[Federal Register Volume 59, Number 247 (Tuesday, December 27, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-31429]


[[Page Unknown]]

[Federal Register: December 27, 1994]


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DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Part 1

[TD 8579]
RIN 1545-AK93

 

S Corporation Built-In Gain Tax

AGENCY: Internal Revenue Service (IRS), Treasury.

ACTION: Final regulations.

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SUMMARY: This document prescribes final regulations under section 1374 
relating to the tax imposed on an S corporation's net recognized built-
in gain. The final regulations reflect changes to the law in the Tax 
Reform Act of 1986. The final regulations generally affect only 
corporations that changed from C to S status.

DATES: These regulations are effective December 27, 1994.
    These regulations apply to taxable years ending on or after 
December 27, 1994, but only in cases where the return for the taxable 
year is filed pursuant to an S election or a section 1374(d)(8) 
transaction occurring on or after December 27, 1994.

FOR FURTHER INFORMATION CONTACT: Mark S. Jennings or Lee D. Muchnikoff, 
Office of Assistant Chief Counsel (Corporate), Internal Revenue 
Service, 1111 Constitution Avenue NW, Washington, DC 20224 (Attention: 
CC:DOM:CORP:T:R), or telephone (202) 622-7530 (not a toll free number).

SUPPLEMENTARY INFORMATION:

1. Background

    Section 1374 of the Internal Revenue Code of 1986 (Code) generally 
imposes a corporate-level tax on an S corporation's recognition of 
income or gain to the extent the income or gain reflects unrealized 
appreciation (or its equivalent) in the corporation when it converted 
from C to S status. Section 1374 was amended to provide this treatment 
as part of the legislation repealing the General Utilities rule. See 
H.R. Conf. Rep. No. 841, 99th Cong., 2d Sess., Vol. II, 198-207 (1986), 
1986-3 C.B., Vol. 4, 198-207.
    Section 1374 generally applies to an S corporation for taxable 
years beginning after December 31, 1986, but only if the corporation 
elects S status after December 31, 1986. Sections 1374(e) and 337(d) 
provide specific authority to promulgate regulations under section 
1374.
    Proposed regulations under section 1374 were published in the 
Federal Register on December 8, 1992 (57 FR 57971, or 1992-2 C.B. 594). 
This document adds new Secs. 1.1374-0 through 1.1374-10 to 26 CFR Part 
1.

2. Section 1374 and the Proposed Regulations

    Section 1374(a) imposes a tax on an S corporation's net recognized 
built-in gain for any taxable year beginning in the 10-year recognition 
period following the S corporation's conversion from a C corporation or 
acquisition of C corporation assets in a carryover basis transaction. 
The proposed regulations provide that an S corporation's net recognized 
built-in gain for any taxable year is the least of (1) its taxable 
income determined by using the rules applying to C corporations and 
considering only recognized built-in gain and recognized built-in loss 
(the pre-limitation amount), (2) its taxable income determined by using 
the rules applying to C corporations and considering all items except 
as provided under section 1375(b)(1)(B) (the taxable income 
limitation), or (3) the excess of its net unrealized built-in gain over 
net recognized built-in gain for all prior taxable years in the 
recognition period (the net unrealized built-in gain limitation).
    Section 1374(d)(3) provides that any gain recognized on the 
disposition of an asset during the recognition period is recognized 
built-in gain except to the extent the S corporation establishes that 
it did not hold the asset on the first day of the recognition period or 
the asset appreciated after that day. Section 1374(d)(4) provides that 
any loss recognized on a disposition of an asset during the recognition 
period is recognized built-in loss to the extent the S corporation 
establishes that it held the asset on the first day of the recognition 
period and the asset depreciated before that day. The proposed 
regulations provide that sections 1374(d) (3) and (4) apply only to 
transactions treated as sales or exchanges under the Code.
    Section 1374(d)(5)(A) provides that any item of income properly 
taken into account during the recognition period but attributable to 
periods before the first day of the recognition period is recognized 
built-in gain. Section 1374(d)(5)(B) provides that any item of 
deduction properly taken into account during the recognition period but 
attributable to periods before the first day of the recognition period 
is recognized built-in loss. The proposed regulations provide that an S 
corporation's items of income or deduction generally are recognized 
built-in gain or loss if the item would have been included in gross 
income or allowed as a deduction against gross income before the 
recognition period by an accrual method taxpayer (accrual method rule). 
The proposed regulations provide that all rules applying to accrual 
method taxpayers (whether from the Code, regulations, administrative 
pronouncements, or otherwise) also apply for purposes of the accrual 
method rule with two exceptions: (1) Section 461(h)(2)(C), relating to 
liabilities for tort and worker's compensation for which payment 
constitutes economic performance, and (2) section 469, relating to 
suspended passive activity losses. The proposed regulations also 
provide special rules for certain items including an S corporation's 
section 481(a) adjustments, income reported under the completed 
contract method, income reported under the installment method, and 
distributive share of partnership items.
    Section 1374(d)(1) provides that an S corporation's net unrealized 
built-in gain is the amount by which the fair market value of all its 
assets exceeds the aggregate adjusted bases of all its assets as of the 
beginning of the recognition period. Section 1374(d)(5)(C) provides 
that an S corporation's net unrealized built-in gain is properly 
adjusted for items of income and deduction that would be recognized 
built-in gain or loss if taken into account during the recognition 
period. The proposed regulations provide that the S corporation's net 
unrealized built-in gain is determined by reference to a hypothetical 
sale of all the assets of the corporation immediately before the 
beginning of the recognition period to a buyer that assumed all the 
corporation's liabilities.
    Section 1374(b)(2) provides that an S corporation's net operating 
loss carryforwards and capital loss carryforwards arising in years for 
which the corporation was a C corporation are allowed as deductions 
against net recognized built-in gain. The proposed regulations provide 
that no other loss carryforwards may be used as a deduction against net 
recognized built-in gain. Section 1374(b)(3) provides that an S 
corporation's special fuels credit for the year, and business credit 
carryforwards and minimum tax credit arising in years for which the 
corporation was a C corporation, are allowed as credits against the 
section 1374 tax. The proposed regulations provide that no other 
credits or credit carryforwards may be used as a credit against the 
section 1374 tax. The loss carryforwards, credits, and credit 
carryforwards allowed to reduce the section 1374 tax are collectively 
referred to as the section 1374 attributes in the final regulations.

3. Public Comments and the Final Regulations

    The IRS received written and oral comments from the public on the 
proposed regulations both in connection with the public hearing held on 
April 28, 1993, and otherwise. The issues raised by these comments are 
discussed below.

A. Accounting Methods

    Commentators request guidance about the accounting methods an S 
corporation should use in determining its pre-limitation amount and 
taxable income limitation. The commentators suggest that an S 
corporation should be allowed to use any accounting method it could use 
if it were a C corporation. The final regulations do not adopt this 
suggestion because section 1374 applies only to items an S corporation 
actually takes into account during the recognition period. It does not 
apply to items the corporation would have taken into account under a 
hypothetical method of accounting. Accordingly, the final regulations 
require the S corporation to use the accounting methods it actually 
uses as an S corporation to make these taxable income determinations.

B. Recognition Period

    Commentators request confirmation that the recognition period is 
the 10 calendar year period (and not the 10 taxable year period) 
beginning on the first day the corporation is an S corporation or the 
day the S corporation acquires C corporation assets in a carryover 
basis transaction. The final regulations confirm the commentators' 
interpretation of the Code.
    Commentators also request guidance on determining an S 
corporation's net recognized built-in gain where the recognition period 
ends during a taxable year (for example, because a corporation 
converting from C to S status was on a fiscal year as a C corporation 
and changed to a calendar year as an S corporation or because an S 
corporation acquired C corporation assets in a carryover basis 
transaction during a taxable year). The final regulations provide that 
the pre-limitation amount for the year is determined by a closing of 
the books at the end of the recognition period.

C. Accrual Method Rule and Section 267(a)(2) or 404(a)(5)

    One commentator argues that the proposed regulations should not use 
the accrual method rule to determine if, and the extent to which, an 
item of income or deduction is included in net recognized built-in 
gain. Instead, this commentator argues that the approach the proposed 
regulations use to determine if, and the extent to which, an item of 
income or deduction is included in net unrealized built-in gain (that 
is, by valuation using a hypothetical sale of all the S corporation's 
assets to a buyer that assumes all the S corporation's liabilities) 
should also be used to determine if, and the extent to which, an item 
of income or deduction is included in net recognized built-in gain.
    The Treasury and the IRS believe that separately valuing each item 
of income and deduction for net recognized built-in gain purposes would 
be unduly burdensome both for taxpayers and for the IRS. Using a 
valuation approach for determining net unrealized built-in gain is not 
unduly burdensome because net unrealized built-in gain can be 
determined by valuing the S corporation's business using an aggregate 
approach where particular items of income and deduction are not valued 
individually. In addition, many S corporations subject to section 1374 
will not need to know their net unrealized built-in gain because they 
will not approach their net unrealized built-in gain limitation in the 
recognition period. However, most S corporations subject to section 
1374 will have items of income and deduction taken into account in the 
recognition period where a determination must be made if, and the 
extent to which, the item is included in net recognized built-in gain. 
Accordingly, the final regulations do not adopt the commentator's 
suggestion and generally retain the accrual method rule in the proposed 
regulations.
    Some commentators argue that the accrual method rule in the 
proposed regulations wrongly applies sections 267(a)(2), relating to 
accrued amounts payable to related persons, and 404(a)(5), relating to 
accrued amounts payable as deferred compensation, to determine whether 
an item of deduction should be treated as a recognized built-in loss. 
In general, those sections defer a deduction for an accrual method 
taxpayer that owes a payment to a cash method taxpayer until the 
payment is made. The commentators cite the following statement in the 
section 1374 legislative history in support of their position:

    As an example of these built-in gain and loss provisions, in the 
case of a cash basis personal service corporation that converts to S 
status and that has receivables at the time of the conversion, the 
receivables, when received, are built-in gain items. At the same 
time, built-in losses would include otherwise deductible 
compensation paid after the conversion to the persons who performed 
the services that produced the receivables, to the extent such 
compensation is attributable to such pre-conversion services. To the 
extent such built-in loss items offset the built-in gains from the 
receivables, there would be no amount subject to the built-in gains 
tax.

