Limitations on Duplication of Net Built-in Losses, 54156-54168 [2013-21330]
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Federal Register / Vol. 78, No. 170 / Tuesday, September 3, 2013 / Rules and Regulations
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[FR Doc. 2013–21109 Filed 8–30–13; 8:45 am]
BILLING CODE 4910–13–P
DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Parts 1 and 602
[TD 9633]
RIN 1545–BE58
Limitations on Duplication of Net Builtin Losses
Internal Revenue Service (IRS),
Treasury.
ACTION: Final regulations.
AGENCY:
This document contains final
regulations under section 362(e)(2) of
the Internal Revenue Code of 1986
(Code). The regulations apply to certain
nonrecognition transfers of loss property
to corporations. The regulations affect
all parties to the transaction.
DATES: Effective Date: These final
regulations are effective on September 3,
2013.
Applicability Date: For dates of
applicability see § 1.358–2(d), § 1.362–
4(j).
FOR FURTHER INFORMATION CONTACT:
Theresa A. Abell (202) 622–7700 (not a
toll-free number).
SUPPLEMENTARY INFORMATION:
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SUMMARY:
Paperwork Reduction Act
The collection of information
contained in these final regulations has
been reviewed and approved by the
Office of Management and Budget in
accordance with the Paperwork
Reduction Act of 1995 (44 U.S.C.
3507(d)) under OMB control number
1545–2247. The collection of
information in these final regulations is
in § 1.362–4(d). This information is
required by the IRS to verify basis of
property transferred in certain tax-free
transactions when taxpayers make the
election provided for under section
362(e)(2)(C).
An agency may not conduct or
sponsor, and a person is not required to
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respond to, a collection of information
unless the collection of information
displays a valid control number.
Books or records relating to a
collection of information must be
retained as long as their contents may
become material in the administration
of any internal revenue law. Generally,
tax returns and tax return information
are confidential, as required by section
6103.
Background
Section 362(e)(2) was enacted in the
American Jobs Creation Act of 2004
(Pub. L. 108–357, 188 Stat. 1418 (2004))
in order to prevent the duplication of
loss in certain corporate nonrecognition
transfers. Section 362(e)(2) applies to
corporate acquisitions of property with
a net built-in loss in transactions
described in section 362(a) (transactions
to which section 351 applies and
acquisitions of property as paid-in
surplus or contributions to capital), but
only if the transaction is not described
in section 362(e)(1) (transactions in
which there is an importation of builtin loss). When a transaction is subject to
section 362(e)(2), the acquiring
corporation’s basis in loss property is
reduced by the property’s allocable
portion of the transferor’s net built-in
loss. See section 362(e)(2)(B). However,
under section 362(e)(2)(C), the parties to
the transaction can make an irrevocable
election to apply the reduction to the
transferor’s basis in the stock received
in the exchange instead of to the
transferee’s basis in the property
received in the exchange.
Notice 2005–70, 2005–2 CB 694, was
published on October 11, 2005, to
provide interim guidance for making an
election to apply section 362(e)(2)(C).
See § 601.601(d)(2) of this chapter.
Under Notice 2005–70, an election
would be considered effective once a
certification was included by the
transferor or, if the transferor is a
controlled foreign corporation (CFC), by
all of its controlling U.S. shareholders as
defined in § 1.964–1(c)(5), on a timely
filed original Federal income tax return
(designated a ‘‘U.S. return’’ under the
final regulations) for the year of the
transaction. Notice 2005–70 expressly
permitted taxpayers to make a
protective election that would have no
effect on a transaction that is ultimately
not subject to section 362(e)(2). The
Notice also allowed other statements to
be treated as effective elections if
sufficient information was provided to
the IRS with respect to the transfer and
parties.
Proposed regulations under section
362(e)(2) were published in the Federal
Register (71 FR 62067) on October 23,
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2006. Following the publication of the
proposed regulations, the IRS received
questions concerning the application of
section 362(e)(2) to transactions
involving S corporations and
partnerships and concerning the filing
of the section 362(e)(2)(C) election,
particularly with respect to transactions
between persons outside the United
States. The IRS also has become aware
of certain ambiguities (described later in
this preamble) relating to the proper
operation of the statute. Two written
comments were submitted; no public
hearing was requested or held.
Summary of Proposed Regulations
1. General Application of Section,
Interaction With Other Law
The proposed regulations included a
number of specific provisions regarding
the general operation of the statutory
framework, such as provisions stating
that section 362(e)(2) is to be applied on
a transferor-by-transferor basis; that a
transaction is treated as subject to
section 362(e)(2) to the extent it is not
a transfer of net built-in loss property
under section 362(e)(1); that gain
recognized by the transferor is taken
into account in determining the
transferee’s basis immediately after the
transfer; and that section 362(e)(2)
applies to any transaction described in
section 362(a) without regard to whether
the transaction is also described in
section 362(b) or any other section.
These provisions responded to inquiries
from practitioners concerning section
362(e)(2) and its interaction with
generally applicable provisions of the
Code.
2. Exceptions From the Application of
Section 362(e)(2)
The proposed regulations included
two exceptions under which a
transaction would be treated as not
subject to section 362(e)(2)
notwithstanding that the transaction is
generally described in that section.
Under the first exception, if a transfer
is not relevant for Federal income tax
purposes at the time it occurs and it
does not become relevant for Federal
income tax purposes at any time within
two years of the transfer, then, solely for
purposes of determining whether
section 362(e)(2) applies to the
transaction, the property exchanged
would be deemed to have a basis equal
to its fair market value (designated value
under the final regulations) immediately
after the transaction. As a result, the
transfer would not be subject to section
362(e)(2). This exception reflected a
concern that transferors not anticipating
that a transfer would be relevant for
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Federal income tax purposes would not
be likely to undertake the valuation and
record-keeping necessary to comply
with the statute. However, if a transfer
that was not relevant for Federal income
tax purposes when it occurred became
relevant for Federal income tax
purposes at any time within two years
of the transfer, the administrative
burden of compliance would not be
unreasonable, and, if a transaction was
undertaken with a view to reducing or
avoiding Federal income tax, the
transferor must expect the transfer to be
relevant for Federal income tax
purposes. Because relief would be either
unnecessary or inappropriate in either
case, relief was not extended to those
cases.
Under the second exception, a
transaction would not be subject to
section 362(e)(2) to the extent that the
transferor distributes the stock received
in the transaction and, in the
distribution, no gain or loss was
recognized and no person takes the
stock or other property with a basis
determined by reference to the
transferor’s basis in the distributed
stock. This relief reflected a
determination that, to the extent there is
no duplicated loss that could be
recognized by any taxpayer, section
362(e)(2) should not apply to the
transaction.
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3. Securities Received Without the
Recognition of Gain or Loss
Section 362(e)(2) is silent with respect
to securities received without the
recognition of gain or loss in a
transaction otherwise subject to section
362(e)(2). However, the IRS and
Treasury Department determined that
the statutory purpose of preventing loss
duplication would be circumvented if
section 362(e)(2) did not apply to
securities issued in such cases. For
example, if loss property is transferred
in exchange for stock and securities and
any part of the securities are retained
following the distribution of the stock
under section 355, loss would be
duplicated and preserved in the
retained securities. To prevent this
circumvention of the statutory purpose,
the proposed regulations defined the
term ‘‘stock’’ to include both stock and
securities for purposes of section
362(e)(2).
4. Liabilities
In general, as illustrated in Example 5
in paragraph (d) of § 1.362–4 of the
proposed regulations, liabilities
assumed in the transaction do not affect
the application of section 362(e)(2).
However, the proposed regulations
provided that, if a section 362(e)(2)(C)
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election is made, the reduction to stock
basis is limited to the amount that the
transferee would otherwise reduce its
basis in the transferred assets. This was
intended to prevent the reduction of
stock basis attributable to contingent
liabilities associated with a trade or
business, for which basis is specifically
preserved under section 358(h)(2)(A).
5. The Section 362(e)(2)(C) Election
The proposed regulations adopted the
general approach of Notice 2005–70,
treating an election as effective if the
transferor files a certification
(designated the ‘‘election statement’’ in
the proposed regulations) on its U.S.
return for the year of the transfer or, if
the transferor is a CFC, if the controlling
U.S. shareholders all file the election
statement on or with their U.S. returns.
The proposed regulations also adopted
the rule allowing a protective election.
In addition, the proposed regulations
substantially expanded the guidance
provided in Notice 2005–70. The
proposed regulations added an express
requirement that the transferor and the
transferee execute a written, binding
agreement. The proposed regulations
also included guidance on the filing of
an election statement in circumstances
not addressed in the Notice (for
example, if the transferor was not
required to file a U.S. return and was
not a CFC) and provided that the
statement must be filed in accordance
with the regulations in order for the
section 362(e)(2)(C) election to be
effective.
In addition, the proposed regulations
provided that the basis tracing
provisions in § 1.358–2 would not apply
to transactions in which a section
362(e)(2)(C) election is made. Thus, if A
transferred multiple shares of X stock to
Y in a transaction subject to section
362(e)(2), the Y shares received in the
transaction would each be allocated an
equal portion of A’s aggregate basis in
the X shares transferred, without regard
to A’s bases in the individual shares of
X stock surrendered. As a result, there
would be no disparity among A’s bases
in its Y shares following a section
362(e)(2)(C) election. This rule was
intended to prevent a preservation of
loss that would be contrary to the
objective of section 362(e)(2).
6. Partnerships and S Corporations
The proposed regulations confirmed
that any reduction under section
362(e)(2)(C) to the basis in stock
received by a partnership or S
corporation in a transaction subject to
section 362(e)(2) is an expenditure or
expense of the transferor partnership or
S corporation. As a result, the section
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362(e)(2)(C) stock basis reduction would
cause a reduction to the basis of the
partner in its interest in the partnership
or the S corporation shareholder’s basis
in its stock of the S corporation.
Summary of Comments and Guidance
In general, the commenters concurred
with the positions taken in the proposed
regulations, but requested that the
overall operation of the statute be
clarified. For example, since the
issuance of the proposed regulations,
the IRS has become aware of certain
questions relating to the allocation of
net built-in loss where gain is
recognized and multiple properties are
transferred in the transaction. In
addition, practitioners requested further
guidance on the application of section
362(e)(2) to transactions that are also
subject to section 362(e)(1), to
transactions involving partnerships and
S corporations, and to transactions
between persons not connected with the
United States, particularly with regard
to the making of the section 362(e)(2)(C)
election.
Accordingly, these final regulations
generally adopt the substantive rules of
the proposed regulations. In addition,
the final regulations revise the structure
of the proposed rules to clarify the
application of section 362(e)(2) and to
provide a framework that will better
coordinate with the provisions of
section 362(e)(1) and the regulations
that are to be promulgated under that
section. These are not substantive
changes from the proposed regulations
but are solely intended to simplify the
application of section 362(e)(2). The
material changes and additions to the
proposed regulations are as follows:
1. Clarification of Overall Application of
Section 362(e)(2)
The final regulations adopt a general
operative rule and related definitions to
facilitate the identification of
transactions that are subject to section
362(e)(2) and to then determine the tax
treatment required by this section. This
approach responds to comments
requesting more clarity on the general
operation of the provision.
The general operative rule set forth in
the final regulations is that whenever a
person (Transferor) transfers property to
a corporation (Acquiring) in a loss
duplication transaction, Acquiring’s
basis in each loss duplication property
(as determined without regard to section
362(e)(2)) is reduced by the property’s
allocable portion of Transferor’s net
built-in loss.
The final regulations define the term
‘‘loss duplication transaction’’ as any
section 362(a) transfer in which
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Acquiring’s aggregate basis in the
property transferred by Transferor
would exceed the aggregate value of
such property immediately after the
transaction. The term ‘‘loss duplication
property’’ refers to individual property
transferred in the loss duplication
transaction that Acquiring would take
with a basis that would exceed value
immediately after the transfer. Finally,
the term ‘‘Transferor’s net built-in loss’’
is defined as the excess of Acquiring’s
aggregate basis in property received
from Transferor over the aggregate value
of such property immediately after the
transaction. For purposes of applying
each of these definitions, Acquiring’s
basis in property is determined
immediately after the transfer,
disregarding section 362(e)(2) but taking
into account all other applicable rules,
including section 362(e)(1).
The final regulations thus incorporate
in the operative rules and definitions
the transferor-by-transferor approach
and other general provisions that reflect
the statutory construct as implemented
by the proposed regulations, including
that a transfer can be subject to both
section 362(e)(1) and section 362(e)(2)
and the priority given to section
362(e)(1) in such cases. These principles
are further illustrated in the examples.
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2. Additional Definitions
Several questions were raised
concerning whether certain persons
were required to file a U.S. return
within the meaning of the regulations.
To address these concerns, the final
regulations define the term ‘‘U.S.
return’’ as a return of income that must
be filed under section 6012 or an
information return that must be filed
under Subtitle F, Chapter 61,
Subchapter A, Part III of the Code
(sections 6031 and following). The final
regulations further provide that the
requirement to file the return must be
unconditional. Thus, the term does not
include forms that are merely elective to
receive a particular tax treatment, such
as statements filed to make an election
or to reduce or avoid withholding by a
person not otherwise required to file a
U.S. return. These changes are intended
to eliminate uncertainty as to whether a
person has a filing requirement for
purposes of determining whether a
transaction qualifies for relief as a
transaction outside the United States.
The final regulations also clarify the
time for filing and the person that must
file a statement that the Transferor and
Acquiring are making an election under
section 362(e)(2)(C) (designated as a
‘‘Section 362(e)(2)(C) Statement’’ under
the final regulations). The Section
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362(e)(2)(C) Statement is described more
fully later in this preamble.
The final regulations modify the
definition of the term ‘‘controlling U.S.
shareholder.’’ Under the final
regulations, only persons owning a
direct interest in the CFC or an interest
treated as owned by reason of an
interest in a partnership, estate, trust, or
corporation are treated as controlling
U.S. shareholders. This change reflects
a concern that, for this purpose, a rule
treating persons as controlling U.S.
shareholders solely by reason of the
family attribution rules presents undue
administrability concerns and can cause
inappropriate results in certain cases.
3. Exception for Transactions Outside
the U.S. Tax System
The IRS and Treasury Department
continue to believe that administrative
relief is appropriate when the parties to
the transfer do not expect the transfer to
be relevant for Federal tax purposes,
and in fact the transfer does not become
relevant for Federal tax purposes within
two years of the transfer. Accordingly,
the final regulations retain the rule in
the proposed regulations excepting
transactions wholly outside the U.S. tax
system. However, the final regulations
conform the formulation of the rule to
the formulation of the exception for
transactions in which duplicated loss is
eliminated. That is, the rule in the final
regulations does not presume that basis
and value are equal (with the result that
no loss is transferred and so section
362(e)(2) does not apply), as in the
proposed regulations, but instead
provides simply that section 362(e)(2)
will not apply to a qualifying
transaction. Like the proposed
regulations, the final regulations
provide that a transaction will qualify
for this exception only if the transaction
is between persons not connected to the
United States, the transaction does not
become relevant for Federal tax
purposes within two years of the
transfer, and the transaction is not
undertaken pursuant to a plan to reduce
or avoid Federal taxes.
4. Controlled Foreign Partnerships
(CFPs)
The IRS and Treasury Department
have determined that, for purposes of
the administrative relief granted for
transactions outside the United States,
as well as for purposes of determining
the person that must file a Section
362(e)(2)(C) Statement, CFPs should be
treated in the same manner as CFCs.
First, the reason that CFCs are ineligible
for relief is that a CFC could not
reasonably expect a transfer to have no
relevance for Federal income tax
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purposes, and so the administrative
relief is not warranted. The same is true
with respect to CFPs. Second, with
respect to the filing of a Section
362(e)(2)(C) Statement, although a CFP
may not be required to file a U.S. return,
the reporting U.S. partners of a CFP
have a relationship to the CFP, and a
filing obligation with respect to the
CFP’s activities, that is materially the
same as that of the controlling U.S.
shareholders of a CFC. Thus, the
reporting U.S. partners of a CFP have
the same reporting requirements under
these final regulations as the controlling
U.S. shareholders of a CFC. For
purposes of these final regulations, a
partnership is a CFP if it is treated as
such for purposes of section 6038; a
CFP’s reporting U.S. partners are
generally those persons that would be
required to file an information return
with respect to the CFP under section
6038.
5. Liabilities
The final regulations retain the
approach in the proposed regulations
that generally disregards liability
assumptions. Example 5 in paragraph
(d) of the proposed regulations § 1.362–
4 is expanded, however, to illustrate
more fully the application of section
362(e)(2) to transactions in which fixed
and contingent liabilities are assumed.
See Example 5 in paragraph (h) of the
final regulations § 1.362–4.
However, in both written comments
and informal inquiries, practitioners
have raised concerns about the effect of
this rule when the property transferred
is an interest in a partnership with
liabilities. In particular, practitioners are
concerned because partnership
liabilities increase each partner’s basis
in its partnership interest but do not
give rise to a corresponding increase in
the value of those interests. The result
can be the appearance of a built-in loss.
To address this problem, the final
regulations generally adopt the
approach proposed by commentators,
specifically, by modifying the definition
of the term ‘‘value’’ (generally, fair
market value) to take liabilities into
account when determining whether a
partnership interest is a loss asset.
However, because there can be
differences between Transferor’s share
of partnership liabilities and
Acquiring’s share of partnership
liabilities, the final regulations provide
that the value of a partnership interest
is the sum of cash that Acquiring would
receive for such interest, increased by
any § 1.752–1 liabilities (as defined in
§ 1.752–1(a)(4)) of the partnership that
are allocated to Acquiring with regard to
such transferred interest under section
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permit the filing of the Section
362(e)(2)(C) Statement by a U.S. person
(as defined in section 7701(a)(30)) that
is not otherwise required to file a U.S.
return. This change was made because
these regulations do not create an
independent filing requirement, and not
all U.S. persons would otherwise be
required to file a U.S. return.
6. Elections Under Section 362(e)(2)(C)
Since the enactment of section
362(e)(2), the questions most frequently
asked of the IRS concern the making of
the section 362(e)(2)(C) election,
notwithstanding the publication of
Notice 2005–70 and the proposed
regulations. Accordingly, the final
regulations not only generally adopt the
rules set forth in Notice 2005–70 and in
the proposed regulations, but they also
expand those rules significantly to
address the questions raised.
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752. The final regulations include an
example that illustrates the application
and effect of this rule. See Example 8(ii)
in paragraph (h) of the final regulations
§ 1.362–4. The final regulations also
clarify that any section 743(b)
adjustment to be made as a result of the
transaction is made after any section
362(e) basis adjustment.
b. Neither Party Able To File a Section
362(e)(2)(C) Statement
a. Section 362(e)(2)(C) Statement
To begin, the final regulations retain
the fundamental structure of the
proposed regulations. Thus, under the
final regulations, a written, binding
agreement to make a section 362(e)(2)(C)
election must be executed by Transferor
and Acquiring, and a Section
362(e)(2)(C) Statement must be filed in
accordance with the regulations. A
section 362(e)(2)(C) election is effective
only if both conditions are met. The
final regulations do not prescribe a
particular form for the agreement to
make the section 362(e)(2)(C) election;
however, the final regulations do
require the written, binding agreement
to be in effect prior to the time a Section
362(e)(2)(C) Statement is filed.
The final regulations generally adopt
the structure of the proposed regulations
regarding the time and manner of filing
of the Section 362(e)(2)(C) Statement.
Thus, under the final regulations, the
statement is filed by Transferor (if
Transferor is otherwise required to file
a U.S. return for the year of the
transaction) or by all of Transferor’s
controlling U.S. shareholders or
reporting U.S. partners (if Transferor is
a CFC or CFP at the time of the
transaction and is not otherwise
required to file a U.S. return). Further,
if Transferor is not otherwise required to
file a U.S. return and is not a CFC or
CFP, then the statement is filed by
Acquiring (if Acquiring is otherwise
required to file a U.S. return in the year
of the transaction) or by all of
Acquiring’s controlling U.S.
shareholders (if Acquiring is a CFC at
the time of the transaction and is not
otherwise required to file a U.S. return).
