[Federal Register Volume 59, Number 13 (Thursday, January 20, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-665]


[[Page Unknown]]

[Federal Register: January 20, 1994]


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DEPARTMENT OF THE TREASURY
26 CFR Parts 1 and 602

[TD 8515]
RIN 1545-AQ05

 

Revision of Section 338 Consistency Rules.

AGENCY: Internal Revenue Service, Treasury.

ACTION: Final and temporary regulations.

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SUMMARY: This document contains final regulations that replace the 
stock and asset consistency rules of the temporary Income Tax 
Regulations. The final regulations substantially revise and simplify 
the stock and asset consistency rules. The final regulations also 
restate, simplify, and substantially shorten most of the other 
regulations under section 338.

DATES: These regulations are effective on January 20, 1994.
    For applicability of these regulations, see ``Effective Dates'' 
under the ``SUPPLEMENTARY INFORMATION'' portion of the preamble.

FOR FURTHER INFORMATION CONTACT: Don Leatherman at telephone (202) 622-
7520 (not a toll-free number) for domestic issues and Kenneth D. 
Allison at telephone (202) 622-3860 (not a toll-free number) for 
international issues.

SUPPLEMENTARY INFORMATION:

A. Paperwork Reduction Act

    The collection of information contained in this final regulation 
has been reviewed and approved by the Office of Management and Budget 
in accordance with the requirements of the Paperwork Reduction Act (44 
U.S.C. 3504(h)) under control number 1545-1295. The estimated annual 
burden per respondent varies from .2 hours to 1 hour, depending on 
individual circumstances, with an estimated average of .56 hours.
    These estimates are an approximation of the average time expected 
to be necessary for a collection of information. They are based on such 
information as is available to the Internal Revenue Service. Individual 
respondents or recordkeepers may require more or less time, depending 
on their particular circumstances.
    Comments concerning the accuracy of this burden estimate and 
suggestions for reducing this burden should be sent to the Internal 
Revenue Service, Attn: IRS Reports Clearance Officer, T:FP, Washington, 
DC 20224, and to the Office of Management and Budget, Attn: Desk 
Officer for the Department of the Treasury, Office of Information and 
Regulatory Affairs, Washington, DC 20503.

B. Background.

    On January 14, 1992, a notice of proposed rulemaking (CO-111-90) 
under section 338 of the Internal Revenue Code was published in the 
Federal Register (57 FR 1409). See 1992-1 C.B. 1000. The notice 
proposed to restate most of the existing temporary regulations by (1) 
replacing the asset and stock consistency rules of Secs. 1.338-4T and 
1.338-5T of the temporary regulations, (2) revising the temporary 
regulations regarding the international aspects of section 338, and (3) 
generally restating the remainder of the temporary regulations under 
section 338. Comments on the notice were received and a public hearing 
was held on March 26, 1992. After considering the comments and 
statements made at the hearing, the proposed regulations are adopted as 
revised by this Treasury decision, and the corresponding temporary 
regulations are removed.

C. The Consistency Rules

    The final regulations adopt the consistency rules of the proposed 
regulations with several minor modifications.

1. Carryover Basis Rule

    Several commentors argued that the carryover basis rule should be 
modified if the gain of a target (T) on the sale of an asset does not 
result in an equivalent reduction in the gain of the selling group (S 
or the S group) from the sale of the T stock. For example, they argued 
that the carryover basis rule should be modified if S recognized a loss 
on the sale of T stock that was disallowed under Sec. 1.1502-20, if T 
sold gain and loss assets to the purchasing corporation (P), or if T 
had separate return limitation year losses. Similarly, they suggested 
that the rule be modified if the gain on the asset sale is not fully 
reflected in the basis of T's stock because, for example, the asset is 
sold by a subsidiary or conduit that is not wholly owned by T.
    For purposes of simplification and administrative convenience, the 
consistency rules in the final regulations apply in a more limited set 
of circumstances than in the temporary regulations. Adopting the 
suggested modifications, however, would substantially complicate the 
regulations. In addition, the carryover basis rule generally will apply 
only when the stock sale is contemplated at the time of the asset sale. 
For these reasons, the suggestions have not been adopted.

2. Affiliated Groups

    The final regulations apply the consistency rules in certain cases 
where dividends qualifying for a 100 percent dividends received 
deduction may be used in conjunction with asset dispositions to achieve 
a result similar to that available under the consolidated return 
investment adjustment rules. This provision applies only to amounts 
treated as dividends under general tax principles. The substance-over-
form, step-transaction, and similar principles continue to apply to 
treat certain amounts that are dividends in form as payments by P for 
the T stock. See, e.g., Commissioner v. Waterman Steamship Corp., 430 
F.2d 1185 (5th Cir. 1970), cert. denied, 401 U.S. 939 (1971).
    As discussed in more detail below, these regulations also permit 
section 338(h)(10) elections to be made for certain targets that are 
members of affiliated, non-consolidated groups.

3. Controlled Foreign Corporations

    Consistency rules for controlled foreign corporations generally are 
not included in the final regulations. Instead, rules for controlled 
foreign corporations are contained in temporary regulations that may be 
found elsewhere in this issue of the Federal Register.

4. Anti-Abuse Rules

    Some commentors requested that the anti-abuse rules of Sec. 1.338-
4(j) be narrowed and that these rules and the indirect acquisition rule 
of Sec. 1.338-4(f) be stated as general principles. The Treasury 
Department and the Service believe that the anti-abuse and indirect 
acquisition rules are necessary to protect the final consistency rules. 
Further, no statement of general principle has been identified that 
provides adequate guidance to distinguish the cases described in the 
proposed regulations from those not described. Accordingly, these rules 
have been retained with minor modifications.

D. International Aspects

    The final regulations under Secs. 1.338-1(g), 1.338-3(c)(3) through 
(6) and (8), and 1.338-5 are substantially as proposed. The preamble to 
the proposed regulations contains a discussion of the provisions. The 
differences from the proposed regulations are noted below.

1. Section 338(h)(16)

    In the notice of proposed rulemaking, the Service sought comments 
on the proper application of section 338(h)(16), including its 
application where the deemed sale of assets results in subpart F income 
under section 952. The comments received will be considered in separate 
proposed regulations.

2. Good Faith Effort To Notify

    A commentor suggested that the Service provide examples of a good 
faith effort, under Sec. 1.338-1(g)(4)(v) of the proposed regulations, 
to notify affected U.S. shareholders of targets that are controlled 
foreign corporations, passive foreign investment companies or foreign 
personal holding companies. The regulations require that the 
Commissioner determine, under all the facts and circumstances, whether 
the taxpayer has vigorously attempted the notification. The suggestion 
has not been adopted because the determination depends on the facts and 
circumstances in each case.

3. Allocation of Foreign Income Taxes

    One commentor pointed out that the allocation of foreign income 
taxes between the pre- and post-acquisition U.S. taxable years of a 
target in Sec. 1.338-5(d) of the proposed regulations is to be made 
under the principles of Sec. 1.1502-76(b)(4) of the consolidated return 
regulations. That provision has been interpreted to require taxes to be 
allocated in proportion to U.S. taxable income. Because foreign income 
taxes are paid with respect to foreign taxable income, an allocation 
with respect to U.S. taxable income may incorrectly allocate the 
foreign income taxes between taxable years. The final regulations 
require foreign income taxes to be allocated in proportion to foreign 
taxable income.

E. Other Changes to the Regulations

    Several commentors argued that, if a section 338(h)(10) election is 
made for T, new T should not be severally liable under Sec. 1.1502-6 
for federal income tax liability of the S group, as provided in the 
proposed and the existing temporary regulations. They reasoned that a 
section 338(h)(10) election is intended to be equivalent to an asset 
sale and that this liability does not continue in an asset sale. 
However, one other commentor noted that, although the transaction is 
treated as an asset sale for purposes of income recognition, it 
continues to be treated as a stock sale for purposes of determining the 
rights of T's creditors. The final regulations provide that new T 
remains liable for the tax liabilities of old T (including tax 
liabilities resulting from the deemed sale of assets and any liability 
of old T under Sec. 1.1502-6).
    Commentors requested that the formula price at which T is deemed to 
sell its assets be modified to reflect buying and selling costs, as 
appropriate. These suggestions have been adopted in the final 
regulations.
    Commentors asked that the availability of section 338(h)(10) 
treatment be extended to situations in which T is not a member of a 
consolidated group. The final regulations provide that a section 
338(h)(10) election may be made for a non-consolidated T if a 
corporation (the selling affiliate) sells an amount of T stock to P on 
the acquisition date that satisfies the requirements of section 
1504(a)(2). The election must be made jointly by P and the selling 
affiliate. The instructions to the revised Form 8023 will provide more 
guidance on making the election.
    The final regulations also provide that a section 338(h)(10) 
election may be made if T is an S corporation immediately before the 
acquisition date. The deemed sale gain is reported on T's final S 
corporation return and therefore is taken into account under section 
1366 and 1367 in determining a T shareholder's basis in the T stock and 
resulting gain or loss on the deemed liquidation of T. The section 
338(h)(10) election must be made jointly by P and the T shareholders. 
The instructions to the revised Form 8023 will provide more guidance on 
making the election.
    If a section 338(h)(10) election is made for T, for purposes of 
subtitle A of the Internal Revenue Code, T is treated as selling all of 
its assets and liquidating. Thus, as appropriate, the old T 
shareholders recognize income, gain, or loss under sections 331 and 
332.
    Several other modifications to the proposed regulations have been 
included in the final regulations. Minor editorial changes and 
clarifications have been made. For example, the final regulations 
clarify the amount of liabilities to be taken into account in 
calculating deemed sale gain or loss and basis following a section 338 
election. Further, the final regulations provide that the adjusted 
deemed sale price (ADSP) must be calculated under a formula method. 
(The temporary and proposed regulations referred to the formula method 
as the elective ADSP formula.) Under the temporary regulations, the 
ADSP could be calculated using the formula method or by separately 
valuing each asset. Mandating the formula method is consistent with the 
treatment under section 338(h)(10) and makes the regulations simpler 
and easier to apply. The final regulations also simplify the ADSP 
examples.
    In addition, the final regulations contain a provision clarifying 
that a target S corporation for which a section 338 election (other 
than a section 338(h)(10) election) is made must file a deemed sale 
return reporting the deemed asset sale as a C corporation. See H.R. 
Rep. No. 432, Part 2, 98th Cong., 2d Sess., 1642 (March 5, 1984). No 
implication is intended by that provision as to the status of an 
acquired S corporation in the absence of a section 338 election.