H.R. Rep. No. 795, 100th Cong., 2d Sess. 63-64 (1988).
    The commentators suggest that the accrual method rule in the final 
regulations should be applied without regard to sections 267(a)(2) and 
404(a)(5). The Treasury and the IRS disagree with the commentators that 
the legislative history quoted above precludes the adoption of the 
accrual method rule of the proposed regulations. The accrual method 
rule in the proposed regulations was adopted as an administrable method 
for both taxpayers and the Service to determine the extent to which an 
amount included in income or deducted in the recognition period is 
attributable to the pre-recognition period. Nevertheless, in response 
to the commentators' requests, the final regulations extend recognized 
built-in loss treatment for certain amounts properly deducted under 
section 267(a)(2) or 404(a)(5) in the recognition period.
    The final regulations provide that an amount properly deducted 
under section 267(a)(2) is recognized built-in loss to the extent (i) 
all events have occurred that establish the fact of the liability to 
pay the amount, and the exact amount of the liability can be 
determined, as of the beginning of the recognition period, and (ii) the 
amount is paid in the first two and one-half months of the recognition 
period, or is paid to an individual that owned less than 5 percent of 
the corporation's stock. The final regulations provide that an amount 
properly deducted under section 404(a)(5) is recognized built-in loss 
to the extent (i) all events have occurred that establish the fact of 
the liability to pay the amount, and the exact amount of the liability 
can be determined, as of the beginning of the recognition period, and 
(ii) the amount is not deductible under section 267(a)(2). The Treasury 
and the IRS believe that these rules are relatively easy for taxpayers 
and the IRS to apply and also provide relief from the deferral of 
deductions under section 267(a)(2) or 404(a)(5). The additional 
limitations for amounts deducted under section 267(a)(2) are needed 
because of the particular difficulty in determining whether amounts 
paid to related parties are attributable to services performed before 
or after the beginning of the recognition period.
    The final regulations also modify the accrual method rule in the 
proposed regulations as follows: (1) An exception from the accrual 
method rule for items deducted under Sec. 1.461-4(g) is added (relating 
to items in addition to those specified in section 461(h)(2)(C) for 
which payment constitutes economic performance); and (2) the exception 
from the accrual method rule in the proposed regulations for items 
deducted under section 469 is eliminated. The Sec. 1.461-4(g) exception 
is added to clarify the section 461(h)(2)(C) exception in the proposed 
regulations. The section 469 exception is eliminated because losses 
suspended before the recognition period under section 469 cannot be 
used in the recognition period under section 1371(b)(1).

D. Section 481 Adjustments

    The proposed regulations provide that any item of income or 
deduction properly taken into account during the recognition period 
under section 481 is recognized built-in gain or loss if the item is 
taken into account because of a change of accounting method effective 
before the beginning of the second year of the recognition period 
(``one-year rule''). In certain cases, this one-year rule has the 
effect of (1) omitting income attributable to the corporation's C 
period altogether at the corporate level, (2) including income 
attributable to the corporation's C period twice at the corporate 
level, (3) omitting a deduction attributable to the corporation's C 
period altogether at the corporate level, or (4) allowing a deduction 
attributable to the corporation's C period twice at the corporate 
level, because the section 481 adjustment on the change in accounting 
method is not treated as recognized built-in gain or loss. In addition, 
the Treasury and the Service believe that in most cases the portion of 
a section 481(a) adjustment attributable to the pre-recognition period 
and the portion attributable to the recognition period can be 
determined without undue administrative difficulty.
    The final regulations, therefore, provide that any section 481(a) 
adjustment taken into account in the recognition period that prevents 
an omission or duplication of income or deduction is recognized built-
in gain or loss to the extent the adjustment relates to items 
attributable to periods before the beginning of the recognition period 
under the principles for determining recognized built-in gain or loss 
in the regulations.

E. Installment Method

    The proposed regulations impose a section 1374 tax on income 
reported under the installment method either during or after the 
recognition period in accordance with Notice 90-27, 1990-1 C.B. 336. 
The tax is imposed only to the extent the income would have been 
included in net recognized built-in gain if it had been reported in the 
year of the sale and all provisions of section 1374 applied including 
the taxable income limitation.
    Several commentators argue that the proposed regulations wrongly 
impose a section 1374 tax on income reported under the installment 
method after the recognition period. In addition, they contend that the 
proposed regulations wrongly apply the taxable income limitation by 
reference to the S corporation's cumulative taxable income from the 
year of the installment sale to the year that income is reported under 
the installment method (assuming the income had been reported in the 
year of the sale) instead of the S corporation's taxable income in the 
year that income was reported under the installment method. Further, 
they believe that, where income is reported under the installment 
method after the recognition period, the proposed regulations are 
unclear regarding the proper use of section 1374 attributes and loss 
recognized after the recognition period that would have been recognized 
built-in loss if it had been recognized during the recognition period.
    The final regulations retain the installment method rules in the 
proposed regulations because the Treasury and the IRS believe those 
rules are necessary to prevent an abuse of section 1374. The final 
regulations clarify the use of an S corporation's section 1374 
attributes and loss recognized after the recognition period where 
income is reported under the installment method for a year after the 
recognition period. Section 1374 attributes may be used to the extent 
their use is allowed under all applicable provisions of the Code. 
However, the S corporation's loss recognized in a year after the 
recognition period may not be used to reduce the section 1374 tax.

F. Partnership Items

    The proposed regulations generally provide that an S corporation 
owning an interest in a partnership must treat its distributive share 
of the partnership's items as recognized built-in gain or loss to the 
extent the S corporation's distributive share would have been treated 
as recognized built-in gain or loss if the items originated in, and 
were taken into account directly by, the S corporation (the look-
through rules). The look-through rules generally apply only to the 
extent the S corporation had built-in gain or built-in loss in its 
partnership interest at the beginning of the recognition period. The 
proposed regulations contain a small interest exception from the look-
through rules for any taxable year where the S corporation's 
partnership interest has a value less than $100,000 and represents less 
than a 10 percent interest in the partnership's capital and profits at 
all times during the year. The small interest exception does not apply 
if the partnership was formed or availed of with a principal purpose to 
avoid the section 1374 tax. The proposed regulations provide that if an 
S corporation disposes of its partnership interest during the 
recognition period, the amount treated as recognized built-in gain or 
loss on the disposition is adjusted to take into account amounts 
treated as recognized built-in gain or loss under the look-through 
rules. The proposed regulations also provide special rules for section 
704(c) gain and loss, and where an S corporation disposes of 
distributed partnership assets.
    Commentators argue that the look-through rules should apply only 
where an S corporation controls the partnership or the primary use of 
the partnership by the S corporation is to avoid section 1374 because, 
except where the S corporation is the controlling partner, the S 
corporation is not likely to have access to information and records 
necessary to identify and value partnership section 1374 items. In 
addition, the commentators suggest modifying the small interest 
exception to the look-through rules so that the small interest test is 
generally applied only on the first day of the recognition period. The 
commentators believe that subsequent increases or decreases in the fair 
market value of the partnership interest should be disregarded.
    The final regulations retain the look-through rules. Access to 
information and records necessary to identify and value partnership 
section 1374 items is not dependent on whether the S corporation is a 
controlling partner. Moreover, section 1374 should generally apply to 
an S corporation's partnership section 1374 items even where a 
principal purpose for using the partnership was not to avoid the 
section 1374 tax.
    The final regulations, however, modify the small interest exception 
to the look-through rules to accommodate the commentators' request for 
a rule requiring a valuation of the partnership interest only on the 
first day of the recognition period. Under the rule as modified, the 
small interest exception generally applies for a taxable year if the S 
corporation's interest in the partnership represents less than 10 
percent of the partnership's profits and capital at all times during 
the taxable year and prior taxable years in the recognition period and 
has a value less than $100,000 as of the beginning of the recognition 
period. However, if the S corporation contributes an asset to the 
partnership in the recognition period and the S corporation held the 
asset as of the beginning of the recognition period, the fair market 
value of the S corporation's partnership interest as of the beginning 
of the recognition period is determined as if the asset was contributed 
to the partnership before the beginning of the recognition period 
(using the fair market value of the asset as of the beginning of the 
recognition period).

G. Valuing Inventory

    The proposed regulations provide that the value of an S 
corporation's inventory on the first day of the recognition period 
equals the amount that a willing buyer would pay a willing seller for 
the inventory in a purchase of all the S corporation's assets on that 
day. Commentators argue that the rules for valuing inventory in the 
proposed regulations are unclear and should be clarified to provide a 
non-liquidation, non-distress, bulk sale approach, which generally will 
result in a value for the inventory less than retail value.
    The final regulations provide that the value of an S corporation's 
inventory on the first day of the recognition period generally is 
determined by reference to a sale of the entire business of the S 
corporation to a buyer that expects to continue to operate that 
business. The buyer and seller are presumed not to be under any 
compulsion to buy or sell and to have reasonable knowledge of all 
relevant facts. Relevant facts include (1) the replacement cost of the 
inventory; (2) the expected retail selling price of the inventory; (3) 
the seller's incentive to demand a price for the inventory that would 
compensate for and provide a fair return for expenditures the seller 
incurred to obtain, prepare, carry, and dispose of the inventory before 
the sale of the business; and (4) the buyer's incentive to pay a price 
for the inventory that would compensate for and provide a fair return 
for similar expenditures the buyer expects to incur after the sale of 
the business. It is expected that the value of an S corporation's 
inventory as determined under the final regulations will generally be 
less than its anticipated retail price, but greater than its 
replacement cost.
    The preamble to the proposed regulations describes a safe harbor 
rule that was being considered for publication as a revenue procedure 
under which the value of inventory for purposes of section 1374 would 
be determined using a formula. One commentator endorsed the general 
idea of adopting a safe harbor rule, but objected to the rule described 
in the preamble and did not suggest an alternative rule. No 
commentators supported the rule described in the preamble of the 
proposed regulations or suggested an alternative rule.
    At this time, the IRS is not planning to issue a revenue procedure 
setting forth a safe harbor rule for valuing inventory. However, 
consideration will be given to any safe harbor rule taxpayers may 
suggest in the future.

H. Section 1374(d)(8) Transactions

    Section 1374(d)(8) imposes a section 1374 tax if an S corporation 
acquires assets in a transaction where the S corporation's basis in the 
assets is determined by reference to their basis in the hands of a C 
corporation (a section 1374(d)(8) transaction) and, thereafter, the S 
corporation disposes of the assets. The proposed regulations provide 
that a separate determination of tax under section 1374 must be made 
for the assets acquired in each section 1374(d)(8) transaction. Thus, 
an S corporation's section 1374 attributes held on the day it became an 
S corporation may only be used to reduce a section 1374 tax imposed on 
dispositions of assets the S corporation held on that day. Similarly, 
section 1374 attributes acquired by an S corporation in a section 
1374(d)(8) transaction may only be used to reduce a section 1374 tax 
imposed on dispositions of assets the S corporation acquired in the 
same transaction.
    Commentators argue that restrictions on the use of section 1374 
attributes acquired by an S corporation in a section 1374(d)(8) 
transaction should not be greater than the restrictions that would 
apply if the attributes were acquired by a C corporation in a similar 
transaction. For example, commentators contend that an S corporation's 
net operating loss carryforwards when it changed from C to S status 
should be allowed to reduce a section 1374 tax imposed on assets the S 
corporation acquires in a section 1374(d)(8) transaction, subject to 
all statutory limits on their use including the anti-trafficking rules 
of sections 382, 383, and 384.
    The final regulations retain the rules in the proposed regulations. 
Section 1374(d)(8) imposes a section 1374 tax on the ``net recognized 
built-in gain attributable to'' the assets acquired in a particular 
transaction. The legislative history under section 1374 states that 
``each acquisition of assets from a C corporation is subject to a 
separate determination of the amount of net built-in gain * * *.'' H.R. 
Rep. No. 795, 100th Cong., 2d Sess. 63 (1988).

