent of L stock. As of the close of 
that testing date, A's percentage of ownership of L stock is 7 percent, 
and A's lowest percentage of ownership of L stock at any time within the 
testing period is 2 percent (deemed acquired in 1994), representing an

[[Page 550]]

increase of 5 percentage points. In addition, as of the close of July 1, 
2004, B's percentage of ownership of L stock is 5 percent, and B's 
lowest percentage of ownership of L stock at any time within the testing 
period is 0 percent, representing an increase of 5 percentage points. 
Thus, on July 1, 2004, L must take into account an increase of 10 (5 + 
5) percentage points in determining whether it has an ownership change.
    Example 2. (i) Facts. E is a qualified trust established under Plan 
F. L, a publicly traded corporation, has 100x shares of stock 
outstanding. As of January 1, 2006, C owns 5x shares of L stock and is 
not a participant or beneficiary of a participant in Plan F. At all 
times prior to January 1, 2006, E owns no L stock. On January 1, 2006, E 
acquires 10x shares of L stock from members of the public group of L. On 
December 1, 2007, E distributes 5x shares of L stock to some of the 
participants in Plan F. No one participant acquires all 5x shares as a 
result of the distribution. On February 1, 2008, C purchases 1x shares 
of L stock from the public group of L.
    (ii) Analysis. Because E's acquisition of 10x shares of L stock on 
January 1, 2006, is an owner shift, that date is a testing date. As of 
the close of that date, E's percentage of stock ownership in L has 
increased by 10 percentage points.
    (iii) As a result of the application of paragraph (a)(1) of this 
section to E's distribution of 5x shares of L stock to some Plan F 
participants on December 1, 2007, for testing dates on and after 
December 1, 2007, those distributees are treated as having acquired 
those shares of stock on January 1, 2006, from members of the public 
group of L, and E is not treated as having acquired those shares on that 
date. E's distribution of the 5x shares is not an owner shift. 
Therefore, December 1, 2007, is not a testing date.
    (iv) February 1, 2008, is a testing date because on that date an 
owner shift results from C's purchase of 1x shares of L stock. As of the 
close of that testing date, the distributees of 5x shares of L stock are 
treated as members of the public group of L having acquired 5x shares of 
L stock from other members of the public group of L on January 1, 2006. 
Because those acquisitions are not by 5-percent shareholders, L does not 
take them into account. In addition, as of the close of February 1, 
2008, E's percentage of stock ownership in L is 5 percent, and E's 
lowest percentage of stock ownership in L at any time within the testing 
period is 0 percent, representing an increase of 5 percentage points. In 
addition, as of the close of February 1, 2008, C's percentage of stock 
ownership in L is 6 percent, and C's lowest percentage of stock 
ownership in L at any time within the testing period is 5 percent, 
representing an increase of 1 percentage point. Therefore, on February 
1, 2008, L must take into account an increase of 6 (5 + 1) percentage 
points in determining whether it has an ownership change.

    (4) Effective date--(i) General rule. This section applies to all 
distributions after June 27, 2003.
    (ii) Retroactive application. Notwithstanding paragraph (a)(4)(i) of 
this section, a loss corporation may apply the rules of this section 
retroactively to:
    (A) All distributions on or before June 27, 2003 that are within a 
testing period that includes June 27, 2003; or
    (B) All distributions after December 31, 1986.
    (b) [Reserved]

[T.D. 9063, 68 FR 38178, June 27, 2003]



Sec. 1.382-11  Effective dates. [Reserved]



Sec. 1.383-0  Effective date.

    (a) The regulations under section 383 (other than the regulations 
described in paragraph (b) of this section) reflect the amendments made 
to sections 382 and 383 by the Tax Reform Act of 1986. See Sec. 1.383-
1(j) for effective date rules.
    (b) Sections 1.383-1A, 1.383-2A, and 1.383-3A do not reflect the 
amendments made to sections 382 and 383 by the Tax Reform Act of 1986.

[T.D. 8352, 56 FR 29434, June 27, 1991]



Sec. 1.383-1  Special limitations on certain capital losses and excess 
credits.

    (a) Outline of topics. In order to facilitate the use of this 
section, this paragraph lists the paragraphs, subparagraphs and 
subdivisions contained in this section.

    (a) Outline of topics.
    (b) In general.
    (c) Definitions.
    (1) Coordination with definitions and nomenclature used in section 
382.
    (2) Pre-change capital loss.
    (3) Pre-change credit.
    (4) Pre-change loss.
    (5) Regular tax liability.
    (6) Section 383 credit limitation.
    (i) Definition.
    (ii) Example.
    (d) Limitation on use of pre-change losses and pre-change credits.
    (1) In general.
    (2) Ordering rules for utilization of pre-change losses and pre-
change credits and for absorption of the section 382 limitation and the 
section 383 credit limitation.
    (3) Coordination with other limitations.

[[Page 551]]

    (i) In general.
    (ii) Examples.
    (e) Carryforward of unused section 382 limitation.
    (1) Computation of carryforward amount.
    (2) Section 383 credit reduction amount.
    (3) Computation of section 383 credit reduction amount; illustration 
using tax rates and brackets in effect for calendar year 1988.
    (4) Special rules for determining the section 383 credit reduction 
amount.
    (i) Ordering rules.
    (ii) Special rule for credits under section 38(a).
    (f) Examples.
    (g) Coordination with section 382 and the regulations thereunder.
    (h) Alternative minimum tax.
    (i) [Reserved]
    (j) Effective date.
    (k) Transitional rules regarding information statements

    (b) In general. Under section 383, if an ownership change occurs 
with respect to a loss corporation, the section 382 limitation and the 
section 383 credit limitation (as defined in paragraph (c)(6) of this 
section) for a post-change year shall apply to limit the amount of 
taxable income and regular tax liability, respectively, that can be 
offset by pre-change capital losses and pre-change credits of the new 
loss corporation. The section 383 credit limitation for a post-change 
year bears a direct relationship to the amount, if any, of the section 
382 limitation that remains after taking into account the reduction in 
the loss corporation's taxable income during a post-change year as a 
result of its pre-change losses (as defined in paragraph (c)(4) of this 
section). In general, the section 383 credit limitation is an amount 
equal to the tax liability of the new loss corporation for the post-
change year which is attributable to so much of the corporation's 
taxable income that would be reduced by allowing as a deduction its 
section 382 limitation remaining after accounting for the use of pre-
change losses. As pre-change losses and pre-change credits of a 
corporation are used, they absorb the section 382 limitation and the 
section 383 credit limitation, respectively, in the manner prescribed by 
paragraph (d) of this section. See also section 382 and the regulations 
thereunder.
    (c) Definitions--(1) Coordination with definitions and nomenclature 
used in section 382. Terms and nomenclature used in this section, and 
not otherwise defined herein, shall have the same respective meanings as 
in section 382 and the regulations thereunder, taking into account that 
the limitations of section 383 and this section apply to pre-change 
capital losses and pre-change credits.
    (2) Pre-change capital loss. The term pre-change capital loss 
means--
    (i) Any capital loss carryover under section 1212 of the old loss 
corporation to the taxable year ending on the change date or in which 
the change date occurs,
    (ii) Any net capital loss of the old loss corporation for the 
taxable year in which the ownership change occurs, to the extent such 
loss is allocable to the period in such year ending on or before the 
change date, and
    (iii) If the old loss corporation has a net unrealized built-in 
loss, any recognized built-in loss for any recognition period taxable 
year (within the meaning of section 382(h)) that is a capital loss.
    (3) Pre-change credit. The term pre-change credit means--
    (i) Any excess foreign taxes under section 904(c) of the old loss 
corporation--
    (A) carried forward to the taxable year ending on the change date or 
in which the change date occurs, or
    (B) carried forward from the taxable year that includes the change 
date, to the extent such credit is allocable to the period in such year 
ending on or before the change date,
    (ii) Any credit under section 38 of the old loss corporation--
    (A) carried forward to the taxable year ending on the change date or 
in which the change date occurs, or
    (B) carried forward from a taxable year that includes the change 
date to the extent such credit is allocable to the period in such year 
ending on or before the change date, and
    (iii) The available minimum tax credit of the old loss corporation 
under section 53 to the extent attributable to periods ending on or 
before the change date.
    (4) Pre-change loss. Solely for purposes of this section, the term 
prechange loss means any pre-change

[[Page 552]]

loss described in Sec. 1.382-2(a)(2) other than pre-change credits 
described in paragraph (c)(3) of this section.
    (5) Regular tax liability. For purposes of this section, the term 
regular tax liability has the same meaning as provided in section 26(b).
    (6) Section 383 credit limitation--(i) Definition. The section 383 
credit limitation for a post-change year of a new loss corporation is an 
amount equal to the excess of--
    (A) The new loss corporation's regular tax liability for the post-
change year, over
    (B) The new loss corporation's regular tax liability for the post-
change year computed, for this purpose, by allowing as an additional 
deduction an amount equal to the section 382 limitation remaining after 
the application of paragraphs (d)(2)(i) through (iv) of this section.
    (ii) Example.

    Example 3. L, a new loss corporation, is a calendar year taxpayer. L 
has an ownership change on December 31, 1987. For 1988, L has taxable 
income (prior to the use of any pre-change losses) of $100,000. In 
addition, L has a section 382 limitation of $25,000, a pre-change net 
operating loss carryover of $12,000, a pre-change minimum tax credit of 
$50,000, and no pre-change capital losses. L's section 383 credit 
limitation is the excess of its regular tax liability computed after 
allowing a $12,000 net operating loss deduction (taxable income of 
$88,000; regular tax liability of $18,170), over its regular tax 
liability computed after allowing an additional deduction in the amount 
of L's section 382 limitation remaining after the application of 
paragraphs (d)(2)(i) through (iv) of this section, or $13,000 (taxable 
income of $75,000; regular tax liability of $13,750). L's section 383 
credit limitation is therefore $4,420 ($18,170 minus $13,750).

    (d) Limitation on use of pre-change losses and pre-change credits--
(1) In general. The amount of taxable income of a new loss corporation 
for any post-change year that may be offset by pre-change losses shall 
not exceed the amount of the section 382 limitation for the post-change 
year. The amount of the regular tax liability of a new loss corporation 
for any post-change year that may be offset by pre-change credits shall 
not exceed the amount of the section 383 credit limitation for the post-
change year.
    (2) Ordering rules for utilization of pre-change losses and pre-
change credits and for absorption of the section 382 limitation and the 
section 383 credit limitation. Pre-change losses described in any 
subdivision of this paragraph (d)(2) can offset taxable income in a 
post-change year only to the extent that the section 382 limitation for 
that year has not been absorbed by pre-change losses described in any 
lower-numbered subdivisions. Pre-change credits described in any 
subdivision of this paragraph (d)(2) can offset regular tax liability in 
a post-change year only to the extent that the section 383 credit 
limitation for that year has not been absorbed by pre-change credits 
described in any lower numbered subdivisions. The section 382 limitation 
is absorbed by one dollar for each dollar of pre-change loss that is 
used to offset taxable income. The section 383 credit limitation is 
absorbed by one dollar for each dollar of pre-change credit that is used 
to offset regular tax liability. For each post-change year, the section 
382 limitation and the section 383 credit limitation of a new loss 
corporation are absorbed by such corporation's pre-change losses and 
pre-change credits in the following order:
    (i) Pre-change capital losses described in paragraph (c)(2)(iii) of 
this section that are recognized and are subject to the section 382 
limitation in such post-change year,
    (ii) Pre-change capital losses described in paragraphs (c)(2)(i) and 
(ii) of this section,
    (iii) Pre-change losses that are described in Sec. 1.382-2(a)(2) 
(other than losses that are pre-change capital losses) that are 
recognized and are subject to the section 382 limitation in such post-
change year,
    (iv) Pre-change losses not described in paragraphs (d)(2)(i) through 
(iii) of this section,
    (v) Pre-change credits described in paragraph (c)(3)(i) of this 
section (excess foreign taxes),
    (vi) Pre-change credits described in paragraph (c)(3)(ii) of this 
section (business credits), and
    (vii) Pre-change credits described in paragraph (c)(3)(iii) of this 
section (minimum tax credit).

[[Page 553]]

    (3) Coordination with other limitations--(i) In general. Paragraphs 
(d)(1) and (2) of this section shall be applied after the application of 
all other limitations contained in subtitle A which are applicable to 
the use of a pre-change loss or pre-change credit in a post-change year. 
Thus, only otherwise currently allowable pre-change losses and pre-
change credits will result in the absorption of the section 382 
limitation and the section 383 credit limitation.
    (ii) Examples:

    Example (1). L is a calendar year taxpayer and has an ownership 
change on December 31, 1987. For 1988, L has taxable income of $300,000, 
a regular tax liability of $100,250 and a tentative minimum tax of 
$90,000. L has no pre-change losses, but has a business credit 
carryforward from 1985 of $25,000, no portion of which is due to the 
regular percentage of the investment tax credit under section 46. L has 
a section 382 limitation for 1988 of $50,000. L's section 383 credit 
limitation is $19,500, i.e., an amount equal to the excess of L's 
regular tax liability ($100,250) over its regular tax liability 
calculated by allowing an additional deduction of $50,000. Pursuant to 
the limitation contained in section 38(c), however, L is entitled to use 
only $10,250 of its business credit carryforward in 1988. The unabsorbed 
portion of L's section 382 limitation (computed pursuant to paragraph 
(e) of this section) is carried forward under section 382(b)(2). The 
unused portion of L's business credit carryforward, $14,750, is carried 
forward to the extent provided in section 39.
    Example (2). Assume the same facts as in Example (1), except that 
L's tentative minimum tax is $70,000. L's use of its investment tax 
credit carryforward is no longer limited by section 38(c); however, 
pursuant to section 383 and this section, L is entitled to use only 
$19,500 of its business credit carryforward in 1988. The unused portion 
of L's business credit carryforward, $5,500, is carried forward to the 
extent provided in section 39. There is no unused section 382 limitation 
to be carried forward.

    (e) Carryforward of unused section 382 limitation--(1) Computation 
of carryforward amount. The section 382 limitation that can be carried 
forward under section 382(b)(2) is the excess, if any, of (i) the 
section 382 limitation for the post-change year remaining after the 
application of paragraphs (d)(2)(i) through (iv) of this section, over 
(ii) the section 383 credit reduction amount for that post-change year.
    (2) Section 383 credit reduction amount. The section 383 credit 
reduction amount for a post-change year is equal to the amount of 
taxable income attributable to the portion of the new loss corporation's 
regular tax liability for the year that is offset by pre-change credits. 
Each dollar of regular tax liability that is offset by a dollar of pre-
change credit is divided by the effective marginal rate at which that 
dollar of tax was imposed to determine the amount of taxable income that 
resulted in that particular dollar of regular tax liability. The sum of 
these ``grossed-up'' amounts for the taxable year is the section 383 
credit reduction amount. In determining the effective marginal rate at 
which a dollar of tax was imposed, special rules regarding rates of tax 
(e.g., sections 11(b)(2) and (15) or taxable income brackets (e.g., 
section 1561), or both, shall be taken into account. See Example (3) in 
paragraph (f) of this section illustrating the effect of section 
1561(a). Paragraph (e)(3) of this section illustrates the gross-up 
computation of the section 383 credit reduction amount based on the tax 
table and the rates of tax prescribed by section 11(b) as in effect for 
taxable years beginning on January 1, 1988.
    (3) Computation of section 383 credit reduction amount; illustration 
using tax rates and brackets in effect for calendar year 1988. (i) 
Assuming no special rules regarding rates of tax or taxable income 
brackets apply, the section 383 credit reduction amount for a new loss 
corporation is the sum of the amounts determined under paragraphs 
(e)(3)(ii), (iii), (iv), (v), and (vi) of this section.
    (ii) The amount determined under this subdivision (ii) is the amount 
(if any) by which pre-change credits offset so much of the new loss 
corporation's regular tax liability as exceeds $113,900, divided by 
0.34.
    (iii) The amount determined under this subdivision (e)(3)(iii) is 
the amount (if any) by which pre-change credits offset so much of the 
new loss corporation's regular tax liability as exceeds $22,250 (but 
does not exceed $113,900), divided by 0.39.
    (iv) The amount determined under this subdivision (e)(3)(iv) is the 
amount (if any) by which pre-change credits

[[Page 554]]

offset so much of the new loss corporation's regular tax liability as 
exceeds $13,750 (but does not exceed $22,250), divided by 0.34.
    (v) The amount determined under this subdivision (e)(3)(v) is the 
amount (if any) by which pre-change credits offset so much of the new 
loss corporation's regular tax liability as exceeds $7,500 (but does not 
exceed $13,750), divided by 0.25.
    (vi) The amount determined under this subdivision (e)(3)(vi) is the 
amount (if any) by which pre-change credits offset so much of the new 
loss corporation's regular tax liability as does not exceed $7,500, 
divided by 0.15.
    (4) Special rules for determining the section 383 credit reduction 
amount--(i) Ordering rules. For purposes of this paragraph (e), credits, 
including pre-change credits, are considered to offset regular tax 
liability in the order that such credits are applied under the ordering 
rules of part IV of subchapter A of chapter 1 and section 904. For 
example, for purposes of this paragraph (e), excess foreign taxes 
carried over under section 904(c) (whether or not a pre-change credit) 
are considered (under section 38(c)) to offset regular tax liability 
before the general business credit carryovers to the taxable year are 
considered (under section 39) to offset regular tax liability before 
general business credits arising in the taxable year.
    (ii) Special rule for credits under section 38(a). For purposes of 
applying this paragraph (e), credits under section 38(a) that, under 
section 38(c)(2) as applicable, taking into account amendments made by 
section 11813 of the Revenue Reconciliation Act of 1990, effectively 
offset both regular tax liability and the tax imposed by section 55 
(relating to minimum tax), are considered to offset regular tax 
liability.
    (f) Examples. The following examples illustrate the operation of 
paragraphs (b) through (e) of this section. For purposes of these 
examples, the term modified tax liability means the amount determined 
under paragraph (c)(6)(i)(B) of this section.

