Application of Section 367 in Cross Border Section 304 Transactions; Certain Transfers of Stock Involving Foreign Corporations, 8802-8805 [06-1465]
Download as PDF
<![CDATA[
8802
Federal Register / Vol. 71, No. 34 / Tuesday, February 21, 2006 / Rules and Regulations
against airlines that code-share, or deny
access to airlines that code-share,
because code-sharing has become a
widespread practice since the Board
adopted the rules and travel agents and
airlines should have some ability to
keep systems from discriminating
against code-share services. 70 FR
16994. We invited interested persons to
submit comments on these findings
under the Regulatory Flexibility Act. No
one submitted comments on our
reasoning.
The Regulatory Flexibility Act
requires us to publish a final regulatory
flexibility analysis that considers such
matters as the impact of a rule on small
entities if the rule would have ‘‘a
significant economic impact on a
substantial number of small entities.’’ 5
U.S.C. 605(b). For the reasons stated
above, I certify that the elimination of
our rule on the treatment of code-share
operations will not have a significant
economic impact on a substantial
number of small entities. No final
regulatory flexibility analysis is
therefore required for this action.
Our final rule contains no direct
reporting, recordkeeping, or other
compliance requirements that would
affect small entities. There are no other
federal rules that duplicate, overlap, or
conflict with our proposed rules.
Assistance for Small Entities
Under section 213(a) of the Small
Business Regulatory Enforcement
Fairness Act of 1996, Public Law 104–
121, we want to assist small entities in
understanding the proposed rule so that
they can better evaluate its effects on
them and participate in the rulemaking.
If the final rule would affect your small
business, organization, or governmental
jurisdiction and you have questions
concerning its provisions or options for
compliance, please consult Thomas Ray
at (202) 366–4731.
rmajette on PROD1PC67 with RULES1
Paperwork Reduction Act
The final rule contains no collectionof-information requirements subject to
the Paperwork Reduction Act, Public
Law 96–511, 44 U.S.C. Chapter 35. See
57 FR at 43834.
Federalism Implications
Our final rule will have no substantial
direct effects on the States, on the
relationship between the National
Government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. Therefore, in
accordance with Executive Order 13132,
dated August 4, 1999, we have
determined that it does not present
sufficient federalism implications to
VerDate Aug<31>2005
13:33 Feb 17, 2006
Jkt 208001
warrant consultations with State and
local governments.
Taking of Private Property
This rule will not effect a taking of
private property or otherwise have
taking implications under Executive
Order 12630, Government Actions and
Interference with Constitutionally
Protected Property Rights.
Issued in Washington, DC, on February 8,
2006.
Norman Y. Mineta,
Secretary of Transportation.
[FR Doc. 06–1550 Filed 2–17–06; 8:45 am]
BILLING CODE 4910–62–P
DEPARTMENT OF THE TREASURY
Internal Revenue Service
Civil Justice Reform
This rule meets applicable standards
in sections 3(a) and 3(b)(2) of Executive
Order 12988, Civil Justice Reform, to
minimize litigation, eliminate
ambiguity, and reduce burden.
Protection of Children
We have analyzed this rule under
Executive Order 13045, Protection of
Children from Environmental Heath
Risks and Safety Risks. This rule does
not concern an environmental risk to
health or risk to safety that may
disproportionately affect children.
Consultation and Coordination With
Tribal Governments
This rule will not have tribal
implications, will not impose
substantial direct compliance costs on
Indian tribal governments, and will not
preempt tribal law. Therefore, it is
exempt from the consultation
requirements of Executive Order 13175.
No tribal implications were identified
during the comment period.
Energy Effects
We have analyzed this rule under
Executive Order 13211, Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use. We have
determined that this is not classified as
a ‘‘significant energy action’’ under that
order because it is a ‘‘significant
regulatory action’’ under Executive
Order 12866 and it would not have a
significant adverse effect on the supply,
distribution, or use of energy.
Environment
This rule will have no significant
impact on the environment.
List of Subjects in 14 CFR Part 256
Air carriers, Antitrust.
PART 256—[REMOVED AND
RESERVED]
Accordingly the Department removes
and reserves 14 CFR part 256.
I
PO 00000
Frm 00014
Fmt 4700
Sfmt 4700
26 CFR Part 1
[TD 9250]
RIN 1545–BD46
Application of Section 367 in Cross
Border Section 304 Transactions;
Certain Transfers of Stock Involving
Foreign Corporations
Internal Revenue Service (IRS),
Treasury.
ACTION: Final regulations.
AGENCY:
SUMMARY: This document contains final
regulations that address the interaction
of section 304 and section 367. These
regulations provide that section 367(a)
and (b) do not apply to a deemed
section 351 exchange resulting from a
section 304(a)(1) transaction. These
regulations may apply to taxpayers
transferring stock to related foreign
corporations.
Effective Date: This regulation is
effective February 21, 2006.
Applicability Dates: For dates of
applicability, see § 1.367(a)–3(e)(1)(G)
and § 1.367(b)–6(a)(1).