I. Effective Date and Additional Rules

    The proposed regulations provide that the section 1374 final 
regulations will generally apply for taxable years ending on or after 
the date the final regulations are published in the Federal Register, 
but only where the return is filed pursuant to an S election or a 
section 1374(d)(8) transaction occurring on or after that date. The 
final regulations retain the effective date in the proposed 
regulations.
    The proposed regulations provide that if a taxpayer subject to 
section 1374, but not generally subject to the regulations, contributes 
an asset to a partnership under section 721(a) in contemplation of 
making an S election or during the recognition period, section 1374 
applies on a disposition of the asset by the partnership as if the S 
corporation still owned the asset. This provision applies as of the 
effective date of section 1374. Commentators argue that the rule should 
apply only for contributions to partnerships after the proposed 
regulations were issued. The final regulations retain the rule in the 
proposed regulations to prevent an abuse of section 1374.
    The proposed regulations provide that the rules in Announcement 86-
128, 1986-51 I.R.B. 22, and Notice 90-27, 1990-1 C.B. 336, apply to 
taxpayers subject to section 1374, but not generally subject to the 
regulations. Instead of referring to the rules in the Notice and the 
Announcement, the final regulations set forth some of the rules 
contained in those documents.
    Commentators suggest that the regulations allow taxpayers subject 
to section 1374, but not generally subject to the regulations, to elect 
to be subject to the regulations. The final regulations do not adopt 
this suggestion because of the burden of administering elections and 
because taxpayers not generally subject to the regulations nonetheless 
may take positions consistent with the regulations.

Special Analysis

    It has been determined that this Treasury decision is not a 
significant regulatory action as defined in EO 12866. Therefore, a 
regulatory assessment is not required. It has also 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. Therefore, a Regulatory Flexibility Analysis is not 
required. Pursuant to section 7805(f) of the Internal Revenue Code, the 
notice of proposed rulemaking for these regulations was submitted to 
the Small Business Administration for comment on its impact on small 
business.

Drafting Information

    The principal author of these regulations is Mark S. Jennings of 
the Office of Assistant Chief Counsel (Corporate), IRS. However, other 
personnel from the IRS and Treasury Department participated in their 
development.

List of Subjects in 26 CFR Part 1

    Income taxes, Reporting and recordkeeping requirements.

Adoption of Amendments to the Regulations

    Accordingly, 26 CFR part 1 is amended as follows:

PART 1--INCOME TAXES

    Paragraph 1. The authority citation for part 1 is amended by adding 
the following entries in numerical order to read as follows:

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

    Section 1.1374-1 also issued under 26 U.S.C. 1374(e) and 337(d).
    Section 1.1374-2 also issued under 26 U.S.C. 1374(e) and 337(d).
    Section 1.1374-3 also issued under 26 U.S.C. 1374(e) and 337(d).
    Section 1.1374-4 also issued under 26 U.S.C. 1374(e) and 337(d).
    Section 1.1374-5 also issued under 26 U.S.C. 1374(e) and 337(d).
    Section 1.1374-6 also issued under 26 U.S.C. 1374(e) and 337(d).
    Section 1.1374-7 also issued under 26 U.S.C. 1374(e) and 337(d).
    Section 1.1374-8 also issued under 26 U.S.C. 1374(e) and 337(d).
    Section 1.1374-9 also issued under 26 U.S.C. 1374(e) and 337(d).
    Section 1.1374-10 also issued under 26 U.S.C. 1374(e) and 
337(d).

    Par. 2. An undesignated center heading is added immediately 
following Sec. 1.1375-1 to read as follows:

Section 1374  Before the Tax Reform Act of 1986


Sec. 1.1374-1  [Redesignated as Sec. 1.1374-1A]

    Par. 3. Section 1.1374-1 is redesignated as Sec. 1.1374-1A and 
transferred under the new undesignated centerheading.
    Par. 4. Sections 1.1374-0 through 1.1374-10 are added to read as 
follows:


Sec. 1.1374-0  Table of contents.

    This section lists the major paragraph headings for Secs. 1.1374-1 
through 1.1374-10.

Sec. 1.1374-1  General rules and definitions

(a) Computation of tax.
(b) Anti-trafficking rules.
(c) Section 1374 attributes.
(d) Recognition period.
(e) Predecessor corporation.

Sec. 1.1374-2  Net recognized built-in gain

(a) In general.
(b) Allocation rule.
(c) Recognized built-in gain carryover.
(d) Accounting methods.
(e) Example.

Sec. 1.1374-3  Net unrealized built-in gain

(a) In general.
(b) Example.

Sec. 1.1374-4  Recognized built-in gain or loss

(a) Sales and exchanges.
    (1) In general.
    (2) Oil and gas property.
    (3) Examples.
(b) Accrual method rule.
    (1) Income items.
    (2) Deduction items.
    (3) Examples.
(c) Section 267(a)(2) and 404(a)(5) deductions.
    (1) Section 267(a)(2).
    (2) Section 404(a)(5).
    (3) Examples.
(d) Section 481(a) adjustments.
    (1) In general.
    (2) Examples.
(e) Section 995(b)(2) deemed distributions.
(f) Discharge of indebtedness and bad debts.
(g) Completion of contract.
(h) Installment method.
    (1) In general.
    (2) Limitation on amount subject to tax.
    (3) Rollover rule.
    (4) Use of losses and section 1374 attributes.
    (5) Examples.
    (i) Partnership interests.
    (1) In general.
    (2) Limitations.
    (i) Partnership RBIG.
    (ii) Partnership RBIL.
    (3) Disposition of partnership interest.
    (4) RBIG and RBIL limitations.
    (i)-Sale of partnership interest.
    (ii) Amounts of limitations.
    (5) Small interest exception.
    (i) In general.
    (ii) Contributed assets.
    (iii) Anti-abuse rule.
    (6) Section 704(c) gain or loss.
    (7) Disposition of distributed partnership asset.
    (8) Examples.

Sec. 1.1374-5  Loss carryforwards

(a) In general.
(b) Example.--

Sec. 1.1374-6  Credits and credit carryforwards

(a) In general.
(b) Limitations.
(c) Examples.

Sec. 1.1374-7  Inventory

(a) Valuation.
(b) Identity of dispositions.

Sec. 1.1374-8  Section 1374(d)(8) transactions

(a) In general.
(b) Separate determination of tax.
(c) Taxable income limitation.
(d) Examples.

Sec. 1.1374-9  Anti-stuffing rule

Sec. 1.1374-10  Effective date and additional rules

(a) In general.
(b) Additional rules.
    (1) Certain transfers to partnerships.
    (2) Certain inventory dispositions.
    (3) Certain contributions of built-in loss assets.
    (4) Certain installment sales.
    (i) In general.
    (ii) Examples.


Sec. 1.1374-1  General rules and definitions.

    (a) Computation of tax. The tax imposed on the income of an S 
corporation by section 1374(a) for any taxable year during the 
recognition period is computed as follows--
    (1) Step One: Determine the net recognized built-in gain of the 
corporation for the taxable year under section 1374(d)(2) and 
Sec. 1.1374-2;
    (2) Step Two: Reduce the net recognized built-in gain (but not 
below zero) by any net operating loss and capital loss carryforward 
allowed under section 1374(b)(2) and Sec. 1.1374-5;
    (3) Step Three: Compute a tentative tax by applying the rate of tax 
determined under section 1374(b)(1) for the taxable year to the amount 
determined under paragraph (a)(2) of this section;
    (4) Step Four: Compute the final tax by reducing the tentative tax 
(but not below zero) by any credit allowed under section 1374(b)(3) and 
Sec. 1.1374-6.
    (b) Anti-trafficking rules. If section 382, 383, or 384 would have 
applied to limit the use of a corporation's recognized built-in loss or 
section 1374 attributes at the beginning of the first day of the 
recognition period if the corporation had remained a C corporation, 
these sections apply to limit their use in determining the S 
corporation's pre-limitation amount, taxable income limitation, net 
unrealized built-in gain limitation, deductions against net recognized 
built-in gain, and credits against the section 1374 tax.
    (c) Section 1374 attributes. Section 1374 attributes are the loss 
carryforwards allowed under section 1374(b)(2) as a deduction against 
net recognized built-in gain and the credit and credit carryforwards 
allowed under section 1374(b)(3) as a credit against the section 1374 
tax.
    (d) Recognition period. The recognition period is the 10-year (120-
month) period beginning on the first day the corporation is an S 
corporation or the day an S corporation acquires assets in a section 
1374(d)(8) transaction. For example, if the first day of the 
recognition period is July 14, 1996, the last day of the recognition 
period is July 13, 2006. If the recognition period for certain assets 
ends during an S corporation's taxable year (for example, because the 
corporation was on a fiscal year as a C corporation and changed to a 
calendar year as an S corporation or because an S corporation acquired 
assets in a section 1374(d)(8) transaction during a taxable year), the 
S corporation must determine its pre-limitation amount (as defined in 
Sec. 1.1374-2(a)(1)) for the year as if the corporation's books were 
closed at the end of the recognition period.
    (e) Predecessor corporation. For purposes of section 1374(c)(1), if 
the basis of an asset of the S corporation is determined (in whole or 
in part) by reference to the basis of the asset (or any other property) 
in the hands of another corporation, the other corporation is a 
predecessor corporation of the S corporation.


Sec. 1.1374-2  Net recognized built-in gain.-

    (a) In general. An S corporation's net recognized built-in gain for 
any taxable year is the least of--
    (1) Its taxable income determined by using all rules applying to C 
corporations and considering only its recognized built-in gain, 
recognized built-in loss, and recognized built-in gain carryover (pre-
limitation amount);
    (2) Its taxable income determined by using all rules applying to C 
corporations as modified by section 1375(b)(1)(B) (taxable income 
limitation); and
    (3) The amount by which its net unrealized built-in gain exceeds 
its net recognized built-in gain for all prior taxable years (net 
unrealized built-in gain limitation).
    (b) Allocation rule. If an S corporation's pre-limitation amount 
for any taxable year exceeds its net recognized built-in gain for that 
year, the S corporation's net recognized built-in gain consists of a 
ratable portion of each item of income, gain, loss, and deduction 
included in the pre-limitation amount.
    (c) Recognized built-in gain carryover. If an S corporation's net 
recognized built-in gain for any taxable year is equal to its taxable 
income limitation, the amount by which its pre-limitation amount 
exceeds its taxable income limitation is a recognized built-in gain 
carryover included in its pre-limitation amount for the succeeding 
taxable year. The recognized built-in gain carryover consists of that 
portion of each item of income, gain, loss, and deduction not included 
in the S corporation's net recognized built-in gain for the year the 
carryover arose, as determined under paragraph (b) of this section.
    (d) Accounting methods. In determining its taxable income for pre-
limitation amount and taxable income limitation purposes, a corporation 
must use the accounting method(s) it uses for tax purposes as an S 
corporation.
    (e) Example. The rules of this section are illustrated by the 
following example.