F. Effective Dates

    Commentors suggested that the final regulations be effective either 
as of January 14, 1992 (the date the proposed regulations were filed) 
or earlier (including as early as the effective date of the repeal of 
the General Utilities doctrine by the Tax Reform Act of 1986).
    The final regulations are generally effective for targets with 
acquisition dates on or after January 20, 1994. The final regulations 
also apply on an elective basis to targets with acquisition dates on or 
after January 14, 1992 and before January 20, 1994. If an election is 
made to apply the final regulations to targets with acquisition dates 
on or after January 14, 1992 and before January 20, 1994, the 
provisions for controlled foreign corporations that are issued as 
temporary regulations elsewhere in the Federal Register will also apply 
to such targets. Further, if that election is made, a protective 
carryover basis election or offset prohibition election made under the 
temporary regulations will have no effect.
    Section 1.338(h)(10)-1(f) (relating to mandatory use of the MADSP 
formula) is generally effective for targets with acquisition dates on 
or after November 10, 1986.
    Section 1.304-5 is effective on January 20, 1994.
    Finally, the District Director's discretion to impose a section 338 
election (other than with the taxpayer's consent) under section 338(e) 
and Sec. 1.338-4T(f)(6)(i) is revoked for all open years.
    Although comments were requested regarding transition issues raised 
by the proposed effective date, no comments were received. 
Consequently, no special rules relating to transition issues have been 
provided.

G. Special Analyses

    It has been determined that this Treasury decision is not a 
significant regulatory action as defined in Executive Order 12866. It 
also has been determined that section 553(b) of the Administrative 
Procedure Act (5 U.S.C. chapter 5) and the Regulatory Flexibility Act 5 
U.S.C. chapter 6) do not apply to these regulations, and therefore, a 
Regulatory Flexibility Analysis is not required. Pursuant to section 
7805(f) of the Internal Revenue Code, the notice of proposed rulemaking 
was submitted to the Chief Counsel for Advocacy of the Small Business 
Administration for comment on the impact of the rules on small 
business.

H. Drafting Information

    The principal author of the international aspects of these 
regulations is Kenneth D. Allison of the Office of Associate Chief 
Counsel (International), within the Office of Chief Counsel, Internal 
Revenue Service. However, other personnel from the IRS and Treasury 
Department participated in their development.

List of Subjects

26 CFR Part 1

    Income taxes, Reporting and recordkeeping requirements.

26 CFR Part 602

    Reporting and recording requirements.

Adoption of Amendments to the Regulations

    Accordingly, 26 CFR parts 1 and 602 are amended as follows:

PART 1--INCOME TAXES

    Paragraph 1. The authority citation for part 1 is amended by 
removing the entry for ``Section 1.338-6T'' and adding entries in 
numerical order to read as follows:

    Authority: 26 U.S.C. 7805 * * *

    Section 1.304-5 also issued under 26 U.S.C. 304. * * *
    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(b)-1 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(i)-1 also issued under 26 U.S.C. 337(d), 338, and 
1502. * * *
    Section 1.1502-75 also issued under 26 U.S.C. 1502. * * *

    Par. 2. Section 1.304-5 is added to read as follows:


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 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.
    Par. 3. The following sections or paragraphs are amended as 
follows:
    (a) Sections 1.338-1T through 1.338-3T are removed.
    (b) Sections 1.338-5T and 1.338-6T are removed.
    (c) Section 1.338(b)-1T is removed.
    (d) Section 1.338(b)-2T(a)(3) is removed.
    (e) Section 1.338(b)-4T is removed.
    (f) Section 1.338(h)(10)-1T is removed.
    (g) Section 1.367(a)-4T(b)(4) is removed and reserved.
    Par. 4. Sections 1.338-0 through 1.338-5 and Sec. 1.338(b)-1 are 
added to read as follows:


Sec. 1.338-0  Outline of topics.

    This section lists the captions contained in the regulations under 
section 338.

Sec. 1.338-1 Elections under section 338.

    (a) Scope.
    (b) Nomenclature.
    (c) Definitions.
    (1) Acquisition date.
    (2) Affiliated group.
    (3) Common parent.
    (4) Consistency period.
    (5) Domestic corporation.
    (6) Old target's final return.
    (7) Purchasing corporation.
    (8) Qualified stock purchase.
    (9) Related persons.
    (10) Section 338 election.
    (11) Section 338(h)(10) election.
    (12) Selling group.
    (13) Target; old target; new target.
    (14) Target affiliate.
    (15) 12-month acquisition period.
    (d) Time and manner of making election.
    (e) Returns including tax liability from deemed 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 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.
    (f) 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.
    (g) 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 election 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.
    (iii) Form of notice.
    (iv) Timing of notice.
    (v) Consequence of failure to comply.
    (vi) Good faith effort to comply.

Sec. 1.338-2  Miscellaneous issues under section 338.

    (a) Scope.
    (b) Rules relating to qualified stock purchases.
    (1) Purchasing corporation requirement.
    (2) Purchase.
    (i) Definition.
    (ii) Examples.
    (3) Date of purchase from related corporations.
    (i) In general.
    (ii) 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) Miscellaneous matters affecting new target.
    (1) General rule for subtitle A.
    (2) Exceptions for subtitle A.
    (3) Taxable year of new target.
    (4) General rule for other provisions of the Internal Revenue 
Code.

Sec. 1.338-3 Deemed sale and aggregate deemed sale price.

    (a) Scope.
    (b) Definitions.
    (1) ADSP.
    (2) Allocable ADSP amount.
    (3) Deemed sale gain.
    (4) Classes of assets.
    (c) Deemed sale of target affiliate stock.
    (1) In general.
    (2) General rule.
    (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.
    (d) Determination of ADSP.
    (1) General rule.
    (2) Grossed-up basis of the purchasing corporation's recently 
purchased target stock.
    (3) Liabilities.
    (4) Other relevant items.
    (5) Calculation of deemed sale gain and loss.
    (6) Other rules apply in determining ADSP.
    (7) Cross reference.
    (8) Examples.

Sec. 1.338-4  Asset and stock consistency.

    (a) Introduction.
    (1) Overview.
    (2) General application.
    (3) Extensions 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) Special rules for controlled foreign corporations. 
[Reserved]
    (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.
    (C) Purchase of conduit by conduit.
    (4) Conduit.
    (5) Existence of arrangement.
    (6) Predecessor and successor.
    (i) Persons.
    (ii) Assets.
    (7) Examples.

Sec. 1.338-4T  Asset and stock consistency (temporary).

    (a) through (g) [Reserved]
    (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.
    (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.
    (5) Examples.
    (i) and (j) [Reserved]
    (k) Effective dates.

Sec. 1.338-5  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(b)-1  Adjusted grossed-up basis.

    (a) Scope.
    (b) Adjustment events.
    (c) AGUB.
    (1) In general.
    (2) Time when AGUB determined.
    (d) Grossed-up basis of recently purchased stock.
    (1) General rule.
    (2) Application.
    (e) Basis of nonrecently purchased stock.
    (1) In general.
    (2) Effect of gain recognition election.
    (i) In general.
    (ii) Basis amount.
    (iii) Losses not recognized.
    (iv) Stock subject to election.
    (3) Procedure for making gain recognition election.
    (i) In general.
    (ii) Section 338(h)(10) election.
    (4) Comparison with ADSP formula.
    (f) Liabilities of new target.
    (1) In general.
    (2) Excluded obligations.
    (i) In general.
    (ii) Time when excluded obligations taken into account.
    (3) Liabilities taken into account in determining amount 
realized on subsequent disposition.
    (g) Other relevant items.
    (1) In general.
    (2) Flow-through of relevant item adjustment to target 
subsidiary.
    (3) Adjustments by the Internal Revenue Service.
    (h) Examples.

Sec. 1.338(b)-2T  Allocation of adjusted grossed-up basis among 
target assets (temporary).

    (a) Introduction.
    (1) In general.
    (2) Fair market value.
    (b) General rule for allocating adjusted grossed-up basis.
    (1) Cash and other items designated by the Internal Revenue 
Service.
    (2) Other assets.
    (i) In general.
    (ii) Class II assets.
    (iii) Class III assets.
    (iv) Class IV assets.
    (c) Certain limitations and special rules for basis allocable to 
an asset.
    (1) Basis not to exceed fair market value.
    (2) Assets subject to other limitations.
    (3) Special rule for allocating adjusted grossed-up basis when 
purchasing corporation has nonrecently purchased stock.
    (i) Scope.
    (ii) Determination of hypothetical purchase price.
    (iii) Allocation of adjusted grossed-up basis.
    (d) Examples.

Sec. 1.338(b)-3T  Subsequent adjustments to adjusted grossed-up 
basis (temporary).