FOR FURTHER INFORMATION CONTACT:
Tasheaya L. Warren Ellison, (202) 622–
3870 (not a toll-free call).
SUPPLEMENTARY INFORMATION:
DATES:
Background
On May 25, 2005, the IRS and
Treasury published in the Federal
Register a notice of proposed
rulemaking (REG–127740–04; 2005–24
I.R.B. 1254; [70 FR 30036]) under
section 367(a) and (b) of the Internal
Revenue Code (proposed regulations)
pursuant to the regulatory authority
under section 367. The proposed
regulations would provide that if,
pursuant to section 304(a)(1), a U.S
person is treated as transferring stock of
a domestic or foreign corporation to a
foreign corporation in exchange for
stock of such foreign corporation in a
transaction to which section 351(a)
applies, such deemed section 351
exchange is not a transfer to a foreign
corporation subject to section 367(a).
The proposed regulations would further
provide that if, pursuant to section
E:\FR\FM\21FER1.SGM
21FER1
Federal Register / Vol. 71, No. 34 / Tuesday, February 21, 2006 / Rules and Regulations
304(a)(1), a foreign corporation is
treated as acquiring the stock of another
foreign corporation in a transaction to
which section 351(a) applies, such
deemed section 351 exchange is not an
acquisition subject to section 367(b).
A public hearing was not held with
respect to the proposed regulations
because no requests to speak were
received. However, several written
comments were received.
After consideration of the comments,
the proposed regulations are adopted, as
revised by this Treasury decision. The
comments received and the revisions
are discussed below.
rmajette on PROD1PC67 with RULES1
Explanation of Provisions and
Summary of Comments
A. Nonapplication of Section 367(a) and
(b) to Deemed Section 351 Exchanges
Section 304(a)(1) generally provides
that, for purposes of sections 302 and
303, if one or more persons are in
control of each of two corporations and
in return for property one of the
corporations (the acquiring corporation)
acquires stock in the other corporation
(the issuing corporation) from the
person (or persons) so in control, then
such property shall be treated as a
distribution in redemption of the
acquiring corporation stock. To the
extent the distribution is treated as a
distribution to which section 301
applies, the transferor and the acquiring
corporation are treated as if (1) the
transferor transferred the stock of the
issuing corporation to the acquiring
corporation in exchange for stock of the
acquiring corporation in a transaction to
which section 351(a) applies, and (2) the
acquiring corporation then redeemed
the stock it is treated as having issued.
Under section 301(c)(1), the distribution
is first treated as a dividend to the
extent of certain earnings and profits of
the acquiring corporation and the
issuing corporation. See sections 316
and 304(b). Then under section
301(c)(2) and (3), the remaining portion
of the distribution is applied against and
reduces the adjusted basis of the stock,
and finally is treated as gain from the
sale or exchange of property.
Section 367(a)(1) provides that if, in
connection with certain nonrecognition
transactions, including section 351, a
United States person transfers property
to a foreign corporation, such foreign
corporation shall not, for purposes of
determining the extent to which gain
shall be recognized on such transfer, be
considered to be a corporation. In
addition, certain section 351 exchanges
can cause the exchanging shareholder to
include in income a deemed dividend
under section 367(b). § 1.367(b)–4.
VerDate Aug<31>2005
13:33 Feb 17, 2006
Jkt 208001
Under current law, certain section
304(a)(1) transactions can also be
subject to section 367. The result of this
overlapping application is considerable
complexity, uncertainty, and the risk of
multiple income inclusions. In such a
transaction, a U.S. person could
recognize income (dividend or capital
gain) equal to the built-in gain in the
stock of the issuing corporation under
section 367, and income (dividend or
capital gain) pursuant to section 304.
The total income recognized could
exceed the fair market value of the
transferred stock of the issuing
corporation.
The proposed regulations would
exclude from the application of sections
367(a) and (b) a deemed section 351
exchange that arises by reason of a
transaction described in section
304(a)(1). The IRS and the Treasury
believe that the interests of the
government are protected, and the
policies underlying section 367(a) and
(b) are preserved, in a section 304(a)(1)
transaction without regard to the
application of section 367. The IRS and
Treasury believe that, in most or all
cases, the income recognized in a
section 304 transaction will equal or
exceed the transferor’s inherent gain in
the stock of the issuing corporation
transferred to the foreign acquiring
corporation. Elimination of the
application of section 367(a) and (b) in
this context will also serve the interests
of sound tax administration by creating
greater certainty and simplicity in these
transactions, and by avoiding the overinclusion of income that could result
when section 367 and section 304 both
apply to such transactions. As a result,
this Treasury decision finalizes the
proposed regulations and makes section
367(a) and (b) inapplicable to deemed
section 351 exchanges pursuant to
section 304(a)(1) transactions.