    Example. Net recognized built-in gain. X is a calendar year C 
corporation that elects to become an S corporation on January 1, 
1996. X has a net unrealized built-in gain of $50,000 and no net 
operating loss or capital loss carryforwards. In 1996, X has a pre-
limitation amount of $20,000, consisting of ordinary income of 
$15,000 and capital gain of $5,000, a taxable income limitation of 
$9,600, and a net unrealized built-in gain limitation of $50,000. 
Therefore, X's net recognized built-in gain for 1996 is $9,600, 
because that is the least of the three amounts described in 
paragraph (a) of this section. Under paragraph (b) of this section, 
X's net recognized built-in gain consists of recognized built-in 
ordinary income of $7,200 [$15,000 x ($9,600/$20,000)=$7,200] and 
recognized built-in capital gain of $2,400 [$5,000 x ($9,600/
$20,000)=$2,400]. Under paragraph (c) of this section, X has a 
recognized built-in gain carryover to 1997 of $10,400 
($20,000-$9,600=$10,400), consisting of $7,800 
($15,000-$7,200=$7,800) of recognized built-in ordinary income and 
$2,600 ($5,000-$2,400=$2,600) of recognized built-in capital gain.


Sec. 1.1374-3  Net unrealized built-in gain.

    (a) In general. An S corporation's net unrealized built-in gain is 
the total of the following--
    (1) The amount that would be the amount realized if, at the 
beginning of the first day of the recognition period, the corporation 
had remained a C corporation and had sold all its assets at fair market 
value to an unrelated party that assumed all its liabilities; decreased 
by
    (2) Any liability of the corporation that would be included in the 
amount realized on the sale referred to in paragraph (a)(1) of this 
section, but only if the corporation would be allowed a deduction on 
payment of the liability; decreased by
    (3) The aggregate adjusted bases of the corporation's assets at the 
time of the sale referred to in paragraph (a)(1) of this section; 
increased or decreased by
    (4) The corporation's section 481 adjustments that would be taken 
into account on the sale referred to in paragraph (a)(1) of this 
section; and increased by
    (5) Any recognized built-in loss that would not be allowed as a 
deduction under section 382, 383, or 384 on the sale referred to in 
paragraph (a)(1) of this section.
    (b) Example. The rules of this section are illustrated by the 
following example.

    Example. Net unrealized built-in gain. (i) (a) X, a calendar 
year C corporation using the cash method, elects to become an S 
corporation on January 1, 1996. On December 31, 1995, X has assets 
and liabilities as follows:

------------------------------------------------------------------------
                    Assets                          FMV         Basis   
------------------------------------------------------------------------
Factory.......................................     $500,000     $900,000
Accounts Receivable...........................      300,000            0
Goodwill......................................      250,000            0
                                               -------------------------
      Total...................................    1,050,000      900,000
                  Liabilities                      Amount               
Mortgage......................................     $200,000             
Accounts Payable..............................      100,000             
                                               -------------            
      Total...................................      300,000  ...........
------------------------------------------------------------------------

    (b) Further, X must include a total of $60,000 in taxable income 
in 1996, 1997, and 1998 under section 481(a).
    (ii) If, on December 31, 1995, X sold all its assets to a third 
party that assumed all its liabilities, X's amount realized would be 
$1,050,000 ($750,000 cash received+$300,000 liabilities 
assumed=$1,050,000). Thus, X's net unrealized built-in gain is 
determined as follows:

Amount realized -.......................................     $1,050,000 
Deduction allowed-......................................       (100,000)
Basis of X's assets--...................................       (900,000)
Section 481 adjustments.................................         60,000 
                                                         ---------------
      Net unrealized built-in gain-.....................        110,000 
                                                                        

Sec. 1.1374-4  Recognized built-in gain or loss.

    (a) Sales and exchanges--(1) In general. Section 1374(d)(3) or 
1374(d)(4) applies to any gain or loss recognized during the 
recognition period in a transaction treated as a sale or exchange for 
federal income tax purposes.
    (2) Oil and gas property. For purposes of paragraph (a)(1) of this 
section, an S corporation's adjusted basis in oil and gas property 
equals the sum of the shareholders' adjusted bases in the property as 
determined in section 613A(c)(11)(B).
    (3) Examples. The rules of this paragraph (a) are illustrated by 
the following examples.

    Example 1. Production and sale of oil. X is a C corporation that 
purchased a working interest in an oil and gas property for $100,000 
on July 1, 1993. X elects to become an S corporation effective 
January 1, 1996. On that date, the working interest has a fair 
market value of $250,000 and an adjusted basis of $50,000, but no 
oil has as yet been extracted. In 1996, X begins production of the 
working interest, sells oil that it has produced to a refinery for 
$75,000, and includes that amount in gross income. Under paragraph 
(a)(1) of this section, the $75,000 is not recognized built-in gain 
because as of the beginning of the recognition period X held only a 
working interest in the oil and gas property (since the oil had not 
yet been extracted from the ground), and not the oil itself.
    Example 2. Sale of oil and gas property. Y is a C corporation 
that elects to become an S corporation effective January 1, 1996. Y 
has two shareholders, A and B. A and B each own 50 percent of Y's 
stock. In addition, Y owns a royalty interest in an oil and gas 
property with a fair market value of $300,000 and an adjusted basis 
of $200,000. Under section 613A(c)(11)(B), Y's $200,000 adjusted 
basis in the royalty interest is allocated $100,000 to A and 
$100,000 to B. During 1996, A and B take depletion deductions with 
respect to the royalty interest of $10,000 and $15,000, 
respectively. As of January 1, 1997, A and B have a basis in the 
royalty interest of $90,000 and $85,000, respectively. On January 1, 
1997, Y sells the royalty interest for $250,000. Under paragraph 
(a)(1) of this section, Y has gain recognized and recognized built-
in gain of $75,000 ($250,000-($90,000+$85,000)=$75,000) on the sale.

    (b) Accrual method rule--(1) Income items. Except as otherwise 
provided in this section, any item of income properly taken into 
account during the recognition period is recognized built-in gain if 
the item would have been properly included in gross income before the 
beginning of the recognition period by an accrual method taxpayer 
(disregarding any method of accounting for which an election by the 
taxpayer must be made unless the taxpayer actually used the method when 
it was a C corporation).
    (2) Deduction items. Except as otherwise provided in this section, 
any item of deduction properly taken into account during the 
recognition period is recognized built-in loss if the item would have 
been properly allowed as a deduction against gross income before the 
beginning of the recognition period to an accrual method taxpayer 
(disregarding any method of accounting for which an election by the 
taxpayer must be made unless the taxpayer actually used the method when 
it was a C corporation). In determining whether an item would have been 
properly allowed as a deduction against gross income by an accrual 
method taxpayer for purposes of this paragraph, section 461(h)(2)(C) 
and Sec. 1.461-4(g) (relating to liabilities for tort, worker's 
compensation, breach of contract, violation of law, rebates, refunds, 
awards, prizes, jackpots, insurance contracts, warranty contracts, 
service contracts, taxes, and other liabilities) do not apply.
    (3) Examples. The rules of this paragraph (b) are illustrated by 
the following examples.

    Example 1. Accounts receivable. X is a C corporation using the 
cash method that elects to become an S corporation effective January 
1, 1996. On January 1, 1996, X has $50,000 of accounts receivable 
for services rendered before that date. On that date, the accounts 
receivable have a fair market value of $40,000 and an adjusted basis 
of $0. In 1996, X collects $50,000 on the accounts receivable and 
includes that amount in gross income. Under paragraph (b)(1) of this 
section, the $50,000 included in gross income in 1996 is recognized 
built-in gain because it would have been included in gross income 
before the beginning of the recognition period if X had been an 
accrual method taxpayer. However, if X instead disposes of the 
accounts receivable for $45,000 on July 1, 1996, in a transaction 
treated as a sale or exchange for federal income tax purposes, X 
would have recognized built-in gain of $40,000 on the disposition.
    Example 2. Contingent liability. Y is a C corporation using the 
cash method that elects to become an S corporation effective January 
1, 1996. In 1995, a lawsuit was filed against Y claiming $1,000,000 
in damages. In 1996, Y loses the lawsuit, pays a $500,000 judgment, 
and properly claims a deduction for that amount. Under paragraph 
(b)(2) of this section, the $500,000 deduction allowed in 1996 is 
not recognized built-in loss because it would not have been allowed 
as a deduction against gross income before the beginning of the 
recognition period if Y had been an accrual method taxpayer (even 
disregarding section 461(h)(2)(C) and Sec. 1.461-4(g)).
    Example 3. Deferred payment liabilities. X is a C corporation 
using the cash method that elects to become an S corporation on 
January 1, 1996. In 1995, X lost a lawsuit and became obligated to 
pay $150,000 in damages. Under section 461(h)(2)(C), this amount is 
not allowed as a deduction until X makes payment. In 1996, X makes 
payment and properly claims a deduction for the amount of the 
payment. Under paragraph (b)(2) of this section, the $150,000 
deduction allowed in 1996 is recognized built-in loss because it 
would have been allowed as a deduction against gross income before 
the beginning of the recognition period if X had been an accrual 
method taxpayer (disregarding section 461(h)(2)(C) and Sec. 1.461-
4(g)).
    Example 4. Deferred prepayment income. Y is a C corporation 
using an accrual method that elects to become an S corporation 
effective January 1, 1996. In 1995, Y received $2,500 for services 
to be rendered in 1996, and properly elected to include the $2,500 
in gross income in 1996 under Rev. Proc. 71-21, 1971-2 C.B. 549 (see 
Sec. 601.601(d)(2)(ii)(b) of this chapter). Under paragraph (b)(1) 
of this section, the $2,500 included in gross income in 1996 is not 
recognized built-in gain because it would not have been included in 
gross income before the beginning of the recognition period by an 
accrual method taxpayer using the method that Y actually used before 
the beginning of the recognition period.
    Example 5. Change in method. X is a C corporation using an 
accrual method that elects to become an S corporation effective 
January 1, 1996. In 1995, X received $5,000 for services to be 
rendered in 1996, and properly included the $5,000 in gross income. 
In 1996, X properly elects to include the $5,000 in gross income in 
1996 under Rev. Proc. 71-21, 1971-2 C.B. 549 (see 
Sec. 601.601(d)(2)(ii)(b) of this chapter). As a result of the 
change in method of accounting, X has a $5,000 negative section 
481(a) adjustment. Under paragraph (b)(1) of this section, the 
$5,000 included in gross income in 1996 is recognized built-in gain 
because it would have been included in gross income before the 
beginning of the recognition period by an accrual method taxpayer 
using the method that X actually used before the beginning of the 
recognition period. In addition, the $5,000 negative section 481(a) 
adjustment is recognized built-in loss because it relates to an item 
(the $5,000 X received for services in 1995) attributable to periods 
before the beginning of the recognition period under the principles 
for determining recognized built-in gain or loss in this section. 
See paragraph (d) of this section for rules regarding section 481(a) 
adjustments.