    (a) Scope.
    (1) In general.
    (2) Exceptions to applicability of section.
    (3) Adjustment of aggregate deemed sale price.
    (b) Definitions.
    (1) Contingent liability.
    (2) Contingent amount.
    (3) Reduction amount.
    (4) Acquisition date asset.
    (c) General rule.
    (1) Time when increases in adjusted grossed-up basis taken into 
account.
    (2) Time when decreases in adjusted grossed-up basis taken into 
account.
    (3) Amount of increases and decreases in adjusted grossed-up 
basis.
    (d) Allocation of increases in adjusted grossed-up basis.
    (1) In general.
    (2) Effect of disposition or depreciation of acquisition date 
assets.
    (e) Allocation of decreases in adjusted grossed-up basis.
    (1) In general.
    (2) Effect of disposition of assets or reduction of basis below 
zero.
    (3) Section 338 property.
    (f) Special rule for allocation of increases (or decreases) in 
adjusted grossed-up basis when hypothetical purchase price was used 
in allocating adjusted grossed-up basis.
    (1) Scope.
    (2) Allocation of increases (decreases) in adjusted grossed-up 
basis.
    (3) Allocation to contingent income assets.
    (g) Special rule for allocation of increases (decreases) in 
adjusted grossed-up basis to specific assets.
    (1) Patents and similar property.
    (i) Scope.
    (ii) Specific allocation.
    (2) Internal Revenue Service authority.
    (h) Changes in old target's aggregate deemed sale price of 
assets.
    (1) General rule.
    (i) In general.
    (ii) Redetermination of aggregate deemed sale price if the 
elective formula under section 338(h)(11) is used.
    (iii) Redetermination of aggregate deemed sale price if the 
elective formula under section 338(h)(11) is not used.
    (2) Procedure for transactions in which section 338(h)(10) is 
not elected.
    (i) Income or loss 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.
    (i) [Reserved.]
    (j) Examples.

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

    (a) Scope.
    (b) Nomenclature.
    (c) Definitions.
    (1) Section 338(h)(10) target.
    (2) S corporation shareholders.
    (3) Selling consolidated group.
    (4) Selling affiliate.
    (d) Section 338(h)(10) election.
    (1) In general.
    (2) Simultaneous joint election requirement.
    (3) Irrevocability.
    (4) Effect of invalid election.
    (e) Certain consequences of section 338(h)(10) election.
    (1) Old T.
    (2) Selling consolidated group, selling affiliate, or S 
corporation shareholders.
    (i) In general.
    (ii) Deemed liquidation of old T.
    (iii) Basis of stock not acquired.
    (iv) T stock sale.
    (v) Example.
    (3) Certain minority shareholders.
    (i) In general.
    (ii) T stock sale.
    (iii) T stock not acquired.
    (4) P.
    (5) New T.
    (6) Consolidated return of selling consolidated group.
    (f) Deemed sale price.
    (1) General rule.
    (2) Formula.
    (3) Liabilities.
    (4) Other relevant items.
    (5) Cross-reference.
    (g) Examples.
    (h) Inapplicability of provisions.

Sec. 1.338(i)-1  Effective dates.

    (a) In general.
    (b) Elective retroactive application.
    (c) MADSP.
    (d) Deemed election.


Sec. 1.338-1  Elections under section 338.

    (a) Scope. This section prescribes rules relating to elections 
under section 338. Paragraphs (c)(6), (e), and (g) of this section do 
not apply to a target for which a section 338(h)(10) election is made.
    (b) Nomenclature. For purposes of the regulations under section 338 
(except as otherwise provided):
    (1) T is a domestic corporation that has only one class of stock 
outstanding.
    (2) P is a domestic corporation that purchases stock of T in a 
qualified stock purchase.
    (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 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. resident or citizen, 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. 
resident or citizen. Ownership of T by A and ownership of T by S are 
mutually exclusive circumstances.)
    (8) B, a U.S. resident or citizen, 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) 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 with each other.
    (3) Common parent. The term common parent has the same meaning as 
in section 1504.
    (4) Consistency period. The consistency period is the period 
described in section 338(h)(4)(A) unless extended pursuant to 
Sec. 1.338-4(j)(1).
    (5) 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.
    (6) 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 of assets 
under section 338. If the disaffiliation rule of paragraph (e)(2)(i) of 
this section applies, target's deemed sale return is considered old 
target's final return.
    (7) Purchasing corporation. The term purchasing corporation has the 
same meaning as in section 338(d)(1). 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).
    (8) Qualified stock purchase. The term qualified stock purchase has 
the same meaning as in section 338(d)(3).
    (9) 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.
    (10) Section 338 election. A section 338 election is an election to 
apply section 338(a) to target. A section 338 election may be made by 
filing a statement of section 338 election pursuant to Sec. 1.338-1(d). 
The form on which this statement is filed is referred to in the 
regulations under section 338 as the Form 8023.
    (11) 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 may be made by making a joint election for target under 
Sec. 1.338(h)(10)-1.
    (12) Selling group. The selling group is the affiliated group (as 
defined in section 1504) that is eligible to file a consolidated return 
that includes target for the target's taxable period that includes the 
acquisition date and that does not have a target as common parent for 
the taxable year including the acquisition date.
    (13) 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 as of the close of the date of target's 
deemed sale of assets. New target refers to target for subsequent 
periods.
    (14) 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.
    (15) 12-month acquisition period. The 12-month acquisition period 
is the period described in section 338(h)(1), unless extended pursuant 
to Sec. 1.338-4(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.
    (e) Returns including tax liability from deemed sale--(1) In 
general. Except as provided in paragraphs (e)(2) and (3) of this 
section, any tax liability resulting from the deemed sale of assets 
under section 338 is included in the final return of old target filed 
for old target's taxable year that ends at the close of the acquisition 
date. 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 tax liability from any deemed sales under section 
338 by subsidiaries in the consolidated group that have the same 
acquisition date as old target and that are acquired by the purchasing 
corporation).
    (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 its deemed sale of assets under section 338 and must 
file a separate final return that includes only the items resulting 
from the deemed sale and the carryover items specified in paragraph 
(e)(2)(iii) of this section (deemed sale return). The deemed sale 
occurs at the close of the acquisition date and is the last transaction 
of old target. Any transactions of old target occurring on the 
acquisition date other than the deemed sale are included in the selling 
group's consolidated return. A deemed sale return includes a combined 
return as defined in paragraph (e)(4) of this section.
    (ii) Separate taxable year. The deemed sale included in the deemed 
sale return under this paragraph (e)(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 an S corporation. If target is an S corporation for 
the period that ends on the day before the acquisition date, old target 
must file a deemed sale return as a C corporation. For this purpose, 
the principles of paragraph (e)(2) of this section apply.
    (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(c)(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 sale of assets 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 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 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''; and
    (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. 1.338-2(d)(1).
    (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 the 
deemed sale of target assets under section 338.
    (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, pursuant to this 
paragraph (e)(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, pursuant 
to this paragraph (e)(6)(ii), target files a return for so 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 pursuant to this paragraph 
(e)(6)(ii), the last date prescribed for payment of tax is the final 
return due date (as defined in paragraph (e)(6)(i) of this section).
    (7) Examples. This paragraph (e) may be illustrated by the 
following examples:

    Example 1. (a) 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 the deemed sale of T's assets occurs as of the close of T's 
acquisition date (June 30).
    (b) T is considered disaffiliated for purposes of reporting the 
deemed sale. Accordingly, T is included in the S group's 
consolidated return through T's acquisition date except that the tax 
liability resulting from the deemed sale of assets 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 represented by the 
deemed sale, and the taxable income bracket amounts available in 
calculating tax on the deemed sale return must be limited 
accordingly.
    (c) 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 (e)(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 includes the deemed sale.

    (f) 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, by reason 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 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 (f) is being 
asserted.
    (3) Elections or other actions required to be specified on a timely 
filed return--(i) In general. If paragraph (f)(1) of this section 
applies or would apply if there was 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 
(f)(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. This paragraph (f) may be illustrated by the 
following examples:

    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 waiver rule of Sec. 1.338-1(f) 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. 1.338-2(d)(8). Any additions to 
tax or amounts described in this paragraph (f) which arise by reason 
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.

    (g) 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 by reason 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.
    (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 
(g)(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 (g), 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 return with respect to a foreign 
corporation) 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 (g)(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 (g)(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 (g)(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 is organized, the purchasing 
corporation and the relevant target (i.e., target the stock of which 
the particular U.S. person held or sold under the circumstances 
described in paragraph (g)(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): ``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 Sec. 1.338-1(g)(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 Sec. 1.338-5(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 (g)(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. If notice is delivered by United 
States mail, the date of the United States postmark is deemed to be the 
date of delivery.
    (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 (g)(4). If the form of notice fails 
to comply with all requirements of this paragraph (g)(4), the section 
338 election is valid, but the waiver rule of paragraph (f)(1) of this 
section does not apply.
    (vi) Good faith effort to comply. The purchasing corporation will 
be considered to have complied with this paragraph (g)(4), even though 
it failed to provide notice or provide timely notice to each person 
described in this paragraph (g)(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.


Sec. 1.338-2  Miscellaneous issues under section 338.

    (a) Scope. This section provides guidance on 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 that 
new P merges downstream into target, liquidates, or otherwise disposes 
of the target stock following the purported qualified stock purchase.
    (2) Purchase--(i) Definition. The term purchase has the same 
meaning as in section 338(h)(3).
    (ii) Examples. This paragraph (b)(2) may be illustrated by the 
following examples:

    Example 1. A, who owns all of the stock of P and T, sells the T 
stock to P for cash. A is treated under section 304(a)(1) as 
receiving a distribution in redemption of the P stock to which 
section 301 applies. P is treated as receiving the T stock as a 
contribution to its capital. Under section 362(a) and Sec. 1.304-
2(a), P's basis in the T stock is determined by reference to A's 
adjusted basis in the stock. Further, stock owned by A would be 
attributed to P under section 318(a)(3)(C). Thus, P is not 
considered to have acquired the T stock by purchase. See sections 
338(h)(3)(A)(i) and (iii).
    Example 2. P exchanges cash for all of the stock of N, a newly 
formed corporation. N was formed for the sole purpose of acquiring 
all of the T stock by means of a reverse subsidiary cash merger. 
Prior to the merger, N conducted no activities other than those 
required for the merger. Pursuant to the plan, N merges into T, and 
the T shareholders receive cash for their T stock. No T shareholder 
is related to P, and no group of T shareholders controls P within 
the meaning of section 304(c). The existence of N is disregarded, 
and P is considered to acquire the T stock directly from the T 
shareholders for cash. Thus, P is considered to have acquired the T 
stock by purchase.