Commentators did note that in certain
cases, depending on how the basis and
distribution rules are applied, the
amount of income recognized under
section 304(a) may not equal or exceed
the transferor’s inherent gain in the
stock of the issuing corporation. In the
example cited, P, a domestic
corporation, owns all the stock of F1
and F2, both of which are foreign
corporations. P has an adjusted basis of
$0 in its F1 stock and $100x in its F2
stock. P’s stock of F1 and F2 each has
a fair market value of $100x. Neither F1
nor F2 has current or accumulated
earnings and profits. P sells its F1 stock
to F2 for its fair market value of $100x
in a transaction subject to section
304(a)(1). Under section 304(a)(1), the
transaction is treated as if P had
transferred its F1 stock to F2 in
PO 00000
Frm 00015
Fmt 4700
Sfmt 4700
8803
exchange for F2 stock in a transaction to
which section 351(a) applies, and then
F2 had redeemed such deemed issued
stock.
These commentators posit that P in
the above example may not recognize
income or gain because the adjusted
basis of both the F2 stock that is treated
as being issued in the deemed section
351 exchange, and the adjusted basis of
the F2 stock already held by P prior to
the transaction, is available for
reduction under section 301(c)(2). On
these particular facts (i.e., no earnings
and profits in either the acquiring
corporation or the issuing corporation),
this basis position would mean that
income or gain is not recognized as a
result of the transaction. The IRS and
the Treasury believe, however, that
current law does not provide for the
recovery of the basis of any shares other
than the basis of the F2 stock deemed
to be received by P in the section 351(a)
exchange (which would take a basis
equal to P’s basis in the F1 stock). Thus,
in the case described, P would recognize
$100x of gain under section 301(c)(3)
(the built-in gain on the F1 stock), and
P would continue to have a $100x basis
in its F2 stock that it holds after the
transaction. This issue will be addressed
as part of a larger project regarding the
recovery of basis in all redemptions
treated as section 301 distributions. This
larger project will be the subject of
future guidance. Comments are
requested about the appropriate
treatment of basis in such redemptions.
B. Adjustments Under Section 304(b)(6)
Section 304(b)(6) provides that in the
case of any acquisition to which section
304(a) applies, where the acquiring or
issuing corporation is a foreign
corporation, the Secretary shall
prescribe regulations, as appropriate, in
order to eliminate a multiple inclusion
of any item in income and to provide
appropriate basis adjustments
(including modifications to the
application of sections 959 and 961).
The preamble to the proposed
regulations requested comments on
basis adjustments under section
304(b)(6). The preamble also requested
comments regarding similar adjustments
that could be made outside the context
of section 304(b)(6).
Several comments were received in
response to this request, and will be
considered in a separate guidance
project. The IRS and Treasury request
additional comments on section
304(b)(6), particularly comments that
would take into account the effect of
section 362(e), enacted on October 22,
2004, by the American Jobs Creation Act
of 2004 (Pub. L. 108–357).
E:\FR\FM\21FER1.SGM
21FER1
8804
Federal Register / Vol. 71, No. 34 / Tuesday, February 21, 2006 / Rules and Regulations
rmajette on PROD1PC67 with RULES1
Comments also were received
regarding the application of section 959
to previously taxed amounts in
connection with section 304(a)(1)
transactions. These comments are being
considered in a separate guidance
project under section 959, and therefore
are not addressed in these final
regulations.
C. Transfer of Issuing Stock in Return
for Property and Stock of Acquiring
The proposed regulations would
apply to exclude a section 351 exchange
from the application of section 367(a)
only to the extent the exchange is
treated as such by reason of section
304(a)(1). Thus, section 367(a) would
continue to apply to applicable transfers
of property subject to section 351 by
reason other than the operation of
section 304(a)(1).
One commentator notes that the
proposed regulations would not address
the treatment of stock sales for an
amount less than the fair market value
of the transferred stock where the
acquiring corporation would be deemed
to issue stock to the transferor other
than as a result of the application of
section 304(a)(1). See, for example,
section 367(c)(2). The commentator
states that in such a case the transfer
would be, in part, a section 304(a)(1)
transaction and, in part, a section 351(a)
exchange (other than by reason of
section 304(a)(1)). The commentator
requests guidance on such transactions,
including, for example, whether such a
transaction would be bifurcated and, if
so, how the basis in the transferred
stock would be allocated between the
two parts of the transaction. The same
bifurcation and related issues occur in
section 304(a)(1) transactions where the
acquiring corporation actually issues its
own stock in partial consideration for
the stock of the issuing corporation.
As was the case with the proposed
regulations, these final regulations only
apply to the extent of deemed section
351 exchanges resulting from section
304(a)(1) transactions. In addition, these
regulations could apply to certain
transactions that are, in part, still
subject to the stock transfer rules of
section 367(a) (e.g., a section 304(a)(1)
transaction in which both acquiring
stock and property are used as
consideration). The issues raised by this
commentator are relevant to a wide
range of transactions, and are not
limited to section 304 transactions that
are subject to these regulations. As a
result, the IRS and Treasury believe that
the resolution of these issues is beyond
the scope of this project, and this
comment is not addressed in these final
regulations.
VerDate Aug<31>2005
13:33 Feb 17, 2006
Jkt 208001
D. Effective Dates
The proposed regulations stated that
the rules would apply to section
304(a)(1) transactions occurring on or
after the date of publication of the
regulations in the Federal Register.