    (c)-Section 267(a)(2) and 404(a)(5) deductions--(1) Section 
267(a)(2). Notwithstanding paragraph (b)(2) of this section, any amount 
properly deducted in the recognition period under section 267(a)(2), 
relating to payments to related parties, is recognized built-in loss to 
the extent--
    (i) All events have occurred that establish the fact of the 
liability to pay the amount, and the exact amount of the liability can 
be determined, as of the beginning of the recognition period; and
    (ii) The amount is paid--
    (A) In the first two and one-half months of the recognition period; 
or
    (B) To a related party owning, under the attribution rules of 
section 267, less than 5 percent, by voting power and value, of the 
corporation's stock, both as of the beginning of the recognition period 
and when the amount is paid.
    (2) Section 404(a)(5). Notwithstanding paragraph (b)(2) of this 
section, any amount properly deducted in the recognition period under 
section 404(a)(5), relating to payments for deferred compensation, is 
recognized built-in loss to the extent--
    (i) All events have occurred that establish the fact of the 
liability to pay the amount, and the exact amount of the liability can 
be determined, as of the beginning of the recognition period; and
    (ii) The amount is not paid to a related party to which section 
267(a)(2) applies.
    (3) Examples. The rules of this paragraph (c) are illustrated by 
the following examples.

    Example 1. Fixed annuity. X is a C corporation that elects to 
become an S corporation effective January 1, 1996. On December 31, 
1995, A is age 60, has provided services to X as an employee for 20 
years, and is a vested participant in X's unfunded nonqualified 
retirement plan. Under the plan, A receives $1,000 per month upon 
retirement until death. The plan provides no additional benefits. A 
retires on December 31, 1997, after working for X for 22 years. A at 
no time is a shareholder of X. X's deductions under section 
404(a)(5) in the recognition period on paying A the $1,000 per month 
are recognized built-in loss because all events have occurred that 
establish the fact of the liability to pay the amount, and the exact 
amount of the liability can be determined, as of the beginning of 
the recognition period.
    Example 2. Increase in annuity for working beyond 20 years. The 
facts are the same as Example 1, except that under the plan A 
receives $1,000 per month, plus $100 per month for each year A works 
for X beyond 20 years, upon retirement until death. X's deductions 
on paying A the $1,000 per month are recognized built-in loss. 
However, X's deductions on paying A the $200 per month for the two 
years A worked for X beyond 20 years are not recognized built-in 
loss because all events have not occurred that establish the fact of 
the liability to pay the amount, and the exact amount of the 
liability cannot be determined, as of the beginning of the 
recognition period.
    Example 3. Cost of living adjustment. The facts are the same as 
Example 1, except that under the plan A receives $1,000 per month, 
plus annual cost of living adjustments, upon retirement until death. 
X's deductions under section 404(a)(5) on paying A the $1,000 per 
month are recognized built-in loss. However, X's deductions under 
section 404(a)(5) on paying A the annual cost of living adjustment 
are not recognized built-in loss because all events have not 
occurred that establish the fact of the liability to pay the amount, 
and the exact amount of the liability cannot be determined, as of 
the beginning of the recognition period.

    (d) Section 481(a) adjustments--(1) In general. Any section 481(a) 
adjustment taken into account in the recognition period is recognized 
built-in gain or loss to the extent the adjustment relates to items 
attributable to periods before the beginning of the recognition period 
under the principles for determining recognized built-in gain or loss 
in this section. The principles for determining recognized built-in 
gain or loss in this section include, for example, the accrual method 
rule under paragraph (b) of this section.
    (2) Examples. The rules of this paragraph (d) are illustrated by 
the following examples.

    Example 1. Omitted item attributable to prerecognition period. X 
is a C corporation that elects to become an S corporation effective 
January 1, 1996. X improperly capitalizes repair costs and recovers 
the costs through depreciation of the related assets. In 1999, X 
properly changes to deducting repair costs as they are incurred. 
Under section 481(a), the basis of the related assets are reduced by 
an amount equal to the excess of the repair costs incurred before 
the year of change over the repair costs recovered through 
depreciation before the year of change. In addition, X has a 
negative section 481(a) adjustment equal to the basis reduction. 
Under paragraph (d)(1) of this section, the portion of X's negative 
section 481(a) adjustment relating to the repair costs incurred 
before the recognition period is recognized built-in loss because 
those repair costs are items attributable to periods before the 
beginning of the recognition period under the principles for 
determining recognized built-in gain or loss in this section.
    Example 2. Duplicated item attributable to prerecognition 
period. Y is a C corporation that elects to become an S corporation 
effective January 1, 1996. Y improperly uses an accrual method 
without regard to the economic performance rules of section 461(h) 
to account for worker's compensation claims. As a result, Y takes 
deductions when claims are filed. In 1999, Y properly changes to an 
accrual method with regard to the economic performance rules under 
section 461(h)(2)(C) for worker's compensation claims. As a result, 
Y takes deductions when claims are paid. The positive section 481(a) 
adjustment resulting from the change is equal to the amount of 
claims filed, but unpaid, before the year of change. Under paragraph 
(b)(2) of this section, the deduction allowed in the recognition 
period for claims filed, but unpaid, before the recognition period 
is recognized built-in loss because a deduction was allowed for 
those claims before the recognition period under an accrual method 
without regard to section 461(h)(2)(C). Under paragraph (d)(1) of 
this section, the portion of Y's positive section 481(a) adjustment 
relating to claims filed, but unpaid, before the recognition period 
is recognized built-in gain because those claims are items 
attributable to periods before the beginning of the recognition 
period under the principles for determining recognized built-in gain 
or loss in this section.

    (e) Section 995(b)(2) deemed distributions. Any item of income 
properly taken into account during the recognition period under section 
995(b)(2) is recognized built-in gain if the item results from a DISC 
termination or disqualification occurring before the beginning of the 
recognition period.
    (f) Discharge of indebtedness and bad debts. Any item of income or 
deduction properly taken into account during the first year of the 
recognition period as discharge of indebtedness income under section 
61(a)(12) or as a bad debt deduction under section 166 is recognized 
built-in gain or loss if the item arises from a debt owed by or to an S 
corporation at the beginning of the recognition period.
    (g) Completion of contract. Any item of income properly taken into 
account during the recognition period under the completed contract 
method (as described in Sec. 1.451-3(d)) where the corporation began 
performance of the contract before the beginning of the recognition 
period is recognized built-in gain if the item would have been included 
in gross income before the beginning of the recognition period under 
the percentage of completion method (as described in Sec. 1.451-3(c)). 
Any similar item of deduction is recognized built-in loss if the item 
would have been allowed as a deduction against gross income before the 
beginning of the recognition period under the percentage of completion 
method.
    (h) Installment method--(1) In general. If a corporation sells an 
asset before or during the recognition period and reports the income 
from the sale using the installment method under section 453 during or 
after the recognition period, that income is subject to tax under 
section 1374.
    (2) Limitation on amount subject to tax. For purposes of paragraph 
(h)(1) of this section, the taxable income limitation under 
Sec. 1.1374-2(a)(2) is equal to the amount by which the S corporation's 
net recognized built-in gain would have been increased from the year of 
the sale to the earlier of the year the income is reported under the 
installment method or the last year of the recognition period, assuming 
all income from the sale had been reported in the year of the sale and 
all provisions of section 1374 applied. For purposes of the preceding 
sentence, if the corporation sells the asset before the recognition 
period, the income from the sale that is not reported before the 
recognition period is treated as having been reported in the first year 
of the recognition period.
    (3) Rollover rule. If the limitation in paragraph (h)(2) of this 
section applies, the excess of the amount reported under the 
installment method over the amount subject to tax under the limitation 
is treated as if it were reported in the succeeding taxable year(s), 
but only for succeeding taxable year(s) in the recognition period. The 
amount reported in the succeeding taxable year(s) under the preceding 
sentence is reduced to the extent that the amount not subject to tax 
under the limitation in paragraph (h)(2) of this section was not 
subject to tax because the S corporation had an excess of recognized 
built-in loss over recognized built-in gain in the taxable year of the 
sale and succeeding taxable year(s) in the recognition period.
    (4) Use of losses and section 1374 attributes. If income is 
reported under the installment method by an S corporation for a taxable 
year after the recognition period and the income is subject to tax 
under paragraph (h)(1) of this section, the S corporation's section 
1374 attributes may be used to the extent their use is allowed under 
all applicable provisions of the Code in determining the section 1374 
tax. However, the S corporation's loss recognized for a taxable year 
after the recognition period that would have been recognized built-in 
loss if it had been recognized in the recognition period may not be 
used in determining the section 1374 tax.
    (5) Examples. The rules of this paragraph (h)are illustrated by the 
following examples.

    Example 1. Rollover rule. X is a C corporation that elects to 
become an S corporation effective January 1, 1996. On that date, X 
sells Blackacre with a basis of $0 and a value of $100,000 in 
exchange for a $100,000 note bearing a market rate of interest 
payable on January 1, 2001. X does not make the election under 
section 453(d) and, therefore, reports the $100,000 gain using the 
installment method under section 453. In the year 2001, X has income 
of $100,000 on collecting the note, unexpired C year attributes of 
$0, recognized built-in loss of $0, current losses of $100,000, and 
taxable income of $0. If X had reported the $100,000 gain in 1996, 
X's net recognized built-in gain from 1996 through 2001 would have 
been $75,000 greater than otherwise. Under paragraph (h) of this 
section, X has $75,000 net recognized built-in gain subject to tax 
under section 1374. X also must treat the $25,000 excess of the 
amount reported, $100,000, over the amount subject to tax, $75,000, 
as income reported under the installment method in the succeeding 
taxable year(s) in the recognition period, except to the extent X 
establishes that the $25,000 was not subject to tax under section 
1374 in the year 2001 because X had an excess of recognized built-in 
loss over recognized built-in gain in the taxable year of the sale 
and succeeding taxable year(s) in the recognition period.
    Example 2. Use of losses. Y is a C corporation that elects to 
become an S corporation effective January 1, 1996. On that date, Y 
sells Whiteacre with a basis of $0 and a value of $250,000 in 
exchange for a $250,000 note bearing a market rate of interest 
payable on January 1, 2006. Y does not make the election under 
section 453(d) and, therefore, reports the $250,000 gain using the 
installment method under section 453. In the year 2006, Y has income 
of $250,000 on collecting the note, unexpired C year attributes of 
$0, loss of $100,000 that would have been recognized built-in loss 
if it had been recognized in the recognition period, current losses 
of $150,000, and taxable income of $0. If Y had reported the 
$250,000 gain in 1996, X's net recognized built-in gain from 1996 
through 2005 (that is, during the recognition period) would have 
been $225,000 greater than otherwise. Under paragraph (h) of this 
section, X has $225,000 net recognized built-in gain subject to tax 
under section 1374.
    Example 3. Use of section 1374 attribute. Z is a C corporation 
that elects to become an S corporation effective January 1, 1996. On 
that date, Z sells Greenacre with a basis of $0 and a value of 
$500,000 in exchange for a $500,000 note bearing a market rate of 
interest payable on January 1, 2011. Z does not make the election 
under section 453(d) and, therefore, reports the $500,000 gain using 
the installment method under section 453. In the year 2011, Z has 
income of $500,000 on collecting the note, loss of $0 that would 
have been recognized built-in loss if it had been recognized in the 
recognition period, current losses of $0, taxable income of 
$500,000, and a minimum tax credit of $60,000 arising in 1995. None 
of Z's minimum tax credit is limited under sections 53(c) or 383. If 
Z had reported the $500,000 gain in 1996, Z's net recognized built-
in gain from 1996 through 2005 (that is, during the recognition 
period) would have been $350,000 greater than otherwise. Under 
paragraph (h) of this section, Z has $350,000 net recognized built-
in gain subject to tax under section 1374, a tentative section 1374 
tax of $122,500 ($350,000  x  .35 = $122,500), and a section 1374 
tax after using its minimum tax credit arising in 1995 of $62,250 
($122,500 - $60,000 = $62,250).