Unlike the proposed regulations, the
final regulations do not require or
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Like the proposed regulations, the
final regulations provide rules regarding
the filing of a Section 362(e)(2)(C)
Statement if neither Transferor,
Acquiring, nor any of their shareholders
would be required to file the statement
at the time of the transaction but at
some later time either Transferor or
Acquiring becomes a person required to
file a U.S. return or a CFC, or the stock
or loss duplication property is acquired
by such a person or a CFC in a
transferred basis transaction. For this
purpose, the final regulations expand
the proposed rule to treat CFPs in the
same manner as CFCs.
The final regulations expand the
proposed rules in two respects. First,
the final regulations provide that, if a
person holds property received in a
transaction with a basis determined
directly or indirectly by reference to the
basis of loss duplication property or
stock received in a loss duplication
transaction, the filing requirements will
treat such person as Transferor or
Acquiring (as applicable) for purposes
of determining who must file a Section
362(e)(2)(C) Statement and when.
Second, the final regulations provide
that a Section 362(e)(2)(C) Statement
must be filed with a U.S. return (or U.S.
returns) for the first taxable year in
which property with a basis determined
by reference to the basis of loss
duplication property or stock received
in a loss duplication transaction is
acquired by a person required to file a
U.S. return, a CFC, or a CFP. If, in the
same taxable year, more than one person
has an event that causes such basis to
become relevant for U.S. tax purposes,
the Section 362(e)(2)(C) Statement must
be filed by all such persons with their
U.S. return for that first year.
These two changes were determined
necessary to prevent transactions from
qualifying for the two-year exception for
transactions outside the U.S. tax system
if the basis of property exchanged in a
transaction becomes relevant for U.S.
tax purposes within two years of the
transaction, as it would not be unduly
burdensome to require the valuation
necessary to comply with section
362(e)(2) in such a case.
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These rules are expected to have
limited application, inasmuch as they
will generally only apply if, within two
years of the transaction, a party to the
transaction becomes a person required
to file a U.S. return, a CFC, or a CFP,
or such a person acquires the loss
duplication property or stock received
in a loss duplication transaction in a
transferred basis transaction. These
rules will also apply in the limited
situations in which Transferor is a U.S.
person not otherwise required to file a
U.S. return and Acquiring is neither
required to file a U.S. return, a CFC, nor
a CFP (such a case would not qualify for
the two-year exception for transactions
outside the U.S. tax system because a
U.S. person is a party to the
transaction).
7. Transactions Involving Partnerships
and S Corporations
Like the proposed regulations, the
final regulations expressly confirm that
any reduction to a transferor’s basis in
Acquiring stock by reason of a section
362(e)(2)(C) election is an expenditure
or expense under section 705(a)(2)(B) (if
Transferor is a partnership) and under
section 1367(a)(2)(D) (if Transferor is an
S corporation). However, in response to
questions raised with regard to the
proposed regulations, the final
regulations provide further guidance on
the interaction between section
362(e)(2) and both subchapter K and
subchapter S. Specifically, the final
regulations clarify that no stock basis
reduction is required under section
1367(a)(2)(D) by reason of a reduction to
the S corporation’s basis in acquired
assets if a section 362(e)(2)(C) election is
not made. In addition, the final
regulations include examples
illustrating the consequences of
transfers to and by S corporations, as
well as transfers by partnerships. For
example, practitioners raised concerns
that S corporation shareholders electing
to reduce the basis of their S corporation
stock under section 362(e)(2)(C) may
inadvertently eliminate their loss
completely when the transferred asset is
sold. The IRS and Treasury Department
recognize that the elimination of any tax
benefit from the economic loss can
result in such cases and, to alert
taxpayers to the potential elimination of
loss, the final regulations include an
example to illustrate the application of
section 362(e)(2) to transfers made both
with and without the election under
section 362(e)(2)(C). See Example 9 in
paragraph (h) of the final regulations
§ 1.362–4.
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8. Examples
Effect on Other Documents
The final regulations include revised
and expanded examples based on those
in the proposed regulations. For
example, in response to questions about
the scope of the application of section
362(e)(2) to reorganizations, the final
regulations include not only examples
from the proposed regulations
illustrating the application of section
362(e)(2) to transactions qualifying as
both section 351 transactions and
reorganizations, they also include an
example illustrating the
nonapplicability of section 362(e)(2) to
triangular reorganizations that do not
include a transfer to which section
362(a) applies.
The following publication is obsolete
as of September 3, 2013: Notice 2005–
70 (2005–2 CB 694).
Adoption of Amendments to the
Regulations
Accordingly, 26 CFR parts 1 and 602
are amended as follows:
Special Analyses
PART 1—INCOME TAXES
It has been determined that this
Treasury decision is not a significant
regulatory action as defined in
Executive Order 12866, as
supplemented by Executive Order
13563. Therefore, a regulatory
assessment is not required. Further, it is
hereby certified that these final
regulations will not have a significant
economic impact on a substantial
number of small entities. This
certification is based on the fact that the
collection of information in these
regulations merely provides a
mechanism whereby, once a transferor
and transferee have agreed that it would
be advantageous to elect the special
basis treatment afforded under section
362(e)(2)(C), the transferor (or in limited
cases the transferee) can report the
existence of the agreement, and minimal
identifying information regarding the
transaction and the parties, on its return
in order to make the election effective.
The minimal identifying information
should be readily available to the parties
and the professional skills that would be
necessary to make the election would be
the same as those required to prepare a
return for the small business.
Accordingly, a Regulatory Flexibility
Analysis under the Regulatory
Flexibility Act (5 U.S.C. chapter 6) is
not required. Pursuant to section 7805(f)
of the Code, these final regulations, as
well as the proposed regulations
preceding these final regulations, were
submitted to the Chief Counsel for
Advocacy of the Small Business
Administration for comment on its
impact on small business, and no
comments were received.
■
9. Other Requests for Comments in the
Proposed Regulations
Although the preamble to the
proposed regulations invited comments
concerning whether special rules were
needed to address the interaction of
section 362(e)(2) and section 336(d)
when a section 362(e)(2)(C) election is
made, and whether the regulations
should deem a section 362(e)(2)(C)
election in the case of a section 304
transaction, no comments were received
regarding these issues. Accordingly, no
special rules addressing these issues are
included in the final regulations.
10. Effective/Applicability Date
These final regulations generally
adopt the proposed effective date and
thus are applicable to transactions
occurring after September 3, 2013.
However, the final regulations modify
the proposed effective date to provide
that the final regulations do not apply
to transactions after September 3, 2013,
that were effected pursuant to a binding
agreement that was in effect prior to
September 3, 2013, and at all times
thereafter. In addition, the final
regulations provide that taxpayers may
apply these rules to any transaction
occurring after October 22, 2004.
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11. Revision of § 602.101, Table of OMB
Control Numbers
This Treasury Decision revises
§ 602.101 of this chapter (OMB Control
Numbers under Paperwork Reduction
Act) to include the OMB control number
1545–2247 issued with respect to the
collection of information in this
Treasury Decision, as well as OMB
control number 1545–2125 issued with
respect to the collections of information
in §§ 1.336–2 and 1.336–4 (TD 9619, 78
FR 28467) May 15, 2013.
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Drafting Information
The principal author of these
regulations is Jean R. Broderick of the
Office of Associate Chief Counsel
(Corporate), IRS. However, other
personnel from the IRS and Treasury
Department participated in their
development.
List of Subjects
26 CFR Part 1
Income taxes, Reporting and
recordkeeping requirements.
26 CFR Part 602
Reporting and recordkeeping
requirements.
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Paragraph 1. The authority citation
for part 1 is amended by adding an entry
for § 1.362–4 to read as follows:
Authority: 26 U.S.C. 7805 * * *
Section 1.362–4 also issued under 26
U.S.C. 362(e)(2)(C)(ii). * * *
Par. 2. Section 1.358–2 is amended by
revising paragraph (a)(2)(viii) and
adding a new sentence at the end of
paragraph (d) to read as follows:
■
§ 1.358–2 Allocation of basis among
nonrecognition property.
(a) * * *
(2) * * *
(viii) This paragraph (a)(2) shall not
apply to determine the basis of a share
of stock or security received by a
shareholder or security holder in an
exchange described in both section 351
and either section 354 or 356, if, in
connection with the exchange—
(A) The shareholder or security holder
exchanges property for stock or
securities in an exchange to which
neither section 354 nor section 356
applies;
(B) The shareholder or security holder
exchanges property for stock or
securities in a transaction for which an
election to apply section 362(e)(2)(C) is
in effect; or
(C) Liabilities of the shareholder or
security holder are assumed.
*
*
*
*
*
(d) Effective/applicability date. * * *
However, paragraph (a)(2)(viii) of this
section applies only to exchanges and
distributions of stock occurring on or
after September 3, 2013; taxpayers may
also apply paragraph (a)(2)(viii) of this
section to transactions occurring after
October 22, 2004.
■ Par. 3. Section 1.362–4 is amended by
revising the section heading and
paragraph (a)(1), and adding paragraphs
(b) through (j) to read as follows:
§ 1.362–4
property.
Basis of loss duplication
(a) Purpose and scope—(1) In general.
The purpose of section 362(e)(2) and
this section is to prevent the duplication
of net loss in transfers to which section
351 applies, capital contributions, and
paid-in surplus (each, a section 362(a)
transaction). See paragraph (g) of this
section for definitions of terms used in
this section.
(2) * * *
(b) Basis determinations under section
362(e)(2) and this section.
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Notwithstanding section 362(a), if a
corporation (Acquiring) receives loss
duplication property (as defined in
paragraph (g)(1) of this section) from a
person (Transferor) in a loss duplication
transaction (as defined in paragraph
(g)(2) of this section), Acquiring’s basis
in such property is equal to the basis of
the property determined without regard
to section 362(e)(2) and this section (as
described in paragraph (g)(1)(ii) of this
section), reduced by the property’s
allocable portion of Transferor’s net
built-in loss (as defined in paragraph
(g)(3) of this section). If more than one
Transferor transfers property to a
corporation in a section 362(a)
transaction, whether and the extent to
which section 362(e)(2) and this section
apply is determined separately for each
Transferor.
(c) Exceptions—(1) Transactions in
which net built-in loss is eliminated
without recognition. Section 362(e)(2)
does not apply to a transaction to the
extent that—
(i) Without recognizing gain or loss,
Transferor distributes the Acquiring
stock received in the transaction; and
(ii) Upon completion of the
transaction, no person holds Acquiring
stock or any other asset with a basis
determined, in whole or in part, by
reference to Transferor’s basis in the
distributed Acquiring stock.
(2) Certain transactions outside of the
United States. Section 362(e)(2) does
not apply to a transaction if—
(i) Neither Transferor nor Acquiring is
a U.S. person (as defined in section
7701(a)(30)), a person otherwise
required to file a U.S. return for the year
of the transaction, a controlled foreign
corporation (CFC, as defined in
paragraph (g)(7) of this section), or a
controlled foreign partnership (CFP, as
defined in paragraph (g)(9) of this
section) on the date of the transaction;
(ii) The transfer occurs more than two
years prior to the date of any event
described in paragraph (d)(3)(ii)(E), (F),
or (G) of this section; and
(iii) The original transaction and the
event or events described in paragraph
(d)(3)(ii)(E), (F), or (G) of this section
were not entered into with a view to
reducing or avoiding the Federal income
tax liability of any person by avoiding
the application of section 362(e)(2) and
this section to the original transaction.
(d) Election to reduce Transferor’s
stock basis instead of Acquiring’s asset
basis—(1) In general. In lieu of making
the basis reductions otherwise required
under paragraph (b) of this section,
Transferor and Acquiring may elect to
reduce Transferor’s basis in Acquiring
stock that is received in the transaction
without the recognition of gain or loss
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(the section 362(e)(2)(C) election). The
section 362(e)(2)(C) election may be
made protectively and will have no
effect to the extent that property
transferred in the transaction is
determined not to be subject to section
362(e)(2) and this section. However, the
election is irrevocable once it is made.
A section 362(e)(2)(C) election is made
and effective if—
(i) Prior to the filing of a Section
362(e)(2)(C) Statement (described in
paragraph (d)(3)(i) of this section),
Transferor and Acquiring enter into a
written, binding agreement to elect to
apply section 362(e)(2)(C); and
(ii) The Section 362(e)(2)(C) Statement
is filed in accordance with the
provisions of paragraph (d)(3) of this
section.
(2) Effect of section 362(e)(2)(C)
election. If a section 362(e)(2)(C)
election is made and in effect—
(i) An amount equal to the portion of
Transferor’s net built-in loss (as defined
in paragraph (g)(3) of this section) that
would otherwise be applied to reduce
asset basis under paragraph (b) of this
section is allocated among the
Acquiring shares received or deemed
received in the exchange (in proportion
to the value of such shares) and applied
to reduce Transferor’s basis (determined
without regard to section 362(e)(2) and
this section) in each such share; and
(ii) Acquiring’s basis in loss
duplication property received from
Transferor in the transaction is not
determined under section 362(e)(2) and
this section.
(3) Section 362(e)(2)(C) Statement—(i)
Form and contents of statement. The
Section 362(e)(2)(C) Statement is to be
titled ‘‘Section 362(e)(2)(C) Statement.’’
The Section 362(e)(2)(C) Statement
must—
(A) Identify (by name and tax
identification number, if any) Transferor
and Acquiring;
(B) State that Transferor and
Acquiring have entered into a written,
binding agreement to elect to apply
section 362(e)(2)(C) as required in
paragraph (d)(1)(i) of this section; and
(C) State the date of the transaction
(or, if the transaction includes transfers
on more than one date, then the dates
of all transfers) to which the election
applies.
(ii) Filing the Section 362(e)(2)(C)
Statement. In general, the Section
362(e)(2)(C) Statement is filed by the
person or entity described in the
applicable paragraph of this paragraph
(d)(3)(ii). Thus, if Transferor is a
partnership, S corporation, trust
(including a subpart E trust), or other
pass-through entity, or Acquiring is an
S corporation, the entity (and not the
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54161
partners, shareholders, or other persons
having an interest in the entity or its
property) is the person that must file the
Section 362(e)(2)(C) Statement, without
regard to whether such entity is foreign
or domestic. However, in the case of a
CFC or CFP, the controlling U.S.
shareholders of the CFC or the reporting
U.S. partners of the CFP, respectively,
file the Section 362(e)(2)(C) Statement.
(A) Transferor is a person required to
file a U.S. return. If Transferor is a
person required to file a U.S. return for
the year of the transfer, Transferor must
include the Section 362(e)(2)(C)
Statement on or with its timely filed
(including extensions) original U.S.
return for the taxable year in which the
transfer occurred.
(B) Transferor is a CFC or CFP and
not required to file a U.S. return. If
paragraph (d)(3)(ii)(A) of this section
does not apply and Transferor is either
a CFC or a CFP on the date of the
transfer, all of Transferor’s controlling
U.S. shareholders (in the case of a CFC)
or all of Transferor’s reporting U.S.
partners (in the case of a CFP) must
include the Section 362(e)(2)(C)
Statement on or with their timely filed
(including extensions) original U.S.
returns for their taxable years in which
the transfer occurred.
(C) Transferor is not a person required
to file a U.S. return, a CFC, or a CFP,
but Acquiring is required to file U.S.
return. If paragraphs (d)(3)(ii)(A) and (B)
of this section do not apply and
Acquiring is a person required to file a
U.S. return for the year of the transfer,
Acquiring must include the Section
362(e)(2)(C) Statement on or with its
timely filed (including extensions)
original U.S. return for the taxable year
in which the transfer occurred.
(D) Transferor is not a person required
to file a U.S. return, a CFC, or a CFP,
Acquiring is not required to file a U.S.
return, but Acquiring is a CFC. If
paragraphs (d)(3)(ii)(A) through (C) of
this section do not apply and Acquiring
is a CFC on the date of the transfer, all
of Acquiring’s controlling U.S.
shareholders must include the Section
362(e)(2)(C) Statement on or with their
timely filed (including extensions)
original U.S. returns for their taxable
years in which the transfer occurred.
(E) Neither Transferor nor Acquiring
is a person required to file a U.S. return,
a CFC, or a CFP, but Transferor later
becomes a person required to file a U.S.
return, a CFC, or a CFP. If paragraphs
(d)(3)(ii)(A) through (D) of this section
do not apply and Transferor becomes a
person required to file a U.S. return, a
CFC, or a CFP, Transferor (if required to
file a U.S. return), all of Transferor’s
controlling U.S. shareholders (if
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Transferor becomes a CFC not otherwise
required to file a U.S. return), or all of
Transferor’s reporting U.S. partners (if
Transferor becomes a CFP not otherwise
required to file a U.S. return) must
include the Section 362(e)(2)(C)
Statement on or with their timely filed
(including extensions) original U.S.
returns for their taxable years in which
an event described in this paragraph
(d)(3)(ii)(E) first occurs. For purposes of
this paragraph (d)(3)(ii)(E), the term
Transferor includes any person holding
property with a basis determined
directly or indirectly by reference to
Transferor’s basis in the Acquiring stock
received in the transaction.
(F) Transferor is not and does not
become a person required to file a U.S.
return, a CFC, or a CFP, Acquiring is
not, but later becomes either a person
required to file a U.S. return, a CFC, or
a CFP. If paragraphs (d)(3)(ii)(A)
through (E) of this section do not apply
and Acquiring becomes a person
required to file a U.S. return, a CFC, or
a CFP, Acquiring (if required to file a
U.S. return), all of Acquiring’s
controlling U.S. shareholders (if
Acquiring becomes a CFC not otherwise
required to file a U.S. return), or all of
Acquiring’s reporting U.S. partners (if
Acquiring becomes a CFP not otherwise
required to file a U.S. return) must
include the Section 362(e)(2)(C)
Statement on or with their timely filed
(including extensions) original U.S.
returns for their taxable years in which
an event described in this paragraph
(d)(3)(ii)(F) first occurs. For purposes of
this paragraph (d)(3)(ii)(F), the term
Acquiring includes any person holding
property with a basis determined
directly or indirectly by reference to
Acquiring’s basis in loss duplication
property received in the transaction.
(G) Transferor and Acquiring are not
and do not become a person required to
file a U.S. return, a CFC, or a CFP, but
the basis of the loss duplication
property or Acquiring stock later
becomes relevant for Federal tax
purposes. If paragraphs (d)(3)(ii)(A)
through (F) of this section do not apply
and, in a transferred basis transaction, a
person required to file a U.S. return, a
CFC, or a CFP acquires either loss
duplication property or Acquiring stock
that was received in the loss duplication
transaction, or any property the basis of
which is determined in whole or in part
by reference to any such property or
stock, all such persons (or, in the case
of a CFC or CFP not required to file a
U.S. return, all the controlling U.S.
shareholders or all the reporting U.S.
partners, as applicable) must include
the Section 362(e)(2)(C) Statement on or
with their timely filed (including
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extensions) original U.S. returns for
their first taxable year(s) in which there
occurs an event or events described in
this paragraph (d)(3)(ii)(G).
(e) Transfers by partnerships and S
corporations—(1) Transfers by
partnerships. If a partnership transfers
property in a loss duplication
transaction with respect to which a
section 362(e)(2)(C) election is made,
the resulting reduction to the
partnership’s basis in the Acquiring
stock received in exchange for the loss
duplication property is treated as an
expenditure of the partnership
described in section 705(a)(2)(B).
(2) Transfers by S corporations. If an
S corporation transfers property in a
loss duplication transaction with
respect to which a section 362(e)(2)(C)
election is made, the resulting reduction
to the S corporation’s basis in the
Acquiring stock received in exchange
for the loss duplication property is
treated as an expense of the S
corporation described in section
1367(a)(2)(D).
(f) Transfers to S corporations. If a
person transfers property to an S
corporation in a loss duplication
transaction, any resulting reduction
under section 362(e)(2) and this section
to the S corporation’s basis in the
property received is not treated as an
expense of the S corporation described
in section 1367(a)(2)(D).