Several commentators requested that the
final regulations be made retroactive at
the election of the taxpayer.
These final regulations adopt the
general effective date contained in the
proposed regulations and therefore
apply to section 304(a)(1) transactions
occurring on or after February 21, 2006.
In response to the comments received,
however, the final regulations provide
that taxpayers may rely on the final
regulations for all (but not less than all)
section 304(a)(1) transactions that
occurred in all their open tax years; in
such cases, any gain recognition
agreements filed pursuant to § 1.367(a)–
8 with respect to such transactions shall
terminate and have no further effect.
Effect on Other Documents
Rev. Rul. 91–5 (1991–1 C.B. 114) and
Rev. Rul. 92–86 (1992–2 C.B. 199) are
modified to the extent inconsistent with
these regulations.
Special Analyses
The IRS and the Treasury have
determined that the adoption of these
regulations is not a significant
regulatory action as defined in
Executive Order 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) does not apply
to these regulations and because these
regulations do not impose a collection
of information on small entities, a
Regulatory Flexibility Analysis under
the Regulatory Flexibility Act (5 U.S.C.
chapter 6) does not apply. Pursuant to
section 7805(f) of the Internal Revenue
Code, the notice of proposed rulemaking
was submitted to the Chief Counsel for
Advocacy of the Small Business
Administration for comment on its
impact on small business.
Drafting Information
The principal author of these
regulations is Tasheaya L. Warren
Ellison, Office of the Associate Chief
Counsel (International). However, other
personnel from the IRS and Treasury
participated in their development.
List of Subjects in 26 CFR Part 1
Income taxes, Reporting and
recordkeeping requirements.
PO 00000
Frm 00016
Fmt 4700
Sfmt 4700
Adoption of Amendments to the
Regulations
Accordingly, 26 CFR part 1 is
amended as follows:
I
PART 1—INCOME TAXES
Paragraph 1. The authority citation
for part 1 continues to read, in part, as
follows:
I
Authority: 26 U.S.C. 7805 * * *
I Par. 2. Section 1.367(a)–3 is amended
as follows:
I 1. A sentence is added to paragraph
(a) immediately following the second
sentence.
I 2. The new fourth sentence of
paragraph (a) is amended by removing
the language ‘‘However’’ and adding ‘‘In
addition’’ in its place.
I 3. Adding new paragraph (e)(1)(G).
The additions read as follows:
§ 1.367(a)–3 Treatment of transfers of
stock or securities to foreign corporations.
(a) In general. * * * However, if,
pursuant to section 304(a)(1), a U.S.
person is treated as transferring stock of
a domestic or foreign corporation to a
foreign corporation in exchange for
stock of such foreign corporation in a
transaction to which section 351(a)
applies, such deemed section 351
exchange is not a transfer to a foreign
corporation subject to section
367(a). * * *
*
*
*
*
*
(e) * * * (1) * * *
(G) Except as otherwise provided in
this paragraph (e)(1)(G), the third
sentence of paragraph (a) of this section
shall apply to section 304(a)(1)
transactions occurring on or after
February 21, 2006. However, taxpayers
may rely on the third sentence of
paragraph (a) of this section for all
section 304(a)(1) transactions occurring
in open tax years; in such cases any gain
recognition agreements filed pursuant to
§ 1.367(a)–8 with respect to such
transactions shall terminate and have no
further effect.
*
*
*
*
*
I Par. 3. In § 1.367(b)–4, a sentence is
added to paragraph (a) immediately
following the first sentence to read as
follows:
§ 1.367(b)–4 Acquisition of foreign
corporate stock or assets by a foreign
corporation in certain nonrecognition
transactions.
(a) Scope. * * * However, if pursuant
to section 304(a)(1), a foreign acquiring
corporation is treated as acquiring the
stock of a foreign acquired corporation
in a transaction to which section 351(a)
E:\FR\FM\21FER1.SGM
21FER1
Federal Register / Vol. 71, No. 34 / Tuesday, February 21, 2006 / Rules and Regulations
applies, such deemed section 351
exchange is not an acquisition subject to
section 367(b). * * *
*
*
*
*
*
I Par. 4. In § 1.367(b)–6, paragraph
(a)(1) is amended by adding a sentence
to the end to read as follows:
§ 1.367(b)–6 Effective dates and
coordination rule
(a) Effective date—(1) In general.
* * * The second sentence of paragraph
(a) in § 1.367(b)–4 shall apply to section
304(a)(1) transactions occurring on or
after February 21, 2006; however,
taxpayers may rely on this sentence for
all section 304(a)(1) transactions
occurring in open tax years.
*
*
*
*
*
Mark E. Matthews,
Deputy Commissioner for Services and
Enforcement.
Federal Register with an invitation to
comment. No comments were received.
This rule relates to individuals rather
than small business entities.
Nevertheless, pursuant to the
requirements of the Regulatory
Flexibility Act, 5 U.S.C. 601–612, this
rule will not have a significant
economic impact on a substantial
number of small entities.