    (i) Partnership interests--(1) In general. If an S corporation owns 
a partnership interest at the beginning of the recognition period or 
transfers property to a partnership in a transaction to which section 
1374(d)(6) applies during the recognition period, the S corporation 
determines the effect on net recognized built-in gain from its 
distributive share of partnership items as follows--
    (i) Step One: Apply the rules of section 1374(d) to the S 
corporation's distributive share of partnership items of income, gain, 
loss, or deduction included in income or allowed as a deduction under 
the rules of subchapter K to determine the extent to which it would 
have been treated as recognized built-in gain or loss if the 
partnership items had originated in and been taken into account 
directly by the S corporation (partnership 1374 items);
    (ii) Step Two: Determine the S corporation's net recognized built-
in gain without partnership 1374 items;
    (iii) Step Three: Determine the S corporation's net recognized 
built-in gain with partnership 1374 items; and
    (iv) Step Four: If the amount computed under Step Three (paragraph 
(i)(1)(iii) of this section) exceeds the amount computed under Step Two 
(paragraph (i)(1)(ii) of this section), the excess (as limited by 
paragraph (i)(2)(i) of this section) is the S corporation's partnership 
RBIG, and the S corporation's net recognized built-in gain is the sum 
of the amount computed under Step Two (paragraph (i)(1)(ii) of this 
section) plus the partnership RBIG. If the amount computed under Step 
Two (paragraph (i)(1)(ii) of this section) exceeds the amount computed 
under Step Three (paragraph (i)(1)(iii) of this section), the excess 
(as limited by paragraph (i)(2)(ii) of this section) is the S 
corporation's partnership RBIL, and the S corporation's net recognized 
built-in gain is the remainder of the amount computed under Step Two 
(paragraph (i)(1)(ii) of this section) after subtracting the 
partnership RBIL.
    (2) Limitations--(i) Partnership RBIG. An S corporation's 
partnership RBIG for any taxable year may not exceed the excess (if 
any) of the S corporation's RBIG limitation over its partnership RBIG 
for prior taxable years. The preceding sentence does not apply if a 
corporation forms or avails of a partnership with a principal purpose 
of avoiding the tax imposed under section 1374.
    (ii) Partnership RBIL. An S corporation's partnership RBIL for any 
taxable year may not exceed the excess (if any) of the S corporation's 
RBIL limitation over its partnership RBIL for prior taxable years.
    (3) Disposition of partnership interest. If an S corporation 
disposes of its partnership interest, the amount that may be treated as 
recognized built-in gain may not exceed the excess (if any) of the S 
corporation's RBIG limitation over its partnership RBIG during the 
recognition period. Similarly, the amount that may be treated as 
recognized built-in loss may not exceed the excess (if any) of the S 
corporation's RBIL limitation over its partnership RBIL during the 
recognition period.
    (4) RBIG and RBIL limitations--(i) Sale of partnership interest. An 
S corporation's RBIG or RBIL limitation is the total of the following--
    (A) The amount that would be the amount realized if, at the 
beginning of the first day of the recognition period, the corporation 
had remained a C corporation and had sold its partnership interest (and 
any assets the corporation contributed to the partnership during the 
recognition period) at fair market value to an unrelated party; 
decreased by
    (B) The corporation's adjusted basis in the partnership interest 
(and any assets the corporation contributed to the partnership during 
the recognition period) at the time of the sale referred to in 
paragraph (i)(4)(i)(A) of this section; and increased or decreased by
    (C) The corporation's allocable share of the partnership's section 
481(a) adjustments at the time of the sale referred to in paragraph 
(i)(4)(i)(A) of this section.
    (ii) Amounts of limitations. If the result in paragraph (i)(4)(i) 
of this section is a positive amount, the S corporation has a RBIG 
limitation equal to that amount and a RBIL limitation of $0, but if the 
result in paragraph (i)(4)(i) of this section is a negative amount, the 
S corporation has a RBIL limitation equal to that amount and a RBIG 
limitation of $0.
    (5) Small interest exception--(i) In general. Paragraph (i)(1) of 
this section does not apply to a taxable year in the recognition period 
if the S corporation's partnership interest represents less than 10 
percent of the partnership's capital and profits at all times during 
the taxable year and prior taxable years in the recognition period, and 
the fair market value of the S corporation's partnership interest as of 
the beginning of the recognition period is less than $100,000.
    (ii) Contributed assets. For purposes of paragraph (i)(5)(i) of 
this section, if the S corporation contributes any assets to the 
partnership during the recognition period and the S corporation held 
the assets as of the beginning of the recognition period, the fair 
market value of the S corporation's partnership interest as of the 
beginning of the recognition period is determined as if the assets were 
contributed to the partnership before the beginning of the recognition 
period (using the fair market value of each contributed asset as of the 
beginning of the recognition period). The contribution does not affect 
whether paragraph (i)(5)(i) of this section applies for taxable years 
in the recognition period before the taxable year in which the 
contribution was made.
    (iii) Anti-abuse rule. Paragraph (i)(5)(i) of this section does not 
apply if a corporation forms or avails of a partnership with a 
principal purpose of avoiding the tax imposed under section 1374.
    (6) Section 704(c) gain or loss. Solely for purposes of section 
1374, an S corporation's section 704(c) gain or loss amount with 
respect to any asset is not reduced during the recognition period, 
except for amounts treated as recognized built-in gain or loss with 
respect to that asset under this paragraph.
    (7) Disposition of distributed partnership asset. If on the first 
day of the recognition period an S corporation holds an interest in a 
partnership that holds an asset and during the recognition period the 
partnership distributes the asset to the S corporation that thereafter 
disposes of the asset, the asset is treated as having been held by the 
S corporation on the first day of the recognition period and as having 
the fair market value and adjusted basis in the hands of the S 
corporation that it had in the hands of the partnership on that day.
    (8) Examples. The rules of this paragraph (i) are illustrated by 
the following examples.