(g) Definitions. For purposes of
section 362(e)(2) and this section—
(1) Loss duplication property is any
property—
(i) That is transferred by Transferor to
Acquiring in a loss duplication
transaction (as defined in paragraph
(g)(2) of this section); and
(ii) That Acquiring would take with a
basis in excess of value immediately
after the transaction; for this purpose,
the basis Acquiring would take in the
property is determined immediately
after the transaction and without regard
to section 362(e)(2) and this section, but
otherwise taking into account all
applicable provisions of law, including,
without limitation, section 362(e)(1).
(2) A loss duplication transaction is a
section 362(a) transaction in which
Acquiring’s aggregate basis in the
property received from Transferor
would, but for section 362(e)(2) and this
section, exceed the aggregate value of
such property immediately after the
transaction. For this purpose—
(i) A transaction is a section 362(a)
transaction if it is described in section
362(a) without regard to whether it is
also described in any other provision of
the Internal Revenue Code (Code),
including, without limitation, section
362(b); and
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(ii) Acquiring’s aggregate basis in the
property received from Transferor is
determined immediately after the
transaction and without regard to
section 362(e)(2) and this section, but
otherwise taking into account all
applicable provisions of law, including,
without limitation, section 362(e)(1).
(3) Transferor’s net built-in loss is the
excess of—
(i) Acquiring’s aggregate basis
(determined under paragraph (g)(2)(ii) of
this section) in all property received
from Transferor in a loss duplication
transaction, over
(ii) The aggregate value of such
property immediately after the
transaction.
(4) A property’s built-in loss is the
excess of Acquiring’s basis in the
property (determined as described in
paragraph (g)(1)(ii) of this section) over
the property’s value (determined
immediately after the transaction).
(5) A property’s allocable portion of
Transferor’s net built-in loss is the
portion of Transferor’s net built-in loss
that bears the same ratio to Transferor’s
net built-in loss that the property’s
built-in loss bears to the aggregate builtin losses reflected in the bases of loss
duplication property transferred by
Transferor in the transaction.
(6) A U.S. return is a return of income
under section 6012 or an information
return under Subtitle F, Chapter 61,
Subchapter A, Part III of the Code
(sections 6031 and following) or the
regulations thereunder, that the
taxpayer is unconditionally required to
file. Thus, the term does not include
elective forms or statements that are
required to be filed only to obtain a
particular tax treatment, including
forms filed to make an election or to
reduce or avoid withholding by a person
not otherwise required to file a U.S.
return (as described in this paragraph
(g)(6)) (for example, a notice of
nonrecognition under § 1.1445–2(d)).
(7) A controlled foreign corporation
(CFC) is any corporation described in
section 957 or section 953(c).
(8) A controlling U.S. shareholder is
any person that is treated as a
controlling U.S. shareholder under
§ 1.964–1(c)(5) because such person
either owns a direct interest in the CFC
or is treated as owning an interest in the
CFC by reason of section 318(a)(2)
(attribution from partnerships, estates,
trusts, and corporations).
(9) A controlled foreign partnership
(CFP) is any partnership treated as a
controlled foreign partnership for
purposes of section 6038.
(10) A reporting U.S. partner is any
partner of a CFP that is required to file
an information return with respect to
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the CFP pursuant to section 6038 or the
regulations thereunder, without regard
to § 1.6038–3(c) or (j). In addition, in
applying the constructive ownership
rules of § 1.6038–3(b)(4), the term
‘‘nonresident alien’’ is replaced by the
term ‘‘individual.’’
(11) The term stock means both
Acquiring stock and Acquiring
securities received by Transferor in the
transaction if gain or loss on the receipt
of the stock or securities is not
recognized in whole or in part.
(12) Value—(i) General rule. The term
value means fair market value.
(ii) Special rule for transfers of
partnership interests. Notwithstanding
the general rule in paragraph (g)(12)(i) of
this section, when referring to a
partnership interest, for purposes of
section 362(e)(2) and this section, the
term value means the sum of the cash
that Acquiring would receive for the
interest, assuming an exchange between
a willing buyer and a willing seller
(neither being under any compulsion to
buy or sell and both having reasonable
knowledge of relevant facts), increased
by any § 1.752–1 liabilities (as defined
in § 1.752–1(a)(4)) of the partnership
allocated to Acquiring with regard to
such transferred interest under section
752 immediately after the transfer to
Acquiring. See § 1.743–1 regarding the
application of section 743(b) following a
section 362(e) basis reduction.
(h) Examples. The examples in this
paragraph (h) illustrate the application
of section 362(e)(2) and this section. For
purposes of these examples, X, Y, P, S,
S1, S2, and DC are domestic
corporations; A and B are U.S.
individuals; FC1 and FC2 are foreign
corporations and, unless otherwise
indicated, are not required to file a U.S.
return and are not CFCs; and PRS is a
domestic partnership. Unless the facts
indicate otherwise, all persons and
transactions are unrelated; Acquiring’s
basis in the transferred property is not
determined under section 362(e)(1); the
property transferred is not described in
section 362(e)(1)(B); no election is made
under section 362(e)(2)(C), and the
transactions are not subject to
recharacterization.
Example 1. Transfer described in section
351—(i) Basic application of section. (A)
Facts. A owns Asset 1 (basis $90, value $60)
and Asset 2 (basis $110, value $120). In a
transaction to which section 351 applies, A
transfers Asset 1 and Asset 2 to X in
exchange for a single outstanding share of X
stock representing all the outstanding X stock
immediately after the transaction.
(B) Analysis—(1) Loss duplication
transaction. A’s transfer of Asset 1 and Asset
2 is a section 362(a) transaction. But for
section 362(e)(2) and this section, X’s
aggregate basis in those assets would be $200
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($90 + $110), which would exceed the
aggregate value of the assets $180 ($60 +
$120) immediately after the transaction.
Accordingly, the transfer is a loss duplication
transaction and A has a net built-in loss of
$20 ($200¥$180).
(2) Identifying loss duplication property.
But for section 362(e)(2) and this section, X’s
basis in Asset 1 would be $90, which would
exceed Asset 1’s $60 value immediately after
the transaction. Accordingly, Asset 1 is loss
duplication property. But for section
362(e)(2) and this section, X’s basis in Asset
2 would be $110, which would not exceed
Asset 2’s $120 value immediately after the
transaction. Accordingly, Asset 2 is not loss
duplication property.
(C) Basis in loss duplication property. X’s
basis in Asset 1 is $70, computed as its $90
basis under section 362(a) reduced by A’s
$20 net built-in loss.
(D) Basis in other property. Under section
362(a), X has a transferred basis of $110 in
Asset 2. Under section 358(a), A has an
exchanged basis of $200 in the X stock it
receives in the transaction.
(ii) Section 362(e)(2)(C) election. The facts
are the same as in paragraph (i)(A) of this
Example 1, except that A and X make an
election under section 362(e)(2)(C). Under
paragraph (d)(2)(i) of this section, A reduces
its basis in the X stock, as determined
without regard to section 362(e)(2) and this
section, by the amount of A’s net built-in loss
that would have been applied to reduce X’s
basis in Asset 1 had the section 362(e)(2)(C)
election not been made. In addition, no
reduction is made to X’s basis in Asset 1, as
determined without regard to section
362(e)(2) and this section. As a result, A’s
basis in the X stock is $180 ($200¥$20), X’s
basis in Asset 1 is $90, and X’s basis in Asset
2 is $110.
Example 2. Transfer described in both
section 351 and section 368(a)(1)(B)—(i)
Basic application of section—(A) Facts. P
owns the sole outstanding share of S1 stock
and the ten outstanding shares of S2 stock.
In a transaction to which section 351 applies
and that is described in section 368(a)(1)(B),
P transfers its ten S2 shares to S1 in exchange
for an additional ten shares of S1 voting
stock. At the time of the transfer, P has a
basis of $10 each in five of its S2 shares
(Shares 1–5) and a basis of $5 each in its
other five S2 shares (Shares 6–10), and the
value of each share is $7.
(B) Analysis—(1) Loss duplication
transaction. P’s transfer of the S2 shares is a
section 362(a) transaction notwithstanding
that it is also a transaction described in
section 368(a)(1)(B) and therefore section
362(b). But for section 362(e)(2) and this
section, S1’s aggregate basis in the S2 shares
would be $75 ($10 × 5, or $50, for Shares 1–
5 + $5 × 5, or $25, for Shares 6–10). Thus,
S1’s $75 aggregate basis in the shares would
exceed the aggregate value of the shares, $70
($7 × 10 shares), immediately after the
transaction. Accordingly, the transfer is a loss
duplication transaction and P has a net builtin loss of $5 ($75¥$70).
(2) Identifying loss duplication property.
But for section 362(e)(2) and this section,
S1’s basis in each of Shares 1–5 would be
$10, which would exceed each share’s $7
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value immediately after the transaction.
Accordingly, Shares 1–5 are each loss
duplication property. But for section
362(e)(2) and this section, S1’s basis in each
of Shares 6–10 would be $5, which would
not exceed each share’s $7 value immediately
after the transaction. Accordingly, Shares 6–
10 are not loss duplication property.
(C) Basis in loss duplication property. S1’s
basis in each of Shares 1–5 is $9, computed
as its $10 basis (determined without regard
to section 362(e)(2) and this section) reduced
by $1, the share’s allocable portion (1/5) of
P’s net built-in loss ($5).
(D) Basis in other property. Under section
362(a), S1 has a transferred basis of $5 in
each of Shares 6–10. Under section 358(a), P
has an exchanged basis in the ten S1 shares
it receives in the exchange ($10 in each of the
five S1 shares received in exchange for
Shares 1–5 and $5 in each of the five S1
shares received in exchange for Shares 5–10).
(ii) Section 362(e)(2)(C) election. The facts
are the same as in paragraph (i)(A) of this
Example 2, except that an election under
section 362(e)(2)(C) is made to reduce P’s
basis in the shares of S1 stock received in the
exchange. Under paragraph (d)(2)(i) of this
section, P reduces its basis in the S1 stock
by $5, the amount of P’s net built-in loss that
S1’s basis in the S2 shares would have been
reduced under section 362(e)(2) and this
section had the section 362(e)(2)(C) election
not been made, and no reduction is made to
S1’s basis in the S2 stock (as determined
without regard to section 362(e)(2) and this
section). Because an election is being made
under section 362(e)(2)(C), P’s basis in the
new S1 shares is not determined under the
general rule of § 1.358–2(a)(2)(i) (under
which P’s basis in each new S1 share would
be equal to the basis of the S2 share
transferred in exchange for the S1 share).
Section 1.358–2(a)(2)(viii)(B). Accordingly,
P’s basis in each new S1 share will be $7, the
share’s allocable portion of P’s $75 aggregate
basis in the S2 shares transferred in the
transaction (or, $7.50 per share), reduced
under paragraph (d)(2)(i) of this section by
the $5 that would have been applied to
reduce S1’s basis in the S2 shares had the
section 362(e)(2)(C) election not been made
(or $.50 per share). Under paragraph (d)(2)(ii)
of this section and section 362(a), S1 receives
five shares of the S2 stock with a basis of $10
each and five shares of the S2 stock with a
basis of $5 each.
Example 3. Transfer described in both
section 351 and section 368(a)(1)(A),
multiple transferors, elimination of
duplicated loss—(i) Facts. A owns Asset 1
(basis $120, value $130) and all the
outstanding shares of X stock. B owns all the
outstanding shares of Y stock (basis $150). Y
owns Asset 2 (basis $250, value $210).
Pursuant to a single plan, A transfers Asset
1 to X in exchange for additional X shares
and, in a transaction qualifying as a
reorganization described in section
368(a)(1)(A), Y merges with and into X. In the
merger, B receives X stock with a basis equal
to B’s basis in its Y stock immediately before
the merger. A’s transfer of Asset 1 to X in
exchange for X stock and Y’s transfer of Asset
2 to X in the merger are both transactions to
which section 351 applies. Notwithstanding
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that the transfers by A and Y are pursuant to
a single plan forming one transaction, section
362(e)(2) and this section apply to each
transferor separately.
(ii) Application of section to A’s transfer of
Asset 1. A’s transfer of Asset 1 is a section
362(a) transaction. But for section 362(e)(2)
and this section, X’s basis in Asset 1 would
be $120, which would not exceed Asset 1’s
$130 value immediately after the transaction.
Accordingly, A’s transfer of Asset 1 is not a
loss duplication transaction notwithstanding
that, taking both A’s transfer and Y’s transfer
into account, X has an aggregate net loss in
Asset 1 and Asset 2. Because Asset 1 is not
received in a loss duplication transaction, it
is not loss duplication property and section
362(e)(2) and this section do not apply to A’s
transfer of Asset 1.
(iii) Application of section to Y’s transfer
of Asset 2—(A) Analysis—(1) Loss
duplication transaction. Y’s transfer of Asset
2 to X is a section 362(a) transaction,
notwithstanding that it is also a transaction
described in section 368(a)(1)(A) and
therefore section 362(b). But for section
362(e)(2) and this section, X’s basis in Asset
2 would be $250, which would exceed Asset
2’s $210 value immediately after the
transaction. Accordingly, Y’s transfer is a loss
duplication transaction and Y has a net builtin loss of $40.
(2) Identifying loss duplication property.
But for section 362(e)(2) and this section, X’s
basis in Asset 2 would be $250, which would
exceed Asset 2’s $210 value immediately
after the transaction. Accordingly, Asset 2 is
loss duplication property.
(B) Basis in loss duplication property.
Although Asset 2 is loss duplication
property, section 362(e)(2) does not apply to
Y’s transfer of Asset 2 to X because Y
distributes all of the X stock received in the
exchange without recognizing gain or loss,
and, upon completion of the transaction, no
person will hold the X stock or any other
asset with a basis determined in whole or in
part by reference to Y’s basis in such stock.
Accordingly, under paragraph (c)(1) of this
section, X’s basis in Asset 2 is not
determined under section 362(e)(2) and this
section. Thus, under section 362(a), X’s basis
in Asset 2 is $250.
(iv) Basis in other property. Under section
358, A’s basis in the X stock received in
exchange for Asset 1 is $120 and B’s basis in
the X stock received in the merger is $150.
Under section 362(a), X’s basis in Asset 1 is
$120.
Example 4. Transfer described in both
section 351 and section 368(a)(1)(D),
followed by a distribution qualifying under
section 355—(i) Basic transaction—(A) Facts.
A and B each own one of the two outstanding
shares of X common stock. X’s assets include
Asset 1 (basis $120, value $70), Asset 2 (basis
$160, value $110), and Asset 3 (basis $220,
value $240). In a transaction to which section
351 applies and that is described in section
368(a)(1)(D), X transfers Asset 1, Asset 2, and
Asset 3 to Y in exchange for all the Y stock;
then, in a distribution that qualifies under
section 355, X distributes all the Y stock
received in the exchange to A in exchange for
all of A’s X stock. Under section 361(c)(1), X
does not recognize gain or loss as a result of
the distribution of all the Y stock.
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(B) Analysis—(1) Loss duplication
transaction. X’s transfer of Asset 1, Asset 2,
and Asset 3 is a section 362(a) transaction.
But for section 362(e)(2) and this section, Y’s
aggregate basis in those assets would be $500
($120 + $160 + $220). The aggregate value of
the assets immediately after the transaction is
$420 ($70 + $110 + $240). Thus, Y’s aggregate
basis in the assets would exceed the
aggregate value of the assets immediately
after the transaction. Accordingly, the
transfer is a loss duplication transaction and
X has a net built-in loss of $80 ($500 ¥
$420).
(2) Identifying loss duplication property.
But for section 362(e)(2) and this section, Y’s
basis in Asset 1 would be $120, which would
exceed Asset 1’s $70 value immediately after
the transaction. Accordingly, Asset 1 is loss
duplication property. But for section
362(e)(2) and this section, Y’s basis in Asset
2 would be $160, which would exceed Asset
2’s $110 value immediately after the
transaction. Accordingly, Asset 2 is also loss
duplication property. But for section
362(e)(2) and this section, Y’s basis in Asset
3 would be $220 and would therefore not
exceed Asset 3’s $240 value immediately
after the transaction. Accordingly, Asset 3 is
not loss duplication property.
(C) Basis in loss duplication property.
Although Asset 1 and Asset 2 are each loss
duplication property, X will distribute the Y
stock received in exchange for Asset 1 and
Asset 2 without recognition of gain or loss,
and, upon completion of the transaction, no
person will hold the Y stock received by X
or any other asset with a basis determined in
whole or in part by reference to X’s basis in
the Y stock received in the exchange. (A’s
basis in the Y stock will be determined by
reference to his basis in his X stock.)
Accordingly, under paragraph (c)(1) of this
section, Y’s bases in Asset 1 and Asset 2 are
determined under section 362(a) and not
under section 362(e)(2) and this section.
Thus, Y’s basis in Asset 1 is $120 and Y’s
basis in Asset 2 is $160.
(D) Basis in other property. Under section
358, A’s basis in the Y stock received in
exchange for his X stock is determined by
reference to his basis in his X stock
surrendered. Under section 362(a), Y’s basis
in Asset 3 is $220.
(ii) Section 355(e)—(A) Facts. The facts are
the same as in paragraph (i)(A) of this
Example 4, except that, after the section 355
distribution, Y is acquired pursuant to a plan
(within the meaning of § 1.355–7), resulting
in the application of section 355(e) to the
transactions.
(B) Analysis. Because section 361(c)(2), and
not section 361(c)(1), will apply to X’s
distribution of Y stock, X will not qualify for
nonrecognition treatment on the distribution
of the Y stock. As a result, paragraph (c)(1)
of this section does not apply to the
transaction, and Y’s bases in Asset 1 and
Asset 2, the loss duplication property, are
determined under section 362(e)(2) and this
section. Asset 1 has a built-in loss of $50
($120 ¥ $70), and Asset 2 has a built-in loss
of $50 ($160 ¥ $110). Thus, Asset 1’s
allocable portion of X’s net built-in loss is
$40 ($50/$100 × $80), and Asset 2’s allocable
portion of X’s net built-in loss is $40 ($50/
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$100 × $80). Accordingly, Y receives Asset 1
with a basis of $80 ($120 ¥ $40) and Asset
2 with a basis of $120 ($160 ¥ $40).
(iii) Retained stock and securities—(A)
Facts. The facts are the same as in paragraph
(i)(A) of this Example 4, except that X
transfers Asset 1, Asset 2, and Asset 3 to Y
in exchange for Y stock and Y securities,
each constituting half of the consideration. In
addition, for a valid business purpose, X
retains Y stock and Y securities each worth
1 percent of the total consideration.
(B) Analysis. Paragraph (c)(1) of this
section applies only to the extent that stock
received in a transaction is distributed
without recognition of gain or loss. Thus,
section 362(e)(2) and this section apply to the
extent that property was exchanged for the
retained Y stock and Y securities (2 percent
of the total). Accordingly, Y reduces its basis
in Asset 1 and in Asset 2, the loss
duplication property, by $1.60 (two percent
of X’s $80 net built-in loss). Asset 1 has a
built-in loss of $50 ($120 ¥ $70), and Asset
2 has a built-in loss of $50 ($160 ¥ $110).
Thus, Asset 1’s allocable portion of X’s net
built-in loss is $.80 ($50/$100 × $1.60), and
Asset 2’s allocable portion of X’s net builtin loss is $.80 ($50/$100 × $1.60). As a result,
Y receives Asset 1 with a basis of $119.20
($120 ¥ $.80) and Asset 2 with a basis of
$159.20 ($160 ¥ $.80).
(iv) Retained stock and securities with a
section 362(e)(2)(C) election—(A) Facts. The
facts are the same as in paragraph (iii)(A) of
this Example 4, except that an election under
section 362(e)(2)(C) is made to reduce X’s
bases in its retained Y stock and retained Y
securities.