List of Subjects in 28 CFR Part 16
Administrative Practices and
Procedure, Freedom of Information Act,
Government in the Sunshine Act, and
Privacy Act.
I Pursuant to the authority vested in the
Attorney General by 5 U.S.C. 552a and
delegated to me by Attorney General
Order No. 793–78, 28 CFR part 16 is
amended as follows:
PART 16—PRODUCTION OR
DISCLOSURE OF MATERIAL OR
INFORMATION
Approved: February 8, 2006.
Eric Solomon,
Acting Deputy Assistant Secretary of the
Treasury (Tax Policy).
[FR Doc. 06–1465 Filed 2–17–06; 8:45 am]
1. The authority for part 16 continues
to read as follows:
I
Authority: 5 U.S.C. 301, 552, 552a, 552b(g)
and 553; 18 U.S.C. 4203(a)(1); 28 U.S.C. 509,
510, 534; 31 U.S.C. 3717 and 9701.
BILLING CODE 4830–01–P
2. Section 16.97 is amended by adding
paragraphs (p) and (q) to read as
follows:
I
DEPARTMENT OF JUSTICE
28 CFR Part 16
[AAG/A Order No. 004–2006]
§ 16.97 Exemption of Bureau of Prisons
Systems—limited access.
Privacy Act of 1974; Implementation
*
Department of Justice.
Final rule.
AGENCY:
rmajette on PROD1PC67 with RULES1
ACTION:
SUMMARY: The Department of Justice,
Bureau of Prisons (Bureau or BOP), is
exempting a Privacy Act system of
records from the following subsections
of the Privacy Act: (c)(3) and (4), (d)(1)–
(4), (e)(2) and (3), (e)(5), and (g). This
system of records is the ‘‘Inmate
Electronic Message Record System,
(JUSTICE/BOP–013).’’
The exemptions are necessary to
preclude the compromise of institution
security, to better ensure the safety of
inmates, Bureau personnel and the
public, to better protect third party
privacy, to protect law enforcement and
investigatory information, and/or to
otherwise ensure the effective
performance of the Bureau’s law
enforcement functions.
DATES: This final rule is effective
February 21, 2006.
FOR FURTHER INFORMATION CONTACT:
Mary Cahill, (202) 307–1823.
SUPPLEMENTARY INFORMATION: On
November 16, 2005 (70 FR 69487), a
proposed rule was published in the
VerDate Aug<31>2005
13:33 Feb 17, 2006
Jkt 208001
*
*
*
*
(p) The following system of records is
exempt from 5 U.S.C. 552a (c)(3) and
(4), (d)(1)–(4), (e)(2) and (3), (e)(5), and
(g):
Inmate Electronic Message Record
System (JUSTICE /BOP–013).
(q) These exemptions apply only to
the extent that information in this
system is subject to exemption pursuant
to 5 U.S.C. 552a (j)(2) and/or (k)(2).
Where compliance would not appear to
interfere with or adversely affect the law
enforcement process, and/or where it
may be appropriate to permit
individuals to contest the accuracy of
the information collected, the applicable
exemption may be waived, either
partially or totally, by the BOP.
Exemptions from the particular
subsections are justified for the
following reasons:
(1) From subsection (c)(3) to the
extent that this system of records is
exempt from subsection (d), and for
such reasons as those cited for
subsection (d) in paragraph (q)(3) below.
(2) From subsection (c)(4) to the
extent that exemption from subsection
(d) makes this exemption inapplicable.
(3) From the access provisions of
subsection (d) because exemption from
PO 00000
Frm 00017
Fmt 4700
Sfmt 4700
8805
this subsection is essential to prevent
access of information by record subjects
that may invade third party privacy;
frustrate the investigative process;
jeopardize the legitimate correctional
interests of safety, security and good
order to prison facilities; or otherwise
compromise, impede, or interfere with
BOP or other law enforcement agency
activities.
(4) From the amendment provisions of
subsection (d) because amendment of
the records may interfere with law
enforcement operations and would
impose an impossible administrative
burden by requiring that, in addition to
efforts to ensure accuracy so as to
withstand possible judicial scrutiny, it
would require that law enforcement
information be continuously
reexamined, even where the information
may have been collected from the record
subject. Also, some of these records
come from other Federal criminal
justice agencies or State, local and
foreign jurisdictions, or from Federal
and State probation and judicial offices,
and it is administratively impossible to
ensure that records comply with this
provision.
(5) From subsection (e)(2) because the
nature of criminal and other
investigative activities is such that vital
information about an individual can be
obtained from other persons who are
familiar with such individual and his/
her activities. In such investigations it is
not feasible to rely solely upon
information furnished by the individual
concerning his/her own activities since
it may result in inaccurate information
and compromise ongoing criminal
investigations or correctional
management decisions.
(6) From subsection (e)(3) because in
view of BOP’s operational
responsibilities, application of this
provision to the collection of
information is inappropriate.
Application of this provision could
provide the subject with substantial
information which may in fact impede
the information gathering process or
compromise ongoing criminal
investigations or correctional
management decisions.