    (3) Date of purchase 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). However, if section 338(h)(3)(C) applies and the 
purchasing corporation is treated as acquiring stock by purchase from 
R, solely for purposes of determining when the stock is considered 
acquired--
    (A) 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)); and
    (B) If such stock first may be considered owned by the purchasing 
corporation on more than one date, such stock is deemed acquired on the 
earliest date first to the extent thereof, then on the next earliest 
date, and so on.
    (ii) Examples. This paragraph (b)(3) may be illustrated by the 
following examples:
    Example 1. (a) On January 1 of Year 1, P purchases 75% 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.
    (b) 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 2. (a) On February 1 of Year 1, P acquires 25% 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% in value of the R stock, and on January 
1 of Year 2, P purchases another 25% 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.
    (b) 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% 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 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. 1.338-4(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 3. Assume the same facts as in Example 2, except that on 
February 1 of Year 1, P acquires 25% in value of the R stock by 
purchase. The result is the same as in Example 2.

    (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) Examples. This paragraph (b)(4) may be illustrated by the 
following examples:

    Example 1. 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 by reason 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.
    Example 2. On January 1 of Year 1, P makes a qualified stock 
purchase of T and makes a section 338 election for T. On that day, T 
sells all of the stock of T1 to A. Although T held all of the T1 
stock on T's acquisition date, T is not considered to have purchased 
the T1 stock by reason of the section 338 election for T. In order 
for T to be treated as purchasing the T1 stock, T must hold the T1 
stock when T's deemed sale of assets occurs pursuant to section 
338(a). The deemed sale of assets is considered the last transaction 
of old T at the close of T's acquisition date. Accordingly, the T1 
stock actually disposed of by T on the acquisition date is not 
included in the deemed sale of assets. Thus, T does not make a 
qualified stock purchase of T1.

    (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 (by reason 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. This paragraph (b)(5) may be illustrated by the 
following examples:

    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 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 unrelated person more than 12 months 
before stock purchase. A owns all 100 shares of T stock. On January 
1 of Year 1, T redeems 25 of its shares. On January 15 of Year 2, P 
purchases 60 shares of T stock from A. P makes a qualified stock 
purchase of T on January 15 of Year 2. 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. It is irrelevant that the redemption 
occurred before the 12-month acquisition period.
    Example 4. Redemption from unrelated person more than 12 months 
after stock purchase. The facts are the same as in Example 3, except 
that the redemption occurs on April 1 of Year 3. P does not make a 
qualified stock purchase of T on April 1 of Year 3, because 80% of 
the T stock, as of April 1 of Year 3 had not been purchased in the 
preceding 12 months. (Under Sec. 1.338-4(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 5. Redemption from purchasing corporation not taken into 
account. On December 15 of Year 1, T redeems 30% 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 6. 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 (by reason of section 
338(h)(3)(C)(i)) during the 12-month period ending on April 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.
    (ii) This paragraph (c)(1) may be illustrated by the following 
examples:

    Example 1. On January 1 of Year 1, P makes a qualified stock 
purchase 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 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.
    (d) Miscellaneous matters affecting new target--(1) General rule 
for subtitle A. Except as provided in this paragraph (d), 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, in the 
section 338(a)(1) deemed sale, new target is treated as purchasing 
assets from an unrelated person, and--
    (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.
    (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, 120, 125, 127, and 129), 
qualified pension, profit-sharing, stock bonus and annuity plans 
(sections 401(a) and 403(a)), simplified employee pensions (section 
408(k)), and tax qualified stock option plans (sections 422 and 423);
    (ii) Sections 1311-1314 (relating to the mitigation of the effect 
of limitations) if a section 338(h)(10) election is not made for 
target; and
    (iii) Any other provision identified by the Commissioner.
    (3) Taxable year of new target. 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.
    (4) General rule for other provisions of the Internal Revenue Code. 
Except as provided in the regulations under section 338 or by the 
Commissioner, new target is treated as a continuation of old target for 
purposes other than subtitle A. For example--
    (i) New target is liable for old target's federal income tax 
liabilities, including tax liabilities resulting from the deemed asset 
sale 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.


Sec. 1.338-3  Deemed sale and aggregate deemed sale price.

    (a) Scope. This section provides guidance regarding the recognition 
of gain or loss on the deemed sale of target affiliate stock. This 
section also provides guidance regarding the determination of the price 
(the aggregate deemed sale price) at which old target is treated as 
selling its assets in the section 338(a)(1) deemed sale for purposes of 
determining the gain or loss recognized by target in the deemed sale. 
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) Definitions. For purposes of the regulations under section 338:
    (1) ADSP. The ADSP is the aggregate deemed sale price, i.e., the 
price at which target is deemed to have sold all of its assets in the 
deemed sale under section 338(a)(1). See paragraph (d) of this section 
for the determination of the ADSP.
    (2) Allocable ADSP amount. The allocable ADSP amount is the portion 
of the ADSP that is allocable to a particular target asset. Deemed sale 
gain on a target asset is computed by reference to the allocable ADSP 
amount for that asset. Except as provided in section 7701(g) (relating 
to fair market value in the case of nonrecourse indebtedness), the ADSP 
is allocated among target assets for this purpose under the principles 
of Sec. 1.338(b)-2T (without taking into account Sec. 1.338(b)-
2T(c)(2)). Appropriate adjustments to reflect accurately the fair 
market value of assets must be made if stock of a target affiliate is 
purchased in the section 338(a)(1) deemed sale, a section 338 election 
is made for the target affiliate, and target recognizes no gain or loss 
on the deemed sale of the target affiliate stock under paragraph (c) of 
this section. See Example 4 of paragraph (d)(8) of this section.
    (3) Deemed sale gain. Deemed sale gain is gain (or loss) that is 
recognized in the section 338(a)(1) deemed sale. For purposes of 
subtitle A of the Internal Revenue Code, deemed sale gain is taken into 
account by treating the old target as if, on the acquisition date, it 
sold all of its assets to an unrelated person in the deemed sale. See 
Sec. 1.338-2(d)(1). For example, section 267 does not apply to loss 
recognized on the deemed sale.
    (4) Classes of assets. The four classes of assets are defined in 
Sec. 1.338(b)-2T(b).
    (c) Deemed sale of target affiliate stock--(1) In general. This 
paragraph (c) prescribes rules relating to the treatment of gain or 
loss realized on the deemed sale of stock of a target affiliate where a 
section 338 election (but not a section 338(h)(10) election) is made 
for the target affiliate. For purposes of this paragraph (c), the 
definition of domestic corporation in Sec. 1.338-1(c)(5) 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) General rule. Except as otherwise provided in this paragraph 
(c), if a section 338 election is made for target, no gain or loss is 
recognized by target 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-
1(e)(1); or
    (iii) Target and the target affiliate file a combined return under 
Sec. 1.338-1(e)(4).
    (3) Deemed sale of foreign target affiliate by a domestic target. 
Gain or loss is recognized by a domestic target 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. 1.338-5.
    (4) Deemed sale producing effectively connected income. Gain or 
loss is recognized by a foreign target 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). Gain (but not loss) is recognized by a domestic 
target 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. Gain (but not loss) is 
recognized by a foreign or domestic target 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. This paragraph (c) may be illustrated by the 
following examples:

    Example 1. (a) 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.
    (b) 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 
satisfying the requirements of section 1504(a)(2) and a section 338 
election is made for T1.
    (c) 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. (a) 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 a section 338 election is made for 
T1 and T2. T1 and T2 each own 50% 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 sales are reported on the T group's final consolidated 
return. See Sec. 1.338-1(e)(1).
    (b) 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. (a) 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.
    (b) 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.
    (c) T recognizes $125 of gain on the deemed sale of the FT1 
stock under paragraph (c)(3) of this section. FT1's $75 of gain on 
the deemed sale of the FT2 stock is not recognized under paragraph 
(c)(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). Sec. 1.338-5(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).

    (d) Determination of ADSP--(1) General rule. The ADSP is the sum 
of--
    (i) The grossed-up basis of the purchasing corporation's recently 
purchased target stock (as defined in section 338(b)(6)(A));
    (ii) The liabilities of new target (including any tax liabilities 
resulting from the deemed sale); and
    (iii) Other relevant items.
    (2) Grossed-up basis of the purchasing corporation's recently 
purchased target stock. The grossed-up basis of the purchasing 
corporation's recently purchased target stock is an amount equal to the 
purchasing corporation's basis in recently purchased target stock, 
divided by the percentage of target stock (by value) attributable to 
that recently purchased target stock. If target has a single class of 
outstanding stock, the grossed-up basis of the purchasing corporation's 
recently purchased target stock reflects the total price the purchasing 
corporation would have paid for all outstanding target stock had it 
purchased all such stock for a price per share equal to the average 
price per share that it paid for the recently purchased target stock.
    (3) Liabilities. Liabilities taken into account are the liabilities 
of new target described in Sec. 1.338(b)-1(f). The amount of the 
liabilities of new target taken into account to calculate ADSP is 
determined as if old target had sold its assets to an unrelated person 
for consideration that included the liabilities. Thus, the ADSP takes 
into account both tax credit recapture liability arising by reason of 
the deemed sale and the tax liability on deemed sale gain. The ADSP 
reflects the fact that deemed sale gain (loss) both increases 
(decreases) the ADSP by creating (reducing) a tax liability and is 
computed by reference to the ADSP.
    (4) Other relevant items. Other relevant items include reductions 
for acquisition costs of the purchasing corporation incurred in 
connection with the qualified stock purchase that are capitalized in 
the basis of recently purchased target stock (e.g., brokerage 
commissions and any similar costs paid by the purchasing corporation to 
acquire target stock).
    (5) Calculation of deemed sale gain and loss. Deemed sale gain on 
each asset is computed by reference to the ADSP. In certain cases, the 
determination of the tax liability resulting from the deemed sale and 
therefore the determination of the ADSP may require trial and error 
computations.
    (6) Other rules apply in determining ADSP. The 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 the ADSP.
    (7) Cross-reference. See Sec. 1.338(b)-3T(h) for adjustments to 
ADSP because of events occurring after the acquisition date and 
Sec. 1.338(h)(10)-1(f) for the determination of modified ADSP.
    (8) Examples. (i) For purposes of the examples in this paragraph 
(d)(8), 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 a federal income tax liability 
resulting from the deemed sale of assets, and T has no other relevant 
items. Assume that T's tax rate for any ordinary income or net capital 
gain resulting from the deemed sale of assets is 34 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.
    (ii) This paragraph (d) may be illustrated by the following 
examples:

    Example 1. One class. (a) 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.
    (b) The ADSP may be determined as follows. (In the formula 
below, G is the grossed-up basis in P's recently purchased T stock, 
L is T's liabilities other than T's tax liabilities for deemed sale 
gain determined by reference to the ADSP, 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

    (c) Because the ADSP for T ($87,672.72) does not exceed the fair 
market value of T's asset ($100,000), a Class III asset, T's entire 
ADSP is allocated to that asset. Thus, T has deemed sale gain of 
$37,272.72 (consisting of $29,600 of ordinary income and $7,672.72 
of capital gain).
    (d) The facts are the same as in paragraph (a) 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 basis in P's recently 
purchased T stock (G) is $75,000 ($60,000/.8). Consequently, the 
ADSP and deemed sale gain are the same as in paragraphs (b) and (c) 
of this Example 1.
    (e) The facts are the same as in paragraph (a) of this Example 
1, except that T also has goodwill (a Class IV asset) with an 
appraised value of $10,000. The results are the same as in 
paragraphs (b) and (c) of this Example 1. Because the ADSP does not 
exceed the fair market value of the Class III asset, no amount is 
allocated to goodwill.
    Example 2. More than one class. (a) P purchases all of the T 
stock for $140,000. On July 1 of Year 1, T has liabilities (not 
including the tax liability for deemed sale gain on its assets) of 
$50,000, cash (a Class I asset) of $10,000, readily marketable 
securities (a Class II asset) with a basis of $4,000 and fair market 
value of $10,000, goodwill (a Class IV asset) with a basis of 
$3,000, and the following Class III assets: 

------------------------------------------------------------------------
               Asset                    Basis         FMV        Ratio  
------------------------------------------------------------------------
1. Land............................       $5,000      $35,000        .14
2. Inventory.......................       10,000       50,000        .20
3. Equipment A.....................        5,000       90,000        .36
  (recomputed basis $80,000)                                            
4. Equipment B.....................       10,000       75,000        .30
  (recomputed basis $20,000)                                            
    Totals.........................      $30,000      250,000       1.00
------------------------------------------------------------------------


    (b) The ADSP exceeds $20,000. Thus, $10,000 of the ADSP is 
allocated to the cash and $10,000 to the marketable securities. 
Except as provided in section 7701(g), the amount allocated to an 
asset (other than a Class IV asset) cannot exceed its fair market 
value. See Sec. 1.338(b)-2T(c)(1) (relating to fair market value 
limitation).
    (c) The portion of the ADSP allocable to the Class III 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.)

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

    (d) Because, under the preliminary calculation of the ADSP, the 
amount to be allocated to Class I, II, and III assets does not 
exceed their aggregate fair market value, no ADSP amount is 
allocated to the goodwill. Accordingly, the deemed sale of the 
goodwill results in a capital loss of $3,000. The portion of the 
ADSP allocable to the Class III assets is finally determined by 
taking into account this loss as follows:

ADSPIII = (G -(I+II))+L+TR  x  [(II-BII) + 
(ADSPIII -BIII) + (ADSPIV -BIV)]
ADSPIII = ($140,000 -($10,000+$10,000))+$50,000+.34  x  
[($10,000-$4,000) + (ADSPIII -$30,000)+(0-$3,000)]
ADSPIII=$160,820+.34ADSPIII
.66ADSPIII=$160,820
ADSPIII=$243,666.67

    (e) The allocation of ADSPIII among the Class III assets is 
in proportion to their fair market values, as follows:

------------------------------------------------------------------------
      Asset              ADSP                       Gain                
------------------------------------------------------------------------
1. Land...........      $34,113.33  $29,113.33                          
                                    (capital gain)                      
2. Inventory......       48,733.34  38,733.34                           
                                    (ordinary income)                   
3. Equipment A....       87,720.00  82,720.00                           
                                    (75,000 ordinary income             
                                    7,720 capital gain)                 
4. 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. (a) The facts are the same as in 
Example 2, except that P purchases the T stock for $150,000, rather 
than $140,000.
    (b) As in Example 2, the ADSP exceeds $20,000. Thus, $10,000 of 
the ADSP is allocated to the cash and $10,000 to the marketable 
securities.
    (c) The portion of the ADSP allocable to the Class III assets as 
preliminarily determined under the formula set forth in paragraph 
(c) of Example 2 is $260,363.64. The amount allocated to the Class 
III assets cannot exceed their aggregate fair market value 
($250,000). Thus, preliminarily, the ADSP amount allocated to Class 
III assets is $250,000.
    (d)(1) Based on this 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 III 
assets as III.)

ADSP = G+L+TR  x  [(II-BII) + (III-BIII) + (ADSP 
-(I+II+III+BIV))]
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

    (2) Because the ADSP as determined exceeds the aggregate fair 
market value of the Class I, II, and III assets, the $250,000 amount 
preliminarily allocated to Class III assets is appropriate. Thus, 
the amount of the ADSP allocated to Class III assets equals their 
aggregate fair market value ($250,000), and the allocated ADSP 
amount for each Class III asset is its fair market value. Further, 
the allocable ADSP amount for the Class IV asset (goodwill) is 
$8,818.18 (the excess of the ADSP over the aggregate allocable ADSP 
amounts for the Class I, II, and III assets).
    Example 4. Amount allocated to T1 stock. (a) The facts are the 
same as in Example 2, except that T owns all of the T1 stock 
(instead of the inventory), and T1's only asset is the inventory. 
The T1 stock and inventory each have a fair market value of $50,000, 
and the inventory 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 a 
tax liability resulting from the deemed sale gain. Under paragraph 
(c) of this section, T recognizes no gain or loss on its deemed sale 
of T1 stock.
    (b) The ADSP exceeds $20,000. Thus, $10,000 of the ADSP is 
allocated to the cash and $10,000 to the marketable securities.
    (c) T1 stock is purchased in the deemed sale of T assets, T does 
not recognize any gain on the deemed sale of the T1 stock under 
paragraph (c) of this section, and a section 338 election is made 
for T1. Thus, under paragraph (b)(2) of this section, in determining 
the allocation of ADSP among T's Class III assets, including the T1 
stock, appropriate adjustments must be made to reflect accurately 
the fair market value of the T and T1 assets. In preliminarily 
calculating ADSPIII 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, ADSPIII is 
$243,666.67. See paragraph (d) of Example 2.
    (d) Because the portion of the preliminary ADSP allocable to 
Class III assets ($243,666.67) does not exceed their aggregate fair 
market value ($250,000), no amount is allocated to Class IV assets 
for T. Further, this amount is allocated among T's Class III assets 
in proportion to their fair market values. See paragraph (e) of 
Example 2. Tentatively, $48,733.34 of this amount is allocated to 
the T1 stock.
    (e) 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 (.34  x  ($48,733.34 - $10,000)). Thus, the ADSP 
allocable to the Class III assets of T, and the allocable ADSP 
amount for the T1 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 the ADSP for T1, the 
grossed-up basis of T's recently purchased T1 stock is $35,564.00.
    (f) The facts are the same as in paragraph (a) of this Example 
5, except that the T1 inventory has a $12,500 basis and $62,500 
value, the T1 stock has a $62,500 value, and T owns 80% of the T1 
stock. In preliminarily calculating ADSPIII, the T1 stock can 
be disregarded but, because T owns only 80% of the T1 stock, only 
80% of T1 asset basis and value should be taken into account in 
calculating T's ADSP. By taking into account 80% of these amounts, 
the remaining calculations and results are the same as in paragraphs 
(b), (c), (d), and (e) of this Example 5, except that the grossed-up 
basis in T's recently purchased T1 stock is $44,455.00 ($35,564.00/
0.8).


Sec. 1.338-4  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 provisions of the 
consolidated return regulations.
    (5) Application to foreign target affiliates. Section 1.338-4T(h) 
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 Sec. 1.338-4T(h)(2).
    (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 Sec. 1.338-4T(h)(3) 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 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.

BILLING CODE 4830-01-U


TR20JA94.000


BILLING CODE 4830-01-C

    (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 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.
    (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.
    (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(f), 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 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 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 
Sec. 1.338-4T(h)(4) 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 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) Special rules for controlled foreign corporations. [Reserved]
    (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 Sec. 1.338-4T(h).
    (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 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 the X stock on 
February 1 of Year 1 is T's adjusted basis in the X stock 
immediately before the sale to P1.


Sec. 1.338-5  International aspects of section 338.

    (a) Scope. This section provides guidance regarding international 
aspects of section 338. As provided in Sec. 1.338-1(c)(14), 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 gain, as defined in 
Sec. 1.338-3(b)(4), 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 gain.
    (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(b)-1(e)(2).
    (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 gain) 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 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(b)-1(e)(2), 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(b)-1(e)(2).
    (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 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           
 through 7-1-94) during which FT is not a controlled foreign            
 corporation ($500 x 182/365).................................    249.32
                                                               ---------
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              
 section 951(a)(2)(A) (60% x 250.68)..........................   150.41 
                                                                        


    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.


Sec. 1.338(b)-1  Adjusted grossed-up basis.