(B) Analysis. Under paragraph (d)(2)(i) of
this section, X reduces its basis in the
retained Y stock and the retained Y securities
(determined without regard to section
362(e)(2) and this section) by $1.60, the
portion of X’s $80 net built-in loss that would
have been applied to reduce Y’s basis in the
transferred assets had the election to apply
section 362(e)(2)(C) not been made. (Because
the value of the Y stock and the value of the
Y securities are equal, X’s $500 basis in the
transferred property would be allocated
equally between the Y stock and the Y
securities, $250 to each, under § 1.358–
2(b)(2), and the retained Y stock and Y
securities have a basis of $2.50 each (one
percent of $250).) For the reasons set forth in
paragraph (ii)(B) of this Example 4, Y would
have been required to reduce its basis in the
transferred assets by $1.60. Accordingly, X
must reduce its aggregate basis in the
retained Y stock and Y securities by $1.60.
Under paragraph (d)(2)(i) of this section, the
$1.60 basis reduction is allocated and
applied to reduce X’s bases in the retained
Y stock and Y securities in proportion to the
value of each. Because X retained Y stock
and Y securities with equal values, X holds
each of the retained Y stock and securities
with an adjusted basis of $1.70 ($2.50 ¥
$.80). Under paragraph (d)(2)(ii) of this
section, Y receives Asset 1 with a basis of
$120, Asset 2 with a basis of $160, and Asset
3 with a basis of $220.
Example 5. Transfer of liabilities—(i)
Liabilities described in section 358(d)(1)—(A)
Basic application of section, no section
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362(e)(2)(C) election—(1) Facts. A owns
Asset 1 (basis $800, value $700). A also has
a $200 liability that has been taken into
account for tax purposes and is thus
described in section 358(d)(1), and not in
sections 357(c)(3), 358(d)(2), and 358(h)(1). A
transfers Asset 1 to X in exchange for a single
outstanding share of X stock representing all
the outstanding X stock immediately after the
transaction and X’s assumption of the
liability. The transfer is a transaction to
which section 351 applies.
(2) Analysis—(i) Loss duplication
transaction. A’s transfer of Asset 1 is a
section 362(a) transaction. But for section
362(e)(2) and this section, X’s basis in Asset
1 would be $800, which would exceed Asset
1’s $700 value immediately after the
transaction. Accordingly, the transfer is a loss
duplication transaction and A has a net builtin loss of $100 ($800 ¥ $700).
(ii) Identifying loss duplication property.
But for section 362(e)(2) and this section, X’s
basis in Asset 1 would be $800, which would
exceed the $700 value of Asset 1 immediately
after the transaction. Accordingly, Asset 1 is
loss duplication property.
(3) Basis in loss duplication property. X’s
basis in Asset 1 is $700, computed as its $800
basis determined under section 362(a)
reduced by A’s $100 net built-in loss.
(4) Basis in other property. Under sections
358(a) and (d)(1), A’s basis in the X stock is
$600 ($800 basis in property transferred—
$200 liability assumed).
(B) Section 362(e)(2)(C) election. The facts
are the same as in paragraph (i)(A)(1) of this
Example 5, except that A and X make an
election under section 362(e)(2)(C). In this
case, A’s $100 net built-in loss that would
have been applied to reduce X’s basis in
Asset 1 is applied to reduce A’s basis in the
X stock received. As a result, A’s basis in the
X stock is $500 ($600, as determined in
paragraph (i)(A)(4) of this Example 5,
reduced by $100) and X’s basis in Asset 1 is
$800.
(ii) Contingent liabilities described in
section 358(h)(1), section 358(h)(2)(A)
exception applies—(A) Facts. The facts are
the same as in paragraph (i)(A)(1) of this
Example 5, except that A’s liability (valued
at $200) has not been taken into account for
tax purposes and is described in sections
358(d)(2) and 358(h)(1). However, Asset 1 is
a trade or business and the liability is
associated with the trade or business; as a
result, the liability is described in section
358(h)(2)(A) and is excepted from the general
rule of section 358(h)(1).
(B) Analysis. For the reasons set forth in
paragraph (i)(A)(2) of this Example 5, A’s
transfer of Asset 1 is a loss duplication
transaction, A has a net built-in loss of $100,
and Asset 1 is loss duplication property.
(C) Basis in loss duplication property. For
the reasons set forth in paragraph (i)(A)(3) of
this Example 5, X’s basis in Asset 1 is $700.
(D) Basis in other property. A’s basis in the
X stock is $800 under sections 358(a),
358(d)(2), and 358(h)(2)(A).
(E) Section 362(e)(2)(C) election. The facts
are the same as in paragraph (ii)(A) of this
Example 5, except that A and X make an
election under section 362(e)(2)(C). In this
case, A’s $100 net built-in loss that would
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have applied to reduce X’s basis in Asset 1
is applied to reduce A’s basis in the X stock
received. As a result, A’s basis in the X stock
is $700 ($800, as determined in paragraph
(ii)(D) of this Example 5, reduced by $100).
X’s basis in Asset 1 is $800.
Example 6. Section 351 transfer with
boot—(i) Basic transaction-(A) Facts. A owns
Asset 1 (basis $80, value $100) and Asset 2
(basis $30, value $25). In a transaction to
which section 351 applies, A transfers Asset
1 and Asset 2 to X in exchange for 10 shares
of X stock and $25.
(B) Analysis—(1) Loss duplication
transaction. A’s transfer of Asset 1 and Asset
2 is a section 362(a) transaction. But for
section 362(e)(2) and this section, X’s
aggregate basis in those assets would be $130,
computed as follows. Under section 362(a), a
corporation’s basis in property acquired in a
transaction to which section 351 applies is
the same as the property’s basis in the hands
of the transferor, increased by any gain
recognized to the transferor on such transfer.
Under section 351(b), gain (but not loss) is
recognized to the extent a transferor in a
section 351 exchange receives other property
or money in addition to the stock permitted
to be received without the recognition of
gain. To determine the amount of gain
recognized under section 351(b), the
consideration is allocated proportionately (by
value) among the transferred properties. A’s
gain on the transfer is therefore computed as
follows: Asset 1 reflects 80 percent of the
value transferred ($100/$125) and Asset 2
reflects 20 percent of the value transferred
($25/$125). Thus, 80 percent of the stock
(eight shares) and the cash ($20) are treated
as being received in exchange for Asset 1 and
20 percent of the stock (two shares) and the
cash ($5) are treated as being received in
exchange for Asset 2. Thus, under section
351(b), A recognizes $20 of gain for the cash
received in exchange for Asset 1, but A
recognizes no loss for the amount received
for Asset 2. As a result, under section 362(a),
X would have a basis of $100 in Asset 1 and
$30 in Asset 2. Thus, X’s aggregate basis in
the assets would be $130, which exceeds the
$125 aggregate value of the assets ($100 +
$25)). The transfer is a loss duplication
transaction and A has a net built-in loss of
$5 ($130¥$125).
(2) Identifying loss duplication property.
But for section 362(e)(2) and this section, X’s
basis in Asset 1 would be $100 (A’s $80 basis
increased by A’s $20 gain recognized), which
would not exceed Asset 1’s $100 value
immediately after the transaction.
Accordingly, Asset 1 is not loss duplication
property. But for section 362(e)(2) and this
section, X’s basis in Asset 2 would be $30,
which would exceed Asset 2’s $25 value
immediately after the transaction.
Accordingly, Asset 2 is loss duplication
property.
(C) Basis in loss duplication property. X’s
basis in Asset 2 is $25, computed as its $30
basis under section 362(a) reduced by A’s $5
net built-in loss.
(D) Basis in other property. Under section
362(a), X’s basis in Asset 1 is $100 (A’s $80
basis increased by the $20 gain recognized).
Under section 358, A’s basis in the X stock
is $105 (the sum of its $80 basis in Asset 1,
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its $30 basis in Asset 2, and its $20 gain
recognized, reduced by the $25 cash received
in the exchange).
(ii) Section 362(e)(2)(C) election. The facts
are the same as in paragraph (i)(A) of this
Example 6, except that A and X elect to
reduce A’s stock basis under section
362(e)(2)(C). Under paragraph (d)(2)(i) of this
section, A reduces its $105 basis in the X
stock by $5, the amount of A’s net built-in
loss of that would have been applied to
reduce X’s basis in Asset 2 had the section
362(e)(2)(C) election not been made. As a
result, A’s basis in the X stock is $100, and
X’s basis in Asset 2 is $30.
Example 7. Section 304 sale of built-in loss
stock—(i) Basic transaction—(A) Facts. A
owns all the stock of X (basis $90, value $60)
and all the stock of Y. A sells all his X stock
to Y for $60. Under section 304, A is treated
as though he transferred the X stock to Y in
exchange for Y stock in a transaction to
which section 351 applies. Then, Y is treated
as redeeming the Y stock it was treated as
having issued to A in the deemed section 351
transaction.
(B) Analysis—(1) Loss duplication
transaction. A’s deemed transfer of X stock
to Y is a section 362(a) transaction. But for
section 362(e)(2) and this section, Y’s
aggregate basis in the X stock would be $90,
which would exceed the X stock’s value of
$60 immediately after the transaction.
Accordingly, the transfer is a loss duplication
transaction and A has a net built-in loss of
$30.
(2) Identifying loss duplication property.
But for section 362(e)(2) and this section, Y’s
basis in the X stock would be $90, which
would exceed the X stock’s $60 value
immediately after the transaction.
Accordingly, the X stock is loss duplication
property.
(C) Basis in loss duplication property. Y’s
basis in the X stock is $60, its $90 basis
determined without regard to section
362(e)(2) and this section, reduced by A’s $30
net built-in loss.
(D) Basis in other property. Under section
358(a), A has an exchanged basis of $90 in
the Y stock he is deemed to receive in the
exchange; the effect of the deemed
redemption of that stock is then determined
under section 302.
(ii) Section 362(e)(2)(C) election. The facts
are the same as in paragraph (i)(A) of this
Example 7, except that the parties elect to
reduce A’s stock basis under section
362(e)(2)(C). For the reasons set forth in
paragraphs (i)(B) and (C) of this Example 7,
Y’s basis in the X stock would be reduced by
$30. Accordingly, A’s basis in the deemedissued Y stock is $60, his $90 basis otherwise
determined under section 358(a) reduced by
the $30 that would have been applied to
reduce Y’s basis in the X stock under section
362(e)(2) and this section; the effect of the
deemed redemption of that stock is then
determined under section 302. Y’s basis in
the X stock is $90.
Example 8. Transactions involving
partnerships—(i) Transfer by a partnership—
(A) Basic application of section—(1) Facts.
PRS owns Asset 1 (basis $100, value $70).
PRS contributes Asset 1 to X in a transaction
to which section 351 applies.
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(2) Analysis—(i) Loss duplication
transaction. PRS’s transfer of Asset 1 is a
section 362(a) transaction. But for section
362(e)(2) and this section, X’s basis in Asset
1 would be $100, which would exceed Asset
1’s $70 value immediately after the
transaction. Accordingly, the transfer is a loss
duplication transaction and PRS has a net
built-in loss of $30 ($100¥$70).
(ii) Identifying loss duplication property.
But for section 362(e)(2) and this section, X’s
basis in Asset 1 would be $100, which would
exceed Asset 1’s $70 value immediately after
the transaction. Accordingly, Asset 1 is loss
duplication property.
(3) Basis in loss duplication property. X’s
basis in Asset 1 is $70, computed as its $100
basis under section 362(a) reduced by PRS’s
$30 net built-in loss.
(4) Basis in other property. Under section
358(a), PRS has an exchanged basis of $100
in the X stock it receives in the exchange.
(B) Section 362(e)(2)(C) election. The facts
are the same as in paragraph (i)(A)(1) of this
Example 8, except that PRS and X elect to
reduce PRS’s stock basis under section
362(e)(2)(C). In this case, PRS’s $30 net builtin loss (as determined in paragraph
(i)(A)(2)(i) of this Example 8) that would have
been applied to reduce X’s basis in Asset 1
is applied to reduce PRS’s basis in the X
stock received. As a result, PRS’s basis in the
X stock is $70 ($100¥$30) and X’s basis in
Asset 1 is $100. The $30 reduction to PRS’s
basis in the X stock is treated as an
expenditure of PRS under section
705(a)(2)(B) and paragraph (e)(1) of this
section. As a result, the partners of PRS must
reduce their bases in their PRS interests.
(ii) Transfer of interest in partnership with
liability—(A) Basic application of section—
(1) Facts. A and two other individuals are
equal partners in PRS. A’s basis in its
partnership interest is $247. A’s share of
PRS’s § 1.752–1 liabilities (as defined in
§ 1.752–1(a)(4)) is $145. A transfers his
partnership interest to X in a transaction to
which section 351 applies. PRS has no
election in effect under section 754. If X were
to sell the PRS interest immediately after the
transfer, X would receive $100 in cash or
other property. In addition, assume that,
taking into account the rules under § 1.752–
4, X’s share of PRS’s § 1.752–1 liabilities (as
defined in § 1.752–1(a)(4)) is $150
immediately after the transfer.
(2) Analysis—(i) Loss duplication
transaction. A’s transfer of its PRS interest is
a section 362(a) transaction. But for section
362(e)(2) and this section, X’s basis in the
PRS interest, would be $252 (A’s basis of
$247, reduced by A’s $145 share of PRS
liabilities, increased by X’s $150 share of PRS
liabilities) and, under paragraph (g)(12)(ii) of
this section, the value of the PRS interest
would be $250 (the sum of $100, the cash X
would receive if X immediately sold the
interest, and $150, X’s share of the § 1.752–
1 liabilities (as defined in § 1.752–1(a)(4))
under section 752 immediately after the
transfer to X). Therefore, the transfer is a loss
duplication transaction and A has a net builtin loss of $2 ($252¥$250).
(ii) Identifying loss duplication property.
But for section 362(e)(2) and this section, X’s
basis in the PRS interest would be $252,
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which would exceed the PRS interest’s $250
value immediately after the transaction.
Accordingly, the PRS interest is loss
duplication property.
(3) Basis in loss duplication property. X’s
basis in the PRS interest is $250, computed
as its $252 basis under section 362(a), taking
into account the rules under section 752,
reduced by A’s $2 net built-in loss.
(4) Basis in other property. Under section
358, taking into account the rules under
section 752, A has a basis of $102 ($247
reduced by A’s $145 share of PRS liabilities)
in the X stock he receives in the transaction.
(B) Section 362(e)(2)(C) election. The facts
are the same as in paragraph (i)(A) of this
Example 8, except that A and X make an
election under section 362(e)(2)(C). Under
paragraph (d)(2)(i) of this section, A reduces
his basis in the X stock, as determined
without regard to section 362(e)(2) and this
section, by the amount of A’s net built-in loss
that would have been applied to reduce X’s
basis in the PRS interest had the section
362(e)(2)(C) election not been made. In
addition, no reduction is made to X’s basis
in the PRS interest, as determined without
regard to section 362(e)(2) and this section.
As a result, A’s basis in the X stock is $100
($102¥$2) and X’s basis in the PRS interest
is $252.
(C) Transfer of partnership interest with
liability, not loss duplication transaction.
The facts are the same as in paragraph
(ii)(A)(1) of this Example 8, except that A’s
share of PRS’s § 1.752–1 liabilities (as
defined in § 1.752–1(a)(4)) is $155. But for
section 362(e)(2) and this section, X’s basis
in the PRS interest would be $242 (A’s basis
of $247, reduced by A’s $155 share of PRS
liabilities, increased by X’s $150 share of PRS
liabilities), which would not exceed the PRS
interest’s $250 value immediately after the
transaction. Accordingly, A’s transfer of the
PRS interest is not a loss duplication
transaction and section 362(e)(2) and this
section have no application to the
transaction. Under section 362(a), X’s basis in
the PRS interest is $242 and, under section
358, taking into account the rules under
section 752, A has a basis of $92 ($247
reduced by A’s $155 share of PRS liabilities)
in the X stock he receives in the transaction.
Example 9. Transactions involving S
Corporations—(i) Transfer by S
Corporation—(A) No section 362(e)(2)(C)
election—(1) Facts. S, an S corporation as
defined in section 1361(a)(1), owns Asset 1
(basis $100, value $70). S transfers Asset 1 to
X in exchange for a single outstanding share
of X stock representing all the outstanding X
stock immediately after the transaction. S
does not elect to treat X as a qualified
subchapter S subsidiary. The transaction is
one to which section 351 applies.
(2) Analysis—(i) Loss duplication
transaction. S’s transfer of Asset 1 is a section
362(a) transaction. But for section 362(e)(2)
and this section, X’s basis in Asset 1 would
be $100, which would exceed Asset 1’s $70
value immediately after the transaction.
Accordingly, the transfer is a loss duplication
transaction and S has a net built-in loss of
$30 ($100¥$70).
(ii) Identifying loss duplication property.
But for section 362(e)(2) and this section, X’s
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basis in Asset 1 would be $100, which would
exceed Asset 1’s $70 value immediately after
the transaction. Accordingly, Asset 1 is loss
duplication property.
(iii) Basis in loss duplication property. X’s
basis in Asset 1 is $70, computed as its $100
basis under section 362(a) reduced by S’s $30
net built-in loss.
(iv) Basis in other property. Under section
358(a), S has an exchanged basis of $100 in
the X stock it receives in the exchange.
(B) Section 362(e)(2)(C) election. The facts
are the same as in paragraph (i)(A)(1) of this
Example 9, except that S and X elect to
reduce S’s stock basis under section
362(e)(2). In this case, S’s $30 built-in loss (as
determined in paragraph (i)(A)(2)(i) of this
Example 9) that would have been applied to
reduce X’s basis in Asset 1 is applied to
reduce S’s basis in the X stock received. As
a result, S’s basis in the X stock is $70 ($100
¥ $30) and X’s basis in Asset 1 is $100. The
$30 reduction to S’s basis in the X stock is
treated as an expense of S under section
1367(a)(2)(D) and paragraph (e)(2) of this
section. As a result, the shareholders of S
must reduce their bases in their S stock.
(ii) Transfer to S Corporation—(A) Basic
application of section. (1) Facts. A owns
Asset 1 (basis $90, value $60) and Asset 2
(basis $110, value $120). In a transaction to
which section 351 applies, A transfers Asset
1 and Asset 2 to S, an S corporation as
defined in section 1361(a)(1), in exchange for
a single share of S stock representing all the
outstanding S stock immediately after the
transaction.
(2) Analysis—(i) Loss duplication
transaction. A’s transfer of Asset 1 and Asset
2 is a section 362(a) transaction. But for
section 362(e)(2) and this section, S’s
aggregate basis in those assets would be $200
($90 + $110), which would exceed the
aggregate value of the assets $180 ($60 +
$120) immediately after the transaction.
Accordingly, the transfer is a loss duplication
transaction and A has a net built-in loss of
$20 ($200 ¥ $180).
(ii) Identifying loss duplication property.
But for section 362(e)(2) and this section, S’s
basis in Asset 1 would be $90, which would
exceed Asset 1’s $60 value immediately after
the transaction. As a result, Asset 1 is loss
duplication property. But for section
362(e)(2) and this section, S’s basis in Asset
2 would be $110, which would not exceed
Asset 2’s $120 value immediately after the
transaction. As a result, Asset 2 is not loss
duplication property.
(3) Basis in loss duplication property. S’s
basis in Asset 1 is $70, computed as its $90
basis under section 362(a) reduced by S’s $20
net built-in loss. The $20 reduction to S’s
basis in Asset 1 does not require a reduction
to A’s basis in its S stock under section
1367(a)(2)(D). See paragraph (f) of this
section.
(4) Basis in other property. Under section
362(a), S has a transferred basis of $110 in
Asset 2. Under section 358(a), A has a basis
of $200 in the S stock it receives in the
exchange.
(B) Section 362(e)(2)(C) election—(1)
Application of section to transaction. The
facts are the same as in paragraph (ii)(A)(1)
of this Example 9, except that A and S elect
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(2) Identifying loss duplication property.
But for section 362(e)(2) and this section,
DC’s basis in Asset 1 would be $80, which
would exceed Asset 1’s $50 value
immediately after the transaction.
Accordingly, Asset 1 is loss duplication
property. But for section 362(e)(2) and this
section, DC’s basis in Asset 2 would be $110,
which would not exceed Asset 2’s $110 value
immediately after the transaction.
Accordingly, Asset 2 is not loss duplication
property.
(B) Basis in loss duplication property. DC’s
basis in Asset 1 is $50, computed as its $80
basis under section 362(a) reduced by FC1’s
$30 net built-in loss.