(7) From subsection (e)(5) because in
the collection and maintenance of
information for law enforcement
purposes, it is impossible to determine
in advance what information is
accurate, relevant, timely and complete.
Material which may seem unrelated,
irrelevant or incomplete when collected
may take on added meaning or
significance at a later date or as an
investigation progresses. Also, some of
these records may come from other
Federal, State, local and foreign law
E:\FR\FM\21FER1.SGM
21FER1
]]>Agencies
[Federal Register Volume 71, Number 34 (Tuesday, February 21, 2006)]
[Rules and Regulations]
[Pages 8802-8805]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-1465]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 1
[TD 9250]
RIN 1545-BD46
Application of Section 367 in Cross Border Section 304
Transactions; Certain Transfers of Stock Involving Foreign Corporations
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Final regulations.
-----------------------------------------------------------------------
SUMMARY: This document contains final regulations that address the
interaction of section 304 and section 367. These regulations provide
that section 367(a) and (b) do not apply to a deemed section 351
exchange resulting from a section 304(a)(1) transaction. These
regulations may apply to taxpayers transferring stock to related
foreign corporations.
DATES: Effective Date: This regulation is effective February 21, 2006.
Applicability Dates: For dates of applicability, see Sec.
1.367(a)-3(e)(1)(G) and Sec. 1.367(b)-6(a)(1).
FOR FURTHER INFORMATION CONTACT: Tasheaya L. Warren Ellison, (202) 622-
3870 (not a toll-free call).
SUPPLEMENTARY INFORMATION:
Background
On May 25, 2005, the IRS and Treasury published in the Federal
Register a notice of proposed rulemaking (REG-127740-04; 2005-24 I.R.B.
1254; [70 FR 30036]) under section 367(a) and (b) of the Internal
Revenue Code (proposed regulations) pursuant to the regulatory
authority under section 367. The proposed regulations would provide
that if, pursuant to section 304(a)(1), a U.S person is treated as
transferring stock of a domestic or foreign corporation to a foreign
corporation in exchange for stock of such foreign corporation in a
transaction to which section 351(a) applies, such deemed section 351
exchange is not a transfer to a foreign corporation subject to section
367(a). The proposed regulations would further provide that if,
pursuant to section
[[Page 8803]]
304(a)(1), a foreign corporation is treated as acquiring the stock of
another foreign corporation in a transaction to which section 351(a)
applies, such deemed section 351 exchange is not an acquisition subject
to section 367(b).
A public hearing was not held with respect to the proposed
regulations because no requests to speak were received. However,
several written comments were received.
After consideration of the comments, the proposed regulations are
adopted, as revised by this Treasury decision. The comments received
and the revisions are discussed below.
Explanation of Provisions and Summary of Comments
A. Nonapplication of Section 367(a) and (b) to Deemed Section 351
Exchanges
Section 304(a)(1) generally provides that, for purposes of sections
302 and 303, if one or more persons are in control of each of two
corporations and in return for property one of the corporations (the
acquiring corporation) acquires stock in the other corporation (the
issuing corporation) from the person (or persons) so in control, then
such property shall be treated as a distribution in redemption of the
acquiring corporation stock. To the extent the distribution is treated
as a distribution to which section 301 applies, the transferor and the
acquiring corporation are treated as if (1) the transferor transferred
the stock of the issuing corporation to the acquiring corporation in
exchange for stock of the acquiring corporation in a transaction to
which section 351(a) applies, and (2) the acquiring corporation then
redeemed the stock it is treated as having issued. Under section
301(c)(1), the distribution is first treated as a dividend to the
extent of certain earnings and profits of the acquiring corporation and
the issuing corporation. See sections 316 and 304(b). Then under
section 301(c)(2) and (3), the remaining portion of the distribution is
applied against and reduces the adjusted basis of the stock, and
finally is treated as gain from the sale or exchange of property.
Section 367(a)(1) provides that if, in connection with certain
nonrecognition transactions, including section 351, a United States
person transfers property to a foreign corporation, such foreign
corporation shall not, for purposes of determining the extent to which
gain shall be recognized on such transfer, be considered to be a
corporation. In addition, certain section 351 exchanges can cause the
exchanging shareholder to include in income a deemed dividend under
section 367(b). Sec. 1.367(b)-4.
Under current law, certain section 304(a)(1) transactions can also
be subject to section 367. The result of this overlapping application
is considerable complexity, uncertainty, and the risk of multiple
income inclusions. In such a transaction, a U.S. person could recognize
income (dividend or capital gain) equal to the built-in gain in the
stock of the issuing corporation under section 367, and income
(dividend or capital gain) pursuant to section 304. The total income
recognized could exceed the fair market value of the transferred stock
of the issuing corporation.