    (a) Scope. This section provides rules under section 338(b) to 
determine the adjusted grossed-up basis (AGUB) for target. The 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). The AGUB is 
allocated among target's assets in accordance with Sec. 1.338(b)-2T to 
determine the price at which the assets are deemed to have been 
purchased. Subsequent adjustments to AGUB and the allocation of such 
adjustments to target's assets may be made under Sec. 1.338(b)-3T.
    (b) Adjustment events. Adjustment events are increases (or 
decreases) in the consideration paid for recently or nonrecently 
purchased stock, reductions in target's liabilities included in AGUB as 
of the beginning of the day after the acquisition date, and old target 
liabilities that become fixed and determinable.
    (c) AGUB--(1) In general. 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;
    (iii) The liabilities of new target; and
    (iv) Other relevant items.
    (2) Time when AGUB determined. AGUB is initially determined at the 
beginning of the day after the acquisition date of target. However, 
adjustment events that occur during new target's first taxable year are 
taken into account for purposes of determining AGUB and the basis of 
target's assets as if they had occurred at the beginning of the day 
after the acquisition date.
    (d) Grossed-up basis of recently purchased stock--(1) General rule. 
The purchasing corporation's grossed-up basis of recently purchased 
target stock is the product of--
    (i) The purchasing corporation's basis in recently purchased target 
stock (as defined in section 338(b)(6)(A)) at the beginning of the day 
after the acquisition date; multiplied by
    (ii) A fraction the numerator of which is 100 percent minus the 
percentage of target stock (by value) attributable to the purchasing 
corporation's nonrecently purchased target stock and the denominator of 
which is the percentage of target stock (by value) attributable to the 
purchasing corporation's recently purchased target stock. See section 
338(b)(4).
    (2) Application. If target has a single class of outstanding stock, 
the grossed-up basis in the purchasing corporation's recently purchased 
target stock reflects the total price the purchasing corporation would 
have paid for all outstanding target stock (other than the purchasing 
corporation's nonrecently purchased target stock, as defined in section 
338(b)(6)(B)) had the purchasing corporation purchased all such stock 
(other than the nonrecently purchased target stock) for a price per 
share equal to the average price per share that the purchasing 
corporation paid for the recently purchased target stock.
    (e) Basis of nonrecently purchased stock--(1) In general. In the 
absence of an election under section 338(b)(3) (gain recognition 
election), the purchasing corporation retains its basis in the 
nonrecently purchased stock. A gain recognition election applies to 
nonrecently purchased stock of target (or a target affiliate) only if a 
section 338 election is made for target (or the target affiliate).
    (2) Effect of gain recognition election--(i) In general. If the 
purchasing corporation makes a gain recognition election, 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 (e)(2)(ii) of this section; and
    (B) The purchasing corporation's basis on the acquisition date in 
nonrecently purchased target stock is the basis amount.
    (ii) Basis amount. The basis amount is equal to the purchasing 
corporation's grossed-up basis in recently purchased target stock 
multiplied by a fraction the numerator of which is the percentage of 
target stock (by value) 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.
    (3) Procedure for making gain recognition election--(i) In general. 
The gain recognition election is made by attaching a gain recognition 
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.
    (ii) Section 338(h)(10) election. If a section 338(h)(10) election 
is made for target, the purchasing corporation is deemed to have made a 
gain recognition election.
    (4) Comparison with ADSP formula. Whenever the purchasing 
corporation holds nonrecently purchased target stock at a basis that 
differs from the purchasing corporation's basis in recently purchased 
target stock, the grossed-up basis in the purchasing corporation's 
recently purchased target stock as calculated for purposes of the AGUB 
differs from the grossed-up basis of the purchasing corporation's 
recently purchased target stock as calculated in the ADSP formula. The 
ADSP formula treats the purchasing corporation's nonrecently purchased 
target stock in the same manner as target stock not held by the 
purchasing corporation. If a gain recognition election is made, the sum 
of the grossed-up basis in the purchasing corporation's recently 
purchased target stock and the purchasing corporation's basis in 
nonrecently purchased target stock equals the grossed-up basis of the 
purchasing corporation's recently purchased target stock as calculated 
in the ADSP formula.
    (f) Liabilities of new target--(1) In general. The liabilities of 
new target are its liabilities (and the liabilities to which target's 
assets are subject) as of the beginning of the day after the 
acquisition date (other than liabilities that were neither liabilities 
of old target nor liabilities to which old target's assets were 
subject). The amount of the liabilities of new target taken into 
account to determine AGUB is determined as if new target had acquired 
old target's assets from an unrelated person and, as part of the 
transaction, had assumed or taken property subject to the liabilities.
    (2) Excluded obligations--(i) In general. In order to be included 
in AGUB at the beginning of the day after the acquisition date, an 
obligation must be a bona fide liability of target as of that date 
which is properly includible in basis under principles of tax law that 
would apply if new target had acquired old target's assets from an 
unrelated person and, as part of the transaction, had assumed or taken 
property subject to the obligation. For example, if, as of the 
beginning of the day after the acquisition date, the amount of a 
contingent or speculative obligation of target is not properly 
includible in basis under the preceding sentence, the obligation is not 
initially included in AGUB.
    (ii) Time when excluded obligations taken into account. Obligations 
that, under this paragraph (f)(2), are initially excluded from AGUB are 
taken into account in redetermining AGUB and the basis of target's 
assets under principles of tax law that would apply if new target had 
acquired old target's assets directly from an unrelated person and, as 
part of the transaction, had assumed or taken property subject to those 
obligations. For the application of these principles of tax law to 
certain contingent liabilities that are initially excluded from AGUB 
under this paragraph (f)(2), see Sec. 1.338(b)-3T.
    (3) 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, the entire amount of any liability included in AGUB is 
considered to be an amount taken into account in determining new 
target's basis in property which secures the liability for purposes of 
applying Sec. 1.1001-2(a). Thus, if a liability is included in AGUB, 
Sec. 1.1001-2(a)(3) does not prevent the amount of such liability from 
being treated as discharged within the meaning of Sec. 1.1001-2(a)(4) 
as a result of new target's sale or disposition of the property which 
secures such liability.
    (g) Other relevant items--(1) In general. AGUB may be increased (or 
decreased) for other relevant items. For this purpose, other relevant 
items may only arise from adjustment events that occur after the close 
of new target's first taxable year and adjustments under paragraph 
(g)(3) of this section. See Sec. 1.338(b)-3T (relating to the treatment 
of certain subsequent adjustments to AGUB). Unlike in the determination 
of ADSP or MADSP, other relevant items do not include reductions for 
acquisition costs incurred by the purchasing corporation in connection 
with the qualified stock purchase that are capitalized in the basis of 
recently purchased target stock.
    (2) Flow-through of relevant item adjustment to target subsidiary. 
If the amount of AGUB of target (T) allocated to the stock of a target 
affiliate (T1) is subsequently increased (or decreased) by reason of an 
other relevant item under this paragraph (g), the grossed-up basis of 
the T1 stock (and, if a section 338 election is made for T1, T1's AGUB) 
is also increased (or decreased) as if the increase (or decrease) in 
the basis of the stock was an adjustment to the purchase price deemed 
paid by T for such stock. The resulting increase (or decrease) in AGUB 
of T1 is allocated among T1's assets in accordance with Secs. 1.338(b)-
2T and 1.338(b)-3T.
    (3) Adjustments by the Internal Revenue Service. In connection with 
the examination of a return, the District Director may increase (or 
decrease) AGUB for items other than those described in paragraphs 
(g)(1) and (2) of this section 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 acquisition period, or 
acquisitions of target stock by purchasing corporation after the 
acquisition date from minority shareholders.
    (h) Examples. (1) For purposes of the examples in this paragraph 
(h), T has no liabilities other than a tax liability resulting from the 
deemed sale of assets.
    (2) This section may be illustrated by the following examples:

    Example 1. (a) 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 sale of assets is 34%. 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.
    (b) The ADSP formula as applied to these facts is the same as in 
Example 2 of Sec. 1.338-3(d)(9). Accordingly, the ADSP of 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.
    (c) The total tax liability resulting from T's deemed sale of 
assets, as calculated under the ADSP formula, is $12,672.72.
    (d) 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 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 other relevant items.)

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

    (e) 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

    (f) 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

    (g) 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 District Director 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. (a) T's sole asset is a building worth $100,000. 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.
    (b) To prevent the shifting of basis from the contributed 
property to other assets of T, the District Director may allocate 
$10,800 of the AGUB to the land, leaving $98,000 to be allocated to 
the building.

    Par. 5. Section 1.338(b)-2T(a)(2) and (d) Example (1) (i) are 
revised to read as follows:


Sec. 1.338(b)-2T  Allocation of adjusted grossed-up basis among target 
assets (temporary).

    (a) * * *
    (2) Fair market value. The ``fair market value'' of an asset is the 
gross fair market value of that asset (i.e., fair market value 
determined without regard to mortgages, liens, pledges, or other 
liabilities).
* * * * *
    (d) * * *

    Example (1). (i) T owns 90% of the outstanding T1 stock. P 
purchases 100% of the outstanding T stock for $2,000. A section 338 
election is made 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  x  
1/1).
* * * * *
    Par. 5a. Section 1.338(b)-3T(b) is revised to read as follows:


Sec. 1.338(b)-3T  Subsequent adjustments to adjusted grossed-up basis 
(temporary).