    Example (1). (i) L, a calendar year taxpayer, has an ownership 
change on December 31, 1987. Before the application of carryovers, L, a 
new loss corporation, has $60,000 of capital gain, $100,000 of ordinary 
taxable income and a section 382 limitation of $100,000 for its first 
post-change year beginning after the change date. L's only carryovers 
are an $80,000 capital loss carryover and a $100,000 net operating loss 
carryover. Both carryovers are from taxable years ending before the 
change date and thus are pre-change losses.
    (ii) L first uses $60,000 of its pre-change capital loss carryover 
to offset its capital gain. This reduces its section 382 limitation to 
$40,000 (i.e., $100,000-$60,000). L's pre-change net operating loss 
carryover can therefore be used only to the extent of $40,000. L's 
remaining $20,000 pre-change capital loss carryover and remaining 
$60,000 pre-change net operating loss carryover are carried to later 
years to the extent permitted under this section and sections 172, 
382(l)(2) and 1212.
    Example (2). (i) L, a calendar year taxpayer, has an ownership 
change on December 31, 1987. L has $750,000 of ordinary taxable income 
(before the application of carryovers) and a section 382 limitation of 
$1,500,000 for 1988. L's only carryovers are from pre-1987 taxable years 
and consist of a $500,000 net operating loss (``NOL'') carryover and a 
$200,000 foreign tax credit carryover, all of which may be used under 
the section 904 limitation. The NOL carryover is a pre-change loss, and 
the foreign tax credit carryover is a pre-change credit. L has no other 
credits which can be used for 1988 and is not liable for an alternative 
minimum tax for 1988.
    (ii) The following computation illustrates the application of this 
section for 1988:

 1. Taxable income before carryovers.......................     $750,000
 2. Pre-change NOL carryover...............................      500,000
 3. Section 382 limitation.................................    1,500,000
 4. Amount of pre-change NOL carryover that can be used          500,000
 (lesser of line 1, 2, or 3)...............................
 5. Taxable income (line 1 minus line 4)...................      250,000
 6. Section 382 limitation remaining (line 3 minus line 4).    1,000,000
 7. Pre-change credit carryover............................      200,000
 8. Regular tax liability (line 5 x section 11 rates):
    $50,000x0.15=$7,500
     25,000x0.25=6,250
     25,000x0.34=8,500
    150,000x0.39=58,500....................................       80,750
 9. Modified tax liability (line 5 minus line 6 (but not               0
 less than zero)) x section 11 rates)......................
10. Section 383 credit limitation (line 8 minus line 9)....       80,750
11. Amount of pre-change credits that can be used (lesser         80,750
 of line 7 or line 10).....................................
12. Amount of pre-change credits to be carried over to 1989      119,250
 under section 904(c) (line 7 minus line 11)...............
13. Section 383 credit reduction amount:
    ($80,750 minus $22,250)/0.39=$150,000
    ($22,250 minus $13,750)/0.34=25,000
    ($13,750 minus $7,500)/0.25=25,000
    $7,500/0.15=50,000.....................................      250,000
14. Section 382 limitation to be carried to 1989 under           750,000
 section 382(b)(2) (Line 6 minus line 13)..................
 


[[Page 555]]

    *COM020*Example (3). (i) Assume the same facts as in Example (2), 
except that, for purposes of section 1561(a), L is a component member of 
a controlled group of corporations and the taxable income of the 
controlled group of corporations for 1988 is $2,000,000.
    (ii) The following computation illustrates the application of this 
section for 1988:

 1. Taxable income before carryovers.......................     $750,000
 2.Pre-change NOL carryover................................      500,000
 3. Section 382 limitation.................................    1,500,000
 4. Amount of pre-change NOL carryover that can be used          500,000
 (lesser of line 1, 2, or 3)...............................
 5. Taxable income (line 1 minus line 4)...................      250,000
 6. Section 382 limitation remaining (line 3 minus line 4).    1,000,000
 7. Pre-change credit carryover............................      200,000
 8. Regular tax liability (line 5x0.34 (the effective             85,000
 section 11 rate under section 1561(a)))...................
 9. Modified tax liability (line 5 minus line 6 (but not               0
 less than zero)) x section 11 rates)......................
10. Section 383 credit limitation (line 8 minus line 9)....       85,000
11. Amount of pre-change credits that can be used (lesser         85,000
 of line 7 or line 10).....................................
12. Amount of pre-change credits to be carried over to 1989      115,000
 under section 904(c) (line 7 minus line 11)...............
13. Section 383 credit reduction amount (line 11 divided by      250,000
 0.34).....................................................
14. Section 383 limitation to be carried to 1989 under           750,000
 section 382(b)(2) (line 6 minus line 13)..................
 

    Example (4). (i) L, a calendar year taxpayer, has an ownership 
change on December 31, 1987. L has $80,000 of ordinary taxable income 
(before the application of carryovers) and a section 382 limitation of 
$25,000 for 1988, a post-change year. L's only carryover is from a pre-
1987 taxable year and is a general business credit carryforward under 
section 39 in the amount of $10,000 (no portion of which is attributable 
to the investment tax credit under section 46). The general business 
credit carryforward is a pre-change credit. L has no other credits which 
can be used for 1988 and is not liable for an alternative minimum tax 
for 1988.
    (ii) The following computation illustrates the application of this 
section:

1. Taxable income..........................................      $80,000
2. Section 382 limitation..................................       25,000
3. Pre-change credit carryover.............................       10,000
4. Regular tax liability (line 1 x section 11 rates):
    $50,000x0.15=$7,500
    25,000x0.25=6,250
    5,000x0.34=1,700.......................................       15,450
5. Modified tax liability ((line 1 minus line 2) x section
 11 rates):
    $50,000x0.15=$7,500
    5,000x0.25=1,250.......................................        8,750
6. Section 383 credit limitation (line 4 minus line 5).....        6,700
7. Amount of pre-change credits that can be used (lesser of        6,700
 line 3 or line 6).........................................
8. Amount of pre-change credits to be carried over to 1989         3,300
 under sections 39 and 382(l)(2) (line 3 minus line 7).....
9. Regular tax payable (line 4 minus line 7)...............        8,750
10. Section 383 credit reduction amount:
    ($15,450 minus $13,750)/0.34=$5,000
    ($13,750 minus $8,750)/0.25=20,000.....................       25,000
11. Section 382 limitation to be carried to 1989 under                 0
 section 382(b)(2) (line 2 minus line 10)
 

    (g) Coordination with section 382 and the regulations thereunder. 
The rules and principles of section 382 (including, for example, section 
382(b)(3) and section 382(l)(2)) and the regulations thereunder shall 
also apply with respect to section 383 and this section. To the extent 
section 382(h)(6) applies to credits, the principles of this section 
apply to such credits. In applying the rules and principles of section 
382 and the regulations thereunder, appropriate adjustments shall be 
made to take into account that section 383 and this section apply to 
pre-change capital losses and pre-change credits. For example, in 
applying Sec. 1.382-2T (f)(18)(ii)(C), (f)(18)(iii)(C) and (h)(4)(ix), 
any pre-change credits, as defined in paragraph (c)(3) of this section, 
must be converted to a deduction equivalent by dividing the amount of 
such credits by the maximum effective rate of tax provided for under 
section 11 (e.g., 0.34 for taxable years beginning in 1989).
    (h) Alternative minimum tax. See Sec. 1.383-2T for the application 
of the limitations contained in sections 382 and 383 in computing the 
alternative minimum tax under section 55.
    (i) [Reserved]
    (j) Effective date. Subject to any exception from the application of 
section 382 or the section 382 limitation with respect to a loss 
corporation, section 383 and this section apply to any loss corporation 
with respect to which an ownership change occurs after December 31, 
1986. See Sec. 1.382-2T(m) for effective date rules relating to 
ownership changes. If section 383 was not taken into account or was 
applied other than in accordance with this section in a prior taxable 
year with respect to which section 383 applies, the taxpayer should, 
within the period of limitation, file an amended return and pay any 
additional tax due plus interest.
    (k) Transitional rules regarding information statements--(1) 
Exception. An information statement described in Sec. 1.382-
2T(a)(2)(ii) of this section that would be required to be filed solely 
by reason of the loss corporation having pre-change capital losses (as 
defined in

[[Page 556]]

Sec. 1.382-2T (a)(2)(ii)(A) and (B) or pre-change credits (as defined 
in paragraph (c)(3) of this section) is not required to be filed with 
the income tax return of the loss corporation for any taxable year for 
which the due date (including extensions) of the income tax return is on 
or before November 20, 1989, or for which the income tax return is filed 
on or before October 10, 1989.
    (2) Statement with respect to prior periods. A corporation which is 
a loss corporation for any taxable year ending in 1987, 1988 or 1989 
solely because it has pre-change capital losses (as defined in 
paragraphs (c)(2)(i) and (ii) of this section or pre-change credits (as 
defined in paragraph (c)(3) of this section) must attach a separate 
information statement to its 1988 and 1989 income tax returns. Such 
information statement must (i) include the information specified in 
Sec. 1.382-2T (a)(2)(ii)(A) and (B) (without regard to testing dates 
before May 6, 1986) for each taxable year ending on or after May 6, 1986 
for which the corporation was a loss corporation, (ii) state whether and 
to what extent pre-change capital losses (as defined in paragraphs 
(c)(2)(i) and (ii) of this section) or pre-change credits (as defined in 
paragraph (c)(3) of this section) utilized by the corporation in a 
taxable year to which the section 382 limitation applied, exceeded the 
amount permitted under this section, and (iii) be labeled ``Information 
Statement with Respect to Transition Periods.'' For purposes of the 
preceding sentence, information previously reported in an information 
statement, including a statement filed with a 1988 return, may be 
excluded. The requirements of this paragraph (k)(2) apply only with 
respect to 1988 and 1989 taxable years with respect to which the due 
date of the income tax return (including extensions) is after November 
20, 1989, and for which the income tax return is not filed on or before 
October 10, 1989.

[T.D. 8264, 54 FR 38668, Sept. 20, 1989; T.D. 8264, 54 FR 46187, Nov. 1, 
1989; T.D. 8264, 54 FR 50043, Dec. 4, 1989. Redesignated and amended by 
T.D. 8352, 56 FR 29434, June 27, 1991]



Sec. 1.383-2  Limitations on certain capital losses and excess credits 
in computing alternative minimum tax. [Reserved]

[[Page 557]]



                              FINDING AIDS




  --------------------------------------------------------------------

  A list of CFR titles, subtitles, chapters, subchapters and parts and 
an alphabetical list of agencies publishing in the CFR are included in 
the CFR Index and Finding Aids volume to the Code of Federal Regulations 
which is published separately and revised annually.

  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  Table of OMB Control Numbers
  List of CFR Sections Affected

[[Page 559]]



                    Table of CFR Titles and Chapters




                      (Revised as of April 1, 2006)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
        IV  Miscellaneous Agencies (Parts 400--500)

                    Title 2--Grants and Agreements

            Subtitle A--Office of Management and Budget Guidance 
                for Grants and Agreements
         I  Office of Management and Budget Governmentwide 
                Guidance for Grants and Agreements (Parts 100-199)
        II  Office of Management and Budget Circulars and Guidance 
                (200-299)
            Subtitle B--Federal Agency Regulations for Grants and 
                Agreements [Reserved]


                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  Government Accountability Office (Parts 1--99)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Part 2100)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)

[[Page 560]]

        XV  Office of Administration, Executive Office of the 
                President (Parts 2500--2599)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)
      XXII  Federal Deposit Insurance Corporation (Part 3201)
     XXIII  Department of Energy (Part 3301)
      XXIV  Federal Energy Regulatory Commission (Part 3401)
       XXV  Department of the Interior (Part 3501)
      XXVI  Department of Defense (Part 3601)
    XXVIII  Department of Justice (Part 3801)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  Overseas Private Investment Corporation (Part 4301)
      XXXV  Office of Personnel Management (Part 4501)
        XL  Interstate Commerce Commission (Part 5001)
       XLI  Commodity Futures Trading Commission (Part 5101)
      XLII  Department of Labor (Part 5201)
     XLIII  National Science Foundation (Part 5301)
       XLV  Department of Health and Human Services (Part 5501)
      XLVI  Postal Rate Commission (Part 5601)
     XLVII  Federal Trade Commission (Part 5701)
    XLVIII  Nuclear Regulatory Commission (Part 5801)
         L  Department of Transportation (Part 6001)
       LII  Export-Import Bank of the United States (Part 6201)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Part 6401)
        LV  National Endowment for the Arts (Part 6501)
       LVI  National Endowment for the Humanities (Part 6601)
      LVII  General Services Administration (Part 6701)
     LVIII  Board of Governors of the Federal Reserve System (Part 
                6801)
       LIX  National Aeronautics and Space Administration (Part 
                6901)
        LX  United States Postal Service (Part 7001)
       LXI  National Labor Relations Board (Part 7101)
      LXII  Equal Employment Opportunity Commission (Part 7201)
     LXIII  Inter-American Foundation (Part 7301)
       LXV  Department of Housing and Urban Development (Part 
                7501)
      LXVI  National Archives and Records Administration (Part 
                7601)
     LXVII  Institute of Museum and Library Services (Part 7701)
      LXIX  Tennessee Valley Authority (Part 7901)
      LXXI  Consumer Product Safety Commission (Part 8101)
    LXXIII  Department of Agriculture (Part 8301)
     LXXIV  Federal Mine Safety and Health Review Commission (Part 
                8401)
     LXXVI  Federal Retirement Thrift Investment Board (Part 8601)

[[Page 561]]

    LXXVII  Office of Management and Budget (Part 8701)
     XCVII  Department of Homeland Security Human Resources 
                Management System (Department of Homeland 
                Security--Office of Personnel Management) (Part 
                9701)
      XCIX  Department of Defense Human Resources Management and 
                Labor Relations Systems (Department of Defense--
                Office of Personnel Management) (Part 9901)

                      Title 6--Homeland Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 0--99)

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Nutrition Service, Department of Agriculture 
                (Parts 210--299)
       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Grain Inspection, Packers and Stockyards 
                Administration (Federal Grain Inspection Service), 
                Department of Agriculture (Parts 800--899)
        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  Rural Telephone Bank, Department of Agriculture (Parts 
                1600--1699)
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)

[[Page 562]]