The proposed regulations would exclude from the application of
sections 367(a) and (b) a deemed section 351 exchange that arises by
reason of a transaction described in section 304(a)(1). The IRS and the
Treasury believe that the interests of the government are protected,
and the policies underlying section 367(a) and (b) are preserved, in a
section 304(a)(1) transaction without regard to the application of
section 367. The IRS and Treasury believe that, in most or all cases,
the income recognized in a section 304 transaction will equal or exceed
the transferor's inherent gain in the stock of the issuing corporation
transferred to the foreign acquiring corporation. Elimination of the
application of section 367(a) and (b) in this context will also serve
the interests of sound tax administration by creating greater certainty
and simplicity in these transactions, and by avoiding the over-
inclusion of income that could result when section 367 and section 304
both apply to such transactions. As a result, this Treasury decision
finalizes the proposed regulations and makes section 367(a) and (b)
inapplicable to deemed section 351 exchanges pursuant to section
304(a)(1) transactions.
Commentators did note that in certain cases, depending on how the
basis and distribution rules are applied, the amount of income
recognized under section 304(a) may not equal or exceed the
transferor's inherent gain in the stock of the issuing corporation. In
the example cited, P, a domestic corporation, owns all the stock of F1
and F2, both of which are foreign corporations. P has an adjusted basis
of $0 in its F1 stock and $100x in its F2 stock. P's stock of F1 and F2
each has a fair market value of $100x. Neither F1 nor F2 has current or
accumulated earnings and profits. P sells its F1 stock to F2 for its
fair market value of $100x in a transaction subject to section
304(a)(1). Under section 304(a)(1), the transaction is treated as if P
had transferred its F1 stock to F2 in exchange for F2 stock in a
transaction to which section 351(a) applies, and then F2 had redeemed
such deemed issued stock.
These commentators posit that P in the above example may not
recognize income or gain because the adjusted basis of both the F2
stock that is treated as being issued in the deemed section 351
exchange, and the adjusted basis of the F2 stock already held by P
prior to the transaction, is available for reduction under section
301(c)(2). On these particular facts (i.e., no earnings and profits in
either the acquiring corporation or the issuing corporation), this
basis position would mean that income or gain is not recognized as a
result of the transaction. The IRS and the Treasury believe, however,
that current law does not provide for the recovery of the basis of any
shares other than the basis of the F2 stock deemed to be received by P
in the section 351(a) exchange (which would take a basis equal to P's
basis in the F1 stock). Thus, in the case described, P would recognize
$100x of gain under section 301(c)(3) (the built-in gain on the F1
stock), and P would continue to have a $100x basis in its F2 stock that
it holds after the transaction. This issue will be addressed as part of
a larger project regarding the recovery of basis in all redemptions
treated as section 301 distributions. This larger project will be the
subject of future guidance. Comments are requested about the
appropriate treatment of basis in such redemptions.
B. Adjustments Under Section 304(b)(6)
Section 304(b)(6) provides that in the case of any acquisition to
which section 304(a) applies, where the acquiring or issuing
corporation is a foreign corporation, the Secretary shall prescribe
regulations, as appropriate, in order to eliminate a multiple inclusion
of any item in income and to provide appropriate basis adjustments
(including modifications to the application of sections 959 and 961).
The preamble to the proposed regulations requested comments on basis
adjustments under section 304(b)(6). The preamble also requested
comments regarding similar adjustments that could be made outside the
context of section 304(b)(6).
Several comments were received in response to this request, and
will be considered in a separate guidance project. The IRS and Treasury
request additional comments on section 304(b)(6), particularly comments
that would take into account the effect of section 362(e), enacted on
October 22, 2004, by the American Jobs Creation Act of 2004 (Pub. L.
108-357).
[[Page 8804]]
Comments also were received regarding the application of section
959 to previously taxed amounts in connection with section 304(a)(1)
transactions. These comments are being considered in a separate
guidance project under section 959, and therefore are not addressed in
these final regulations.
C. Transfer of Issuing Stock in Return for Property and Stock of
Acquiring
The proposed regulations would apply to exclude a section 351
exchange from the application of section 367(a) only to the extent the
exchange is treated as such by reason of section 304(a)(1). Thus,
section 367(a) would continue to apply to applicable transfers of
property subject to section 351 by reason other than the operation of
section 304(a)(1).
One commentator notes that the proposed regulations would not
address the treatment of stock sales for an amount less than the fair
market value of the transferred stock where the acquiring corporation
would be deemed to issue stock to the transferor other than as a result
of the application of section 304(a)(1). See, for example, section
367(c)(2). The commentator states that in such a case the transfer
would be, in part, a section 304(a)(1) transaction and, in part, a
section 351(a) exchange (other than by reason of section 304(a)(1)).
The commentator requests guidance on such transactions, including, for
example, whether such a transaction would be bifurcated and, if so, how
the basis in the transferred stock would be allocated between the two
parts of the transaction. The same bifurcation and related issues occur
in section 304(a)(1) transactions where the acquiring corporation
actually issues its own stock in partial consideration for the stock of
the issuing corporation.
As was the case with the proposed regulations, these final
regulations only apply to the extent of deemed section 351 exchanges
resulting from section 304(a)(1) transactions. In addition, these
regulations could apply to certain transactions that are, in part,
still subject to the stock transfer rules of section 367(a) (e.g., a
section 304(a)(1) transaction in which both acquiring stock and
property are used as consideration). The issues raised by this
commentator are relevant to a wide range of transactions, and are not
limited to section 304 transactions that are subject to these
regulations. As a result, the IRS and Treasury believe that the
resolution of these issues is beyond the scope of this project, and
this comment is not addressed in these final regulations.