* * * * *
    (b) Definitions--(1) Contingent liability. A contingent liability 
is a liability of target at the beginning of the day after the 
acquisition date that is not fixed and determinable by the close of new 
target's first taxable year.
    (2) Contingent amount. The term contingent amount means the amount 
of the consideration to be paid for recently or nonrecently purchased 
stock that is not fixed or determinable by the close of new target's 
first taxable year, plus contingent liabilities of target.
    (3) Reduction amount. The term reduction amount means a reduction 
after the close of new target's first taxable year in either--
    (i) The consideration paid for recently or nonrecently purchased 
stock; or
    (ii) A liability of target (or a liability to which one or more of 
its assets are subject) that has been taken into account in determining 
AGUB.
    (4) Acquisition date asset. The term acquisition date asset means 
any asset held by new target at the beginning of the day after the 
acquisition date (other than Class I assets).
* * * * *
    Par. 6. Sections 1.338(h)(10)-1 and 1.338(i)-1 are added to read as 
follows:


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

    (a) Scope. This section prescribes rules relating to section 
338(h)(10) elections. If an election is made, target generally is 
deemed to sell all of its assets and distribute the proceeds in 
complete liquidation. Thus, the sale of target stock included in the 
qualified stock purchase generally is ignored. A section 338(h)(10) 
election may be made for target only if it is a member of a selling 
consolidated group, a member of a selling affiliated group filing 
separate returns, or an S corporation.
    (b) Nomenclature. For purposes of this section, the nomenclature in 
Sec. 1.338-1(b) does not apply; instead:
    (1) T is a section 338(h)(10) target. 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. Unless the context otherwise 
requires, any reference to P is a reference to all purchasing 
corporations. See sections 338(h) (5) and (8).
    (c) Definitions--(1) Section 338(h)(10) target. A section 
338(h)(10) target is a domestic corporation that is a target for which 
a section 338(h)(10) election is made.
    (2) S corporation shareholders. S corporation shareholders are the 
T shareholders if T is an S corporation immediately before T's 
acquisition date. Thus, if T is an S corporation, for T to be a section 
338(h)(10) target, P can purchase no T stock before the acquisition 
date.
    (3) Selling consolidated group. A selling consolidated group is a 
selling group that files a consolidated return for the period that 
includes T's acquisition date. Thus, T is a member of the selling 
consolidated group on the acquisition date.
    (4) Selling affiliate. A selling affiliate is a domestic 
corporation that is not a member of the selling consolidated group and 
from which, on the acquisition date, P purchases an amount of T stock 
that satisfies the requirements of section 1504(a)(2). Thus, on the 
acquisition date, the selling affiliate and T are affiliated (within 
the meaning of section 1504) but are not includible members of the same 
consolidated group.
    (d) Section 338(h)(10) election--(1) In general. A section 
338(h)(10) election may be made for T if P acquires T in a qualified 
stock purchase from--
    (i) A selling consolidated group;
    (ii) A selling affiliate; or
    (iii) S corporation shareholders.
    (2) 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. 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.
    (3) 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.
    (4) 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.
    (e) Certain consequences of section 338(h)(10) election. This 
paragraph (e) applies if an election under section 338(h)(10) is made.
    (1) Old T. Old T recognizes gain or loss as if, while old T was a 
member of the selling consolidated group (or owned by the selling 
affiliate or S corporation shareholders), it sold all of its assets in 
a single transaction at the close of the acquisition date (but before 
the deemed liquidation). Old T's gain or loss on each asset is 
determined under paragraph (f) of this section. If P makes a qualified 
stock purchase from a selling affiliate or S corporation shareholders, 
the principles of Secs. 1.338-1(c)(6) and (e)(1), (5), and (6)(i) apply 
to the return filed by old T that includes the gain or loss and tax 
liability from the deemed sale.
    (2) Selling consolidated group, selling affiliate, or S corporation 
shareholders--(i) In general. This paragraph (e)(2) describes the 
treatment of members of the selling consolidated group, the selling 
affiliate, and S corporation shareholders.
    (ii) Deemed liquidation for old T. For purposes of subtitle A of 
the Internal Revenue Code, old T is treated as if, while T is a member 
of the selling consolidated group (or owned by the selling affiliate or 
S corporation shareholders), it distributed all of its assets in 
complete liquidation. If T is an S corporation immediately before the 
acquisition date, nothing in this section prevents a holder of T stock 
from taking deemed sale gain into account under section 1366 and 1367. 
See section 331 or 332 for gain or loss recognized by the old T 
shareholders as a result of the deemed liquidation.
    (iii) Basis of T stock not acquired. The basis of T stock retained 
by the selling consolidated group (or the selling affiliate or an S 
corporation shareholder) is its fair market value. For purposes of this 
paragraph, the fair market value of all of the T stock equals G less 
any reductions in determining MADSP for acquisition costs of P incurred 
in connection with the qualified stock purchase that are capitalized in 
the basis of recently purchased T stock. See paragraph (f) of this 
section for the definition of G and a description of MADSP.
    (iv) T stock sale. No gain or loss is recognized on the sale or 
exchange by the selling consolidated group (or the selling affiliate or 
an S corporation shareholder) of T stock included in the qualified 
stock purchase. If T is an S corporation immediately before T's 
acquisition date, the sale or exchange of old T stock to P on the 
acquisition date does not result in a termination of the section 
1362(a) election for the S corporation.
    (v) Example. This paragraph (e)(2) may be illustrated by the 
following example.

    Example. (a) 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. A section 338(h)(10) election is made 
for T. A section 338(h)(10) election also is made for the deemed 
purchase of T1. A section 338 election is not made for T2.
    (b) 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 T and T1 are section 338(h)(10) targets. 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-
3(c).
    (c) 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.

    (3) Certain minority shareholders--(i) In general. This paragraph 
(e)(3) describes the treatment of shareholders of old T other than 
members of the selling consolidated group, the selling affiliate, S 
corporation shareholders, and P. A shareholder to which this paragraph 
(e)(3) applies is called a minority shareholder.
    (ii) T stock sale. Notwithstanding paragraph (e)(2)(iv) of this 
section, 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.
    (4) P. P is treated as making a gain recognition election for its 
nonrecently purchased T stock. See Sec. 1.338(b)-1(e)(2) (effect of a 
gain recognition election) and Sec. 1.338(b)-1(e)(3)(ii) (gain 
recognition election deemed made).
    (5) New T. The adjusted grossed-up basis for new T's assets is 
determined in accordance with Sec. 1.338(b)-1(c) and is allocated among 
the assets in accordance with Secs. 1.338(b)-2T and 1.338(b)-3T. 
Notwithstanding paragraph (e)(2)(ii) of this section, new T remains 
liable for the tax liabilities of old T (including tax liabilities 
resulting from the deemed sale of assets). 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).
    (6) 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 shall not apply to, that period or any of the 
immediately preceding taxable periods during which consolidated returns 
continuously have been filed.
    (f) Deemed sale price--(1) General rule. The price at which each 
asset of old T is deemed to have been sold is calculated by--
    (i) Determining the modified ADSP (MADSP); and
    (ii) Then allocating MADSP among the assets of old T in accordance 
with Sec. 1.338(b)-2T (without taking into account Sec. 1.338(b)-
2T(c)(2)).
    (2) Formula. (i) The MADSP formula is as follows:

MADSP=G+L+X

    (ii) For purposes of this formula--
    (A) G is the grossed-up basis of P's recently purchased T stock 
determined under Sec. 1.338-3(d)(2).
    (B) L is new T's liabilities.
    (C) X is other relevant items.
    (3) Liabilities. Liabilities taken into account are the liabilities 
of new target described in Sec. 1.338(b)-1(f). The amount of the 
liabilities of new T taken into account to determine MADSP is 
determined as if old T had sold its assets to an unrelated person for 
consideration that included the liabilities.
    (4) Other relevant items. Other relevant items include reductions 
for--
    (i) Acquisition costs of P incurred in connection with the 
qualified stock purchase that are capitalized in the basis of recently 
purchased T stock (e.g., brokerage commissions and any similar costs 
incurred by P to acquire T stock); and
    (ii) Selling costs of the selling consolidated group (or selling 
affiliate or S corporation shareholders) incurred in connection with 
the qualified stock purchase that reduce the amount realized on the 
sale of recently purchased T stock (e.g., brokerage commissions and any 
similar costs incurred by the selling group to sell T stock).
    (5) Cross-reference. For adjustments to MADSP because of events 
occurring after the acquisition date, see Sec. 1.338(b)-3T(h).
    (g) Examples. (1) For purposes of the examples in this paragraph 
(g), unless otherwise provided, T, a member of a selling consolidated 
group, has only one class of stock, all of which is owned by S1. As of 
the close of Year 1, old T had no items described in section 381(c) 
(including no accumulated earnings and profits nor deficit in earnings 
and profits). On March 1 of Year 2, S1 sells its T stock to P for 
$80,000, and a section 338(h)(10) election is made for T. As of the 
close of March 1 of Year 2, old T's current earnings and profits, other 
than those generated from the deemed sale of its assets, are $21,950.
    (2) Paragraphs (e) and (f) of this section may be illustrated by 
the following examples:

    Example 1. (a) 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, 
which is $13,600 and attributable to the deemed sale of T's assets.
    (b) The MADSP of $120,000 ($80,000+$40,000+0) is allocated to 
each asset as follows:

------------------------------------------------------------------------
                                                              Allocable 
       Assets            Basis         FMV        Fraction      MADSP   
------------------------------------------------------------------------
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
------------------------------------------------------------------------