     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
        XX  Local Television Loan Guarantee Board (Parts 2200--
                2299)
      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy Policy and New Uses, Department of 
                Agriculture (Parts 2900--2999)
       XXX  Office of the Chief Financial Officer, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  Office of Procurement and Property Management, 
                Department of Agriculture (Parts 3200--3299)
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  Cooperative State Research, Education, and Extension 
                Service, Department of Agriculture (Parts 3400--
                3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)

                    Title 8--Aliens and Nationality

         I  Department of Homeland Security (Immigration and 
                Naturalization) (Parts 1--499)
         V  Executive Office for Immigration Review, Department of 
                Justice (Parts 1000--1399)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)
        II  Grain Inspection, Packers and Stockyards 
                Administration (Packers and Stockyards Programs), 
                Department of Agriculture (Parts 200--299)
       III  Food Safety and Inspection Service, Department of 
                Agriculture (Parts 300--599)

[[Page 563]]

                           Title 10--Energy

         I  Nuclear Regulatory Commission (Parts 0--199)
        II  Department of Energy (Parts 200--699)
       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
      XIII  Nuclear Waste Technical Review Board (Parts 1303--
                1399)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Part 1800)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)
       III  Federal Deposit Insurance Corporation (Parts 300--399)
        IV  Export-Import Bank of the United States (Parts 400--
                499)
         V  Office of Thrift Supervision, Department of the 
                Treasury (Parts 500--599)
        VI  Farm Credit Administration (Parts 600--699)
       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)
        IX  Federal Housing Finance Board (Parts 900--999)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Department of the Treasury (Parts 1500--1599)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700--1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800--1899)

               Title 13--Business Credit and Assistance

         I  Small Business Administration (Parts 1--199)
       III  Economic Development Administration, Department of 
                Commerce (Parts 300--399)
        IV  Emergency Steel Guarantee Loan Board, Department of 
                Commerce (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board, 
                Department of Commerce (Parts 500--599)

[[Page 564]]

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation (Parts 1--199)
        II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200--399)
       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--499)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Industry and Security, Department of 
                Commerce (Parts 700--799)
      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  Technology Administration, Department of Commerce 
                (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399)

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0--999)
        II  Consumer Product Safety Commission (Parts 1000--1799)

[[Page 565]]

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1--199)
        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)
      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  Bureau of Customs and Border Protection, Department of 
                Homeland Security; Department of the Treasury 
                (Parts 0--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Bureau of Immigration and Customs Enforcement, 
                Department of Homeland Security (Parts 400--599)

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)
       III  Social Security Administration (Parts 400--499)
        IV  Employees Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Employment Standards Administration, Department of 
                Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)
        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training, Department of Labor 
                (Parts 1000--1099)

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--1399)
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

[[Page 566]]

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  Broadcasting Board of Governors (Parts 500--599)
       VII  Overseas Private Investment Corporation (Parts 700--
                799)
        IX  Foreign Service Grievance Board Regulations (Parts 
                900--999)
         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--1499)
        XV  African Development Foundation (Parts 1500--1599)
       XVI  Japan-United States Friendship Commission (Parts 
                1600--1699)
      XVII  United States Institute of Peace (Parts 1700--1799)

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation (Parts 1--999)
        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)
        II  Office of Assistant Secretary for Housing-Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
        IV  Office of Housing and Office of Multifamily Housing 
                Assistance Restructuring, Department of Housing 
                and Urban Development (Parts 400--499)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)

[[Page 567]]

        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)
      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs, Section 202 Direct Loan Program, Section 
                202 Supportive Housing for the Elderly Program and 
                Section 811 Supportive Housing for Persons With 
                Disabilities Program) (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--1699)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799)
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1--299)
        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300--399)
       III  National Indian Gaming Commission, Department of the 
                Interior (Parts 500--599)
        IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700--799)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Part 900)
        VI  Office of the Assistant Secretary-Indian Affairs, 
                Department of the Interior (Parts 1000--1199)
       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Part 1200)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--899)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Alcohol and Tobacco Tax and Trade Bureau, Department 
                of the Treasury (Parts 1--399)

[[Page 568]]

        II  Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
                Department of Justice (Parts 400--699)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--299)
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)
      VIII  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 800--899)
        IX  National Crime Prevention and Privacy Compact Council 
                (Parts 900--999)
        XI  Department of Justice and Department of State (Parts 
                1100--1199)

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 
                0--99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)
        II  Office of Labor-Management Standards, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)
       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)
      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Employee Benefits Security Administration, Department 
                of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

[[Page 569]]

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Minerals Management Service, Department of the 
                Interior (Parts 200--299)
       III  Board of Surface Mining and Reclamation Appeals, 
                Department of the Interior (Parts 300--399)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            Subtitle B--Regulations Relating to Money and Finance
         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of International Investment, Department of the 
                Treasury (Parts 800--899)
        IX  Federal Claims Collection Standards (Department of the 
                Treasury--Department of Justice) (Parts 900--999)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)
         V  Department of the Army (Parts 400--699)
        VI  Department of the Navy (Parts 700--799)
       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
       XII  Defense Logistics Agency (Parts 1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
     XVIII  National Counterintelligence Center (Parts 1800--1899)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000--
                2099)
       XXI  National Security Council (Parts 2100--2199)
      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700--2799)

[[Page 570]]

    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Corps of Engineers, Department of the Army (Parts 
                200--399)
        IV  Saint Lawrence Seaway Development Corporation, 
                Department of Transportation (Parts 400--499)

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of Vocational and Adult Education, Department 
                of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599)
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
        XI  National Institute for Literacy (Parts 1100--1199)
            Subtitle C--Regulations Relating to Education
       XII  National Council on Disability (Parts 1200--1299)

                          Title 35 [Reserved]

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 
                300--399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
         X  Presidio Trust (Parts 1000--1099)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
        XV  Oklahoma City National Memorial Trust (Part 1501)

[[Page 571]]

       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

             Title 37--Patents, Trademarks, and Copyrights

         I  United States Patent and Trademark Office, Department 
                of Commerce (Parts 1--199)
        II  Copyright Office, Library of Congress (Parts 200--299)
       III  Copyright Royalty Board, Library of Congress (Parts 
                301--399)
        IV  Assistant Secretary for Technology Policy, Department 
                of Commerce (Parts 400--499)
         V  Under Secretary for Technology, Department of Commerce 
                (Parts 500--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--99)

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Rate Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--1099)
        IV  Environmental Protection Agency and Department of 
                Justice (Parts 1400--1499)
         V  Council on Environmental Quality (Parts 1500--1599)
        VI  Chemical Safety and Hazard Investigation Board (Parts 
                1600--1699)
       VII  Environmental Protection Agency and Department of 
                Defense; Uniform National Discharge Standards for 
                Vessels of the Armed Forces (Parts 1700--1799)

          Title 41--Public Contracts and Property Management

            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)
        60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)
        61  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 61-1--61-999)
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       102  Federal Management Regulation (Parts 102-1--102-299)

[[Page 572]]

       105  General Services Administration (Parts 105-1--105-999)
       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)
       128  Department of Justice (Parts 128-1--128-99)
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System
       201  Federal Information Resources Management Regulation 
                (Parts 201-1--201-99) [Reserved]
            Subtitle F--Federal Travel Regulation System
       300  General (Parts 300-1--300-99)
       301  Temporary Duty (TDY) Travel Allowances (Parts 301-1--
                301-99)
       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Part 303-1--303-99)
       304  Payment of Travel Expenses from a Non-Federal Source 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
        IV  Centers for Medicare & Medicaid Services, Department 
                of Health and Human Services (Parts 400--499)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1999)

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 200--499)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10010)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency, Department of 
                Homeland Security (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

[[Page 573]]

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare
        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899)
         X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)
       XII  Corporation for National and Community Service (Parts 
                1200--1299)
      XIII  Office of Human Development Services, Department of 
                Health and Human Services (Parts 1300--1399)
       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission on Fine Arts (Parts 2100--2199)
     XXIII  Arctic Research Commission (Part 2301)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

                          Title 46--Shipping

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Homeland Security (Parts 400--499)
        IV  Federal Maritime Commission (Parts 500--599)

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)

[[Page 574]]

        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)
       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Defense Acquisition Regulations System, Department of 
                Defense (Parts 200--299)
         3  Department of Health and Human Services (Parts 300--
                399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  United States Agency for International Development 
                (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)
        12  Department of Transportation (Parts 1200--1299)
        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)
        15  Environmental Protection Agency (Parts 1500--1599)
        16  Office of Personnel Management, Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration (Parts 
                1800--1899)
        19  Broadcasting Board of Governors (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)
        21  Office of Personnel Management, Federal Employees' 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
        23  Social Security Administration (Parts 2300--2399)
        24  Department of Housing and Urban Development (Parts 
                2400--2499)
        25  National Science Foundation (Parts 2500--2599)
        28  Department of Justice (Parts 2800--2899)
        29  Department of Labor (Parts 2900--2999)
        30  Department of Homeland Security, Homeland Security 
                Acquisition Regulation (HSAR) (Parts 3000--3099)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        35  [Reserved]
        44  Federal Emergency Management Agency (Parts 4400--4499)
        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199)

[[Page 575]]

        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement (Parts 5300--5399)
        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)
        57  African Development Foundation (Parts 5700--5799)
        61  General Services Administration Board of Contract 
                Appeals (Parts 6100--6199)
        63  Department of Transportation Board of Contract Appeals 
                (Parts 6300--6399)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Pipeline and Hazardous Materials Safety 
                Administration, Department of Transportation 
                (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Motor Carrier Safety Administration, 
                Department of Transportation (Parts 300--399)
        IV  Coast Guard, Department of Homeland Security (Parts 
                400--499)
         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
      VIII  National Transportation Safety Board (Parts 800--999)
         X  Surface Transportation Board, Department of 
                Transportation (Parts 1000--1399)
        XI  Research and Innovative Technology Administration, 
                Department of Transportation (Parts 1400--1499)
       XII  Transportation Security Administration, Department of 
                Homeland Security (Parts 1500--1699)

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
       III  International Fishing and Related Activities (Parts 
                300--399)

[[Page 576]]

        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)
         V  Marine Mammal Commission (Parts 500--599)
        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

                      CFR Index and Finding Aids

            Subject/Agency Index
            List of Agency Prepared Indexes
            Parallel Tables of Statutory Authorities and Rules
            List of CFR Titles, Chapters, Subchapters, and Parts
            Alphabetical List of Agencies Appearing in the CFR

[[Page 577]]





           Alphabetical List of Agencies Appearing in the CFR




                      (Revised as of April 1, 2006)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Committee of the Federal Register  1, I
Advanced Research Projects Agency                 32, I
Advisory Council on Historic Preservation         36, VIII
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development, United      22, II
     States
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department                            5, LXXIII
  Agricultural Marketing Service                  7, I, IX, X, XI
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Chief Financial Officer, Office of              7, XXX
  Commodity Credit Corporation                    7, XIV
  Cooperative State Research, Education, and      7, XXXIV
       Extension Service
  Economic Research Service                       7, XXXVII
  Energy, Office of                               7, XXIX
  Environmental Quality, Office of                7, XXXI
  Farm Service Agency                             7, VII, XVIII
  Federal Acquisition Regulation                  48, 4
  Federal Crop Insurance Corporation              7, IV
  Food and Nutrition Service                      7, II
  Food Safety and Inspection Service              9, III
  Foreign Agricultural Service                    7, XV
  Forest Service                                  36, II
  Grain Inspection, Packers and Stockyards        7, VIII; 9, II
       Administration
  Information Resources Management, Office of     7, XXVII
  Inspector General, Office of                    7, XXVI
  National Agricultural Library                   7, XLI
  National Agricultural Statistics Service        7, XXXVI
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Procurement and Property Management, Office of  7, XXXII
  Rural Business-Cooperative Service              7, XVIII, XLII
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force Department                              32, VII
  Federal Acquisition Regulation Supplement       48, 53
Air Transportation Stabilization Board            14, VI
Alcohol and Tobacco Tax and Trade Bureau          27, I
Alcohol, Tobacco, Firearms, and Explosives,       27, II
     Bureau of
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
American Indians, Office of the Special Trustee   25, VII
Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX

[[Page 578]]

Architectural and Transportation Barriers         36, XI
     Compliance Board
Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI
Army Department                                   32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Benefits Review Board                             20, VII
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase From People Who Are
Broadcasting Board of Governors                   22, V
  Federal Acquisition Regulation                  48, 19
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chief Financial Officer, Office of                7, XXX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X
Civil Rights, Commission on                       45, VII
Civil Rights, Office for                          34, I
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce Department                               44, IV
  Census Bureau                                   15, I
  Economic Affairs, Under Secretary               37, V
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 13
  Fishery Conservation and Management             50, VI
  Foreign-Trade Zones Board                       15, IV
  Industry and Security, Bureau of                15, VII
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II
  National Marine Fisheries Service               50, II, IV, VI
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Telecommunications and Information     15, XXIII; 47, III
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office, United States      37, I
  Productivity, Technology and Innovation,        37, IV
       Assistant Secretary for
  Secretary of Commerce, Office of                15, Subtitle A
  Technology, Under Secretary for                 37, V
  Technology Administration                       15, XI
  Technology Policy, Assistant Secretary for      37, IV
Commercial Space Transportation                   14, III
Commodity Credit Corporation                      7, XIV
Commodity Futures Trading Commission              5, XLI; 17, I
Community Planning and Development, Office of     24, V, VI
     Assistant Secretary for
Community Services, Office of                     45, X
Comptroller of the Currency                       12, I
Construction Industry Collective Bargaining       29, IX
     Commission
Consumer Product Safety Commission                5, LXXI; 16, II
Cooperative State Research, Education, and        7, XXXIV
     Extension Service
Copyright Office                                  37, II
Copyright Royalty Board                           37, III
Corporation for National and Community Service    45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Court Services and Offender Supervision Agency    28, VIII
     for the District of Columbia
Customs and Border Protection Bureau              19, I
Defense Contract Audit Agency                     32, I
Defense Department                                5, XXVI; 32, Subtitle A; 
                                                  40, VII

[[Page 579]]

  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III, 
                                                  48, 51
  Defense Acquisition Regulations System          48, II
  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  National Imagery and Mapping Agency             32, I
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 32, I
Defense Contract Audit Agency                     32, I
Defense Intelligence Agency                       32, I
Defense Logistics Agency                          32, XII; 48, 54
Defense Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
District of Columbia, Court Services and          28, VIII
     Offender Supervision Agency for the
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Affairs, Under Secretary                 37, V
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Civil Rights, Office for                        34, I
  Educational Research and Improvement, Office    34, VII
       of
  Elementary and Secondary Education, Office of   34, II
  Federal Acquisition Regulation                  48, 34
  Postsecondary Education, Office of              34, VI
  Secretary of Education, Office of               34, Subtitle A
  Special Education and Rehabilitative Services,  34, III
       Office of
  Vocational and Adult Education, Office of       34, IV
Educational Research and Improvement, Office of   34, VII
Elementary and Secondary Education, Office of     34, II
Emergency Oil and Gas Guaranteed Loan Board       13, V
Emergency Steel Guarantee Loan Board              13, IV
Employee Benefits Security Administration         29, XXV
Employees' Compensation Appeals Board             20, IV
Employees Loyalty Board                           5, V
Employment and Training Administration            20, V
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             5, XXIII; 10, II, III, X
  Federal Acquisition Regulation                  48, 9
  Federal Energy Regulatory Commission            5, XXIV; 18, I
  Property Management Regulations                 41, 109
Energy, Office of                                 7, XXIX
Engineers, Corps of                               33, II; 36, III
Engraving and Printing, Bureau of                 31, VI
Environmental Protection Agency                   5, LIV; 40, I, IV, VII
  Federal Acquisition Regulation                  48, 15
  Property Management Regulations                 41, 115
Environmental Quality, Office of                  7, XXXI
Equal Employment Opportunity Commission           5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary  24, I
     for
Executive Office of the President                 3, I
  Administration, Office of                       5, XV
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                5, III, LXXVII; 14, VI; 
                                                  48, 99
  National Drug Control Policy, Office of         21, III
  National Security Council                       32, XXI; 47, 2
  Presidential Documents                          3
  Science and Technology Policy, Office of        32, XXIV; 47, II

[[Page 580]]