(C) Basis in other property. Under section
362(e)(1), DC’s basis in Asset 2 is $110.
Under section 358(a), FC1 has an exchanged
basis of $200 in the DC stock it receives in
the transaction.
Example 10. Triangular reorganizations—
(i) Facts. P owns all the stock of S1 and X
owns all the stock of S2. In a merger
described in section 368(a)(2)(D), S2 merges
with and into S1, and X receives stock of P
in exchange for its S2 stock. S2 has a net
built-in loss in its assets acquired by S1 in
the transaction.
(ii) Analysis. The reorganization is not a
section 362(a) transaction, notwithstanding
that, under § 1.358–6(c), P is treated as
acquiring and then transferring S2’s assets to
S1 for purposes of determining P’s
adjustment to its basis in its S1 stock.
Accordingly, S1’s basis in the property
acquired in the transaction is not determined
under section 362(e)(2) and this section; it is
determined under section 362(b).
pmangrum on DSK3VPTVN1PROD with RULES
to reduce A’s stock basis under section
362(e)(2)(C). In this case, A’s $20 built-in loss
(as determined in paragraph (ii)(A)(2) of this
Example 9) that would have been applied to
reduce S’s basis in Asset 1 is applied to
reduce A’s basis in the S stock received. As
a result, A’s basis in the S stock is $180 ($200
¥ $20), S’s basis in Asset 1 is $90, and S’s
basis in Asset 2 is $110.
(2) Tax consequences of subsequent
disposition of transferred assets. The facts are
the same as in paragraph (ii)(B)(1) of this
Example 9 except that, in addition, the year
after the transaction, S sells Asset 1 (basis
$90, value $60) and Asset 2 (basis $110,
value $120) for $180, recognizing the $20 net
built-in loss. The loss is allocated to A and
reduces A’s basis in the S stock from $180
to $160 under section 1367(a)(2)(B). If A then
sells its S stock for its $180 value, A will
recognize a gain of $20.
Example 12. Section 362(e)(2)(C) elections
with respect to transfers between persons that
are not required to file a U.S. return and that
are not CFCs or CFPs—(i) Basic application
of section. On June 30, Year 1, FC1 transfers
Asset 1 to FC2 in a transaction to which
section 351 applies (the original transfer) and
that is therefore a section 362(a) transaction.
But for section 362(e)(2) and this section,
FC2’s basis in Asset 1 (determined
immediately after the transfer, taking into
account all applicable law, including section
362(e)(1)) exceeds the value of Asset 1
immediately after the transaction.
Accordingly, the transaction is a loss
duplication transaction and Asset 1 is loss
duplication property. FC1 and FC2 executed
a written, binding agreement to apply section
362(e)(2)(C) at some point before any Section
362(e)(2)(C) Statement is filed. However, the
transfer was not entered into with a view to
reducing or avoiding the Federal income tax
liability of any person by avoiding the
application of section 362(e)(2) and this
section; further, no event described in
paragraph (d)(3)(ii)(E), (F), or (G) of this
section occurs prior to June 30, Year 3. As
a result, under paragraph (c)(2) of this
section, section 362(e)(2) and this section do
not apply to the transfer. Accordingly, FC2’s
basis in Asset 1 is determined under section
362(a), no section 362(e)(2)(C) election can be
made, and any protective filing of a Section
362(e)(2)(C) Statement will have no effect.
(ii) Loss duplication property later
acquired by a person required to file U.S.
return. The facts are the same as in paragraph
(i) of this Example 12, except that, in
addition, on January 1, Year 2, FC2 transfers
Asset 1 to DC in an exchange to which
section 351 applies. FC2’s transfer is an event
described in paragraph (d)(3)(ii)(G) of this
section. As a result, paragraph (c)(2) does not
except the original transfer from the
application of section 362(e)(2) and this
section. Under paragraph (d)(3)(ii)(G) of this
section, DC must include the Section
362(e)(2)(C) Statement for the original
transfer on or with its Year 2 U.S. return in
order for that election to be effective. The
result would be the same if, instead of FC2
transferring Asset 1 to DC, FC1 transferred its
FC2 stock to DC in an exchange to which
section 351 applies. (Further, if an asset
transferred by FC1 or FC2 to DC is a loss
Example 11. Transfer that includes
property described in section 362(e)(1)(B)
and property not described in section
362(e)(1)(B)—(i) Facts. FC1 transfers Asset 1
(basis $80, value $50) and Asset 2 (basis
$120, value $110) to DC in a transaction to
which section 351 applies. Asset 1 is not
property described in section 362(e)(1)(B);
Asset 2 is property described in section
362(e)(1)(B).
(ii) Basis in property described in section
362(e)(1)(B). Immediately after the transfer
and without regard to section 362(e)(1) or
section 362(e)(2) and this section, DC’s
aggregate basis in property described in
section 362(e)(1)(B) (Asset 2) would be $120
under section 362(a). However, the aggregate
value of such property immediately after the
transfer is $110. Accordingly, the transfer of
Asset 2 is an importation of net built-in loss
within the meaning of section 362(e)(1)(C)
and, under section 362(e)(1), X’s basis in
Asset 2 would be Asset 2’s value, $110.
(iii). Application of section—(A)
Analysis—(1) Loss duplication transaction.
FC1’s transfer of Asset 1 and Asset 2 is a
section 362(a) transaction. But for section
362(e)(2) and this section, DC’s aggregate
basis in those assets would be $190 (Asset 1’s
$80 basis under section 362(a) + Asset 2’s
$110 basis under section 362(e)(1)), which
would exceed the aggregate value of the
assets $160 ($50 + $110) immediately after
the transaction. Accordingly, the transfer is a
loss duplication transaction and FC1 has a
net built-in loss of $30 ($190¥$160).
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54167
asset immediately after its transfer to DC,
DC’s basis in that asset may be subject to
section 362(e)(1).)
(iii) Party to exchange later becomes a
person required to file U.S. return. The facts
are the same as in paragraph (i) of this
Example 12, except that, in addition, on
January 1, Year 2, FC2 becomes engaged in
a U.S. business. FC2’s becoming engaged in
a U.S. business is an event described in
paragraph (d)(3)(ii)(F) of this section because
it will cause FC2 to become a person required
to file a U.S. return. As a result, paragraph
(c)(2) of this section does not except the
transfer from the application of section
362(e)(2) and this section. Under paragraph
(d)(3)(ii)(F) of this section, FC2 must include
the Section 362(e)(2)(C) Statement for the
original transfer on or with its Year 2 U.S.
return in order for the section 362(e)(2)(C)
election for the original transfer to be
effective.
(iv) Statement not filed with respect to
designated event. The facts are the same as
in paragraph (iii) of this Example 12, except
that, in addition, FC1 became engaged in a
U.S. trade or business on October 31, Year 1
and as a result became a person required to
file a U.S. return, an event described in
paragraph (d)(3)(ii)(E) of this section. As a
result, paragraph (c)(2) of this section does
not except the transfer from the application
of section 362(e)(2) and this section. Further,
in order for the election to be effective, FC1
must file the Section 362(e)(2)(C) Statement
on or with its Year 1 U.S. return. See
paragraph (d)(3)(ii)(E) of this section. A
statement filed by FC2 on or with its Year 2
U.S. return has no effect. Thus, if FC1 does
not file the statement, the election does not
become effective and basis is determined
under the general rule of section 362(e)(2).
(v) Nonrecognition transfer of loss
duplication property outside United States,
transferee later becomes engaged in U.S.
trade or business. The facts are the same as
in paragraph (i) of this Example 12, except
that, in addition, on December 31, Year 1,
FC2 transfers Asset 1 to FC3 in a transferred
basis transaction. In Year 2, FC3 becomes
engaged in a U.S. trade or business and as a
result becomes a person required to file a
U.S. return; Asset 1 is not used in or
connected with the U.S. trade or business or
otherwise subject to Federal income tax.
FC3’s becoming engaged in a U.S. trade or
business is an event described in paragraph
(d)(3)(ii)(F) of this section because FC3, a
person who holds loss duplication property
with a basis determined by FC2’s basis in the
property, will be required to file a U.S. return
as a result of its becoming engaged in a U.S.
business. As a result, paragraph (c)(2) of this
section does not except the transfer from the
application of section 362(e)(2) and this
section. Under paragraph (d)(3)(ii)(F) of this
section, FC3 must include the Section
362(e)(2)(C) Statement for the original
transfer on or with its Year 2 U.S. return in
order for the section 362(e)(2)(C) election for
the original transfer to be effective.
(i) [Reserved].
(j) Effective/applicability date. This
section applies to transactions occurring
after September 3, 2013, unless effected
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Federal Register / Vol. 78, No. 170 / Tuesday, September 3, 2013 / Rules and Regulations
pursuant to a binding agreement that
was in effect prior to September 3, 2013,
and at all times thereafter. In addition,
taxpayers may apply these regulations
to transactions occurring after October
22, 2004.
DEPARTMENT OF HOMELAND
SECURITY
Par. 4. In § 1.705–1, paragraph (a)(9) is
added to read as follows:
[Docket No. USCG–2013–0742]
■
(a) * * *
(9) For basis adjustments necessary to
coordinate sections 705 and 362(e)(2),
see § 1.362–4(f)(i).
*
*
*
*
*
Par. 5. In § 1.1367–1, a new sentence
is added at the end of paragraph (c)(2)
to read as follows:
■
*
*
*
*
*
(c) * * *
(2) * * * For basis adjustments
necessary to coordinate sections 1367
and 362(e)(2), see § 1.362–4(f)(ii).
*
*
*
*
*
PART 602—OMB CONTROL NUMBERS
UNDER THE PAPERWORK
REDUCTION ACT
Par. 6. The authority citation for part
602 continues to read as follows:
■
Authority: 26 U.S.C. 7805.
Par. 7. In § 602.101, paragraph (b) is
amended by adding the following
entries to the table in numerical order
to read as follows:
■
OMB Control numbers.
*
*
(b) * * *
*
*
CFR part or section where
identified and described
Current OMB
control No.
*
*
*
1.336–2 .................................
1.336–4 .................................
*
*
1545–2125
1545–2125
*
*
*
1.362–4 .................................
*
*
1545–2247
pmangrum on DSK3VPTVN1PROD with RULES
*
*
*
*
Beth Tucker,
Deputy Commissioner for Operations
Support.
Approved: August 23, 2013.
Mark J. Mazur,
Assistant Secretary of the Treasury (Tax
Policy).
[FR Doc. 2013–21330 Filed 8–30–13; 8:45 am]
BILLING CODE 4830–01–P
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*
Eighth Coast Guard District Annual
Marine Events; Clarksville Riverfest;
Cumberland River 125.0–126.0;
Clarksville, TN
Coast Guard, DHS.
Notice of enforcement of
regulation.
AGENCY:
ACTION:
The Coast Guard will enforce
a Special Local Regulation for the
Clarksville Riverfest marine event on
the Cumberland River mile markers
125.0–126.0 from 8:00 a.m. until 1:00
p.m. on September 7, 2013. This action
is necessary to safeguard participants
and spectators, including all crews,
vessels, and persons on navigable
waters, during the Clarksville Riverfest
marine event. During the enforcement
period, entry into, transiting or
anchoring in the Special Local
Regulation is prohibited to all vessels
not registered with the sponsor as
participants or official patrol vessels,
unless specifically authorized by the
Captain of the Port (COTP) Ohio Valley
or a designated representative.
DATES: The regulations in 33 CFR
100.801 will be enforced from 8:00 a.m.
until 1:00 p.m. on September 7, 2013.
FOR FURTHER INFORMATION CONTACT: If
you have questions on this notice of
enforcement, call Petty Officer James
Alter, Coast Guard Marine Safety
Detachment Nashville at 615–736–5421,
or james.r.alter@uscg.mil.
SUPPLEMENTARY INFORMATION: The Coast
Guard will enforce the Special Local
Regulation for the annual Clarksville
Riverfest marine event listed in 33 CFR
100.801 Table 1, Table No. 30; Sector
Ohio Valley, No. 30 on September 7,
2013 from 8:00 a.m. until 1:00 p.m.
Under the provisions of 33 CFR
100.801, entry into the safety zone listed
in Table 1, Table No. 30; Sector Ohio
Valley, No. 30 is prohibited unless
authorized by the Captain of the Port or
a designated representative. Persons or
vessels desiring to enter into or passage
through the Safety Zone must request
permission from the Captain of the Port
or a designated representative. If
permission is granted, all persons and
vessels shall comply with the
instructions of the Captain of the Port or
designated representative.
SUMMARY:
§ 1.1367–1 Adjustments to basis of
shareholder’s stock in an S corporation.
*
33 CFR Part 100
RIN 1625–AA08
§ 1.705–1 Determination of basis of
partner’s interest.
§ 602.101
Coast Guard
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This notice is issued under authority
of 5 U.S.C. 552 (a); 33 U.S.C. 1233. In
addition to this notice in the Federal
Register, the Coast Guard will provide
the maritime community with advance
notification of this enforcement period
via Local Notice to Mariners and Marine
Information Broadcasts.
If the Captain of the Port Ohio Valley
or Patrol Commander determines that
the Special Local Regulation need not
be enforced for the full duration stated
in this notice of enforcement, he or she
may use a Broadcast Notice to Mariners
to grant general permission to enter the
regulated area.
Dated: August 12, 2013.
R.V. Timme,
Captain, U.S. Coast Guard, Captain of the
Port Ohio Valley.
[FR Doc. 2013–21289 Filed 8–30–13; 8:45 am]
BILLING CODE 9110–04–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 100
[USCG–2013–0718]
RIN 1625–AA08
Special Local Regulation, Cumberland
River, Mile 157.0 to 159.0; Ashland
City, TN
Coast Guard, DHS.
Temporary final rule.
AGENCY:
ACTION:
The Coast Guard is
establishing a temporary special local
regulation for the waters of the
Cumberland River beginning at mile
marker 157.0 and ending at mile marker
159.0, extending bank to bank. This
zone is necessary to protect the
swimmers participating in the
Nashvegas Triathlon on the Cumberland
River. Entry into this area is prohibited
unless specifically authorized by the
Captain of the Port (COTP) Ohio Valley
or designated representative.
DATES: This rule is effective from 6:00
a.m. to 11:30 a.m. September 7, 2013.
ADDRESSES: Documents mentioned in
this preamble are part of docket [USCG–
2013–0718]. To view documents
mentioned in this preamble as being
available in the docket, go to https://
www.regulations.gov, type the docket
number in the ‘‘SEARCH’’ box and click
‘‘SEARCH.’’ Click on Open Docket
Folder on the line associated with this
rulemaking. You may also visit the
Docket Management Facility in Room
W12–140 on the ground floor of the
Department of Transportation West
SUMMARY:
E:\FR\FM\03SER1.SGM
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Agencies
[Federal Register Volume 78, Number 170 (Tuesday, September 3, 2013)]
[Rules and Regulations]
[Pages 54156-54168]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-21330]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Parts 1 and 602
[TD 9633]
RIN 1545-BE58
Limitations on Duplication of Net Built-in Losses
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Final regulations.
-----------------------------------------------------------------------
SUMMARY: This document contains final regulations under section
362(e)(2) of the Internal Revenue Code of 1986 (Code). The regulations
apply to certain nonrecognition transfers of loss property to
corporations. The regulations affect all parties to the transaction.
DATES: Effective Date: These final regulations are effective on
September 3, 2013.
Applicability Date: For dates of applicability see Sec. 1.358-
2(d), Sec. 1.362-4(j).
FOR FURTHER INFORMATION CONTACT: Theresa A. Abell (202) 622-7700 (not a
toll-free number).
SUPPLEMENTARY INFORMATION:
Paperwork Reduction Act
The collection of information contained in these final regulations
has been reviewed and approved by the Office of Management and Budget
in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3507(d)) under OMB control number 1545-2247. The collection of
information in these final regulations is in Sec. 1.362-4(d). This
information is required by the IRS to verify basis of property
transferred in certain tax-free transactions when taxpayers make the
election provided for under section 362(e)(2)(C).
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless the collection of
information displays a valid control number.
Books or records relating to a collection of information must be
retained as long as their contents may become material in the
administration of any internal revenue law. Generally, tax returns and
tax return information are confidential, as required by section 6103.
Background
Section 362(e)(2) was enacted in the American Jobs Creation Act of
2004 (Pub. L. 108-357, 188 Stat. 1418 (2004)) in order to prevent the
duplication of loss in certain corporate nonrecognition transfers.
Section 362(e)(2) applies to corporate acquisitions of property with a
net built-in loss in transactions described in section 362(a)
(transactions to which section 351 applies and acquisitions of property
as paid-in surplus or contributions to capital), but only if the
transaction is not described in section 362(e)(1) (transactions in
which there is an importation of built-in loss). When a transaction is
subject to section 362(e)(2), the acquiring corporation's basis in loss
property is reduced by the property's allocable portion of the
transferor's net built-in loss. See section 362(e)(2)(B). However,
under section 362(e)(2)(C), the parties to the transaction can make an
irrevocable election to apply the reduction to the transferor's basis
in the stock received in the exchange instead of to the transferee's
basis in the property received in the exchange.
Notice 2005-70, 2005-2 CB 694, was published on October 11, 2005,
to provide interim guidance for making an election to apply section
362(e)(2)(C). See Sec. 601.601(d)(2) of this chapter. Under Notice
2005-70, an election would be considered effective once a certification
was included by the transferor or, if the transferor is a controlled
foreign corporation (CFC), by all of its controlling U.S. shareholders
as defined in Sec. 1.964-1(c)(5), on a timely filed original Federal
income tax return (designated a ``U.S. return'' under the final
regulations) for the year of the transaction. Notice 2005-70 expressly
permitted taxpayers to make a protective election that would have no
effect on a transaction that is ultimately not subject to section
362(e)(2). The Notice also allowed other statements to be treated as
effective elections if sufficient information was provided to the IRS
with respect to the transfer and parties.
Proposed regulations under section 362(e)(2) were published in the
Federal Register (71 FR 62067) on October 23, 2006. Following the
publication of the proposed regulations, the IRS received questions
concerning the application of section 362(e)(2) to transactions
involving S corporations and partnerships and concerning the filing of
the section 362(e)(2)(C) election, particularly with respect to
transactions between persons outside the United States. The IRS also
has become aware of certain ambiguities (described later in this
preamble) relating to the proper operation of the statute. Two written
comments were submitted; no public hearing was requested or held.
Summary of Proposed Regulations
1. General Application of Section, Interaction With Other Law
The proposed regulations included a number of specific provisions
regarding the general operation of the statutory framework, such as
provisions stating that section 362(e)(2) is to be applied on a
transferor-by-transferor basis; that a transaction is treated as
subject to section 362(e)(2) to the extent it is not a transfer of net
built-in loss property under section 362(e)(1); that gain recognized by
the transferor is taken into account in determining the transferee's
basis immediately after the transfer; and that section 362(e)(2)
applies to any transaction described in section 362(a) without regard
to whether the transaction is also described in section 362(b) or any
other section. These provisions responded to inquiries from
practitioners concerning section 362(e)(2) and its interaction with
generally applicable provisions of the Code.
2. Exceptions From the Application of Section 362(e)(2)
The proposed regulations included two exceptions under which a
transaction would be treated as not subject to section 362(e)(2)
notwithstanding that the transaction is generally described in that
section.
Under the first exception, if a transfer is not relevant for
Federal income tax purposes at the time it occurs and it does not
become relevant for Federal income tax purposes at any time within two
years of the transfer, then, solely for purposes of determining whether
section 362(e)(2) applies to the transaction, the property exchanged
would be deemed to have a basis equal to its fair market value
(designated value under the final regulations) immediately after the
transaction. As a result, the transfer would not be subject to section
362(e)(2). This exception reflected a concern that transferors not
anticipating that a transfer would be relevant for
[[Page 54157]]
Federal income tax purposes would not be likely to undertake the
valuation and record-keeping necessary to comply with the statute.