    (c) Under paragraph (e)(1) 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), which produces $40,000 of earnings 
and profits. As of the close of the acquisition date but after the 
deemed sale of its assets, old T's earnings and profits are $48,350 
($21,950 (its earnings and profits other than from the deemed sale) 
plus $40,000 (T's deemed sale gain) less $13,600 (T's allocable 
share of the consolidated tax liability)).
    (d) Under paragraph (e)(2) of this section, S1 does not 
recognize gain or loss upon its sale of the old T stock to P. See 
section 332. S1 takes into account old T's earnings and profits of 
$48,350, determined as of the close of the acquisition date but 
after the deemed sale.
    (e) P's basis in new T stock is P's cost for the stock, $80,000. 
See section 1012.
    (f) Under Sec. 1.338(b)-1, the adjusted grossed-up basis for new 
T is $120,000, i.e., P's cost for the old T stock ($80,000) plus T's 
liability ($40,000). (Assume there are no other relevant items.) 
This adjusted grossed-up basis is allocated as basis among the new T 
assets under Secs. 1.338(b)-2T and 1.338(b)-3T.
    Example 2. (a) The facts are the same as in Example 1, except 
that S1 sells 80% of the old T stock to P for $64,000, rather than 
100% of the old T stock for $80,000.
    (b) The consequences to P, T, and S1 are the same as in Example 
1, except that:
    (i) 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.
    (ii) Under Sec. 1.338(b)-1, the adjusted grossed-up basis for 
new T is $120,000 (i.e., $64,000/.8+$40,000+$0).
    (iii) Under paragraph (e)(2) of this section, S1 does not 
recognize gain or loss with respect to the retained stock in T. See 
section 332.
    (iv) Under paragraph (e)(2)(iii) of this section, the basis of 
the T stock retained by S1 is $16,000 (i.e., $120,000-$40,000 (the 
MADSP amount for the old T assets over the sum of new T's 
liabilities immediately after the acquisition date)  x  .20 (the 
proportion of T stock retained by S1)).
    Example 3. (a) The facts are the same as in Example 2, except 
that K, a shareholder unrelated to T or P, owns the 20% 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.
    (b) The consequences to P, T, and S1 are the same as in Example 
3, except that S1 takes into account only $38,680 of T's earnings 
and profits (80% of $48,350).
    (c) Under paragraph (e)(3) of this section, K recognizes no gain 
or loss, and K's basis in its T stock remains at $5,000.
    Example 4. (a) The facts are the same as in Example 1, except 
that the equipment is held by T1, a wholly-owned subsidiary of T, 
and a section 338(h)(10) election is 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, 
which are $5,667 and $7,933, respectively, and attributable to the 
deemed asset sales by T and T1. As of the close of the acquisition 
date, but before the deemed sale of the equipment, old T1 has none 
of the attributes listed in section 381(c).
    (b) The MADSP for T1 is $53,333 (i.e., $53,333+$0+$0). On the 
deemed sale, T1 recognizes ordinary income of $23,333. As of the 
close of the acquisition date, but after the deemed sale of the 
equipment, T1's earnings and profits are $15,400 ($0 plus $23,333 
(T1's deemed sale gain) less $7,933 (T1's allocable share of the 
consolidated tax liability)).
    (c) The MADSP for T is $120,000, allocated $66,667 to the land 
and $53,333 to the stock. Old T's deemed sale gain is $16,667 (the 
capital gain on its deemed sale of the land). Under paragraph (e)(2) 
of this section, old T does not recognize gain or loss on its deemed 
sale of the T1 stock. See section 332.
    (d) Old T takes into account old T1's earnings and profits of 
$15,400, determined as of the close of the acquisition date but 
after the deemed sale by T1 of its asset. Thus, as of the close of 
the acquisition date, but after the deemed sale of old T's assets, 
old T's earnings and profits are $48,350, ($21,950 (its earnings and 
profits other than from the deemed sale) plus $15,400 (from T1) plus 
$16,667 (T's deemed sale gain) less $5,667 (T's allocable share of 
the consolidated tax liability)).
    (e) Under paragraph (e)(2) of this section, S1 does not 
recognize gain or loss upon its sale of the old T stock to P and 
takes into account old T's earnings and profits of $48,350, 
determined as of the close of the acquisition date but after the 
deemed sale of old T's assets.
    Example 5. (a) The facts are the same as in Example 4, except 
that P already owns 20% of the T stock, which is nonrecently 
purchased stock with a basis of $6,000, and that P purchases the 
remaining 80% of the T stock from S1 for $64,000.
    (b) The results are the same as in Example 4, except that:
    (i) S1 takes into account only $38,680 of old T's earnings and 
profits.
    (ii) Under paragraph (e)(4) of this section and Sec. 1.338(b)-
1(e)(2), 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).

    (h) Inapplicability of provisions. The provisions of section 6043, 
Sec. 1.331-1(d), and Sec. 1.332-6 (relating to information returns and 
record keeping requirements for corporate liquidations) do not apply to 
the deemed liquidation of old T under paragraph (e)(2) of this section.


Sec. 1.338(i)-1  Effective dates.

    (a) In general. Sections 1.338-1 through 1.338-5, 1.338(b)-1, and 
1.338(h)(10)-1 generally are effective for targets with acquisition 
dates on or after January 20, 1994.
    (b) Elective retroactive application. A target with an acquisition 
date on or after January 14, 1992 and before January 20, 1994 may apply 
Secs. 1.338-1 through 1.338-5, 1.338-4T(h), 1.338(b)-1, and 
1.338(h)(10)-1 by including a statement with its return (including an 
amended return) for the period that includes the acquisition date to 
the effect that it is applying all of these sections pursuant to 
Sec. 1.338(i)-1(b).
    (c) MADSP. Section 1.338(h)(10)-1(f), which requires use of the 
MADSP formula to determine deemed sale price, is effective for 
qualified stock purchases for which the acquisition date is on or after 
November 10, 1986, unless the acquisition occurs pursuant to a binding 
contract entered into before that date.
    (d) Deemed election. The District Director's discretion to impose 
(without the taxpayer's consent) a deemed election under section 
338(e)(1) and Sec. 1.338-4T(f)(6)(i) (as contained in the CFR edition 
revised as of April 1, 1993) is revoked for all open tax years.
    Par. 7. Section 1.1502-75(k) is added to read as follows:


Sec. 1.1502-75  Filing of consolidated returns.

* * * * *
    (k) Cross-reference. See Sec. 1.338(h)(10)-1(e)(6) for special 
rules regarding filing consolidated returns when a section 338(h)(10) 
election is made for a target acquired from a selling consolidated 
group.


Sec. 1.1502-75T  [Removed]

    Par. 8. Section 1.1502-75T is removed.
    Par. 9. In the list below, for each section indicated in the left 
column, remove the wording indicated in the middle column from wherever 
it appears in that section, and add the wording indicated in the right 
column.

------------------------------------------------------------------------
   Affected section              Remove                     Add         
------------------------------------------------------------------------
Sec. 1.338(b)-2T(c)(2).  Sec. 1.338(b)-1T(f)(2).  Sec. 1.338(b)-1(f)(2).
Sec. 1.338(b)-2T(c)(3)(  Sec. 1.338-4T(j)(2)....  Sec. 1.338(b)-1(e)(2).
 i).                                                                    
Sec. 1.338(b)-2T(c)(3)(  Sec. 1.338(b)-1T(c)(1).  Sec. 1.338(b)-1(c)(1).
 i).                                                                    
Sec. 1.338(b)-2T(c)(3)(  Sec. 1.338-4T(h)(3)      Sec. 1.338-3(d)(2).   
 ii).                     Answer 2(ii).                                 
Sec. 1.338(b)-2T(d)      Sec. 1.338(b)-1T.......  Sec. 1.338(b)-1.      
 introductory text.                                                     
Sec. 1.338(b)-2T(d)      paragraph (d) of Sec.    Sec. 1.338(b)-1(d).   
 Example (2)(ii).         1.338(b)-1T.                                  
Sec. 1.338(b)-2T(d)      Sec. 1.338-4T(h).......  Sec. 1.338-3(d)(2).   
 Example (2)(iv).                                                       
Sec. 1.338(b)-3T(a)(1).  Sec. 1.338(b)-1T.......  Sec. 1.338(b)-1.      
Sec. 1.338(b)-3T(g)(1)(  Sec. 1.338(b)-1T.......  Sec. 1.338(b)-1       
 i).                                                                    
Sec. 1.338(b)-3T(h)(1)(  Sec. 1.338-4T(h) (or     Sec. 1.338-3(d) (or   
 ii).                     Sec. 1.338(h)(10)-1T(f   Sec. 1.338(h)(10)-1(f
                          )(2).                    ).                   
Sec. 1.338(b)-3T(j)      Sec. 1.338-4T(h)(3)      Sec. 1.338-4T(h)(3)   
 Example (4)(ii).         Answer 2(ii)(B).         Answer 2(ii)(B) (as  
                                                   contained in the CFR 
                                                   edition revised as of
                                                   April 1, 1993).      
Sec. 1.338(b)-3T(j)      Sec. 1.338-4T(h)(3)....  Sec. 1.338-4T(h)(3)   
 Example (6)(vii).                                 (as contained in the 
                                                   CFR edition revised  
                                                   as of April 1, 1993).
Sec. 1.338(b)-3T(j)      Sec. 1.338-4T(h)(3)....  Sec. 1.338-4T(h)(3)   
 Example (7)(v).                                   (as contained in the 
                                                   CFR edition revised  
                                                   as of April 1, 1993).
Sec. 1.921-1T(b)(1) A-1  Sec. 1.338-1T(c).......  Sec. 1.338-1(d).      
------------------------------------------------------------------------

PART 602--OMB CONTROL NUMBERS UNDER THE PAPERWORK REDUCTION ACT

    Par. 10. The authority citation for part 602 continues to read as 
follows:

    Authority: 26 U.S.C. 7805.


Sec. 602.101  [Amended]

    Par. 11. a. Section 602.101(c) is amended--
    a. By removing the following entries from the table: 

------------------------------------------------------------------------
                                                             Current OMB
    CFR part or section where identified and described       control No.
------------------------------------------------------------------------
[REMOVED]                                                               
                                                                        
                                * * * * *                               
1.338-1T...................................................    1545-0702
                                                               1545-1115
1.338-2T...................................................    1545-0702
                                                               1545-1115
1.338-3T...................................................    1545-0702
1.338-4T...................................................    1545-0702
                                                               1545-1115
1.338-5T...................................................    1545-0702
1.338-6T...................................................    1545-1115
1.338(b)-4T................................................    1545-0702
1.338(h)(10)-1T............................................    1545-0702
                                                                        
                                * * * * *                               
------------------------------------------------------------------------


    b. By adding the following entries in numerical order to the table 
to read as follows: 

------------------------------------------------------------------------
                                                             Current OMB
    CFR part or section where identified and described       control No.
------------------------------------------------------------------------
[ADDED]                                                                 
                                                                        
                                * * * * *                               
1.338-1....................................................    1545-1295
1.338(b)-1.................................................    1545-1295
1.338(h)(10)-1.............................................    1545-1295
                                                                        
                                * * * * *                               
------------------------------------------------------------------------


Margaret Milner Richardson,
Commissioner of Internal Revenue.

    Approved: December 22, 1993.
Leslie Samuels,
Assistant Secretary of the Treasury (Tax Policy).
[FR Doc. 94-665 Filed 1-12-94; 2:54 pm]
BILLING CODE 4830-01-U