  Trade Representative, Office of the United      15, XX
       States
Export-Import Bank of the United States           5, LII; 12, IV
Family Assistance, Office of                      45, II
Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV
Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1
Federal Aviation Administration                   14, I
  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               31, IX
Federal Communications Commission                 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of   41, 60
Federal Crop Insurance Corporation                7, IV
Federal Deposit Insurance Corporation             5, XXII; 12, III
Federal Election Commission                       11, I
Federal Emergency Management Agency               44, I
  Federal Acquisition Regulation                  48, 44
Federal Employees Group Life Insurance Federal    48, 21
     Acquisition Regulation
Federal Employees Health Benefits Acquisition     48, 16
     Regulation
Federal Energy Regulatory Commission              5, XXIV; 18, I
Federal Financial Institutions Examination        12, XI
     Council
Federal Financing Bank                            12, VIII
Federal Highway Administration                    23, I, II
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Board                     12, IX
Federal Labor Relations Authority, and General    5, XIV; 22, XIV
     Counsel of the Federal Labor Relations 
     Authority
Federal Law Enforcement Training Center           31, VII
Federal Management Regulation                     41, 102
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration       49, III
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
Federal Railroad Administration                   49, II
Federal Register, Administrative Committee of     1, I
Federal Register, Office of                       1, II
Federal Reserve System                            12, II
  Board of Governors                              5, LVIII
Federal Retirement Thrift Investment Board        5, VI, LXXVI
Federal Service Impasses Panel                    5, XIV
Federal Trade Commission                          5, XLVII; 16, I
Federal Transit Administration                    49, VI
Federal Travel Regulation System                  41, Subtitle F
Fine Arts, Commission on                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Fishery Conservation and Management               50, VI
Food and Drug Administration                      21, I
Food and Nutrition Service                        7, II
Food Safety and Inspection Service                9, III
Foreign Agricultural Service                      7, XV
Foreign Assets Control, Office of                 31, V
Foreign Claims Settlement Commission of the       45, V
     United States
Foreign Service Grievance Board                   22, IX
Foreign Service Impasse Disputes Panel            22, XIV
Foreign Service Labor Relations Board             22, XIV
Foreign-Trade Zones Board                         15, IV
Forest Service                                    36, II
General Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5
  Federal Management Regulation                   41, 102

[[Page 581]]

  Federal Property Management Regulations         41, 101
  Federal Travel Regulation System                41, Subtitle F
  General                                         41, 300
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
       of Certain Employees
  Relocation Allowances                           41, 302
  Temporary Duty (TDY) Travel Allowances          41, 301
Geological Survey                                 30, IV
Government Accountability Office                  4, I
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          5, XLV; 45, Subtitle A
  Centers for Medicare & Medicaid Services        42, IV
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X
  Community Services, Office of                   45, X
  Defense Acquisition Regulations System          48, 2
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Human Development Services, Office of           45, XIII
  Indian Health Service                           25, V; 42, I
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Homeland Security, Department of                  6, I
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Customs and Border Protection Bureau            19, I
  Federal Emergency Management Agency             44, I
  Immigration and Customs Enforcement Bureau      19, IV
  Immigration and Naturalization                  8, I
  Transportation Security Administration          49, XII
Housing and Urban Development, Department of      5, LXV; 24, Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of Assistant Secretary for
  Housing, Office of, and Multifamily Housing     24, IV
       Assistance Restructuring, Office of
  Inspector General, Office of                    24, XII
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     Assistant Secretary for
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
Human Development Services, Office of             45, XIII
Immigration and Customs Enforcement Bureau        19, IV
Immigration and Naturalization                    8, I
Immigration Review, Executive Office for          8, V
Independent Counsel, Office of                    28, VII
Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
     Secretary
Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V; 42, I
Industry and Security, Bureau of                  15, VII
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
   Archives and Records Administration
[[Page 582]]

Inspector General
  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Interior Department
  American Indians, Office of the Special         25, VII
       Trustee
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  Minerals Management Service                     30, II
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Reclamation, Bureau of                          43, I
  Secretary of the Interior, Office of            43, Subtitle A
  Surface Mining and Reclamation Appeals, Board   30, III
       of
  Surface Mining Reclamation and Enforcement,     30, VII
       Office of
Internal Revenue Service                          26, I
International Boundary and Water Commission,      22, XI
     United States and Mexico, United States 
     Section
International Development, United States Agency   22, II
     for
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
International Fishing and Related Activities      50, III
International Investment, Office of               31, VIII
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
International Trade Administration                15, III; 19, III
International Trade Commission, United States     19, II
Interstate Commerce Commission                    5, XL
James Madison Memorial Fellowship Foundation      45, XXIV
Japan-United States Friendship Commission         22, XVI
Joint Board for the Enrollment of Actuaries       20, VIII
Justice Department                                5, XXVIII; 28, I, XI; 40, 
                                                  IV
  Alcohol, Tobacco, Firearms, and Explosives,     27, II
       Bureau of
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             31, IX
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration Review, Executive Office for        8, V
  Offices of Independent Counsel                  28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor Department                                  5, XLII
  Benefits Review Board                           20, VII
  Employee Benefits Security Administration       29, XXV
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Employment Standards Administration             20, VI
  Federal Acquisition Regulation                  48, 29
  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50
  Labor-Management Standards, Office of           29, II, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Public Contracts                                41, 50

[[Page 583]]

  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training Service,      41, 61; 20, IX
       Office of the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I
Labor-Management Standards, Office of             29, II, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Library of Congress                               36, VII
  Copyright Office                                37, II
  Copyright Royalty Board                         37, III
Local Television Loan Guarantee Board             7, XX
Management and Budget, Office of                  5, III, LXXVII; 14, VI; 
                                                  48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II
Micronesian Status Negotiations, Office for       32, XXVII
Mine Safety and Health Administration             30, I
Minerals Management Service                       30, II
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
Morris K. Udall Scholarship and Excellence in     36, XVI
     National Environmental Policy Foundation
National Aeronautics and Space Administration     5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National and Community Service, Corporation for   45, XII, XXV
National Archives and Records Administration      5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Bureau of Standards                      15, II
National Capital Planning Commission              1, IV
National Commission for Employment Policy         1, IV
National Commission on Libraries and Information  45, XVII
     Science
National Council on Disability                    34, XII
National Counterintelligence Center               32, XVIII
National Credit Union Administration              12, VII
National Crime Prevention and Privacy Compact     28, IX
     Council
National Drug Control Policy, Office of           21, III
National Foundation on the Arts and the           45, XI
     Humanities
National Highway Traffic Safety Administration    23, II, III; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute for Literacy                   34, XI
National Institute of Standards and Technology    15, II
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV, VI
National Mediation Board                          29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       5, XLIII; 45, VI
  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI
National Security Council and Office of Science   47, II
     and Technology Policy
National Telecommunications and Information       15, XXIII; 47, III
     Administration
National Transportation Safety Board              49, VIII
National Weather Service                          15, IX
Natural Resources Conservation Service            7, VI
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy Department                                   32, VI
  Federal Acquisition Regulation                  48, 52

[[Page 584]]

Neighborhood Reinvestment Corporation             24, XXV
Northeast Interstate Low-Level Radioactive Waste  10, XVIII
     Commission
Nuclear Regulatory Commission                     5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Offices of Independent Counsel                    28, VI
Oklahoma City National Memorial Trust             36, XV
Operations Office                                 7, XXVIII
Overseas Private Investment Corporation           5, XXXIII; 22, VII
Patent and Trademark Office, United States        37, I
Payment From a Non-Federal Source for Travel      41, 304
     Expenses
Payment of Expenses Connected With the Death of   41, 303
     Certain Employees
Peace Corps                                       22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, XXXV; 45, VIII
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
       Acquisition Regulation
  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
Pipeline and Hazardous Materials Safety           49, I
     Administration
Postal Rate Commission                            5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI
President's Commission on White House             1, IV
     Fellowships
Presidential Documents                            3
Presidio Trust                                    36, X
Prisons, Bureau of                                28, V
Procurement and Property Management, Office of    7, XXXII
Productivity, Technology and Innovation,          37, IV
     Assistant Secretary
Public Contracts, Department of Labor             41, 50
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Refugee Resettlement, Office of                   45, IV
Regional Action Planning Commissions              13, V
Relocation Allowances                             41, 302
Research and Innovative Technology                49, XI
     Administration
Rural Business-Cooperative Service                7, XVIII, XLII
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII
Saint Lawrence Seaway Development Corporation     33, IV
Science and Technology Policy, Office of          32, XXIV
Science and Technology Policy, Office of, and     47, II
     National Security Council
Secret Service                                    31, IV
Securities and Exchange Commission                17, II
Selective Service System                          32, XVI
Small Business Administration                     13, I
Smithsonian Institution                           36, V
Social Security Administration                    20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII
Special Education and Rehabilitative Services,    34, III
     Office of
State Department                                  22, I; 28, XI
  Federal Acquisition Regulation                  48, 6
Surface Mining and Reclamation Appeals, Board of  30, III
Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII

[[Page 585]]

Technology Administration                         15, XI
Technology Policy, Assistant Secretary for        37, IV
Technology, Under Secretary for                   37, V
Tennessee Valley Authority                        5, LXIX; 18, XIII
Thrift Supervision Office, Department of the      12, V
     Treasury
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     5, L
  Commercial Space Transportation                 14, III
  Contract Appeals, Board of                      48, 63
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II
  Federal Motor Carrier Safety Administration     49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 49, V
  Pipeline and Hazardous Materials Safety         49, I
       Administration
  Saint Lawrence Seaway Development Corporation   33, IV
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Surface Transportation Board                    49, X
  Transportation Statistics Bureau                49, XI
Transportation, Office of                         7, XXXIII
Transportation Security Administration            49, XII
Transportation Statistics Bureau                  49, XI
Travel Allowances, Temporary Duty (TDY)           41, 301
Treasury Department                               5, XXI; 12, XV; 17, IV; 
                                                  31, IX
  Alcohol and Tobacco Tax and Trade Bureau        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs and Border Protection Bureau            19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Law Enforcement Training Center         31, VII
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  International Investment, Office of             31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
  Thrift Supervision, Office of                   12, V
Truman, Harry S. Scholarship Foundation           45, XVIII
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training Service,        41, 61; 20, IX
     Office of the Assistant Secretary for
Vice President of the United States, Office of    32, XXVIII
Vocational and Adult Education, Office of         34, IV
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I
World Agricultural Outlook Board                  7, XXXVIII

[[Page 587]]







                      Table of OMB Control Numbers



The OMB control numbers for chapter I of title 26 were consolidated into 
Sec. Sec.  601.9000 and 602.101 at 50 FR 10221, Mar. 14, 1985. At 61 FR 
58008, Nov. 12, 1996, Sec.  601.9000 was removed. Section 602.101 is 
reprinted below for the convenience of the user.

Sec.  602.101  OMB Control numbers.

    (a) Purpose. This part collects and displays the control numbers 
assigned to collections of information in Internal Revenue Service 
regulations by the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act of 1980. The Internal Revenue Service intends 
that this part comply with the requirements of Sec. Sec.  1320.7(f), 
1320.12, 1320.13, and 1320.14 of 5 CFR part 1320 (OMB regulations 
implementing the Paperwork Reduction Act), for the display of control 
numbers assigned by OMB to collections of information in Internal 
Revenue Service regulations. This part does not display control numbers 
assigned by the Office of Management and Budget to collections of 
information of the Bureau of Alcohol, Tobacco, and Firearms.
    (b) Display.