However, if a transfer that was not relevant for Federal income tax
purposes when it occurred became relevant for Federal income tax
purposes at any time within two years of the transfer, the
administrative burden of compliance would not be unreasonable, and, if
a transaction was undertaken with a view to reducing or avoiding
Federal income tax, the transferor must expect the transfer to be
relevant for Federal income tax purposes. Because relief would be
either unnecessary or inappropriate in either case, relief was not
extended to those cases.
Under the second exception, a transaction would not be subject to
section 362(e)(2) to the extent that the transferor distributes the
stock received in the transaction and, in the distribution, no gain or
loss was recognized and no person takes the stock or other property
with a basis determined by reference to the transferor's basis in the
distributed stock. This relief reflected a determination that, to the
extent there is no duplicated loss that could be recognized by any
taxpayer, section 362(e)(2) should not apply to the transaction.
3. Securities Received Without the Recognition of Gain or Loss
Section 362(e)(2) is silent with respect to securities received
without the recognition of gain or loss in a transaction otherwise
subject to section 362(e)(2). However, the IRS and Treasury Department
determined that the statutory purpose of preventing loss duplication
would be circumvented if section 362(e)(2) did not apply to securities
issued in such cases. For example, if loss property is transferred in
exchange for stock and securities and any part of the securities are
retained following the distribution of the stock under section 355,
loss would be duplicated and preserved in the retained securities. To
prevent this circumvention of the statutory purpose, the proposed
regulations defined the term ``stock'' to include both stock and
securities for purposes of section 362(e)(2).
4. Liabilities
In general, as illustrated in Example 5 in paragraph (d) of Sec.
1.362-4 of the proposed regulations, liabilities assumed in the
transaction do not affect the application of section 362(e)(2).
However, the proposed regulations provided that, if a section
362(e)(2)(C) election is made, the reduction to stock basis is limited
to the amount that the transferee would otherwise reduce its basis in
the transferred assets. This was intended to prevent the reduction of
stock basis attributable to contingent liabilities associated with a
trade or business, for which basis is specifically preserved under
section 358(h)(2)(A).
5. The Section 362(e)(2)(C) Election
The proposed regulations adopted the general approach of Notice
2005-70, treating an election as effective if the transferor files a
certification (designated the ``election statement'' in the proposed
regulations) on its U.S. return for the year of the transfer or, if the
transferor is a CFC, if the controlling U.S. shareholders all file the
election statement on or with their U.S. returns. The proposed
regulations also adopted the rule allowing a protective election.
In addition, the proposed regulations substantially expanded the
guidance provided in Notice 2005-70. The proposed regulations added an
express requirement that the transferor and the transferee execute a
written, binding agreement. The proposed regulations also included
guidance on the filing of an election statement in circumstances not
addressed in the Notice (for example, if the transferor was not
required to file a U.S. return and was not a CFC) and provided that the
statement must be filed in accordance with the regulations in order for
the section 362(e)(2)(C) election to be effective.
In addition, the proposed regulations provided that the basis
tracing provisions in Sec. 1.358-2 would not apply to transactions in
which a section 362(e)(2)(C) election is made. Thus, if A transferred
multiple shares of X stock to Y in a transaction subject to section
362(e)(2), the Y shares received in the transaction would each be
allocated an equal portion of A's aggregate basis in the X shares
transferred, without regard to A's bases in the individual shares of X
stock surrendered. As a result, there would be no disparity among A's
bases in its Y shares following a section 362(e)(2)(C) election. This
rule was intended to prevent a preservation of loss that would be
contrary to the objective of section 362(e)(2).
6. Partnerships and S Corporations
The proposed regulations confirmed that any reduction under section
362(e)(2)(C) to the basis in stock received by a partnership or S
corporation in a transaction subject to section 362(e)(2) is an
expenditure or expense of the transferor partnership or S corporation.
As a result, the section 362(e)(2)(C) stock basis reduction would cause
a reduction to the basis of the partner in its interest in the
partnership or the S corporation shareholder's basis in its stock of
the S corporation.
Summary of Comments and Guidance
In general, the commenters concurred with the positions taken in
the proposed regulations, but requested that the overall operation of
the statute be clarified. For example, since the issuance of the
proposed regulations, the IRS has become aware of certain questions
relating to the allocation of net built-in loss where gain is
recognized and multiple properties are transferred in the transaction.
In addition, practitioners requested further guidance on the
application of section 362(e)(2) to transactions that are also subject
to section 362(e)(1), to transactions involving partnerships and S
corporations, and to transactions between persons not connected with
the United States, particularly with regard to the making of the
section 362(e)(2)(C) election.
Accordingly, these final regulations generally adopt the
substantive rules of the proposed regulations. In addition, the final
regulations revise the structure of the proposed rules to clarify the
application of section 362(e)(2) and to provide a framework that will
better coordinate with the provisions of section 362(e)(1) and the
regulations that are to be promulgated under that section. These are
not substantive changes from the proposed regulations but are solely
intended to simplify the application of section 362(e)(2). The material
changes and additions to the proposed regulations are as follows:
1. Clarification of Overall Application of Section 362(e)(2)
The final regulations adopt a general operative rule and related
definitions to facilitate the identification of transactions that are
subject to section 362(e)(2) and to then determine the tax treatment
required by this section. This approach responds to comments requesting
more clarity on the general operation of the provision.
The general operative rule set forth in the final regulations is
that whenever a person (Transferor) transfers property to a corporation
(Acquiring) in a loss duplication transaction, Acquiring's basis in
each loss duplication property (as determined without regard to section
362(e)(2)) is reduced by the property's allocable portion of
Transferor's net built-in loss.
The final regulations define the term ``loss duplication
transaction'' as any section 362(a) transfer in which
[[Page 54158]]
Acquiring's aggregate basis in the property transferred by Transferor
would exceed the aggregate value of such property immediately after the
transaction. The term ``loss duplication property'' refers to
individual property transferred in the loss duplication transaction
that Acquiring would take with a basis that would exceed value
immediately after the transfer. Finally, the term ``Transferor's net
built-in loss'' is defined as the excess of Acquiring's aggregate basis
in property received from Transferor over the aggregate value of such
property immediately after the transaction. For purposes of applying
each of these definitions, Acquiring's basis in property is determined
immediately after the transfer, disregarding section 362(e)(2) but
taking into account all other applicable rules, including section
362(e)(1).
The final regulations thus incorporate in the operative rules and
definitions the transferor-by-transferor approach and other general
provisions that reflect the statutory construct as implemented by the
proposed regulations, including that a transfer can be subject to both
section 362(e)(1) and section 362(e)(2) and the priority given to
section 362(e)(1) in such cases. These principles are further
illustrated in the examples.
2. Additional Definitions
Several questions were raised concerning whether certain persons
were required to file a U.S. return within the meaning of the
regulations. To address these concerns, the final regulations define
the term ``U.S. return'' as a return of income that must be filed under
section 6012 or an information return that must be filed under Subtitle
F, Chapter 61, Subchapter A, Part III of the Code (sections 6031 and
following). The final regulations further provide that the requirement
to file the return must be unconditional. Thus, the term does not
include forms that are merely elective to receive a particular tax
treatment, such as statements filed to make an election or to reduce or
avoid withholding by a person not otherwise required to file a U.S.
return. These changes are intended to eliminate uncertainty as to
whether a person has a filing requirement for purposes of determining
whether a transaction qualifies for relief as a transaction outside the
United States. The final regulations also clarify the time for filing
and the person that must file a statement that the Transferor and
Acquiring are making an election under section 362(e)(2)(C) (designated
as a ``Section 362(e)(2)(C) Statement'' under the final regulations).
The Section 362(e)(2)(C) Statement is described more fully later in
this preamble.
The final regulations modify the definition of the term
``controlling U.S. shareholder.'' Under the final regulations, only
persons owning a direct interest in the CFC or an interest treated as
owned by reason of an interest in a partnership, estate, trust, or
corporation are treated as controlling U.S. shareholders. This change
reflects a concern that, for this purpose, a rule treating persons as
controlling U.S. shareholders solely by reason of the family
attribution rules presents undue administrability concerns and can
cause inappropriate results in certain cases.
3. Exception for Transactions Outside the U.S. Tax System
The IRS and Treasury Department continue to believe that
administrative relief is appropriate when the parties to the transfer
do not expect the transfer to be relevant for Federal tax purposes, and
in fact the transfer does not become relevant for Federal tax purposes
within two years of the transfer. Accordingly, the final regulations
retain the rule in the proposed regulations excepting transactions
wholly outside the U.S. tax system. However, the final regulations
conform the formulation of the rule to the formulation of the exception
for transactions in which duplicated loss is eliminated. That is, the
rule in the final regulations does not presume that basis and value are
equal (with the result that no loss is transferred and so section
362(e)(2) does not apply), as in the proposed regulations, but instead
provides simply that section 362(e)(2) will not apply to a qualifying
transaction. Like the proposed regulations, the final regulations
provide that a transaction will qualify for this exception only if the
transaction is between persons not connected to the United States, the
transaction does not become relevant for Federal tax purposes within
two years of the transfer, and the transaction is not undertaken
pursuant to a plan to reduce or avoid Federal taxes.
4. Controlled Foreign Partnerships (CFPs)
The IRS and Treasury Department have determined that, for purposes
of the administrative relief granted for transactions outside the
United States, as well as for purposes of determining the person that
must file a Section 362(e)(2)(C) Statement, CFPs should be treated in
the same manner as CFCs. First, the reason that CFCs are ineligible for
relief is that a CFC could not reasonably expect a transfer to have no
relevance for Federal income tax purposes, and so the administrative
relief is not warranted. The same is true with respect to CFPs. Second,
with respect to the filing of a Section 362(e)(2)(C) Statement,
although a CFP may not be required to file a U.S. return, the reporting
U.S. partners of a CFP have a relationship to the CFP, and a filing
obligation with respect to the CFP's activities, that is materially the
same as that of the controlling U.S. shareholders of a CFC. Thus, the
reporting U.S. partners of a CFP have the same reporting requirements
under these final regulations as the controlling U.S. shareholders of a
CFC. For purposes of these final regulations, a partnership is a CFP if
it is treated as such for purposes of section 6038; a CFP's reporting
U.S. partners are generally those persons that would be required to
file an information return with respect to the CFP under section 6038.
5. Liabilities
The final regulations retain the approach in the proposed
regulations that generally disregards liability assumptions. Example 5
in paragraph (d) of the proposed regulations Sec. 1.362-4 is expanded,
however, to illustrate more fully the application of section 362(e)(2)
to transactions in which fixed and contingent liabilities are assumed.
See Example 5 in paragraph (h) of the final regulations Sec. 1.362-4.
However, in both written comments and informal inquiries,
practitioners have raised concerns about the effect of this rule when
the property transferred is an interest in a partnership with
liabilities. In particular, practitioners are concerned because
partnership liabilities increase each partner's basis in its
partnership interest but do not give rise to a corresponding increase
in the value of those interests. The result can be the appearance of a
built-in loss.
To address this problem, the final regulations generally adopt the
approach proposed by commentators, specifically, by modifying the
definition of the term ``value'' (generally, fair market value) to take
liabilities into account when determining whether a partnership
interest is a loss asset. However, because there can be differences
between Transferor's share of partnership liabilities and Acquiring's
share of partnership liabilities, the final regulations provide that
the value of a partnership interest is the sum of cash that Acquiring
would receive for such interest, increased by any Sec. 1.752-1
liabilities (as defined in Sec. 1.752-1(a)(4)) of the partnership that
are allocated to Acquiring with regard to such transferred interest
under section
[[Page 54159]]
752. The final regulations include an example that illustrates the
application and effect of this rule. See Example 8(ii) in paragraph (h)
of the final regulations Sec. 1.362-4. The final regulations also
clarify that any section 743(b) adjustment to be made as a result of
the transaction is made after any section 362(e) basis adjustment.
6. Elections Under Section 362(e)(2)(C)
Since the enactment of section 362(e)(2), the questions most
frequently asked of the IRS concern the making of the section
362(e)(2)(C) election, notwithstanding the publication of Notice 2005-
70 and the proposed regulations. Accordingly, the final regulations not
only generally adopt the rules set forth in Notice 2005-70 and in the
proposed regulations, but they also expand those rules significantly to
address the questions raised.
a. Section 362(e)(2)(C) Statement
To begin, the final regulations retain the fundamental structure of
the proposed regulations. Thus, under the final regulations, a written,
binding agreement to make a section 362(e)(2)(C) election must be
executed by Transferor and Acquiring, and a Section 362(e)(2)(C)
Statement must be filed in accordance with the regulations. A section
362(e)(2)(C) election is effective only if both conditions are met. The
final regulations do not prescribe a particular form for the agreement
to make the section 362(e)(2)(C) election; however, the final
regulations do require the written, binding agreement to be in effect
prior to the time a Section 362(e)(2)(C) Statement is filed.
The final regulations generally adopt the structure of the proposed
regulations regarding the time and manner of filing of the Section
362(e)(2)(C) Statement. Thus, under the final regulations, the
statement is filed by Transferor (if Transferor is otherwise required
to file a U.S. return for the year of the transaction) or by all of
Transferor's controlling U.S. shareholders or reporting U.S. partners
(if Transferor is a CFC or CFP at the time of the transaction and is
not otherwise required to file a U.S. return). Further, if Transferor
is not otherwise required to file a U.S. return and is not a CFC or
CFP, then the statement is filed by Acquiring (if Acquiring is
otherwise required to file a U.S. return in the year of the
transaction) or by all of Acquiring's controlling U.S. shareholders (if
Acquiring is a CFC at the time of the transaction and is not otherwise
required to file a U.S. return).
Unlike the proposed regulations, the final regulations do not
require or permit the filing of the Section 362(e)(2)(C) Statement by a
U.S. person (as defined in section 7701(a)(30)) that is not otherwise
required to file a U.S. return. This change was made because these
regulations do not create an independent filing requirement, and not
all U.S. persons would otherwise be required to file a U.S. return.
b. Neither Party Able To File a Section 362(e)(2)(C) Statement
Like the proposed regulations, the final regulations provide rules
regarding the filing of a Section 362(e)(2)(C) Statement if neither
Transferor, Acquiring, nor any of their shareholders would be required
to file the statement at the time of the transaction but at some later
time either Transferor or Acquiring becomes a person required to file a
U.S. return or a CFC, or the stock or loss duplication property is
acquired by such a person or a CFC in a transferred basis transaction.
For this purpose, the final regulations expand the proposed rule to
treat CFPs in the same manner as CFCs.
The final regulations expand the proposed rules in two respects.
First, the final regulations provide that, if a person holds property
received in a transaction with a basis determined directly or
indirectly by reference to the basis of loss duplication property or
stock received in a loss duplication transaction, the filing
requirements will treat such person as Transferor or Acquiring (as
applicable) for purposes of determining who must file a Section
362(e)(2)(C) Statement and when.
Second, the final regulations provide that a Section 362(e)(2)(C)
Statement must be filed with a U.S. return (or U.S. returns) for the
first taxable year in which property with a basis determined by
reference to the basis of loss duplication property or stock received
in a loss duplication transaction is acquired by a person required to
file a U.S. return, a CFC, or a CFP. If, in the same taxable year, more
than one person has an event that causes such basis to become relevant
for U.S. tax purposes, the Section 362(e)(2)(C) Statement must be filed
by all such persons with their U.S. return for that first year.
These two changes were determined necessary to prevent transactions
from qualifying for the two-year exception for transactions outside the
U.S. tax system if the basis of property exchanged in a transaction
becomes relevant for U.S. tax purposes within two years of the
transaction, as it would not be unduly burdensome to require the
valuation necessary to comply with section 362(e)(2) in such a case.
These rules are expected to have limited application, inasmuch as
they will generally only apply if, within two years of the transaction,
a party to the transaction becomes a person required to file a U.S.
return, a CFC, or a CFP, or such a person acquires the loss duplication
property or stock received in a loss duplication transaction in a
transferred basis transaction. These rules will also apply in the
limited situations in which Transferor is a U.S. person not otherwise
required to file a U.S. return and Acquiring is neither required to
file a U.S. return, a CFC, nor a CFP (such a case would not qualify for
the two-year exception for transactions outside the U.S. tax system
because a U.S. person is a party to the transaction).
7. Transactions Involving Partnerships and S Corporations
Like the proposed regulations, the final regulations expressly
confirm that any reduction to a transferor's basis in Acquiring stock
by reason of a section 362(e)(2)(C) election is an expenditure or
expense under section 705(a)(2)(B) (if Transferor is a partnership) and
under section 1367(a)(2)(D) (if Transferor is an S corporation).
However, in response to questions raised with regard to the proposed
regulations, the final regulations provide further guidance on the
interaction between section 362(e)(2) and both subchapter K and
subchapter S. Specifically, the final regulations clarify that no stock
basis reduction is required under section 1367(a)(2)(D) by reason of a
reduction to the S corporation's basis in acquired assets if a section
362(e)(2)(C) election is not made. In addition, the final regulations
include examples illustrating the consequences of transfers to and by S
corporations, as well as transfers by partnerships. For example,
practitioners raised concerns that S corporation shareholders electing
to reduce the basis of their S corporation stock under section
362(e)(2)(C) may inadvertently eliminate their loss completely when the
transferred asset is sold. The IRS and Treasury Department recognize
that the elimination of any tax benefit from the economic loss can
result in such cases and, to alert taxpayers to the potential
elimination of loss, the final regulations include an example to
illustrate the application of section 362(e)(2) to transfers made both
with and without the election under section 362(e)(2)(C). See Example 9
in paragraph (h) of the final regulations Sec. 1.362-4.
[[Page 54160]]
8. Examples
The final regulations include revised and expanded examples based
on those in the proposed regulations. For example, in response to
questions about the scope of the application of section 362(e)(2) to
reorganizations, the final regulations include not only examples from
the proposed regulations illustrating the application of section
362(e)(2) to transactions qualifying as both section 351 transactions
and reorganizations, they also include an example illustrating the
nonapplicability of section 362(e)(2) to triangular reorganizations
that do not include a transfer to which section 362(a) applies.
9. Other Requests for Comments in the Proposed Regulations
Although the preamble to the proposed regulations invited comments
concerning whether special rules were needed to address the interaction
of section 362(e)(2) and section 336(d) when a section 362(e)(2)(C)
election is made, and whether the regulations should deem a section
362(e)(2)(C) election in the case of a section 304 transaction, no
comments were received regarding these issues. Accordingly, no special
rules addressing these issues are included in the final regulations.
10. Effective/Applicability Date
These final regulations generally adopt the proposed effective date
and thus are applicable to transactions occurring after September 3,
2013. However, the final regulations modify the proposed effective date
to provide that the final regulations do not apply to transactions
after September 3, 2013, that were effected pursuant to a binding
agreement that was in effect prior to September 3, 2013, and at all
times thereafter. In addition, the final regulations provide that
taxpayers may apply these rules to any transaction occurring after
October 22, 2004.
11. Revision of Sec. 602.101, Table of OMB Control Numbers
This Treasury Decision revises Sec. 602.101 of this chapter (OMB
Control Numbers under Paperwork Reduction Act) to include the OMB
control number 1545-2247 issued with respect to the collection of
information in this Treasury Decision, as well as OMB control number
1545-2125 issued with respect to the collections of information in
Sec. Sec. 1.336-2 and 1.336-4 (TD 9619, 78 FR 28467) May 15, 2013.
Effect on Other Documents
The following publication is obsolete as of September 3, 2013:
Notice 2005-70 (2005-2 CB 694).
Special Analyses
It has been determined that this Treasury decision is not a
significant regulatory action as defined in Executive Order 12866, as
supplemented by Executive Order 13563. Therefore, a regulatory
assessment is not required. Further, it is hereby certified that these
final regulations will not have a significant economic impact on a
substantial number of small entities. This certification is based on
the fact that the collection of information in these regulations merely
provides a mechanism whereby, once a transferor and transferee have
agreed that it would be advantageous to elect the special basis
treatment afforded under section 362(e)(2)(C), the transferor (or in
limited cases the transferee) can report the existence of the
agreement, and minimal identifying information regarding the
transaction and the parties, on its return in order to make the
election effective. The minimal identifying information should be
readily available to the parties and the professional skills that would
be necessary to make the election would be the same as those required
to prepare a return for the small business. Accordingly, a Regulatory
Flexibility Analysis under the Regulatory Flexibility Act (5 U.S.C.
chapter 6) is not required. Pursuant to section 7805(f) of the Code,
these final regulations, as well as the proposed regulations preceding
these final regulations, were submitted to the Chief Counsel for
Advocacy of the Small Business Administration for comment on its impact
on small business, and no comments were received.