D. Effective Dates
The proposed regulations stated that the rules would apply to
section 304(a)(1) transactions occurring on or after the date of
publication of the regulations in the Federal Register. Several
commentators requested that the final regulations be made retroactive
at the election of the taxpayer.
These final regulations adopt the general effective date contained
in the proposed regulations and therefore apply to section 304(a)(1)
transactions occurring on or after February 21, 2006. In response to
the comments received, however, the final regulations provide that
taxpayers may rely on the final regulations for all (but not less than
all) section 304(a)(1) transactions that occurred in all their open tax
years; in such cases, any gain recognition agreements filed pursuant to
Sec. 1.367(a)-8 with respect to such transactions shall terminate and
have no further effect.
Effect on Other Documents
Rev. Rul. 91-5 (1991-1 C.B. 114) and Rev. Rul. 92-86 (1992-2 C.B.
199) are modified to the extent inconsistent with these regulations.
Special Analyses
The IRS and the Treasury have determined that the adoption of these
regulations is not a significant regulatory action as defined in
Executive Order 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) does not apply to
these regulations and because these regulations do not impose a
collection of information on small entities, a Regulatory Flexibility
Analysis under the Regulatory Flexibility Act (5 U.S.C. chapter 6) does
not apply. Pursuant to section 7805(f) of the Internal Revenue Code,
the notice of proposed rulemaking was submitted to the Chief Counsel
for Advocacy of the Small Business Administration for comment on its
impact on small business.
Drafting Information
The principal author of these regulations is Tasheaya L. Warren
Ellison, Office of the Associate Chief Counsel (International).
However, other personnel from the IRS and Treasury participated in
their development.
List of Subjects in 26 CFR Part 1
Income taxes, Reporting and recordkeeping requirements.
Adoption of Amendments to the Regulations
0
Accordingly, 26 CFR part 1 is amended as follows:
PART 1--INCOME TAXES
0
Paragraph 1. The authority citation for part 1 continues to read, in
part, as follows:
Authority: 26 U.S.C. 7805 * * *
0
Par. 2. Section 1.367(a)-3 is amended as follows:
0
1. A sentence is added to paragraph (a) immediately following the
second sentence.
0
2. The new fourth sentence of paragraph (a) is amended by removing the
language ``However'' and adding ``In addition'' in its place.
0
3. Adding new paragraph (e)(1)(G).
The additions read as follows:
Sec. 1.367(a)-3 Treatment of transfers of stock or securities to
foreign corporations.
(a) In general. * * * However, if, pursuant to section 304(a)(1), a
U.S. person is treated as transferring stock of a domestic or foreign
corporation to a foreign corporation in exchange for stock of such
foreign corporation in a transaction to which section 351(a) applies,
such deemed section 351 exchange is not a transfer to a foreign
corporation subject to section 367(a). * * *
* * * * *
(e) * * * (1) * * *
(G) Except as otherwise provided in this paragraph (e)(1)(G), the
third sentence of paragraph (a) of this section shall apply to section
304(a)(1) transactions occurring on or after February 21, 2006.
However, taxpayers may rely on the third sentence of paragraph (a) of
this section for all section 304(a)(1) transactions occurring in open
tax years; in such cases any gain recognition agreements filed pursuant
to Sec. 1.367(a)-8 with respect to such transactions shall terminate
and have no further effect.
* * * * *
0
Par. 3. In Sec. 1.367(b)-4, a sentence is added to paragraph (a)
immediately following the first sentence to read as follows:
Sec. 1.367(b)-4 Acquisition of foreign corporate stock or assets by a
foreign corporation in certain nonrecognition transactions.
(a) Scope. * * * However, if pursuant to section 304(a)(1), a
foreign acquiring corporation is treated as acquiring the stock of a
foreign acquired corporation in a transaction to which section 351(a)
[[Page 8805]]
applies, such deemed section 351 exchange is not an acquisition subject
to section 367(b). * * *
* * * * *
0
Par. 4. In Sec. 1.367(b)-6, paragraph (a)(1) is amended by adding a
sentence to the end to read as follows:
Sec. 1.367(b)-6 Effective dates and coordination rule
(a) Effective date--(1) In general. * * * The second sentence of
paragraph (a) in Sec. 1.367(b)-4 shall apply to section 304(a)(1)
transactions occurring on or after February 21, 2006; however,
taxpayers may rely on this sentence for all section 304(a)(1)
transactions occurring in open tax years.
* * * * *
Mark E. Matthews,
Deputy Commissioner for Services and Enforcement.
Approved: February 8, 2006.
Eric Solomon,
Acting Deputy Assistant Secretary of the Treasury (Tax Policy).
[FR Doc. 06-1465 Filed 2-17-06; 8:45 am]
BILLING CODE 4830-01-P