------------------------------------------------------------------------
                                                             Current OMB
     CFR part or section where identified and described      control No.
------------------------------------------------------------------------
1.1(h)-1(e)................................................    1545-1654
1.23-5.....................................................    1545-0074
1.25-1T....................................................    1545-0922
                                                               1545-0930
1.25-2T....................................................    1545-0922
                                                               1545-0930
1.25-3T....................................................    1545-0922
                                                               1545-0930
1.25-4T....................................................    1545-0922
1.25-5T....................................................    1545-0922
1.25-6T....................................................    1545-0922
1.25-7T....................................................    1545-0922
1.25-8T....................................................    1545-0922
1.25A-1....................................................    1545-1630
1.28-1.....................................................    1545-0619
1.31-2.....................................................    1545-0074
1.32-2.....................................................    1545-0074
1.32-3.....................................................    1545-1575
1.37-1.....................................................    1545-0074
1.37-3.....................................................    1545-0074
1.41-2.....................................................    1545-0619
1.41-3.....................................................    1545-0619
1.41-4A....................................................    1545-0074
1.41-4 (b) and (c).........................................    1545-0074
1.41-8(b)..................................................    1545-1625
1.41-8(d)..................................................    1545-0732
1.41-9.....................................................    1545-0619
1.42-1T....................................................    1545-0984
                                                               1545-0988
1.42-2.....................................................    1545-1005
1.42-5.....................................................    1545-1357
1.42-6.....................................................    1545-1102
1.42-8.....................................................    1545-1102
1.42-10....................................................    1545-1102
1.42-13....................................................    1545-1357
1.42-14....................................................    1545-1423
1.42-17....................................................    1545-1357
1.43-3(a)(3)...............................................    1545-1292
1.43-3(b)(3)...............................................    1545-1292
1.44A-1....................................................    1545-0068
1.44A-3....................................................    1545-0074
1.44B-1....................................................    1545-0219
1.45D-1....................................................    1545-1765
1.46-1.....................................................    1545-0123
                                                               1545-0155
1.46-3.....................................................    1545-0155
1.46-4.....................................................    1545-0155
1.46-5.....................................................    1545-0155
1.46-6.....................................................    1545-0155
1.46-8.....................................................    1545-0155
1.46-9.....................................................    1545-0155
1.46-10....................................................    1545-0118
1.46-11....................................................    1545-0155
1.47-1.....................................................    1545-0166
                                                               1545-0155
1.47-3.....................................................    1545-0166
                                                               1545-0155
1.47-4.....................................................    1545-0123
1.47-5.....................................................    1545-0092
1.47-6.....................................................    1545-0099
1.48-3.....................................................    1545-0155
1.48-4.....................................................    1545-0808
                                                               1545-0155
1.48-5.....................................................    1545-0155
1.48-6.....................................................    1545-0155
1.48-12....................................................    1545-0155
                                                               1545-1783
1.50A-1....................................................    1545-0895
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1.50B-2....................................................    1545-0895
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1.103(n)-2T................................................    1545-0874
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1.132-9(b).................................................    1545-1676
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1.167(l)-1.................................................    1545-0172
1.168(d)-1.................................................    1545-1146
1.168(f)(8)-1T.............................................    1545-0923
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1.261-1....................................................    1545-1041
1.263(a)-5.................................................    1545-1870
1.263(e)-1.................................................    1545-0123
1.263A-1...................................................    1545-0987
1.263A-1T..................................................    1545-0187
1.263A-2...................................................    1545-0987
1.263A-3...................................................    1545-0987
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1.263A-8(b)(2)(iii)........................................    1545-1265
1.263A-9(d)(1).............................................    1545-1265
1.263A-9(f)(1)(ii).........................................    1545-1265
1.263A-9(f)(2)(iv).........................................    1545-1265
1.263A-9(g)(2)(iv)(C)......................................    1545-1265
1.263A-9(g)(3)(iv).........................................    1545-1265
1.265-1....................................................    1545-0074
1.265-2....................................................    1545-0123
1.266-1....................................................    1545-0123
1.267(f)-1.................................................    1545-0885
1.268-1....................................................    1545-0184
1.274-1....................................................    1545-0139
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1.274-5A...................................................    1545-0139
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1.279-6....................................................    1545-0123
1.280C-4...................................................    1545-1155
1.280F-3T..................................................    1545-0074
1.280G-1...................................................    1545-1851
1.281-4....................................................    1545-0123
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1.337(d)-2.................................................    1545-1160
1.337(d)-2.................................................    1545-1774
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1.338(h)(10)-1.............................................    1545-1658
1.341-7....................................................    1545-0123
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1.355-5....................................................    1545-0123
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1.367(a)-1T................................................    1545-0026
1.367(a)-2T................................................    1545-0026
1.367(a)-3.................................................    1545-0026
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1.367(a)-6T................................................    1545-0026
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1.367(b)-3T................................................    1545-1666
1.367(d)-1T................................................    1545-0026
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1.381(c)(4)-1..............................................    1545-0123
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1.381(c)(5)-1..............................................    1545-0123
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1.381(c)(8)-1..............................................    1545-0123
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1.381(c)(25)-1.............................................    1545-0045
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1.401(a)-11................................................    1545-0710
1.401(a)-20................................................    1545-0928
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1.401(a)(31)-1.............................................    1545-1341
1.401(b)-1.................................................    1545-0197
1.401(f)-1.................................................    1545-0710
1.401(k)-1.................................................    1545-1039
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1.401(k)-2.................................................    1545-1669
1.401(k)-3.................................................    1545-1669
1.401(k)-4.................................................    1545-1669
1.401(m)-3.................................................    1545-1699
1.401(a)(9)-1..............................................    1545-1573
1.401(a)(9)-3..............................................    1545-1466
1.401(a)(9)-4..............................................    1545-1573
1.401-12(n)................................................    1545-0806
1.401-14...................................................    1545-0710
1.402(c)-2.................................................    1545-1341
1.402(f)-1.................................................    1545-1341
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1.403(b)-1.................................................    1545-0710
1.403(b)-2.................................................    1545-1341
1.403(b)-3.................................................    1545-0996
1.404(a)-4.................................................    1545-0710
1.404(a)-12................................................    1545-0710
1.404A-2...................................................    1545-0123
1.404A-6...................................................    1545-0123
1.408-2....................................................    1545-0390
1.408-5....................................................    1545-0747
1.408-6....................................................    1545-0203
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1.408-7....................................................    1545-0119
1.408(q)-1.................................................    1545-1841
1.408A-2...................................................    1545-1616
1.408A-4...................................................    1545-1616
1.408A-5...................................................    1545-1616
1.408A-7...................................................    1545-1616
1.410(a)-2.................................................    1545-0710
1.410(d)-1.................................................    1545-0710
1.411(a)-11................................................    1545-1471
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1.411(d)-4.................................................    1545-1545
1.411(d)-6.................................................    1545-1477
1.412(b)-5.................................................    1545-0710
1.412(c)(1)-2..............................................    1545-0710
1.412(c)(2)-1..............................................    1545-0710
1.412(c)(3)-2..............................................    1545-0710
1.414(c)-5.................................................    1545-0797
1.414(r)-1.................................................    1545-1221
1.415-2....................................................    1545-0710
1.415-6....................................................    1545-0710
1.417(a)(3)-1..............................................    1545-0928
1.417(e)-1.................................................    1545-1471
                                                               1545-1724
1.417(e)-1T................................................    1545-1471
1.419A(f)(6)-1.............................................    1545-1795
1.422-1....................................................    1545-0820
1.441-2....................................................    1545-1748
1.442-1....................................................    1545-0074
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1.443-1....................................................    1545-0123
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1.444-4....................................................    1545-1591
1.446-1....................................................    1545-0074
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1.446-4(d).................................................    1545-1412
1.448-1(g).................................................    1545-0152
1.448-1(h).................................................    1545-0152
1.448-1(i).................................................    1545-0152
1.448-2T...................................................    1545-0152
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1.453A-1...................................................    1545-0152
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1.453A-3...................................................    1545-0963
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1.458-1....................................................    1545-0879
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1.468A-3...................................................    1545-1269
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1.468A-4...................................................    1545-0954
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1.468A-8...................................................    1545-1269
1.468B-1...................................................    1545-1631
1.468B-9...................................................    1545-1631
1.468B-1(j)................................................    1545-1299
1.468B-2(k)................................................    1545-1299
1.468B-2(l)................................................    1545-1299
1.468B-3(b)................................................    1545-1299
1.468B-3(e)................................................    1545-1299
1.468B-5(b)................................................    1545-1299
1.469-1....................................................    1545-1008
1.469-2T...................................................    1545-0712
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1.469-4T...................................................    1545-0985
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1.472-8....................................................    1545-0028
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1.475(b)-4.................................................    1545-1496
1.481-4....................................................    1545-0152
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1.482-1....................................................    1545-1364
1.482-4....................................................    1545-1364
1.482-7....................................................    1545-1364
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1.501(a)-1.................................................    1545-0056
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1.501(c)(3)-1..............................................    1545-0056
1.501(c)(9)-5..............................................    1545-0047
1.501(c)(17)-3.............................................    1545-0047
1.501(e)-1.................................................    1545-0814
1.503(c)-1.................................................    1545-0047
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1.505(c)-1T................................................    1545-0916
1.507-1....................................................    1545-0052
1.507-2....................................................    1545-0052
1.508-1....................................................    1545-0052
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1.509(a)-3.................................................    1545-0047
1.509(a)-5.................................................    1545-0047
1.509(c)-1.................................................    1545-0052
1.512(a)-1.................................................    1545-0687
1.512(a)-4.................................................    1545-0047
                                                               1545-0687
1.521-1....................................................    1545-0051
                                                               1545-0058
1.527-2....................................................    1545-0129
1.527-5....................................................    1545-0129
1.527-6....................................................    1545-0129
1.527-9....................................................    1545-0129
1.528-8....................................................    1545-0127
1.533-2....................................................    1545-0123
1.534-2....................................................    1545-0123
1.542-3....................................................    1545-0123
1.545-2....................................................    1545-0123
1.545-3....................................................    1545-0123
1.547-2....................................................    1545-0045
                                                               1545-0123
1.547-3....................................................    1545-0123
1.551-4....................................................    1545-0074
1.552-3....................................................    1545-0099
1.552-4....................................................    1545-0099
1.552-5....................................................    1545-0099
1.556-2....................................................    1545-0704
1.561-1....................................................    1545-0044
1.561-2....................................................    1545-0123
1.562-3....................................................    1545-0123
1.563-2....................................................    1545-0123
1.564-1....................................................    1545-0123
1.565-1....................................................    1545-0043
                                                               1545-0123
1.565-2....................................................    1545-0043
1.565-3....................................................    1545-0043
1.565-5....................................................    1545-0043
1.565-6....................................................    1545-0043
1.585-1....................................................    1545-0123
1.585-3....................................................    1545-0123
1.585-8....................................................    1545-1290
1.586-2....................................................    1545-0123
1.593-1....................................................    1545-0123
1.593-6....................................................    1545-0123
1.593-6A...................................................    1545-0123
1.593-7....................................................    1545-0123
1.595-1....................................................    1545-0123
1.597-2....................................................    1545-1300
1.597-4....................................................    1545-1300
1.597-6....................................................    1545-1300
1.597-7....................................................    1545-1300
1.611-2....................................................    1545-0099
1.611-3....................................................    1545-0007
                                                               1545-0099
                                                               1545-1784
1.612-4....................................................    1545-0074
1.612-5....................................................    1545-0099
1.613-3....................................................    1545-0099
1.613-4....................................................    1545-0099
1.613-6....................................................    1545-0099
1.613-7....................................................    1545-0099
1.613A-3...................................................    1545-0919
1.613A-3(e)................................................    1545-1251
1.613A-3(l)................................................    1545-0919
1.613A-5...................................................    1545-0099
1.613A-6...................................................    1545-0099
1.614-2....................................................    1545-0099
1.614-3....................................................    1545-0099
1.614-5....................................................    1545-0099
1.614-6....................................................    1545-0099
1.614-8....................................................    1545-0099
1.617-1....................................................    1545-0099
1.617-3....................................................    1545-0099
1.617-4....................................................    1545-0099
1.631-1....................................................    1545-0007
1.631-2....................................................    1545-0007
1.641(b)-2.................................................    1545-0092
1.642(c)-1.................................................    1545-0092
1.642(c)-2.................................................    1545-0092
1.642(c)-5.................................................    1545-0074
1.642(c)-6.................................................    1545-0020
                                                               1545-0074
                                                               1545-0092
1.642(g)-1.................................................    1545-0092
1.642(i)-1.................................................    1545-0092
1.645-1....................................................    1545-1578
1.663(b)-2.................................................    1545-0092

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1.664-1....................................................    1545-0196
1.664-1(a)(7)..............................................    1545-1536
1.664-2....................................................    1545-0196
1.664-3....................................................    1545-0196
1.664-4....................................................    1545-0020
                                                               1545-0196
1.665(a)-0A through
1.665(g)-2A................................................    1545-0192
1.666(d)-1A................................................    1545-0092
1.671-4....................................................    1545-1442
1.671-5....................................................    1545-1540
1.701-1....................................................    1545-0099
1.702-1....................................................    1545-0074
1.703-1....................................................    1545-0099
1.704-2....................................................    1545-1090
1.706-1....................................................    1545-0099
                                                               1545-0074
                                                               1545-0134
1.706-1T...................................................    1545-0099
1.707-3(c)(2)..............................................    1545-1243
1.707-5(a)(7)(ii)..........................................    1545-1243
1.707-6(c).................................................    1545-1243
1.707-8....................................................    1545-1243
1.708-1....................................................    1545-0099
1.732-1....................................................    1545-0099
                                                               1545-1588
1.736-1....................................................    1545-0074
1.743-1....................................................    1545-0074
                                                               1545-1588
1.751-1....................................................    1545-0074
                                                               1545-0099
                                                               1545-0941
1.752-5....................................................    1545-1090
1.752-7....................................................    1545-1843
1.754-1....................................................    1545-0099
1.755-1....................................................    1545-0099
1.761-2....................................................    1545-1338
1.801-1....................................................    1545-0123
                                                               1545-0128
1.801-3....................................................    1545-0123
1.801-5....................................................    1545-0128
1.801-8....................................................    1545-0128
1.804-4....................................................    1545-0128
1.811-2....................................................    1545-0128
1.812-2....................................................    1545-0128
1.815-6....................................................    1545-0128
1.818-4....................................................    1545-0128
1.818-5....................................................    1545-0128
1.818-8....................................................    1545-0128
1.819-2....................................................    1545-0128
1.821-1....................................................    1545-1027
1.821-3....................................................    1545-1027
1.821-4....................................................    1545-1027
1.822-5....................................................    1545-1027
1.822-6....................................................    1545-1027
1.822-8....................................................    1545-1027
1.822-9....................................................    1545-1027
1.823-2....................................................    1545-1027
1.823-5....................................................    1545-1027
1.823-6....................................................    1545-1027
1.825-1....................................................    1545-1027
1.826-1....................................................    1545-1027
1.826-2....................................................    1545-1027
1.826-3....................................................    1545-1027
1.826-4....................................................    1545-1027
1.826-6....................................................    1545-1027
1.831-3....................................................    1545-0123
1.831-4....................................................    1545-0123
1.832-4....................................................    1545-1227
1.832-5....................................................    1545-0123
1.848-2(g)(8)..............................................    1545-1287
1.848-2(h)(3)..............................................    1545-1287
1.848-2(i)(4)..............................................    1545-1287
1.851-2....................................................    1545-1010
1.851-4....................................................    1545-0123
1.852-1....................................................    1545-0123
1.852-4....................................................    1545-0123
                                                               1545-0145
1.852-6....................................................    1545-0123
                                                               1545-0144
1.852-7....................................................    1545-0074
1.852-9....................................................    1545-0074
                                                               1545-0123
                                                               1545-0144
                                                               1545-0145
                                                               1545-1783
1.852-11...................................................    1545-1094
1.853-3....................................................    1545-0123
1.853-4....................................................    1545-0123
1.854-2....................................................    1545-0123
1.855-1....................................................    1545-0123
1.856-2....................................................    1545-0123
                                                               1545-1004
1.856-6....................................................    1545-0123
1.856-7....................................................    1545-0123
1.856-8....................................................    1545-0123
1.857-8....................................................    1545-0123
1.857-9....................................................    1545-0074
1.858-1....................................................    1545-0123
1.860-2....................................................    1545-0045
1.860-4....................................................    1545-0045
                                                               1545-1054
                                                               1545-1057
1.860E-1...................................................    1545-1675
1.860E-2(a)(5).............................................    1545-1276
1.860E-2(a)(7).............................................    1545-1276
1.860E-2(b)(2).............................................    1545-1276
1.861-2....................................................    1545-0089
1.861-3....................................................    1545-0089
1.861-4....................................................    1545-1900
1.861-8....................................................    1545-0126
1.861-8(e)(6) and (g)......................................    1545-1224
1.861-9T...................................................    1545-0121
                                                               1545-1072
1.861-18...................................................    1545-1594
1.863-1....................................................    1545-1476
1.863-3....................................................    1545-1476
                                                               1545-1556
1.863-3A...................................................    1545-0126
1.863-4....................................................    1545-0126
1.863-7....................................................    1545-0132
1.864-4....................................................    1545-0126
1.871-1....................................................    1545-0096
1.871-6....................................................    1545-0795
1.871-7....................................................    1545-0089
1.871-10...................................................    1545-0089
                                                               1545-0165
1.874-1....................................................    1545-0089
1.881-4....................................................    1545-1440
1.882-4....................................................    1545-0126
1.883-1....................................................    1545-1677
1.883-2....................................................    1545-1677
1.883-3....................................................    1545-1677
1.883-4....................................................    1545-1677
1.883-5....................................................    1545-1677
1.884-0....................................................    1545-1070
1.884-1....................................................    1545-1070
1.884-2....................................................    1545-1070
1.884-2T...................................................    1545-0126
                                                               1545-1070
1.884-4....................................................    1545-1070
1.884-5....................................................    1545-1070
1.892-1T...................................................    1545-1053
1.892-2T...................................................    1545-1053

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1.892-3T...................................................    1545-1053
1.892-4T...................................................    1545-1053
1.892-5T...................................................    1545-1053
1.892-6T...................................................    1545-1053
1.892-7T...................................................    1545-1053
1.897-2....................................................    1545-0123
                                                               1545-0902
1.897-3....................................................    1545-0123
1.897-5T...................................................    1545-0902
1.897-6T...................................................    1545-0902
1.901-2....................................................    1545-0746
1.901-2A...................................................    1545-0746
1.901-3....................................................    1545-0122
1.902-1....................................................    1545-0122
                                                               1545-1458
1.904-1....................................................    1545-0121
                                                               1545-0122
1.904-2....................................................    1545-0121
                                                               1545-0122
1.904-3....................................................    1545-0121
1.904-4....................................................    1545-0121
1.904-5....................................................    1545-0121
1.904(f)-1.................................................    1545-0121
                                                               1545-0122
1.904(f)-2.................................................    1545-0121
1.904(f)-3.................................................    1545-0121
1.904(f)-4.................................................    1545-0121
1.904(f)-5.................................................    1545-0121
1.904(f)-6.................................................    1545-0121
1.904(f)-7.................................................    1545-1127
1.905-2....................................................    1545-0122
1.905-3T...................................................    1545-1056
1.905-4T...................................................    1545-1056
1.905-5T...................................................    1545-1056
1.911-1....................................................    1545-0067
                                                               1545-0070
1.911-2....................................................    1545-0067
                                                               1545-0070
1.911-3....................................................    1545-0067
                                                               1545-0070
1.911-4....................................................    1545-0067
                                                               1545-0070
1.911-5....................................................    1545-0067
                                                               1545-0070
1.911-6....................................................    1545-0067
                                                               1545-0070
1.911-7....................................................    1545-0067
                                                               1545-0070
1.913-13...................................................    1545-0067
1.921-1T...................................................    1545-0190
                                                               1545-0884
                                                               1545-0935
                                                               1545-0939
1.921-2....................................................    1545-0884
1.921-3T...................................................    1545-0935
1.923-1T...................................................    1545-0935
1.924(a)-1T................................................    1545-0935
1.925(a)-1T................................................    1545-0935
1.925(b)-1T................................................    1545-0935
1.926(a)-1T................................................    1545-0935
1.927(a)-1T................................................    1545-0935
1.927(b)-1T................................................    1545-0935
1.927(d)-1.................................................    1545-0884
1.927(d)-2T................................................    1545-0935
1.927(e)-1T................................................    1545-0935
1.927(e)-2T................................................    1545-0935
1.927(f)-1.................................................    1545-0884
1.931-1....................................................    1545-0074
                                                               1545-0123
1.934-1....................................................    1545-0782
1.935-1....................................................    1545-0074
                                                               1545-0087
                                                               1545-0803
1.936-1....................................................    1545-0215
                                                               1545-0217
1.936-4....................................................    1545-0215
1.936-5....................................................    1545-0704
1.936-6....................................................    1545-0215
1.936-7....................................................    1545-0215
1.936-10(c)................................................    1545-1138
1.937-1....................................................    1545-1930
1.952-2....................................................    1545-0126
1.953-2....................................................    1545-0126
1.954-1....................................................    1545-1068
1.954-2....................................................    1545-1068
1.955-2....................................................    1545-0123
1.955-3....................................................    1545-0123
1.955A-2...................................................    1545-0755
1.955A-3...................................................    1545-0755
1.956-1....................................................    1545-0704
1.956-2....................................................    1545-0704
1.959-1....................................................    1545-0704
1.959-2....................................................    1545-0704
1.960-1....................................................    1545-0122
1.962-2....................................................    1545-0704
1.962-3....................................................    1545-0704
1.962-4....................................................    1545-0704
1.964-1....................................................    1545-0126
                                                               1545-0704
                                                               1545-1072
1.964-3....................................................    1545-0126
1.970-2....................................................    1545-0126
1.985-2....................................................    1545-1051
                                                               1545-1131
1.985-3....................................................    1545-1051
1.988-0....................................................    1545-1131
1.988-1....................................................    1545-1131
1.988-2....................................................    1545-1131
1.988-3....................................................    1545-1131
1.988-4....................................................    1545-1131
1.988-5....................................................    1545-1131
1.988-6....................................................    1545-1831
1.992-1....................................................    1545-0190
                                                               1545-0938
1.992-2....................................................    1545-0190
                                                               1545-0884
                                                               1545-0938
1.992-3....................................................    1545-0190
                                                               1545-0938
1.992-4....................................................    1545-0190
                                                               1545-0938
1.993-3....................................................    1545-0938
1.993-4....................................................    1545-0938
1.994-1....................................................    1545-0938
1.995-5....................................................    1545-0938
1.1012-1...................................................    1545-0074
                                                               1545-1139
1.1014-4...................................................    1545-0184
1.1015-1...................................................    1545-0020
1.1017-1...................................................    1545-1539
1.1031(d)-1T...............................................    1545-1021
1.1033(a)-2................................................    1545-0184
1.1033(g)-1................................................    1545-0184
1.1034-1...................................................    1545-0072
1.1039-1...................................................    1545-0184
1.1041-1T..................................................    1545-0074
1.1041-2...................................................    1545-1751
1.1042-1T..................................................    1545-0916
1.1044(a)-1................................................    1545-1421
1.1060-1...................................................    1545-1658
1.1071-1...................................................    1545-0184
1.1071-4...................................................    1545-0184
1.1081-4...................................................    1545-0028
                                                               1545-0046