Drafting Information
The principal author of these regulations is Jean R. Broderick of
the Office of Associate Chief Counsel (Corporate), IRS. However, other
personnel from the IRS and Treasury Department participated in their
development.
List of Subjects
26 CFR Part 1
Income taxes, Reporting and recordkeeping requirements.
26 CFR Part 602
Reporting and recordkeeping requirements.
Adoption of Amendments to the Regulations
Accordingly, 26 CFR parts 1 and 602 are amended as follows:
PART 1--INCOME TAXES
0
Paragraph 1. The authority citation for part 1 is amended by adding an
entry for Sec. 1.362-4 to read as follows:
Authority: 26 U.S.C. 7805 * * *
Section 1.362-4 also issued under 26 U.S.C. 362(e)(2)(C)(ii). *
* *
0
Par. 2. Section 1.358-2 is amended by revising paragraph (a)(2)(viii)
and adding a new sentence at the end of paragraph (d) to read as
follows:
Sec. 1.358-2 Allocation of basis among nonrecognition property.
(a) * * *
(2) * * *
(viii) This paragraph (a)(2) shall not apply to determine the basis
of a share of stock or security received by a shareholder or security
holder in an exchange described in both section 351 and either section
354 or 356, if, in connection with the exchange--
(A) The shareholder or security holder exchanges property for stock
or securities in an exchange to which neither section 354 nor section
356 applies;
(B) The shareholder or security holder exchanges property for stock
or securities in a transaction for which an election to apply section
362(e)(2)(C) is in effect; or
(C) Liabilities of the shareholder or security holder are assumed.
* * * * *
(d) Effective/applicability date. * * * However, paragraph
(a)(2)(viii) of this section applies only to exchanges and
distributions of stock occurring on or after September 3, 2013;
taxpayers may also apply paragraph (a)(2)(viii) of this section to
transactions occurring after October 22, 2004.
0
Par. 3. Section 1.362-4 is amended by revising the section heading and
paragraph (a)(1), and adding paragraphs (b) through (j) to read as
follows:
Sec. 1.362-4 Basis of loss duplication property.
(a) Purpose and scope--(1) In general. The purpose of section
362(e)(2) and this section is to prevent the duplication of net loss in
transfers to which section 351 applies, capital contributions, and
paid-in surplus (each, a section 362(a) transaction). See paragraph (g)
of this section for definitions of terms used in this section.
(2) * * *
(b) Basis determinations under section 362(e)(2) and this section.
[[Page 54161]]
Notwithstanding section 362(a), if a corporation (Acquiring) receives
loss duplication property (as defined in paragraph (g)(1) of this
section) from a person (Transferor) in a loss duplication transaction
(as defined in paragraph (g)(2) of this section), Acquiring's basis in
such property is equal to the basis of the property determined without
regard to section 362(e)(2) and this section (as described in paragraph
(g)(1)(ii) of this section), reduced by the property's allocable
portion of Transferor's net built-in loss (as defined in paragraph
(g)(3) of this section). If more than one Transferor transfers property
to a corporation in a section 362(a) transaction, whether and the
extent to which section 362(e)(2) and this section apply is determined
separately for each Transferor.
(c) Exceptions--(1) Transactions in which net built-in loss is
eliminated without recognition. Section 362(e)(2) does not apply to a
transaction to the extent that--
(i) Without recognizing gain or loss, Transferor distributes the
Acquiring stock received in the transaction; and
(ii) Upon completion of the transaction, no person holds Acquiring
stock or any other asset with a basis determined, in whole or in part,
by reference to Transferor's basis in the distributed Acquiring stock.
(2) Certain transactions outside of the United States. Section
362(e)(2) does not apply to a transaction if--
(i) Neither Transferor nor Acquiring is a U.S. person (as defined
in section 7701(a)(30)), a person otherwise required to file a U.S.
return for the year of the transaction, a controlled foreign
corporation (CFC, as defined in paragraph (g)(7) of this section), or a
controlled foreign partnership (CFP, as defined in paragraph (g)(9) of
this section) on the date of the transaction;
(ii) The transfer occurs more than two years prior to the date of
any event described in paragraph (d)(3)(ii)(E), (F), or (G) of this
section; and
(iii) The original transaction and the event or events described in
paragraph (d)(3)(ii)(E), (F), or (G) of this section were not entered
into with a view to reducing or avoiding the Federal income tax
liability of any person by avoiding the application of section
362(e)(2) and this section to the original transaction.
(d) Election to reduce Transferor's stock basis instead of
Acquiring's asset basis--(1) In general. In lieu of making the basis
reductions otherwise required under paragraph (b) of this section,
Transferor and Acquiring may elect to reduce Transferor's basis in
Acquiring stock that is received in the transaction without the
recognition of gain or loss (the section 362(e)(2)(C) election). The
section 362(e)(2)(C) election may be made protectively and will have no
effect to the extent that property transferred in the transaction is
determined not to be subject to section 362(e)(2) and this section.
However, the election is irrevocable once it is made. A section
362(e)(2)(C) election is made and effective if--
(i) Prior to the filing of a Section 362(e)(2)(C) Statement
(described in paragraph (d)(3)(i) of this section), Transferor and
Acquiring enter into a written, binding agreement to elect to apply
section 362(e)(2)(C); and
(ii) The Section 362(e)(2)(C) Statement is filed in accordance with
the provisions of paragraph (d)(3) of this section.
(2) Effect of section 362(e)(2)(C) election. If a section
362(e)(2)(C) election is made and in effect--
(i) An amount equal to the portion of Transferor's net built-in
loss (as defined in paragraph (g)(3) of this section) that would
otherwise be applied to reduce asset basis under paragraph (b) of this
section is allocated among the Acquiring shares received or deemed
received in the exchange (in proportion to the value of such shares)
and applied to reduce Transferor's basis (determined without regard to
section 362(e)(2) and this section) in each such share; and
(ii) Acquiring's basis in loss duplication property received from
Transferor in the transaction is not determined under section 362(e)(2)
and this section.
(3) Section 362(e)(2)(C) Statement--(i) Form and contents of
statement. The Section 362(e)(2)(C) Statement is to be titled ``Section
362(e)(2)(C) Statement.'' The Section 362(e)(2)(C) Statement must--
(A) Identify (by name and tax identification number, if any)
Transferor and Acquiring;
(B) State that Transferor and Acquiring have entered into a
written, binding agreement to elect to apply section 362(e)(2)(C) as
required in paragraph (d)(1)(i) of this section; and
(C) State the date of the transaction (or, if the transaction
includes transfers on more than one date, then the dates of all
transfers) to which the election applies.
(ii) Filing the Section 362(e)(2)(C) Statement. In general, the
Section 362(e)(2)(C) Statement is filed by the person or entity
described in the applicable paragraph of this paragraph (d)(3)(ii).
Thus, if Transferor is a partnership, S corporation, trust (including a
subpart E trust), or other pass-through entity, or Acquiring is an S
corporation, the entity (and not the partners, shareholders, or other
persons having an interest in the entity or its property) is the person
that must file the Section 362(e)(2)(C) Statement, without regard to
whether such entity is foreign or domestic. However, in the case of a
CFC or CFP, the controlling U.S. shareholders of the CFC or the
reporting U.S. partners of the CFP, respectively, file the Section
362(e)(2)(C) Statement.
(A) Transferor is a person required to file a U.S. return. If
Transferor is a person required to file a U.S. return for the year of
the transfer, Transferor must include the Section 362(e)(2)(C)
Statement on or with its timely filed (including extensions) original
U.S. return for the taxable year in which the transfer occurred.
(B) Transferor is a CFC or CFP and not required to file a U.S.
return. If paragraph (d)(3)(ii)(A) of this section does not apply and
Transferor is either a CFC or a CFP on the date of the transfer, all of
Transferor's controlling U.S. shareholders (in the case of a CFC) or
all of Transferor's reporting U.S. partners (in the case of a CFP) must
include the Section 362(e)(2)(C) Statement on or with their timely
filed (including extensions) original U.S. returns for their taxable
years in which the transfer occurred.
(C) Transferor is not a person required to file a U.S. return, a
CFC, or a CFP, but Acquiring is required to file U.S. return. If
paragraphs (d)(3)(ii)(A) and (B) of this section do not apply and
Acquiring is a person required to file a U.S. return for the year of
the transfer, Acquiring must include the Section 362(e)(2)(C) Statement
on or with its timely filed (including extensions) original U.S. return
for the taxable year in which the transfer occurred.
(D) Transferor is not a person required to file a U.S. return, a
CFC, or a CFP, Acquiring is not required to file a U.S. return, but
Acquiring is a CFC. If paragraphs (d)(3)(ii)(A) through (C) of this
section do not apply and Acquiring is a CFC on the date of the
transfer, all of Acquiring's controlling U.S. shareholders must include
the Section 362(e)(2)(C) Statement on or with their timely filed
(including extensions) original U.S. returns for their taxable years in
which the transfer occurred.
(E) Neither Transferor nor Acquiring is a person required to file a
U.S. return, a CFC, or a CFP, but Transferor later becomes a person
required to file a U.S. return, a CFC, or a CFP. If paragraphs
(d)(3)(ii)(A) through (D) of this section do not apply and Transferor
becomes a person required to file a U.S. return, a CFC, or a CFP,
Transferor (if required to file a U.S. return), all of Transferor's
controlling U.S. shareholders (if
[[Page 54162]]
Transferor becomes a CFC not otherwise required to file a U.S. return),
or all of Transferor's reporting U.S. partners (if Transferor becomes a
CFP not otherwise required to file a U.S. return) must include the
Section 362(e)(2)(C) Statement on or with their timely filed (including
extensions) original U.S. returns for their taxable years in which an
event described in this paragraph (d)(3)(ii)(E) first occurs. For
purposes of this paragraph (d)(3)(ii)(E), the term Transferor includes
any person holding property with a basis determined directly or
indirectly by reference to Transferor's basis in the Acquiring stock
received in the transaction.
(F) Transferor is not and does not become a person required to file
a U.S. return, a CFC, or a CFP, Acquiring is not, but later becomes
either a person required to file a U.S. return, a CFC, or a CFP. If
paragraphs (d)(3)(ii)(A) through (E) of this section do not apply and
Acquiring becomes a person required to file a U.S. return, a CFC, or a
CFP, Acquiring (if required to file a U.S. return), all of Acquiring's
controlling U.S. shareholders (if Acquiring becomes a CFC not otherwise
required to file a U.S. return), or all of Acquiring's reporting U.S.
partners (if Acquiring becomes a CFP not otherwise required to file a
U.S. return) must include the Section 362(e)(2)(C) Statement on or with
their timely filed (including extensions) original U.S. returns for
their taxable years in which an event described in this paragraph
(d)(3)(ii)(F) first occurs. For purposes of this paragraph
(d)(3)(ii)(F), the term Acquiring includes any person holding property
with a basis determined directly or indirectly by reference to
Acquiring's basis in loss duplication property received in the
transaction.
(G) Transferor and Acquiring are not and do not become a person
required to file a U.S. return, a CFC, or a CFP, but the basis of the
loss duplication property or Acquiring stock later becomes relevant for
Federal tax purposes. If paragraphs (d)(3)(ii)(A) through (F) of this
section do not apply and, in a transferred basis transaction, a person
required to file a U.S. return, a CFC, or a CFP acquires either loss
duplication property or Acquiring stock that was received in the loss
duplication transaction, or any property the basis of which is
determined in whole or in part by reference to any such property or
stock, all such persons (or, in the case of a CFC or CFP not required
to file a U.S. return, all the controlling U.S. shareholders or all the
reporting U.S. partners, as applicable) must include the Section
362(e)(2)(C) Statement on or with their timely filed (including
extensions) original U.S. returns for their first taxable year(s) in
which there occurs an event or events described in this paragraph
(d)(3)(ii)(G).
(e) Transfers by partnerships and S corporations--(1) Transfers by
partnerships. If a partnership transfers property in a loss duplication
transaction with respect to which a section 362(e)(2)(C) election is
made, the resulting reduction to the partnership's basis in the
Acquiring stock received in exchange for the loss duplication property
is treated as an expenditure of the partnership described in section
705(a)(2)(B).
(2) Transfers by S corporations. If an S corporation transfers
property in a loss duplication transaction with respect to which a
section 362(e)(2)(C) election is made, the resulting reduction to the S
corporation's basis in the Acquiring stock received in exchange for the
loss duplication property is treated as an expense of the S corporation
described in section 1367(a)(2)(D).
(f) Transfers to S corporations. If a person transfers property to
an S corporation in a loss duplication transaction, any resulting
reduction under section 362(e)(2) and this section to the S
corporation's basis in the property received is not treated as an
expense of the S corporation described in section 1367(a)(2)(D).
(g) Definitions. For purposes of section 362(e)(2) and this
section--
(1) Loss duplication property is any property--
(i) That is transferred by Transferor to Acquiring in a loss
duplication transaction (as defined in paragraph (g)(2) of this
section); and
(ii) That Acquiring would take with a basis in excess of value
immediately after the transaction; for this purpose, the basis
Acquiring would take in the property is determined immediately after
the transaction and without regard to section 362(e)(2) and this
section, but otherwise taking into account all applicable provisions of
law, including, without limitation, section 362(e)(1).
(2) A loss duplication transaction is a section 362(a) transaction
in which Acquiring's aggregate basis in the property received from
Transferor would, but for section 362(e)(2) and this section, exceed
the aggregate value of such property immediately after the transaction.
For this purpose--
(i) A transaction is a section 362(a) transaction if it is
described in section 362(a) without regard to whether it is also
described in any other provision of the Internal Revenue Code (Code),
including, without limitation, section 362(b); and
(ii) Acquiring's aggregate basis in the property received from
Transferor is determined immediately after the transaction and without
regard to section 362(e)(2) and this section, but otherwise taking into
account all applicable provisions of law, including, without
limitation, section 362(e)(1).
(3) Transferor's net built-in loss is the excess of--
(i) Acquiring's aggregate basis (determined under paragraph
(g)(2)(ii) of this section) in all property received from Transferor in
a loss duplication transaction, over
(ii) The aggregate value of such property immediately after the
transaction.
(4) A property's built-in loss is the excess of Acquiring's basis
in the property (determined as described in paragraph (g)(1)(ii) of
this section) over the property's value (determined immediately after
the transaction).
(5) A property's allocable portion of Transferor's net built-in
loss is the portion of Transferor's net built-in loss that bears the
same ratio to Transferor's net built-in loss that the property's built-
in loss bears to the aggregate built-in losses reflected in the bases
of loss duplication property transferred by Transferor in the
transaction.
(6) A U.S. return is a return of income under section 6012 or an
information return under Subtitle F, Chapter 61, Subchapter A, Part III
of the Code (sections 6031 and following) or the regulations
thereunder, that the taxpayer is unconditionally required to file.
Thus, the term does not include elective forms or statements that are
required to be filed only to obtain a particular tax treatment,
including forms filed to make an election or to reduce or avoid
withholding by a person not otherwise required to file a U.S. return
(as described in this paragraph (g)(6)) (for example, a notice of
nonrecognition under Sec. 1.1445-2(d)).
(7) A controlled foreign corporation (CFC) is any corporation
described in section 957 or section 953(c).
(8) A controlling U.S. shareholder is any person that is treated as
a controlling U.S. shareholder under Sec. 1.964-1(c)(5) because such
person either owns a direct interest in the CFC or is treated as owning
an interest in the CFC by reason of section 318(a)(2) (attribution from
partnerships, estates, trusts, and corporations).
(9) A controlled foreign partnership (CFP) is any partnership
treated as a controlled foreign partnership for purposes of section
6038.
(10) A reporting U.S. partner is any partner of a CFP that is
required to file an information return with respect to
[[Page 54163]]
the CFP pursuant to section 6038 or the regulations thereunder, without
regard to Sec. 1.6038-3(c) or (j). In addition, in applying the
constructive ownership rules of Sec. 1.6038-3(b)(4), the term
``nonresident alien'' is replaced by the term ``individual.''
(11) The term stock means both Acquiring stock and Acquiring
securities received by Transferor in the transaction if gain or loss on
the receipt of the stock or securities is not recognized in whole or in
part.
(12) Value--(i) General rule. The term value means fair market
value.
(ii) Special rule for transfers of partnership interests.
Notwithstanding the general rule in paragraph (g)(12)(i) of this
section, when referring to a partnership interest, for purposes of
section 362(e)(2) and this section, the term value means the sum of the
cash that Acquiring would receive for the interest, assuming an
exchange between a willing buyer and a willing seller (neither being
under any compulsion to buy or sell and both having reasonable
knowledge of relevant facts), increased by any Sec. 1.752-1
liabilities (as defined in Sec. 1.752-1(a)(4)) of the partnership
allocated to Acquiring with regard to such transferred interest under
section 752 immediately after the transfer to Acquiring. See Sec.
1.743-1 regarding the application of section 743(b) following a section
362(e) basis reduction.
(h) Examples. The examples in this paragraph (h) illustrate the
application of section 362(e)(2) and this section. For purposes of
these examples, X, Y, P, S, S1, S2, and DC are domestic corporations; A
and B are U.S. individuals; FC1 and FC2 are foreign corporations and,
unless otherwise indicated, are not required to file a U.S. return and
are not CFCs; and PRS is a domestic partnership. Unless the facts
indicate otherwise, all persons and transactions are unrelated;
Acquiring's basis in the transferred property is not determined under
section 362(e)(1); the property transferred is not described in section
362(e)(1)(B); no election is made under section 362(e)(2)(C), and the
transactions are not subject to recharacterization.
Example 1. Transfer described in section 351--(i) Basic
application of section. (A) Facts. A owns Asset 1 (basis $90, value
$60) and Asset 2 (basis $110, value $120). In a transaction to which
section 351 applies, A transfers Asset 1 and Asset 2 to X in
exchange for a single outstanding share of X stock representing all
the outstanding X stock immediately after the transaction.
(B) Analysis--(1) Loss duplication transaction. A's transfer of
Asset 1 and Asset 2 is a section 362(a) transaction. But for section
362(e)(2) and this section, X's aggregate basis in those assets
would be $200 ($90 + $110), which would exceed the aggregate value
of the assets $180 ($60 + $120) immediately after the transaction.
Accordingly, the transfer is a loss duplication transaction and A
has a net built-in loss of $20 ($200-$180).
(2) Identifying loss duplication property. But for section
362(e)(2) and this section, X's basis in Asset 1 would be $90, which
would exceed Asset 1's $60 value immediately after the transaction.
Accordingly, Asset 1 is loss duplication property. But for section
362(e)(2) and this section, X's basis in Asset 2 would be $110,
which would not exceed Asset 2's $120 value immediately after the
transaction. Accordingly, Asset 2 is not loss duplication property.
(C) Basis in loss duplication property. X's basis in Asset 1 is
$70, computed as its $90 basis under section 362(a) reduced by A's
$20 net built-in loss.
(D) Basis in other property. Under section 362(a), X has a
transferred basis of $110 in Asset 2. Under section 358(a), A has an
exchanged basis of $200 in the X stock it receives in the
transaction.
(ii) Section 362(e)(2)(C) election. The facts are the same as in
paragraph (i)(A) of this Example 1, except that A and X make an
election under section 362(e)(2)(C). Under paragraph (d)(2)(i) of
this section, A reduces its basis in the X stock, as determined
without regard to section 362(e)(2) and this section, by the amount
of A's net built-in loss that would have been applied to reduce X's
basis in Asset 1 had the section 362(e)(2)(C) election not been
made. In addition, no reduction is made to X's basis in Asset 1, as
determined without regard to section 362(e)(2) and this section. As
a result, A's basis in the X stock is $180 ($200-$20), X's basis in
Asset 1 is $90, and X's basis in Asset 2 is $110.