    Example 1. Pre-conversion partnership interest. X is a C 
corporation that elects to become an S corporation on January 1, 
1996. On that date, X owns a 50 percent interest in partnership P 
and P owns (among other assets) Blackacre with a basis of $25,000 
and a value of $45,000. In 1996, P buys Whiteacre for $50,000. In 
1999, P sells Blackacre for $55,000 and recognizes a gain of $30,000 
of which $15,000 is included in X's distributive share. P also sells 
Whiteacre in 1999 for $42,000 and recognizes a loss of $8,000 of 
which $4,000 is included in X's distributive share. Under this 
paragraph and section 1374(d)(3), X's $15,000 gain is presumed to be 
recognized built-in gain and thus treated as a partnership 1374 
item, but this presumption is rebutted if X establishes that P's 
gain would have been only $20,000 ($45,000-$25,000=$20,000) if 
Blackacre had been sold on the first day of the recognition period. 
In such a case, only X's distributive share of the $20,000 built-in 
gain, $10,000, would be treated as a partnership 1374 item. Under 
this paragraph and section 1374(d)(4), X's $4,000 loss is not 
treated as a partnership 1374 item because P did not hold Whiteacre 
on the first day of the recognition period.
    Example 2. Post-conversion contribution. Y is a C corporation 
that elects to become an S corporation on January 1, 1996. On that 
date, Y owns (among other assets) Blackacre with a basis of $100,000 
and a value of $200,000. On January 1, 1998, when Blackacre has a 
basis of $100,000 and a value of $200,000, Y contributes Blackacre 
to partnership P for a 50 percent interest in P. On January 1, 2000, 
P sells Blackacre for $300,000 and recognizes a gain of $200,000 on 
the sale ($300,000-$100,000=$200,000). P is allocated $100,000 of 
the gain under section 704(c), and another $50,000 of the gain for 
its fifty percent share of the remainder, for a total of $150,000. 
Under this paragraph and section 1374(d)(3), if Y establishes that 
P's gain would have been only $100,000 ($200,000-$100,000=$100,000) 
if Blackacre had been sold on the first day of the recognition 
period, Y would treat only $100,000 as a partnership 1374 item.
    Example 3. RBIG limitation of $100,000 or $50,000. X is a C 
corporation that elects to become an S corporation on January 1, 
1996. On that date, X owns a 50 percent interest in partnership P 
with a RBIG limitation of $100,000 and a RBIL limitation of $0. P 
owns (among other assets) Blackacre with a basis of $50,000 and a 
value of $200,000. In 1996, P sells Blackacre for $200,000 and 
recognizes a gain of $150,000 of which $75,000 is included in X's 
distributive share and treated as a partnership 1374 item. X's net 
recognized built-in gain for 1996 computed without partnership 1374 
items is $35,000 and with partnership 1374 items is $110,000. Thus, 
X has a partnership RBIG of $75,000 except as limited under 
paragraph (i)(2)(i) of this section. Because X's RBIG limitation is 
$100,000, X's partnership RBIG of $75,000 is not limited and X's net 
recognized built-in gain for the year is $110,000 
($35,000+$75,000=$110,000). However, if X had a RBIG limitation of 
$50,000 instead of $100,000, X's partnership RBIG would be limited 
to $50,000 under paragraph (i)(2)(i) of this section and X's net 
recognized built-in gain would be $85,000 ($35,000+$50,000=$85,000).
    Example 4. RBIL limitation of $60,000 or $40,000. Y is a C 
corporation that elects to become an S corporation on January 1, 
1996. On that date, Y owns a 50 percent interest in partnership P 
with a RBIG limitation of $0 and a RBIL limitation of $60,000. P 
owns (among other assets) Blackacre with a basis of $225,000 and a 
value of $125,000. In 1996, P sells Blackacre for $125,000 and 
recognizes a loss of $100,000 of which $50,000 is included in Y's 
distributive share and treated as a partnership 1374 item. Y's net 
recognized built-in gain for 1996 computed without partnership 1374 
items is $75,000 and with partnership 1374 items is $25,000. Thus, Y 
has a partnership RBIL of $50,000 for the year except as limited 
under paragraph (i)(2)(ii) of this section. Because Y's RBIL 
limitation is $60,000, Y's partnership RBIL for the year is not 
limited and Y's net recognized built-in gain for the year is $25,000 
($75,000-$50,000=$25,000). However, if Y had a RBIL limitation of 
$40,000 instead of $60,000, Y's partnership RBIL would be limited to 
$40,000 under paragraph (i)(2)(ii) of this section and Y's net 
recognized built-in gain for the year would be $35,000 
($75,000-$40,000=$35,000).
    Example 5. RBIG limitation of $0. (i) X is a C corporation that 
elects to become an S corporation on January 1, 1996. X owns a 50 
percent interest in partnership P with a RBIG limitation of $0 and a 
RBIL limitation of $25,000.
    (a) In 1996, P's partnership 1374 items are--
    (1) Ordinary income of $25,000; and
    (2) Capital gain of $75,000.
    (b) X itself has--
    (1) Recognized built-in ordinary income of $40,000; and
    (2) Recognized built-in capital loss of $90,000.
    (ii) X's net recognized built-in gain for 1996 computed without 
partnership 1374 items is $40,000 and with partnership 1374 items is 
$65,000 ($40,000+$25,000=$65,000). Thus, X's partnership RBIG is 
$25,000 for the year except as limited under paragraph (i)(2)(i) of 
this section. Because X's RBIG limitation is $0, X's partnership 
RBIG of $25,000 is limited to $0 and X's net recognized built-in 
gain for the year is $40,000.
    Example 6. RBIL limitation of $0. (i) Y is a C corporation that 
elects to become an S corporation on January 1, 1996. Y owns a 50 
percent interest in partnership P with a RBIG limitation of $60,000 
and a RBIL limitation of $0.
    (a) In 1996, P's partnership 1374 items are---
    (1) Ordinary income of $25,000; and
    (2) Capital loss of $90,000.
    (b) Y itself has--
    (1) recognized built-in ordinary income of $40,000; and
    (2) recognized built-in capital gain of $75,000.
    (ii) Y's net recognized built-in gain for 1996 computed without 
partnership 1374 items is $115,000 ($40,000+$75,000=$115,000) and 
with partnership 1374 items is $65,000 ($40,000+$25,000=$65,000). 
Thus, Y's partnership RBIL is $50,000 for the year except as limited 
under paragraph (i)(2)(ii) of this section. Because Y's RBIL 
limitation is $0, Y's partnership RBIL of $50,000 is limited to $0 
and Y's net recognized built-in gain is $115,000.
    Example 7. Disposition of partnership interest. X is a C 
corporation that elects to become an S corporation on January 1, 
1996. On that date, X owns a 50 percent interest in partnership P 
with a RBIG limitation of $200,000 and a RBIL limitation of $0. P 
owns (among other assets) Blackacre with a basis of $20,000 and a 
value of $140,000. In 1996, P sells Blackacre for $140,000 and 
recognizes a gain of $120,000 of which $60,000 is included in X's 
distributive share and treated as a partnership 1374 item. X's net 
recognized built-in gain for 1996 computed without partnership 1374 
items is $95,000 and with partnership 1374 items is $155,000. Thus, 
X has a partnership RBIG of $60,000. In 1999, X sells its entire 
interest in P for $350,000 and recognizes a gain of $250,000. Under 
paragraph (i)(3) of this section, X's recognized built-in gain on 
the sale is limited by its RBIG limitation to $140,000 
($200,000-$60,000=$140,000).
    Example 8. Section 704(c) case. Y is a C corporation that elects 
to become an S corporation on January 1, 1996. On that date, Y 
contributes Asset 1, 5-year property with a value of $40,000 and a 
basis of $0, and an unrelated party contributes $40,000 in cash, 
each for a 50 percent interest in partnership P. The partnership 
adopts the traditional method under Sec. 1.704-3(b). If P sold Asset 
1 for $40,000 immediately after it was contributed by Y, P's $40,000 
gain would be allocated to Y under section 704(c). Instead, Asset 1 
is sold by P in 1999 for $36,000 and P recognizes gain of $36,000 
($36,000-$0=$36,000) on the sale. However, because book depreciation 
of $8,000 per year has been taken on Asset 1 in 1996, 1997, and 
1998, Y is allocated only $16,000 of P's $36,000 gain 
($40,000-(3 x $8,000)=($16,000-$0)=$16,000) under section 704(c). 
The remaining $20,000 of P's $36,000 gain ($36,000-$16,000=$20,000) 
is allocated 50 percent to each partner under section 704(b). Thus, 
a total of $26,000 ($16,000+$10,000=$26,000) of P's $36,000 gain is 
allocated to Y. However, under paragraph (i)(6) of this section, Y 
treats $36,000 as a partnership 1374 item on P's sale of Asset 1.
    Example 9. Disposition of distributed partnership asset. X is a 
C corporation that elects to become an S corporation on January 1, 
1996. On that date, X owns a fifty percent interest in partnership P 
and P owns (among other assets) Blackacre with a basis of $20,000 
and a value of $40,000. On January 1, 1998, P distributes Blackacre 
to X, when Blackacre has a basis of $20,000 and a value of $50,000. 
Under section 732(a)(1), X has a transferred basis of $20,000 in 
Blackacre. On January 1, 1999, X sells Blackacre for $60,000 and 
recognizes a gain of $40,000. Under paragraph (i)(7) of this section 
and section 1374(d)(3), X has recognized built-in gain from the sale 
of $20,000, the amount of built-in gain in Blackacre on the first 
day of the recognition period.


Sec. 1.1374-5  Loss carryforwards.

    (a) In general. The loss carryforwards allowed as deductions 
against net recognized built-in gain under section 1374(b)(2) are 
allowed only to the extent their use is allowed under the rules 
applying to C corporations. Any other loss carryforwards, such as 
charitable contribution carryforwards under section 170(d)(2), are not 
allowed as deductions against net recognized built-in gain.
    (b) Example. The rules of this section are illustrated by the 
following example.

    Example. Section 382 limitation. X is a C corporation that has 
an ownership change under section 382(g)(1) on January 1, 1994. On 
that date, X has a fair market value of $500,000, NOL carryforwards 
of $400,000, and a net unrealized built-in gain under section 
382(h)(3)(A) of $0. Assume X's section 382 limitation under section 
382(b)(1) is $40,000. X elects to become an S corporation on January 
1, 1998. On that date, X has NOL carryforwards of $240,000 (having 
used $160,000 of its pre-change net operating losses in its 4 
preceding taxable years) and a section 1374 net unrealized built-in 
gain of $250,000. In 1998, X has net recognized built-in gain of 
$100,000. X may use $40,000 of its NOL carryforwards as a deduction 
against its $100,000 net recognized built-in gain, because X's 
section 382 limitation is $40,000.


Sec. 1.1374-6  Credits and credit carryforwards.

    (a) In general. The credits and credit carryforwards allowed as 
credits against the section 1374 tax under section 1374(b)(3) are 
allowed only to the extent their use is allowed under the rules 
applying to C corporations. Any other credits or credit carryforwards, 
such as foreign tax credits under section 901, are not allowed as 
credits against the section 1374 tax.
    (b) Limitations. The amount of business credit carryforwards and 
minimum tax credit allowed against the section 1374 tax are subject to 
the limitations described in section 38(c) and section 53(c), 
respectively, as modified by this paragraph. The tentative tax 
determined under paragraph (a)(3) of Sec. 1.1374-1 is treated as the 
regular tax liability described in sections 38(c)(1) and 53(c)(1), and 
as the net income tax and net regular tax liability described in 
section 38(c)(1). The tentative minimum tax described in section 55(b) 
is determined using the rate of tax applicable to corporations and 
without regard to any alternative minimum tax foreign tax credit 
described in that section and by treating the net recognized built-in 
gain determined under Sec. 1.1374-2, modified to take into account the 
adjustments of sections 56 and 58 applicable to corporations and the 
preferences of section 57, as the alternative minimum taxable income 
described in section 55(b)(2).
    (c) Examples. The rules of this section are illustrated by the 
following examples.

    Example 1. Business credit carryforward. X is a C corporation 
that elects to become an S corporation effective January 1, 1996. On 
that date, X has a $500,000 business credit carryforward from a C 
year and Asset #1 with a fair market value of $400,000, a basis for 
regular tax purposes of $95,000, and a basis for alternative minimum 
tax purposes of $150,000. In 1996, X has net recognized built-in 
gain of $305,000 from selling Asset #1 for $400,000. Thus, X's 
tentative tax under paragraph (a)(3) of Sec. 1.1374-1 and regular 
tax liability under paragraph (b) of this section is $106,750 
($400,000-$95,000=$305,000  x  .35= $106,750, assuming a 35 percent 
tax rate). Also, X's tentative minimum tax determined under 
paragraph (b) of this section is $47,000 
[$400,000-$150,000=$250,000-$15,000 ($40,000 corporate exemption 
amount -$25,000 phase-out=$15,000)=$235,000  x  .20=$47,000, 
assuming a 20 percent tax rate]. Thus, the business credit 
limitation under section 38(c) is $59,750 [$106,750-$47,000 (the 
greater of $47,000 or $20,438 (.25 x $81,750 
($106,750-$25,000=$81,750))) = $59,750]. As a result, X's section 
1374 tax is $47,000 ($106,750-$59,750= $47,000) for 1996 and X has 
$440,250 ($500,000-$59,750 = $440,250) of business credit 
carryforwards for succeeding taxable years.
    Example 2. Minimum tax credit. Y is a C corporation that elects 
to become an S corporation effective January 1, 1996. On that date, 
Asset#1 has a fair market value of $5,000,000, a basis for regular 
tax purposes of $4,000,000, and a basis for alternative minimum tax 
purposes of $4,750,000. Y also has a minimum tax credit of $310,000 
from 1995. Y has no other assets, no net operating or capital loss 
carryforwards, and no business credit carryforwards. In 1996, Y's 
only transaction is the sale of Asset 1 for $5,000,000. 
Therefore, Y has net recognized built-in gain in 1996 of $1,000,000 
($5,000,000-$4,000,000=$1,000,000) and a tentative tax under 
paragraph (a)(3) of Sec. 1.1374-1 of $350,000 
($1,000,000 x .35=$350,000, assuming a 35 percent tax rate). Also, 
Y's tentative minimum tax determined under paragraph (b) of this 
section is $47,000 [$5,000,000-$4,750,000=$250,000-$15,000 ($40,000 
corporate exemption amount -$25,000 phase-out = $15,000) = 
$235,000 x .20 = $47,000, assuming a 20 percent tax rate]. Thus, Y 
may use its minimum tax credit in the amount of $303,000 
($350,000-$47,000=$303,000) to offset its section 1374 tentative 
tax. As a result, Y's section 1374 tax is $47,000 
($350,000-$303,000=$47,000) in 1996 and Y has a minimum tax credit 
attributable to years for which Y was a C corporation of $7,000 
($310,000-$303,000=$7,000).


Sec. 1.1374-7  Inventory.