[[Page 594]]

 
                                                               1545-0123
1.1081-11..................................................    1545-0074
                                                               1545-0123
1.1082-1...................................................    1545-0046
1.1082-2...................................................    1545-0046
1.1082-3...................................................    1545-0046
                                                               1545-0184
1.1082-4...................................................    1545-0046
1.1082-5...................................................    1545-0046
1.1082-6...................................................    1545-0046
1.1083-1...................................................    1545-0123
1.1092(b)-1T...............................................    1545-0644
1.1092(b)-2T...............................................    1545-0644
1.1092(b)-3T...............................................    1545-0644
1.1092(b)-4T...............................................    1545-0644
1.1092(b)-5T...............................................    1545-0644
1.1211-1...................................................    1545-0074
1.1212-1...................................................    1545-0074
1.1221-2...................................................    1545-1480
1.1231-1...................................................    1545-0177
                                                               1545-0184
1.1231-2...................................................    1545-0177
                                                               1545-0184
1.1231-2...................................................    1545-0074
1.1232-3...................................................    1545-0074
1.1237-1...................................................    1545-0184
1.1239-1...................................................    1545-0091
1.1242-1...................................................    1545-0184
1.1243-1...................................................    1545-0123
1.1244(e)-1................................................    1545-0123
                                                               1545-1447
1.1245-1...................................................    1545-0184
1.1245-2...................................................    1545-0184
1.1245-3...................................................    1545-0184
1.1245-4...................................................    1545-0184
1.1245-5...................................................    1545-0184
1.1245-6...................................................    1545-0184
1.1247-1...................................................    1545-0122
1.1247-2...................................................    1545-0122
1.1247-4...................................................    1545-0122
1.1247-5...................................................    1545-0122
1.1248-7...................................................    1545-0074
1.1250-1...................................................    1545-0184
1.1250-2...................................................    1545-0184
1.1250-3...................................................    1545-0184
1.1250-4...................................................    1545-0184
1.1250-5...................................................    1545-0184
1.1251-1...................................................    1545-0184
1.1251-2...................................................    1545-0074
                                                               1545-0184
1.1251-3...................................................    1545-0184
1.1251-4...................................................    1545-0184
1.1252-1...................................................    1545-0184
1.1252-2...................................................    1545-0184
1.1254-1(c)(3).............................................    1545-1352
1.1254-4...................................................    1545-1493
1.1254-5(d)(2).............................................    1545-1352
1.1258-1...................................................    1545-1452
1.1272-3...................................................    1545-1353
1.1273-2(h)(2).............................................    1545-1353
1.1274-3(d)................................................    1545-1353
1.1274-5(b)................................................    1545-1353
1.1274A-1(c)...............................................    1545-1353
1.1275-2...................................................    1545-1450
1.1275-3...................................................    1545-0887
                                                               1545-1353
                                                               1545-1450
1.1275-4...................................................    1545-1450
1.1275-6...................................................    1545-1450
1.1287-1...................................................    1545-0786
1.1291-9...................................................    1545-1507
1.1291-10..................................................    1545-1507
                                                               1545-1304
1.1294-1T..................................................    1545-1002
                                                               1545-1028
1.1295-1...................................................    1545-1555
1.1295-3...................................................    1545-1555
1.1297-3T..................................................    1545-1965
1.1298-3...................................................    1545-1507
1.1301-1...................................................    1545-1662
1.1311(a)-1................................................    1545-0074
1.1361-1...................................................    1545-0731
                                                               1545-1591
1.1361-3...................................................    1545-1590
1.1361-5...................................................    1545-1590
1.1362-1...................................................    1545-1308
1.1362-2...................................................    1545-1308
1.1362-3...................................................    1545-1308
1.1362-4...................................................    1545-1308
1.1362-5...................................................    1545-1308
1.1362-6...................................................    1545-1308
1.1362-7...................................................    1545-1308
1.1362-8...................................................    1545-1590
1.1363-2...................................................    1545-1906
1.1366-1...................................................    1545-1613
1.1367-1(f)................................................    1545-1139
1.1368-1(f)(2).............................................    1545-1139
1.1368-1(f)(3).............................................    1545-1139
1.1368-1(f)(4).............................................    1545-1139
1.1368-1(g)(2).............................................    1545-1139
1.1374-1A..................................................    1545-0130
1.1377-1...................................................    1545-1462
1.1378-1...................................................    1545-1748
1.1383-1...................................................    1545-0074
1.1385-1...................................................    1545-0074
                                                               1545-0098
1.1388-1...................................................    1545-0118
                                                               1545-0123
1.1398-1...................................................    1545-1375
1.1398-2...................................................    1545-1375
1.1402(a)-2................................................    1545-0074
1.1402(a)-5................................................    1545-0074
1.1402(a)-11...............................................    1545-0074
1.1402(a)-15...............................................    1545-0074
1.1402(a)-16...............................................    1545-0074
1.1402(b)-1................................................    1545-0171
1.1402(c)-2................................................    1545-0074
1.1402(e)(1)-1.............................................    1545-0074
1.1402(e)(2)-1.............................................    1545-0074
1.1402(e)-1A...............................................    1545-0168
1.1402(e)-2A...............................................    1545-0168
1.1402(e)-3A...............................................    1545-0168
1.1402(e)-4A...............................................    1545-0168
1.1402(e)-5A...............................................    1545-0168
1.1402(f)-1................................................    1545-0074
1.1402(h)-1................................................    1545-0064
1.1441-1...................................................    1545-1484
1.1441-2...................................................    1545-0795
1.1441-3...................................................    1545-0165
                                                               1545-0795
1.1441-4...................................................    1545-1484
1.1441-5...................................................    1545-0096
                                                               1545-0795
                                                               1545-1484
1.1441-6...................................................    1545-0055
                                                               1545-0795
                                                               1545-1484
1.1441-7...................................................    1545-0795
1.1441-8...................................................    1545-1053
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1.1502-95A.................................................    1545-1218
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1.1503-2A..................................................    1545-1083
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1.6015(a)-1................................................    1545-0087
1.6015(b)-1................................................    1545-0087
1.6015(d)-1................................................    1545-0087
1.6015(e)-1................................................    1545-0087
1.6015(f)-1................................................    1545-0087
1.6015(g)-1................................................    1545-0087
1.6015(h)-1................................................    1545-0087
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1.6050J-1T.................................................    1545-0877
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1.6050L-2T.................................................    1545-1932
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1.6655(e)-1................................................    1545-1421
1.6662-3(c)................................................    1545-0889
1.6662-4(e) and (f)........................................    1545-0889
1.6662-6...................................................    1545-1426
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1.6694-2(c)................................................    1545-1231
1.6694-3(e)................................................    1545-1231
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2.1-26.....................................................    1545-0123
3.2........................................................    1545-0123
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5c.168(f)(8)-1.............................................    1545-0123
5c.168(f)(8)-2.............................................    1545-0123
5c.168(f)(8)-6.............................................    1545-0123
5c.168(f)(8)-8.............................................    1545-0123
5c.305-1...................................................    1545-0110
5c.442-1...................................................    1545-0152
5f.103-1...................................................    1545-0720
5f.103-3...................................................    1545-0720
5f.6045-1..................................................    1545-0715
6a.103A-2..................................................    1545-0123
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6a.103A-3..................................................    1545-0720
7.465-1....................................................    1545-0712
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7.465-4....................................................    1545-0712
7.465-5....................................................    1545-0712
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12.7.......................................................    1545-0190
12.8.......................................................    1545-0191
12.9.......................................................    1545-0195
14a.422A-1.................................................    1545-0123
15A.453-1..................................................    1545-0228
16.3-1.....................................................    1545-0159
16A.126-2..................................................    1545-0074
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20.2011-1..................................................    1545-0015
20.2014-5..................................................    1545-0015
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20.2014-6..................................................    1545-0015
20.2016-1..................................................    1545-0015
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20.2031-3..................................................    1545-0015
20.2031-4..................................................    1545-0015
20.2031-6..................................................    1545-0015
20.2031-7..................................................    1545-0020
20.2031-10.................................................    1545-0015
20.2032-1..................................................    1545-0015
20.2032A-3.................................................    1545-0015
20.2032A-4.................................................    1545-0015
20.2032A-8.................................................    1545-0015
20.2039-4..................................................    1545-0015
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20.2055-1..................................................    1545-0015
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20.2056(b)-4...............................................    1545-0015
20.2056(b)-7...............................................    1545-0015
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20.2056A-2.................................................    1545-1443
20.2056A-3.................................................    1545-1360
20.2056A-4.................................................    1545-1360
20.2056A-10................................................    1545-1360
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20.6166-1..................................................    1545-0181
20.6166A-1.................................................    1545-0015
20.6166A-3.................................................    1545-0015
20.6324A-1.................................................    1545-0754
20.7520-1..................................................    1545-1343
20.7520-2..................................................    1545-1343
20.7520-3..................................................    1545-1343
20.7520-4..................................................    1545-1343
22.0.......................................................    1545-0015
25.2511-2..................................................    1545-0020
25.2512-2..................................................    1545-0020
25.2512-3..................................................    1545-0020
25.2512-5..................................................    1545-0020
25.2512-9..................................................    1545-0020
25.2513-1..................................................    1545-0020
25.2513-2..................................................    1545-0020
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25.2513-3..................................................    1545-0020
25.2518-2..................................................    1545-0959
25.2522(a)-1...............................................    1545-0196
25.2522(c)-3...............................................    1545-0020
                                                               1545-0196
25.2523(a)-1...............................................    1545-0020
                                                               1545-0196
25.2523(f)-1...............................................    1545-0015
25.2701-2..................................................    1545-1241
25.2701-4..................................................    1545-1241
25.2701-5..................................................    1545-1273
25.2702-5..................................................    1545-1485
25.2702-6..................................................    1545-1273
25.6001-1..................................................    1545-0020
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25.6011-1..................................................    1545-0020
25.6019-1..................................................    1545-0020
25.6019-2..................................................    1545-0020
25.6019-3..................................................    1545-0020
25.6019-4..................................................    1545-0020
25.6061-1..................................................    1545-0020
25.6065-1..................................................    1545-0020
25.6075-1..................................................    1545-0020
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25.6091-1..................................................    1545-0020
25.6091-2..................................................    1545-0020
25.6151-1..................................................    1545-0020
25.6161-1..................................................    1545-0020
25.7520-1..................................................    1545-1343
25.7520-2..................................................    1545-1343
25.7520-3..................................................    1545-1343
25.7520-4..................................................    1545-1343
26.2601-1..................................................    1545-0985
26.2632-1..................................................    1545-0985
                                                               1545-1892
26.2642-1..................................................    1545-0985
26.2642-2..................................................    1545-0985
26.2642-3..................................................    1545-0985
26.2642-4..................................................    1545-0985
26.2652-2..................................................    1545-0985
26.2662-1..................................................    1545-0015
                                                               1545-0985
26.2662-2..................................................    1545-0985
31.3102-3..................................................    1545-0029
                                                               1545-0059
                                                               1545-0065
31.3121(b)(19)-1...........................................    1545-0029
31.3121(d)-1...............................................    1545-0004
31.3121(i)-1...............................................    1545-0034
31.3121(k)-4...............................................    1545-0137
31.3121(r)-1...............................................    1545-0029
31.3121(s)-1...............................................    1545-0029
31.3121(v)(2)-1............................................    1545-1643
31.3302(a)-2...............................................    1545-0028

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31.3302(a)-3...............................................    1545-0028
31.3302(b)-2...............................................    1545-0028
31.3302(e)-1...............................................    1545-0028
31.3306(c)(18)-1...........................................    1545-0029
31.3401(a)-1...............................................    1545-0029
31.3401(a)(6)..............................................    1545-1484
31.3401(a)(6)-1............................................    1545-0029
                                                               1545-0096
                                                               1545-0795
31.3401(a)(7)-1............................................    1545-0029
31.3401(a)(8)(A)-1 ........................................    1545-0029
                                                               1545-0666
31.3401(a)(8)(C)-1 ........................................    1545-0029
31.3401(a)(15)-1...........................................    1545-0182
31.3401(c)-1...............................................    1545-0004
31.3402(b)-1...............................................    1545-0010
31.3402(c)-1...............................................    1545-0010
31.3402(f)(1)-1............................................    1545-0010
31.3402(f)(2)-1............................................    1545-0010
                                                               1545-0410
31.3402(f)(3)-1............................................    1545-0010
31.3402(f)(4)-1............................................    1545-0010
31.3402(f)(4)-2............................................    1545-0010
31.3402(f)(5)-1............................................    1545-0010
                                                               1545-1435
31.3402(h)(1)-1............................................    1545-0029
31.3402(h)(3)-1............................................    1545-0010
31.3402(h)(3)-1............................................    1545-0029
31.3402(h)(4)-1............................................    1545-0010
31.3402(i)-(1).............................................    1545-0010
31.3402(i)-(2).............................................    1545-0010
31.3402(k)-1...............................................    1545-0065
31.3402(l)-(1).............................................    1545-0010
31.3402(m)-(1).............................................    1545-0010
31.3402(n)-(1).............................................    1545-0010
31.3402(o)-2...............................................    1545-0415
31.3402(o)-3...............................................    1545-0008
                                                               1545-0010
                                                               1545-0415
                                                               1545-0717
31.3402(p)-1...............................................    1545-0415
                                                               1545-0717
31.3402(q)-1...............................................    1545-0238
                                                               1545-0239
31.3404-1..................................................    1545-0029
31.3405(c)-1...............................................    1545-1341
31.3406(a)-1...............................................    1545-0112
31.3406(a)-2...............................................    1545-0112
31.3406(a)-3...............................................    1545-0112
31.3406(a)-4...............................................    1545-0112
31.3406(b)(2)-1............................................    1545-0112
31.3406(b)(2)-2............................................    1545-0112
31.3406(b)(2)-3............................................    1545-0112
31.3406(b)(2)-4............................................    1545-0112
31.3406(b)(2)-5............................................    1545-0112
31.3406(b)(3)-1............................................    1545-0112
31.3406(b)(3)-2............................................    1545-0112
31.3406(b)(3)-3............................................    1545-0112
31.3406(b)(3)-4............................................    1545-0112
31.3406(b)(4)-1............................................    1545-0112
31.3406(c)-1...............................................    1545-0112
31.3406(d)-1...............................................    1545-0112
31.3406(d)-2...............................................    1545-0112
31.3406(d)-3...............................................    1545-0112
31.3406(d)-4...............................................    1545-0112
31.3406(d)-5...............................................    1545-0112
31.3406(e)-1...............................................    1545-0112
31.3406(f)-1...............................................    1545-0112
31.3406(g)-1...............................................    1545-0096
                                                               1545-0112
                                                               1545-1819
31.3406(g)-2...............................................    1545-0112
31.3406(g)-3...............................................    1545-0112
31.3406(h)-1...............................................    1545-0112
31.3406(h)-2...............................................    1545-0112
31.3406(h)-3...............................................    1545-0112
31.3406(i)-1...............................................    1545-0112
31.3501(a)-1T..............................................    1545-0771
31.3503-1..................................................    1545-0024
31.3504-1..................................................    1545-0029
31.6001-1..................................................    1545-0798
31.6001-2..................................................    1545-0034
                                                               1545-0798
31.6001-3..................................................    1545-0798
31.6001-4..................................................    1545-0028
31.6001-5..................................................    1545-0798
31.6001-6..................................................    1545-0029
                                                               1459-0798
31.6011(a)-1...............................................    1545-0029
                                                               1545-0034
                                                               1545-0035
                                                               1545-0059
                                                               1545-0074
                                                               1545-0718
                                                               1545-0256
31.6011(a)-2...............................................    1545-0001
                                                               1545-0002
31.6011(a)-3...............................................    1545-0028
31.6011(a)-3A..............................................    1545-0955
31.6011(a)-4...............................................    1545-0034
                                                               1545-0035
                                                               1545-0718
                                                               1545-1413
31.6011(a)-5...............................................    1545-0718
                                                               1545-0028
31.6011(a)-6...............................................    1545-0028
31.6011(a)-7...............................................    1545-0074
31.6011(a)-8...............................................    1545-0028
31.6011(a)-9...............................................    1545-0028
31.6011(a)-10..............................................    1545-0112
31.6011(b)-1...............................................    1545-0003
31.6011(b)-2...............................................    1545-0029
31.6051-1..................................................    1545-0008
                                                               1545-0182
                                                               1545-0458
                                                               1545-1729
31.6051-2..................................................    1545-0008
31.6051-3..................................................    1545-0008
31.6053-1..................................................    1545-0029
                                                               1545-0062
                                                               1545-0064
                                                               1545-0065
                                                               1545-1603
31.6053-2..................................................    1545-0008
31.6053-3..................................................    1545-0065
                                                               1545-0714
31.6053-4..................................................    1545-0065
                                                               1545-1603
31.6065(a)-1...............................................    1545-0029
31.6071(a)-1...............................................    1545-0001
                                                               1545-0028
                                                               1545-0029
31.6071(a)-1A..............................................    1545-0955
31.6081(a)-1...............................................    1545-0008
                                                               1545-0028
31.6091-1..................................................    1545-0028
                                                               1545-0029
31.6157-1..................................................    1545-0955
31.6205-1..................................................    1545-0029
31.6301(c)-1AT.............................................    1545-0035
                                                               1545-0112
                                                               1545-0257
31.6302-1..................................................    1545-1413
31.6302-2..................................................    1545-1413

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31.6302-3..................................................    1545-1413
31.6302-4..................................................    1545-1413
31.6302(c)-2...............................................    1545-0001
                                                               1545-0257
31.6302(c)-2A..............................................    1545-0955
31.6302(c)-3...............................................    1545-0257
31.6402(a)-2...............................................    1545-0256
31.6413(a)-1...............................................    1545-0029
31.6413(a)-2...............................................    1545-0029
                                                               1545-0256
31.6413(c)-1...............................................    1545-0029
                                                               1545-0171
31.6414-1..................................................    1545-0029
32.1.......................................................    1545-0029
                                                               1545-0415
32.2.......................................................    1545-0029
35a.3406-2.................................................    1545-0112
35a.9999-5.................................................    1545-0029
36.3121(l)(1)-1............................................    1545-0137
36.3121(l)(1)-2............................................    1545-0137
36.3121(l)(3)-1............................................    1545-0123
36.3121(1)(7)-1............................................    1545-0123
36.3121(1)(10)-1...........................................    1545-0029
36.3121(1)(10)-3...........................................    1545-0029
36.3121(1)(10)-4...........................................    1545-0257
40.6302(c)-3(b)(2)(ii).....................................    1545-1296
40.6302(c)-3(b)(2)(iii)....................................    1545-1296
40.6302(c)-3(e)............................................    1545-1296
40.6302(c)-3(f)(2)(ii).....................................    1545-1296
41.4481-1..................................................    1545-0143
41.4481-2..................................................    1545-0143
41.4483-3..................................................    1545-0143
41.6001-1..................................................    1545-0143
41.6001-2..................................................    1545-0143
41.6001-3..................................................    1545-0143
41.6071(a)-1...............................................    1545-0143
41.6081(a)-1...............................................    1545-0143
41.6091-1..................................................    1545-0143
41.6109-1..................................................    1545-0143
41.6151(a)-1...............................................    1545-0143
41.6156-1..................................................    1545-0143
41.6161(a)(1)-1............................................    1545-0143
44.4401-1..................................................    1545-0235
44.4403-1..................................................    1545-0235
44.4412-1..................................................    1545-0236
44.4901-1..................................................    1545-0236
44.4905-1..................................................    1545-0236
44.4905-2..................................................    1545-0236
44.6001-1..................................................    1545-0235
44.6011(a)-1...............................................    1545-0235
                                                               1545-0236
44.6071-1..................................................    1545-0235
44.6091-1..................................................    1545-0235
44.6151-1..................................................    1545-0235
44.6419-1..................................................    1545-0235
44.6419-1..................................................    1545-0235
44.6419-2..................................................    1545-0235
46.4371-4..................................................    1545-0023
46.4374-1..................................................    1545-0023
46.4701-1..................................................    1545-0023
                                                               1545-0257
48.4041-4..................................................    1545-0023
48.4041-5..................................................    1545-0023
48.4041-6..................................................    1545-0023
48.4041-7..................................................    1545-0023
48.4041-9..................................................    1545-0023
48.4041-10.................................................    1545-0023
48.4041-11.................................................    1545-0023
48.4041-12.................................................    1545-0023
48.4041-13.................................................    1545-0023
48.4041-18.................................................    1545-0023
48.4041-19.................................................    1545-0023
48.4041-20.................................................    1545-0023
48.4041-21.................................................    1545-1270
48.4042-2..................................................    1545-0023
48.4052-1..................................................    1545-1418
48.4061(a)-1...............................................    1545-0023
48.4061(a)-2...............................................    1545-0023
48.4061(b)-3...............................................    1545-0023
48.4064-1..................................................    1545-0014
                                                               1545-0242
48.4071-1..................................................    1545-0023
48.4073-1..................................................    1545-0023
48.4073-3..................................................    1545-0023
                                                               1545-1074
                                                               1545-1087
48.4081-2..................................................    1545-1270
                                                               1545-1418
48.4081-3..................................................    1545-1270
                                                               1545-1418
48.4081-3T.................................................    1545-1897
48.4081-4(b)(2)(ii)........................................    1545-1270
48.4081-4(b)(3)(i).........................................    1545-1270
48.4081-4(c)...............................................    1545-1270
48.4081-6(c)(1)(ii)........................................    1545-1270
48.4081-7..................................................    1545-1270
                                                               1545-1418
48.4082-1T.................................................    1545-1418
48.4082-2..................................................    1545-1418
48.4082-6..................................................    1545-1418
48.4082-7..................................................    1545-1418
48.4091-3..................................................    1545-1418
48.4101-1..................................................    1545-1418
48.4101-1T.................................................    1545-1418
48.4101-2..................................................    1545-1418
48.4161(a)-1...............................................    1545-0723
48.4161(a)-2...............................................    1545-0723
48.4161(a)-3...............................................    1545-0723
48.4161(b)-1...............................................    1545-0723
                                                               1545-0723
48.4216(a)-2...............................................    1545-0023
48.4216(a)-3...............................................    1545-0023
48.4216(c)-1...............................................    1545-0023
48.4221-1..................................................    1545-0023
48.4221-2..................................................    1545-0023
48.4221-3..................................................    1545-0023
48.4221-4..................................................    1545-0023
48.4221-5..................................................    1545-0023
48.4221-6..................................................    1545-0023
48.4221-7..................................................    1545-0023
48.4222(a)-1...............................................    1545-0023
                                                               1545-0014
48.4223-1..................................................    1545-0023
                                                               1545-0723
                                                               1545-0723
                                                               1545-0723
                                                               1545-0257
48.6302(c)-1...............................................    1545-0023
                                                               1545-0257
48.6412-1..................................................    1545-0723
48.6416(a)-1...............................................    1545-0023
                                                               1545-0723
48.6416(a)-2...............................................    1545-0723
48.6416(a)-3...............................................    1545-0723
48.6416(b)(2)-3............................................    1545-1087
48.6416(b)(1)-1............................................    1545-0723
48.6416(b)(1)-2............................................    1545-0723
48.6416(b)(1)-3............................................    1545-0723
48.6416(b)(1)-4............................................    1545-0723
48.6416(b)(2)-1............................................    1545-0723
48.6416(b)(2)-2............................................    1545-0723
48.6416(b)(2)-3............................................    1545-0723
                                                               1545-1087
48.6416(b)(2)-4............................................    1545-0723

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48.6416(b)(3)-1............................................    1545-0723
48.6416(b)(3)-2............................................    1545-0723
48.6416(b)(3)-3............................................    1545-0723
48.6416(b)(4)-1............................................    1545-0723
48.6416(b)(5)-1............................................    1545-0723
48.6416(c)-1...............................................    1545-0723
48.6416(e)-1...............................................    1545-0023
                                                               1545-0723
48.6416(f)-1...............................................    1545-0023
                                                               1545-0723
48.6416(g)-1...............................................    1545-0723
48.6416(h)-1...............................................    1545-0723
48.6420(c)-2...............................................    1545-0023
48.6420(f)-1...............................................    1545-0023
48.6420-1..................................................    1545-0162
                                                               1545-0723
48.6420-2..................................................    1545-0162
                                                               1545-0723
48.6420-3..................................................    1545-0162
                                                               1545-0723
48.6420-4..................................................    1545-0162
                                                               1545-0723
48.6420-5..................................................    1545-0162
                                                               1545-0723
48.6420-6..................................................    1545-0162
                                                               1545-0723
48.6421-0..................................................    1545-0162
                                                               1545-0723
48.6421-1..................................................    1545-0162
                                                               1545-0723
48.6421-2..................................................    1545-0162
                                                               1545-0723
48.6421-3..................................................    1545-0162
                                                               1545-0723
48.6421-4..................................................    1545-0162
                                                               1545-0723
48.6421-5..................................................    1545-0162
                                                               1545-0723
48.6421-6..................................................    1545-0162
                                                               1545-0723
48.6421-7..................................................    1545-0162
                                                               1545-0723
48.6424-0..................................................    1545-0723
48.6424-1..................................................    1545-0723
48.6424-2..................................................    1545-0723
48.6424-3..................................................    1545-0723
48.6424-4..................................................    1545-0723
48.6424-5..................................................    1545-0723
48.6424-6..................................................    1545-0723
48.6427-0..................................................    1545-0723
48.6427-1..................................................    1545-0023
                                                               1545-0162
                                                               1545-0723
48.6427-2..................................................    1545-0162
                                                               1545-0723
48.6427-3..................................................    1545-0723
48.6427-4..................................................    1545-0723
48.6427-5..................................................    1545-0723
48.6427-8..................................................    1545-1418
48.6427-9..................................................    1545-1418
48.6427-10.................................................    1545-1418
48.6427-11.................................................    1545-1418
49.4251-1..................................................    1545-1075
49.4251-2..................................................    1545-1075
49.4251-4(d)(2)............................................    1545-1628
49.4253-3..................................................    1545-0023
49.4253-4..................................................    1545-0023
49.4264(b)-1...............................................    1545-0023
                                                               1545-0226
                                                               1545-0226
                                                               1545-0912
                                                               1545-0912
                                                               1545-0257
                                                               1545-0230
                                                               1545-0224
                                                               1545-0225
                                                               1545-0224
                                                               1545-0230
49.4271-1(d)...............................................    1545-0685
52.4682-1(b)(2)(iii).......................................    1545-1153
52.4682-2(b)...............................................    1545-1153
                                                               1545-1361
52.4682-2(d)...............................................    1545-1153
                                                               1545-1361
52.4682-3(c)(2)............................................    1545-1153
52.4682-3(g)...............................................    1545-1153
52.4682-4(f)...............................................    1545-1153
                                                               1545-0257
52.4682-5(d)...............................................    1545-1361
52.4682-5(f)...............................................    1545-1361
53.4940-1..................................................    1545-0052
                                                               1545-0196
53.4942(a)-1...............................................    1545-0052
53.4942(a)-2...............................................    1545-0052
53.4942(a)-3...............................................    1545-0052
53.4942(b)-3...............................................    1545-0052
53.4945-1..................................................    1545-0052
53.4945-4..................................................    1545-0052
53.4945-5..................................................    1545-0052
53.4945-6..................................................    1545-0052
53.4947-1..................................................    1545-0196
53.4947-2..................................................    1545-0196
53.4948-1..................................................    1545-0052
53.4958-6..................................................    1545-1623
53.4961-2..................................................    1545-0024
53.4963-1..................................................    1545-0024
53.6001-1..................................................    1545-0052
53.6011-1..................................................    1545-0049
                                                               1545-0052
                                                               1545-0092
                                                               1545-0196
53.6065-1..................................................    1545-0052
53.6071-1..................................................    1545-0049
53.6081-1..................................................    1545-0066
                                                               1545-0148
53.6161-1..................................................    1545-0575
54.4972-1..................................................    1545-0197
54.4975-7..................................................    1545-0575
54.4977-1T.................................................    1545-0771
54.4980B-6.................................................    1545-1581
54.4980B-7.................................................    1545-1581
54.4980B-8.................................................    1545-1581
54.4980F-1.................................................    1545-1780
54.4981A-1T................................................    1545-0203
54.6011-1..................................................    1545-0575
54.6011-1T.................................................    1545-0575
54.9801-3..................................................    1545-1537
54.9801-4..................................................    1545-1537
54.9801-5..................................................    1545-1537
54.9801-6..................................................    1545-1537
55.6001-1..................................................    1545-0123
55.6011-1..................................................    1545-0999
                                                               1545-0123
                                                               1545-1016
55.6061-1..................................................    1545-0999
55.6071-1..................................................    1545-0999
56.4911-6..................................................    1545-0052
56.4911-7..................................................    1545-0052
56.4911-9..................................................    1545-0052
56.4911-10.................................................    1545-0052
56.6001-1..................................................    1545-1049
56.6011-1..................................................    1545-1049
56.6081-1..................................................    1545-1049
56.6161-1..................................................    1545-1049

[[Page 602]]