    (a) Valuation. The fair market value of the inventory of an S 
corporation on the first day of the recognition period equals the 
amount that a willing buyer would pay a willing seller for the 
inventory in a purchase of all the S corporation's assets by a buyer 
that expects to continue to operate the S corporation's business. For 
purposes of the preceding sentence, the buyer and seller are presumed 
not to be under any compulsion to buy or sell and to have reasonable 
knowledge of all relevant facts.
    (b) Identity of dispositions. The inventory method used by an S 
corporation for tax purposes must be used to identify whether the 
inventory it disposes of during the recognition period is inventory it 
held on the first day of that period. Thus, a corporation using the 
LIFO method does not dispose of inventory it held on the first day of 
the recognition period unless the carrying value of its inventory for a 
taxable year during that period is less than the carrying value of its 
inventory on the first day of the recognition period (determined using 
the LIFO method as described in section 472). However, if a corporation 
changes its method of accounting for inventory (for example, from the 
FIFO method to the LIFO method or from the LIFO method to the FIFO 
method) with a principal purpose of avoiding the tax imposed under 
section 1374, it must use its former method to identify its 
dispositions of inventory.


Sec. 1.1374-8  Section 1374(d)(8) transactions.

    (a)-In general. If any S corporation acquires any asset in a 
transaction in which the S corporation's basis in the asset is 
determined (in whole or in part) by reference to a C corporation's 
basis in the assets (or any other property) (a section 1374(d)(8) 
transaction), section 1374 applies to the net recognized built-in gain 
attributable to the assets acquired in any section 1374(d)(8) 
transaction.
    (b) Separate determination of tax. For purposes of the tax imposed 
under section 1374(d)(8), a separate determination of tax is made with 
respect to the assets the S corporation acquires in one section 
1374(d)(8) transaction from the assets the S corporation acquires in 
another section 1374(d)(8) transaction and from the assets the 
corporation held when it became an S corporation. Thus, an S 
corporation's section 1374 attributes when it became an S corporation 
may only be used to reduce the section 1374 tax imposed on dispositions 
of assets the S corporation held at that time. Similarly, an S 
corporation's section 1374 attributes acquired in a section 1374(d)(8) 
transaction may only be used to reduce a section 1374 tax imposed on 
dispositions of assets the S corporation acquired in the same 
transaction.
    (c)-Taxable income limitation. For purposes of paragraph (a) of 
this section, an S corporation's taxable income limitation under 
Sec. 1.1374-2(a)(2) for any taxable year is allocated between or among 
each of the S corporation's separate determinations of net recognized 
built-in gain for that year (determined without regard to the taxable 
income limitation) based on the ratio of each of those determinations 
to the sum of all of those determinations.
    (d) Examples. The rules of this section are illustrated by the 
following examples.

    Example 1. Separate determination of tax. (i) X is a C 
corporation that elected to become an S corporation effective 
January 1, 1986 (before section 1374 was amended in the Tax Reform 
Act of 1986). X has a net operating loss carryforward of $20,000 
arising in 1985 when X was a C corporation. On January 1, 1996, Y 
(an unrelated C corporation) merges into X in a transaction to which 
section 368(a)(1)(A) applies. Y has no loss carryforwards, credits, 
or credit carryforwards. The assets X acquired from Y are subject to 
tax under section 1374 and have a net unrealized built-in gain of 
$150,000.
    (ii) In 1996, X has a pre-limitation amount of $50,000 on 
dispositions of assets acquired from Y and a taxable income 
limitation of $100,000 (because only one group of assets is subject 
to section 1374, there is no allocation of the taxable income 
limitation). As a result, X has a net recognized built-in gain on 
those assets of $50,000. X's $20,000 net operating loss carryforward 
may not be used as a deduction against its $50,000 net recognized 
built-in gain on the assets X acquired from Y. Therefore, X has a 
section 1374 tax of $17,500 ($50,000  x  .35 = $17,500, assuming a 
35 percent tax rate) for its 1996 taxable year.
    Example 2. Allocation of taxable income limitation. (i) Y is a C 
corporation that elects to become an S corporation effective January 
1, 1996. The assets Y holds when it becomes an S corporation have a 
net unrealized built-in gain of $5,000. Y has no loss carryforwards, 
credits, or credit carryforwards. On January 1, 1997, Z (an 
unrelated C corporation) merges into Y in a transaction to which 
section 368(a)(1)(A) applies. Z has no loss carryforwards, credits, 
or credit carryforwards. The assets Y acquired from Z are subject to 
tax under section 1374 and have a net unrealized built-in gain of 
$80,000.
    (ii) In 1997, Y has a pre-limitation amount on the assets it 
held when it became an S corporation of $15,000, a pre-limitation 
amount on the assets Y acquired from Z of $15,000, and a taxable 
income limitation of $10,000. However, because the assets Y held on 
becoming an S corporation have a net unrealized built-in gain of 
$5,000, its net recognized built-in gain on those assets is limited 
to $5,000 before taking into account the taxable income limitation. 
Y's taxable income limitation of $10,000 is allocated between the 
assets Y held on becoming an S corporation and the assets Y acquired 
from Z for purposes of determining the net recognized built-in gain 
from each pool of assets. Thus, Y's net recognized built-in gain on 
the assets Y held on becoming an S corporation is $2,500 [$10,000 
x  ($5,000/$20,000) = $2,500]. Y's net recognized built-in gain on 
the assets Y acquired from Z is $7,500 [$10,000  x  ($15,000/
$20,000) = $7,500]. Therefore, Y has a section 1374 tax of $3,500 
[($2,500 + $7,500)  x  .35 = $3,500, assuming a 35 percent tax rate] 
for its 1997 taxable year.


Sec. 1.1374-9  Anti-stuffing rule.-

    If a corporation acquires an asset before or during the recognition 
period with a principal purpose of avoiding the tax imposed under 
section 1374, the asset and any loss, deduction, loss carryforward, 
credit, or credit carryforward attributable to the asset is disregarded 
in determining the S corporation's pre-limitation amount, taxable 
income limitation, net unrealized built-in gain limitation, deductions 
against net recognized built-in gain, and credits against the section 
1374 tax.


Sec. 1.1374-10  Effective date and additional rules.

    (a) In general. Sections 1.1374-1 through 1.1374-9 apply for 
taxable years ending on or after December 27, 1994, but only in cases 
where the S corporation's return for the taxable year is filed pursuant 
to an S election or a section 1374(d)(8) transaction occurring on or 
after December 27, 1994.
    (b) Additional rules. This paragraph (b) provides rules applicable 
to certain S corporations, assets, or transactions to which 
Secs. 1.1374-1 through 1.1374-9 do not apply.
    (1) Certain transfers to partnerships. If a corporation transfers 
an asset to a partnership in a transaction to which section 721(a) 
applies and the transfer is made in contemplation of an S election or 
during the recognition period, section 1374 applies on a disposition of 
the asset by the partnership as if the S corporation had disposed of 
the asset itself. This paragraph (b)(1) applies as of the effective 
date of section 1374, unless the recognition period with respect to the 
contributed asset is pursuant to an S election or a section 1374(d)(8) 
transaction occurring on or after December 27, 1994.
    (2) Certain inventory dispositions. For purposes of section 
1374(d)(2)(A), the inventory method used by the taxpayer for tax 
purposes (FIFO, LIFO, etc.) must be used to identify whether goods 
disposed of following conversion to S corporation status were held by 
the corporation at the time of conversion. Thus, for example, a 
corporation using the LIFO inventory method will not be subject to the 
built-in gain tax with respect to sales of inventory except to the 
extent that a LIFO layer existing prior to the beginning of the first 
taxable year as an S corporation is invaded after the beginning of that 
year. This paragraph (b)(2) applies as of the effective date of section 
1374, unless the recognition period with respect to the inventory is 
pursuant to an S election or a section 1374(d)(8) transaction occurring 
on or after December 27, 1994.
    (3) Certain contributions of built-in loss assets. If a built-in 
loss asset (that is, an asset with an adjusted tax basis in excess of 
its fair market value) is contributed to a corporation within 2 years 
before the earlier of the beginning of its first taxable year as an S 
corporation, or the filing of its S election, the loss inherent in the 
asset will not reduce net unrealized built-in gain, as defined in 
section 1374(d)(1), unless the taxpayer demonstrates a clear and 
substantial relationship between the contributed property and the 
conduct of the corporation's current or future business enterprises. 
This paragraph (b)(3) applies as of the effective date of section 1374, 
unless the recognition period with respect to the contributed asset is 
pursuant to an S election or a section 1374(d)(8) transaction occurring 
on or after December 27, 1994.
    (4) Certain installment sales--(i) In general. If a taxpayer sells 
an asset either prior to or during the recognition period and 
recognizes income either during or after the recognition period from 
the sale under the installment method, the income will, when 
recognized, be taxed under section 1374 to the extent it would have 
been so taxed in prior taxable years if the selling corporation had 
made the election under section 453(d) not to report the income under 
the installment method. For purposes of determining the extent to which 
the income would have been subject to tax if the section 453(d) 
election had not been made, the taxable income limitation of section 
1374(d)(2)(A)(ii) and the built-in gain carryover rule of section 
1374(d)(2)(B) will be taken into account. This paragraph (b)(4) applies 
for installment sales occurring on or after March 26, 1990, and before 
December 27, 1994.
    (ii) Examples. The rules of this paragraph (b)(4) are illustrated 
by the following examples.

    Example 1. In year 1 of the recognition period under section 
1374, a corporation realizes a gain of $100,000 on the sale of an 
asset with built-in gain. The corporation is to receive full payment 
for the asset in year 11. Because the corporation does not make an 
election under section 453(d), all $100,000 of the gain from the 
sale is reported under the installment method in year 11. If the 
corporation had made an election under section 453(d) with respect 
to the sale, the gain would have been recognized in year 1 and, 
taking into account the corporation's income and gains from other 
sources, application of the taxable income limitation of section 
1374(d)(2)(A)(ii) and the built-in gain carryover rule of section 
1374(d)(2)(B) would have resulted in $40,000 of the gain being 
subject to tax during the recognition period under section 1374. 
Therefore, $40,000 of the gain recognized in year 11 is subject to 
tax under section 1374.
    Example 2. In year 1 of the recognition period under section 
1374, a corporation realizes a gain of $100,000 on the sale of an 
asset with built-in gain. The corporation is to receive full payment 
for the asset in year 6. Because the corporation does not make an 
election under section 453(d), all $100,000 of the gain from the 
sale is reported under the installment method in year 6. If the 
corporation had made an election under section 453(d) with respect 
to the sale, the gain would have been recognized in year 1 and, 
taking into account the corporation's income and gains from other 
sources, application of the taxable income limitation of section 
1374(d)(2)(A)(ii) and the built-in gain carryover rule of section 
1374(d)(2)(B) would have resulted in all of the gain being subjected 
to tax under section 1374 in years 1 through 5. Therefore, 
notwithstanding that the taxable income limitation of section 
1374(d)(2)(A)(ii) might otherwise limit the taxation of the gain 
recognized in year 6, the entire $100,000 of gain will be subject to 
tax under section 1374 when it is recognized in year 6.
Margaret Milner Richardson,
Commissioner of Internal Revenue.
    Approved: November 23, 1994.
Leslie Samuels,
Assistant Secretary of the Treasury.
[FR Doc. 94-31429 Filed 12-23-94; 8:45 am]
BILLING CODE 4830-01-U