 
                                                               1545-0257
145.4051-1.................................................    1545-0745
145.4052-1.................................................    1545-0120
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                                                               1545-0745
                                                               1545-1076
145.4061-1.................................................    1545-0745
                                                               1545-0257
                                                               1545-0230
                                                               1545-0224
156.6001-1.................................................    1545-1049
156.6011-1.................................................    1545-1049
156.6081-1.................................................    1545-1049
156.6161-1.................................................    1545-1049
157.6001-1.................................................    1545-1824
157.6011-1.................................................    1545-1824
157.6081-1.................................................    1545-1824
157.6161-1.................................................    1545-1824
301.6011-2.................................................    1545-0225
                                                               1545-0350
                                                               1545-0387
                                                               1545-0441
                                                               1545-0957
301.6017-1.................................................    1545-0090
301.6034-1.................................................    1545-0092
301.6035-1.................................................    1545-0123
301.6036-1.................................................    1545-0013
                                                               1545-0773
301.6047-1.................................................    1545-0367
                                                               1545-0957
301.6057-1.................................................    1545-0710
301.6057-2.................................................    1545-0710
301.6058-1.................................................    1545-0710
301.6059-1.................................................    1545-0710
301.6103(c)-1..............................................    1545-1816
301.6103(n)-1..............................................    1545-1841
301.6103(p)(2)(B)-1........................................    1545-1757
301.6104(a)-1..............................................    1545-0495
301.6104(a)-5..............................................    1545-0056
301.6104(a)-6..............................................    1545-0056
301.6104(b)-1..............................................    1545-0094
                                                               1545-0742
301.6104(d)-1..............................................    1545-1655
301.6104(d)-2..............................................    1545-1655
301.6104(d)-3..............................................    1545-1655
301.6109-1.................................................    1545-0003
                                                               1545-0295
                                                               1545-0367
                                                               1545-0387
                                                               1545-0957
                                                               1545-1461
301.6109-3.................................................    1545-1564
301.6110-3.................................................    1545-0074
301.6110-5.................................................    1545-0074
301.6111-1T................................................    1545-0865
                                                               1545-0881
301.6111-2.................................................    1545-0865
                                                               1545-1687
301.6112-1.................................................    1545-0865
                                                               1545-1686
301.6112-1T................................................    1545-0865
                                                               1545-1686
301.6114-1.................................................    1545-1126
                                                               1545-1484
301.6222(a)-2..............................................    1545-0790
301.6222(b)-1..............................................    1545-0790
301.6222(b)-2..............................................    1545-0790
301.6222(b)-3..............................................    1545-0790
301.6223(b)-1..............................................    1545-0790
301.6223(c)-1..............................................    1545-0790
301.6223(e)-2..............................................    1545-0790
301.6223(g)-1..............................................    1545-0790
301.6223(h)-1..............................................    1545-0790
301.6224(b)-1..............................................    1545-0790
301.6224(c)-1..............................................    1545-0790
301.6224(c)-3..............................................    1545-0790
301.6227(c)-1..............................................    1545-0790
301.6227(d)-1..............................................    1545-0790
301.6229(b)-2..............................................    1545-0790
301.6230(b)-1..............................................    1545-0790
301.6230(e)-1..............................................    1545-0790
301.6231(a)(1)-1...........................................    1545-0790
301.6231(a)(7)-1...........................................    1545-0790
301.6231(c)-1..............................................    1545-0790
301.6231(c)-2..............................................    1545-0790
301.6241-1T................................................    1545-0130
301.6316-4.................................................    1545-0074
301.6316-5.................................................    1545-0074
301.6316-6.................................................    1545-0074
301.6316-7.................................................    1545-0029
301.6324A-1................................................    1545-0015
301.6361-1.................................................    1545-0074
                                                               1545-0024
301.6361-2.................................................    1545-0024
301.6361-3.................................................    1545-0074
301.6402-2.................................................    1545-0024
                                                               1545-0073
                                                               1545-0091
301.6402-3.................................................    1545-0055
                                                               1545-0073
                                                               1545-0091
                                                               1545-0132
                                                               1545-1484
301.6402-5.................................................    1545-0928
301.6404-1.................................................    1545-0024
301.6404-2T................................................    1545-0024
301.6404-3.................................................    1545-0024
301.6405-1.................................................    1545-0024
301.6501(c)-1..............................................    1545-1241
                                                               1545-1637
301.6501(d)-1..............................................    1545-0074
                                                               1545-0430
301.6501(o)-2..............................................    1545-0728
301.6511(d)-1..............................................    1545-0582
                                                               1545-0024
301.6511(d)-2..............................................    1545-0582
                                                               1545-0024
301.6511(d)-3..............................................    1545-0024
                                                               1545-0582
301.6652-2.................................................    1545-0092
301.6685-1.................................................    1545-0092
301.6689-1T................................................    1545-1056
301.6707-1T................................................    1545-0865
                                                               1545-0881
301.6708-1T................................................    1545-0865
301.6712-1.................................................    1545-1126
301.6723-1A(d).............................................    1545-0909
301.6903-1.................................................    1545-0013
                                                               1545-1783
301.6905-1.................................................    1545-0074
301.7001-1.................................................    1545-0123
301.7101-1.................................................    1545-1029
301.7207-1.................................................    1545-0092
301.7216-2.................................................    1545-0074
301.7216-2(o)..............................................    1545-1209
301.7425-3.................................................    1545-0854
301.7430-2(c)..............................................    1545-1356
301.7507-8.................................................    1545-0123
301.7507-9.................................................    1545-0123
301.7513-1.................................................    1545-0429
301.7517-1.................................................    1545-0015
301.7605-1.................................................    1545-0795
301.7623-1.................................................    1545-0409

[[Page 603]]

 
                                                               1545-1534
301.7654-1.................................................    1545-0803
301.7701-3.................................................    1545-1486
301.7701-4.................................................    1545-1465
301.7701-7.................................................    1545-1600
301.7701-16................................................    1545-0795
301.7701(b)-1..............................................    1545-0089
301.7701(b)-2..............................................    1545-0089
301.7701(b)-3..............................................    1545-0089
301.7701(b)-4..............................................    1545-0089
301.7701(b)-5..............................................    1545-0089
301.7701(b)-6..............................................    1545-0089
301.7701(b)-7..............................................    1545-0089
                                                               1545-1126
301.7701(b)-9..............................................    1545-0089
301.7805-1.................................................    1545-0805
301.9001-1.................................................    1545-0220
301.9000-5.................................................    1545-1850
301.9100-2.................................................    1545-1488
301.9100-3.................................................    1545-1488
301.9100-4T................................................    1545-0016
                                                               1545-0042
                                                               1545-0074
                                                               1545-0129
                                                               1545-0172
                                                               1545-0619
301.9100-6T................................................    1545-0872
301.9100-7T................................................    1545-0982
301.9100-8.................................................    1545-1112
301.9100-11T...............................................    1545-0123
301.9100-12T...............................................    1545-0026
                                                               1545-0074
                                                               1545-0172
                                                               1545-1027
301.9100-14T...............................................    1545-0046
301.9100-15T...............................................    1545-0046
301.9100-16T...............................................    1545-0152
302.1-7....................................................    1545-0024
305.7701-1.................................................    1545-0823
305.7871-1.................................................    1545-0823
404.6048-1.................................................    1545-0160
420.0-1....................................................    1545-0710
Part 509...................................................    1545-0846
Part 513...................................................    1545-0834
Part 514...................................................    1545-0845
Part 521...................................................    1545-0848
601.104....................................................    1545-0233
601.105....................................................    1545-0091
601.201....................................................    1545-0019
                                                               1545-0819
601.204....................................................    1545-0152
601.401....................................................    1545-0257
601.504....................................................    1545-0150
601.601....................................................    1545-0800
601.602....................................................    1545-0295
                                                               1545-0387
                                                               1545-0957
601.702....................................................    1545-0429
------------------------------------------------------------------------


(26 U.S.C. 7805)

[T.D. 8011, 50 FR 10222, Mar. 14, 1985]

    Editorial Note: For Federal Register citations affecting Sec.  
602.101, see the List of CFR Sections Affected, which appears in the 
Findings Aids section of the printed volume and on GPO Access.

[[Page 605]]



List of CFR Sections Affected



All changes to the sections of part 1 (Sec. Sec.  1.301 to 1.400) of 
title 26 of the Code of Federal Regulations that were made by documents 
published in the Federal Register since January 1, 2001, are enumerated 
in the following list. Entries indicate the nature of the changes 
effected. Page numbers refer to Federal Register pages. The user should 
consult the entries for chapters and parts as well as sections for 
revisions.
For the period before January 1, 2001, see the ``List of CFR Sections 
Affected, 1949-1963, 1964-1972, 1973-1985, and 1986-2000'' published in 
11 separate volumes.

                                  2001

26 CFR
                                                                   66 FR
                                                                    Page
Chapter I
1.301-1 (g) amended..................................................725
    (g) revised....................................................49278
1.301-1T Added.......................................................725
    Removed........................................................49279
1.338-0T Removed....................................................9948
1.338-1T Removed....................................................9948
1.338-2T Removed....................................................9948
1.338-3T Removed....................................................9948
1.338-4T Removed....................................................9948
1.338-5T Removed....................................................9948
1.338-6T Removed....................................................9948
1.338-7T Removed....................................................9948
1.338-10T Removed...................................................9950
1.338-0 Added.......................................................9929
1.338-1 Added.......................................................9929
1.338-2 Added.......................................................9929
1.338-3 Added.......................................................9929
    (b)(3)(iv) Example 1 corrected.................................17363
1.338-4 Added.......................................................9929
    Corrected......................................................17466
1.338-5 Added.......................................................9929
1.338-6 Added.......................................................9929
    (d) Example 1 corrected........................................17363
1.338-7 Added.......................................................9929
1.338-8 (h)(1) amended..............................................9929
    (h)(1) corrected...............................................17466
1.338-9 (a), (b)(1), (3)(i)(B), (ii), (4) and (f)(2) Example 1 
        amended.....................................................9929
    (b)(1) corrected...............................................17466
1.338-10 Added......................................................9948
1.338(h)(10)-1 Added................................................9950
1.338(h)(10)-1T Removed.............................................9954
1.338(i)-1 Added....................................................9954
1.338(i)-1T Removed.................................................9954
1.355-0 Amended....................................................40591
1.355-6 (e)(3)(i) corrected.........................................9034
1.355-7T Added.....................................................40591
1.367(b)-0 Amended; introductory text revised.......................2257
1.367(b)-12 Added...................................................2257
1.368-1 (a) and (e)(6) Example 4 amended............................9929

                                  2002

26 CFR
                                                                   67 FR
                                                                    Page
Chapter I
1 Technical correction........................35732, 37671, 45311, 46855
    Authority citation amended........12, 819, 1082, 4174, 11036, 12865, 
                        15114, 18994, 20899, 20904, 34394, 37999, 38002,
1.334-1 (b) amended................................................34605
1.337(d)-2 (g)(4) added............................................11036
1.337(d)-2T Added..................................................11036
    (a)(4) and (b)(4) added........................................37999
1.337(d)-5T Heading and (d) revised...................................12
1.337(d)-6T Added.....................................................12
1.337(d)-7T Added.....................................................12
1.338-1 (b)(2)(vii) amended........................................43540
1.355-0 Heading revised; text amended..............................20636
    Corrected......................................................38200
1.355-7T (n) corrected..............................................8579
    Revised........................................................20636
    (b)(3)(iii) and (j) Example 4 corrected........................38200
1.358-1 (a) amended................................................34604

[[Page 606]]

1.362-1 (a) amended................................................34605
1.381(c)(4)-1 (a)(2) amended.......................................34605

                                  2003

26 CFR
                                                                   68 FR
                                                                    Page
Chapter I
1 Authority citation amended....4920, 11313, 12290, 12819, 20069, 23588, 
         24350, 34295, 34798, 38178, 40130, 40767, 41070, 42259, 42592, 
                                44617, 45750, 51399, 52490, 54344, 63734
    Technical correction.......................5346, 24644, 60625, 63986
    Authority citation corrected...................................68511
1.301-1 (q) added..................................................54352
1.337(d)-5T Redesignated as 1.337(d)-5.............................12819
1.337(d)-5 Redesignated from 1.337(d)-5T; heading, (b)(3), and (d) 
        amended....................................................12819
1.337(d)-6 Added...................................................12820
1.337(d)-6T Removed................................................12822
1.337(d)-7 Added...................................................12822
1.337(d)-7T Removed................................................12825
1.338-3 (c)(1)(i) amended..........................................40768
1.338(h)(10)-1 (c)(2), (3) and (4) redesignated as (c)(3), (4) and 
        (5); new (c)(2) added......................................40768
1.338(h)(10)-1T Added (temporary)..................................40768
1.367(e)-2 (b)(2)(iii)(C)(1) amended; (d) revised..................39453
1.368-2 (b)(1) revised..............................................3387
1.368-2T Added......................................................3387
1.382-1 Amended....................................................38178
    Corrected......................................................53219
1.382-10T Added (temporary)........................................38178
    Corrected......................................................41417
    Correctly designated...........................................53219

                                  2004

26 CFR
                                                                   69 FR
                                                                    Page
Chapter I
1 Authority citation amended...24073, 24079, 25492, 26039, 26040, 33842, 
           33293, 35514, 43306, 43739, 48392, 55741, 62185, 70548, 76614
    Technical correction...........................................53804
1.337(d)-2T (c)(2) and (4) Example revised.........................12800
1.338-0 Amended....................................................55741
1.338-6 (c)(5) added...............................................55742
1.338-6T Added.....................................................55742

                                  2005

26 CFR
                                                                   70 FR
                                                                    Page
Chapter I
1 Authority citation amended......3476, 7176, 9217, 10320, 14399, 18928, 
           20283, 29601, 30341, 39921, 47716, 67358, 72378, 75731, 76687
    Technical correction.....................................4013, 10488
1.337(d)-2 Revised; eff. 4-4-05....................................10321
1.337(d)-2T Removed; eff. 4-4-05...................................10322
1.355-0 Amended....................................................20283
1.355-7 Added......................................................20283
1.355-7T Removed...................................................20291
1.358-5T Added.....................................................30341
1.358-7 Added......................................................30341
1.367(b)-2 (g) revised.............................................43759
1.368-1 (b) amended.................................................9220
    (e)(2) through (7) redesignated as (e)(3) through (8); new 
(e)(2) added; (e)(1)(i) and new (3) through (8) amended; new 
(e)(8) revised.....................................................54634
    (e)(7) Example 3 corrected.....................................60132

                                  2006

   (Regulations published from January 1, 2006, through April 1, 2006)

26 CFR
                                                                   71 FR
                                                                    Page
Chapter I
1 Technical correction................................4042, 13766, 14099
    Authority citation amended............4268, 5001, 6200, 13002, 13009
1.356-1 Revised.....................................................4268
1.358-1 Revised.....................................................4269
1.358-2 (a)(1), (2), (b)(1) and (c) revised; (a)(3), (4) and (5) 
        removed; (d) added..........................................4270
1.358-6 (e) amended.................................................4282
1.367(a)-3 (d)(2)(v)(D), (3) Examples 12, 11A, 11, 10A, 10, 9, 8, 
        7C, 7B, 7A, 7, 6A, 6, 5B, 5A, 5, 4, 3 and 2 redesignated 
        as (d)(2)(v)(F), (3)Examples 16, 14A, 14, 13A, 13, 12, 9, 
        8C, 8B, 8A, 8, 7A, 7, 6B, 6A, 6, 5, 4 and 3; (a), 
        (d)(1)(ii), (iv), (vi), (3), new Examples 3, 5, 6A, 7, 7A, 
        8, 8A, 8B, 8C, 12, 13A and 14A amended; (b)(2)(i), 
        (c)(5)(vi), (d)(1) introductory text, (i), (iii), (v), 
        (2)(i), (ii), (iv), (v)(A), (C), (vi), new Examples 6B, 9 
        and 16 revised; new (d)(2)(v)(D), (E), (vii), (3)Examples 
        2, 5A, 6C, 10, 11 and 15 added,.............................4282

[[Page 607]]

    (e)(1) revised..................................................4283
    (a) amended; (e)(1)(G) added....................................8804
1.367(a)-8 (c)(2), (d) and (e)(1)(i) amended........................4288
1.367(b)-1 (a) amended..............................................4288
1.367(b)-3 (b)(3)(ii) Example 5 amended.............................4288
1.367(b)-4 (a) revised; (b)(1)(i) amended; (b)(1)(ii) redesignated 
        as (b)(1)(iii); new (b)(1)(ii) and (iii) Examples 3A and 
        3B added....................................................4288
    (a) amended.....................................................8804
1.367(b)-6 (a)(1) amended.....................................4289, 8805
1.367(b)-13 Added...................................................4289
1.368-2 (b)(1) revised..............................................4261
1.368-2T Removed....................................................4263


                                  [all]