Example 2. Transfer described in both section 351 and section
368(a)(1)(B)--(i) Basic application of section--(A) Facts. P owns
the sole outstanding share of S1 stock and the ten outstanding
shares of S2 stock. In a transaction to which section 351 applies
and that is described in section 368(a)(1)(B), P transfers its ten
S2 shares to S1 in exchange for an additional ten shares of S1
voting stock. At the time of the transfer, P has a basis of $10 each
in five of its S2 shares (Shares 1-5) and a basis of $5 each in its
other five S2 shares (Shares 6-10), and the value of each share is
$7.
(B) Analysis--(1) Loss duplication transaction. P's transfer of
the S2 shares is a section 362(a) transaction notwithstanding that
it is also a transaction described in section 368(a)(1)(B) and
therefore section 362(b). But for section 362(e)(2) and this
section, S1's aggregate basis in the S2 shares would be $75 ($10 x
5, or $50, for Shares 1-5 + $5 x 5, or $25, for Shares 6-10). Thus,
S1's $75 aggregate basis in the shares would exceed the aggregate
value of the shares, $70 ($7 x 10 shares), immediately after the
transaction. Accordingly, the transfer is a loss duplication
transaction and P has a net built-in loss of $5 ($75-$70).
(2) Identifying loss duplication property. But for section
362(e)(2) and this section, S1's basis in each of Shares 1-5 would
be $10, which would exceed each share's $7 value immediately after
the transaction. Accordingly, Shares 1-5 are each loss duplication
property. But for section 362(e)(2) and this section, S1's basis in
each of Shares 6-10 would be $5, which would not exceed each share's
$7 value immediately after the transaction. Accordingly, Shares 6-10
are not loss duplication property.
(C) Basis in loss duplication property. S1's basis in each of
Shares 1-5 is $9, computed as its $10 basis (determined without
regard to section 362(e)(2) and this section) reduced by $1, the
share's allocable portion (1/5) of P's net built-in loss ($5).
(D) Basis in other property. Under section 362(a), S1 has a
transferred basis of $5 in each of Shares 6-10. Under section
358(a), P has an exchanged basis in the ten S1 shares it receives in
the exchange ($10 in each of the five S1 shares received in exchange
for Shares 1-5 and $5 in each of the five S1 shares received in
exchange for Shares 5-10).
(ii) Section 362(e)(2)(C) election. The facts are the same as in
paragraph (i)(A) of this Example 2, except that an election under
section 362(e)(2)(C) is made to reduce P's basis in the shares of S1
stock received in the exchange. Under paragraph (d)(2)(i) of this
section, P reduces its basis in the S1 stock by $5, the amount of
P's net built-in loss that S1's basis in the S2 shares would have
been reduced under section 362(e)(2) and this section had the
section 362(e)(2)(C) election not been made, and no reduction is
made to S1's basis in the S2 stock (as determined without regard to
section 362(e)(2) and this section). Because an election is being
made under section 362(e)(2)(C), P's basis in the new S1 shares is
not determined under the general rule of Sec. 1.358-2(a)(2)(i)
(under which P's basis in each new S1 share would be equal to the
basis of the S2 share transferred in exchange for the S1 share).
Section 1.358-2(a)(2)(viii)(B). Accordingly, P's basis in each new
S1 share will be $7, the share's allocable portion of P's $75
aggregate basis in the S2 shares transferred in the transaction (or,
$7.50 per share), reduced under paragraph (d)(2)(i) of this section
by the $5 that would have been applied to reduce S1's basis in the
S2 shares had the section 362(e)(2)(C) election not been made (or
$.50 per share). Under paragraph (d)(2)(ii) of this section and
section 362(a), S1 receives five shares of the S2 stock with a basis
of $10 each and five shares of the S2 stock with a basis of $5 each.
Example 3. Transfer described in both section 351 and section
368(a)(1)(A), multiple transferors, elimination of duplicated loss--
(i) Facts. A owns Asset 1 (basis $120, value $130) and all the
outstanding shares of X stock. B owns all the outstanding shares of
Y stock (basis $150). Y owns Asset 2 (basis $250, value $210).
Pursuant to a single plan, A transfers Asset 1 to X in exchange for
additional X shares and, in a transaction qualifying as a
reorganization described in section 368(a)(1)(A), Y merges with and
into X. In the merger, B receives X stock with a basis equal to B's
basis in its Y stock immediately before the merger. A's transfer of
Asset 1 to X in exchange for X stock and Y's transfer of Asset 2 to
X in the merger are both transactions to which section 351 applies.
Notwithstanding
[[Page 54164]]
that the transfers by A and Y are pursuant to a single plan forming
one transaction, section 362(e)(2) and this section apply to each
transferor separately.
(ii) Application of section to A's transfer of Asset 1. A's
transfer of Asset 1 is a section 362(a) transaction. But for section
362(e)(2) and this section, X's basis in Asset 1 would be $120,
which would not exceed Asset 1's $130 value immediately after the
transaction. Accordingly, A's transfer of Asset 1 is not a loss
duplication transaction notwithstanding that, taking both A's
transfer and Y's transfer into account, X has an aggregate net loss
in Asset 1 and Asset 2. Because Asset 1 is not received in a loss
duplication transaction, it is not loss duplication property and
section 362(e)(2) and this section do not apply to A's transfer of
Asset 1.
(iii) Application of section to Y's transfer of Asset 2--(A)
Analysis--(1) Loss duplication transaction. Y's transfer of Asset 2
to X is a section 362(a) transaction, notwithstanding that it is
also a transaction described in section 368(a)(1)(A) and therefore
section 362(b). But for section 362(e)(2) and this section, X's
basis in Asset 2 would be $250, which would exceed Asset 2's $210
value immediately after the transaction. Accordingly, Y's transfer
is a loss duplication transaction and Y has a net built-in loss of
$40.
(2) Identifying loss duplication property. But for section
362(e)(2) and this section, X's basis in Asset 2 would be $250,
which would exceed Asset 2's $210 value immediately after the
transaction. Accordingly, Asset 2 is loss duplication property.
(B) Basis in loss duplication property. Although Asset 2 is loss
duplication property, section 362(e)(2) does not apply to Y's
transfer of Asset 2 to X because Y distributes all of the X stock
received in the exchange without recognizing gain or loss, and, upon
completion of the transaction, no person will hold the X stock or
any other asset with a basis determined in whole or in part by
reference to Y's basis in such stock. Accordingly, under paragraph
(c)(1) of this section, X's basis in Asset 2 is not determined under
section 362(e)(2) and this section. Thus, under section 362(a), X's
basis in Asset 2 is $250.
(iv) Basis in other property. Under section 358, A's basis in
the X stock received in exchange for Asset 1 is $120 and B's basis
in the X stock received in the merger is $150. Under section 362(a),
X's basis in Asset 1 is $120.
Example 4. Transfer described in both section 351 and section
368(a)(1)(D), followed by a distribution qualifying under section
355--(i) Basic transaction--(A) Facts. A and B each own one of the
two outstanding shares of X common stock. X's assets include Asset 1
(basis $120, value $70), Asset 2 (basis $160, value $110), and Asset
3 (basis $220, value $240). In a transaction to which section 351
applies and that is described in section 368(a)(1)(D), X transfers
Asset 1, Asset 2, and Asset 3 to Y in exchange for all the Y stock;
then, in a distribution that qualifies under section 355, X
distributes all the Y stock received in the exchange to A in
exchange for all of A's X stock. Under section 361(c)(1), X does not
recognize gain or loss as a result of the distribution of all the Y
stock.
(B) Analysis--(1) Loss duplication transaction. X's transfer of
Asset 1, Asset 2, and Asset 3 is a section 362(a) transaction. But
for section 362(e)(2) and this section, Y's aggregate basis in those
assets would be $500 ($120 + $160 + $220). The aggregate value of
the assets immediately after the transaction is $420 ($70 + $110 +
$240). Thus, Y's aggregate basis in the assets would exceed the
aggregate value of the assets immediately after the transaction.
Accordingly, the transfer is a loss duplication transaction and X
has a net built-in loss of $80 ($500 - $420).
(2) Identifying loss duplication property. But for section
362(e)(2) and this section, Y's basis in Asset 1 would be $120,
which would exceed Asset 1's $70 value immediately after the
transaction. Accordingly, Asset 1 is loss duplication property. But
for section 362(e)(2) and this section, Y's basis in Asset 2 would
be $160, which would exceed Asset 2's $110 value immediately after
the transaction. Accordingly, Asset 2 is also loss duplication
property. But for section 362(e)(2) and this section, Y's basis in
Asset 3 would be $220 and would therefore not exceed Asset 3's $240
value immediately after the transaction. Accordingly, Asset 3 is not
loss duplication property.
(C) Basis in loss duplication property. Although Asset 1 and
Asset 2 are each loss duplication property, X will distribute the Y
stock received in exchange for Asset 1 and Asset 2 without
recognition of gain or loss, and, upon completion of the
transaction, no person will hold the Y stock received by X or any
other asset with a basis determined in whole or in part by reference
to X's basis in the Y stock received in the exchange. (A's basis in
the Y stock will be determined by reference to his basis in his X
stock.) Accordingly, under paragraph (c)(1) of this section, Y's
bases in Asset 1 and Asset 2 are determined under section 362(a) and
not under section 362(e)(2) and this section. Thus, Y's basis in
Asset 1 is $120 and Y's basis in Asset 2 is $160.
(D) Basis in other property. Under section 358, A's basis in the
Y stock received in exchange for his X stock is determined by
reference to his basis in his X stock surrendered. Under section
362(a), Y's basis in Asset 3 is $220.
(ii) Section 355(e)--(A) Facts. The facts are the same as in
paragraph (i)(A) of this Example 4, except that, after the section
355 distribution, Y is acquired pursuant to a plan (within the
meaning of Sec. 1.355-7), resulting in the application of section
355(e) to the transactions.
(B) Analysis. Because section 361(c)(2), and not section
361(c)(1), will apply to X's distribution of Y stock, X will not
qualify for nonrecognition treatment on the distribution of the Y
stock. As a result, paragraph (c)(1) of this section does not apply
to the transaction, and Y's bases in Asset 1 and Asset 2, the loss
duplication property, are determined under section 362(e)(2) and
this section. Asset 1 has a built-in loss of $50 ($120 - $70), and
Asset 2 has a built-in loss of $50 ($160 - $110). Thus, Asset 1's
allocable portion of X's net built-in loss is $40 ($50/$100 x $80),
and Asset 2's allocable portion of X's net built-in loss is $40
($50/$100 x $80). Accordingly, Y receives Asset 1 with a basis of
$80 ($120 - $40) and Asset 2 with a basis of $120 ($160 - $40).
(iii) Retained stock and securities--(A) Facts. The facts are
the same as in paragraph (i)(A) of this Example 4, except that X
transfers Asset 1, Asset 2, and Asset 3 to Y in exchange for Y stock
and Y securities, each constituting half of the consideration. In
addition, for a valid business purpose, X retains Y stock and Y
securities each worth 1 percent of the total consideration.
(B) Analysis. Paragraph (c)(1) of this section applies only to
the extent that stock received in a transaction is distributed
without recognition of gain or loss. Thus, section 362(e)(2) and
this section apply to the extent that property was exchanged for the
retained Y stock and Y securities (2 percent of the total).
Accordingly, Y reduces its basis in Asset 1 and in Asset 2, the loss
duplication property, by $1.60 (two percent of X's $80 net built-in
loss). Asset 1 has a built-in loss of $50 ($120 - $70), and Asset 2
has a built-in loss of $50 ($160 - $110). Thus, Asset 1's allocable
portion of X's net built-in loss is $.80 ($50/$100 x $1.60), and
Asset 2's allocable portion of X's net built-in loss is $.80 ($50/
$100 x $1.60). As a result, Y receives Asset 1 with a basis of
$119.20 ($120 - $.80) and Asset 2 with a basis of $159.20 ($160 -
$.80).
(iv) Retained stock and securities with a section 362(e)(2)(C)
election--(A) Facts. The facts are the same as in paragraph (iii)(A)
of this Example 4, except that an election under section
362(e)(2)(C) is made to reduce X's bases in its retained Y stock and
retained Y securities.
(B) Analysis. Under paragraph (d)(2)(i) of this section, X
reduces its basis in the retained Y stock and the retained Y
securities (determined without regard to section 362(e)(2) and this
section) by $1.60, the portion of X's $80 net built-in loss that
would have been applied to reduce Y's basis in the transferred
assets had the election to apply section 362(e)(2)(C) not been made.
(Because the value of the Y stock and the value of the Y securities
are equal, X's $500 basis in the transferred property would be
allocated equally between the Y stock and the Y securities, $250 to
each, under Sec. 1.358-2(b)(2), and the retained Y stock and Y
securities have a basis of $2.50 each (one percent of $250).) For
the reasons set forth in paragraph (ii)(B) of this Example 4, Y
would have been required to reduce its basis in the transferred
assets by $1.60. Accordingly, X must reduce its aggregate basis in
the retained Y stock and Y securities by $1.60. Under paragraph
(d)(2)(i) of this section, the $1.60 basis reduction is allocated
and applied to reduce X's bases in the retained Y stock and Y
securities in proportion to the value of each. Because X retained Y
stock and Y securities with equal values, X holds each of the
retained Y stock and securities with an adjusted basis of $1.70
($2.50 - $.80). Under paragraph (d)(2)(ii) of this section, Y
receives Asset 1 with a basis of $120, Asset 2 with a basis of $160,
and Asset 3 with a basis of $220.
Example 5. Transfer of liabilities--(i) Liabilities described in
section 358(d)(1)--(A) Basic application of section, no section
[[Page 54165]]
362(e)(2)(C) election--(1) Facts. A owns Asset 1 (basis $800, value
$700). A also has a $200 liability that has been taken into account
for tax purposes and is thus described in section 358(d)(1), and not
in sections 357(c)(3), 358(d)(2), and 358(h)(1). A transfers Asset 1
to X in exchange for a single outstanding share of X stock
representing all the outstanding X stock immediately after the
transaction and X's assumption of the liability. The transfer is a
transaction to which section 351 applies.
(2) Analysis--(i) Loss duplication transaction. A's transfer of
Asset 1 is a section 362(a) transaction. But for section 362(e)(2)
and this section, X's basis in Asset 1 would be $800, which would
exceed Asset 1's $700 value immediately after the transaction.
Accordingly, the transfer is a loss duplication transaction and A
has a net built-in loss of $100 ($800 - $700).
(ii) Identifying loss duplication property. But for section
362(e)(2) and this section, X's basis in Asset 1 would be $800,
which would exceed the $700 value of Asset 1 immediately after the
transaction. Accordingly, Asset 1 is loss duplication property.
(3) Basis in loss duplication property. X's basis in Asset 1 is
$700, computed as its $800 basis determined under section 362(a)
reduced by A's $100 net built-in loss.
(4) Basis in other property. Under sections 358(a) and (d)(1),
A's basis in the X stock is $600 ($800 basis in property
transferred--$200 liability assumed).
(B) Section 362(e)(2)(C) election. The facts are the same as in
paragraph (i)(A)(1) of this Example 5, except that A and X make an
election under section 362(e)(2)(C). In this case, A's $100 net
built-in loss that would have been applied to reduce X's basis in
Asset 1 is applied to reduce A's basis in the X stock received. As a
result, A's basis in the X stock is $500 ($600, as determined in
paragraph (i)(A)(4) of this Example 5, reduced by $100) and X's
basis in Asset 1 is $800.
(ii) Contingent liabilities described in section 358(h)(1),
section 358(h)(2)(A) exception applies--(A) Facts. The facts are the
same as in paragraph (i)(A)(1) of this Example 5, except that A's
liability (valued at $200) has not been taken into account for tax
purposes and is described in sections 358(d)(2) and 358(h)(1).
However, Asset 1 is a trade or business and the liability is
associated with the trade or business; as a result, the liability is
described in section 358(h)(2)(A) and is excepted from the general
rule of section 358(h)(1).
(B) Analysis. For the reasons set forth in paragraph (i)(A)(2)
of this Example 5, A's transfer of Asset 1 is a loss duplication
transaction, A has a net built-in loss of $100, and Asset 1 is loss
duplication property.
(C) Basis in loss duplication property. For the reasons set
forth in paragraph (i)(A)(3) of this Example 5, X's basis in Asset 1
is $700.
(D) Basis in other property. A's basis in the X stock is $800
under sections 358(a), 358(d)(2), and 358(h)(2)(A).
(E) Section 362(e)(2)(C) election. The facts are the same as in
paragraph (ii)(A) of this Example 5, except that A and X make an
election under section 362(e)(2)(C). In this case, A's $100 net
built-in loss that would have applied to reduce X's basis in Asset 1
is applied to reduce A's basis in the X stock received. As a result,
A's basis in the X stock is $700 ($800, as determined in paragraph
(ii)(D) of this Example 5, reduced by $100). X's basis in Asset 1 is
$800.
Example 6. Section 351 transfer with boot--(i) Basic
transaction-(A) Facts. A owns Asset 1 (basis $80, value $100) and
Asset 2 (basis $30, value $25). In a transaction to which section
351 applies, A transfers Asset 1 and Asset 2 to X in exchange for 10
shares of X stock and $25.
(B) Analysis--(1) Loss duplication transaction. A's transfer of
Asset 1 and Asset 2 is a section 362(a) transaction. But for section
362(e)(2) and this section, X's aggregate basis in those assets
would be $130, computed as follows. Under section 362(a), a
corporation's basis in property acquired in a transaction to which
section 351 applies is the same as the property's basis in the hands
of the transferor, increased by any gain recognized to the
transferor on such transfer. Under section 351(b), gain (but not
loss) is recognized to the extent a transferor in a section 351
exchange receives other property or money in addition to the stock
permitted to be received without the recognition of gain. To
determine the amount of gain recognized under section 351(b), the
consideration is allocated proportionately (by value) among the
transferred properties. A's gain on the transfer is therefore
computed as follows: Asset 1 reflects 80 percent of the value
transferred ($100/$125) and Asset 2 reflects 20 percent of the value
transferred ($25/$125). Thus, 80 percent of the stock (eight shares)
and the cash ($20) are treated as being received in exchange for
Asset 1 and 20 percent of the stock (two shares) and the cash ($5)
are treated as being received in exchange for Asset 2. Thus, under
section 351(b), A recognizes $20 of gain for the cash received in
exchange for Asset 1, but A recognizes no loss for the amount
received for Asset 2. As a result, under section 362(a), X would
have a basis of $100 in Asset 1 and $30 in Asset 2. Thus, X's
aggregate basis in the assets would be $130, which exceeds the $125
aggregate value of the assets ($100 + $25)). The transfer is a loss
duplication transaction and A has a net built-in loss of $5 ($130-
$125).
(2) Identifying loss duplication property. But for section
362(e)(2) and this section, X's basis in Asset 1 would be $100 (A's
$80 basis increased by A's $20 gain recognized), which would not
exceed Asset 1's $100 value immediately after the transaction.
Accordingly, Asset 1 is not loss duplication property. But for
section 362(e)(2) and this section, X's basis in Asset 2 would be
$30, which would exceed Asset 2's $25 value immediately after the
transaction. Accordingly, Asset 2 is loss duplication property.
(C) Basis in loss duplication property. X's basis in Asset 2 is
$25, computed as its $30 basis under section 362(a) reduced by A's
$5 net built-in loss.
(D) Basis in other property. Under section 362(a), X's basis in
Asset 1 is $100 (A's $80 basis increased by the $20 gain
recognized). Under section 358, A's basis in the X stock is $105
(the sum of its $80 basis in Asset 1, its $30 basis in Asset 2, and
its $20 gain recognized, reduced by the $25 cash received in the
exchange).
(ii) Section 362(e)(2)(C) election. The facts are the same as in
paragraph (i)(A) of this Example 6, except that A and X elect to
reduce A's stock basis under section 362(e)(2)(C). Under paragraph
(d)(2)(i) of this section, A reduces its $105 basis in the X stock
by $5, the amount of A's net built-in loss of that would have been
applied to reduce X's basis in Asset 2 had the section 362(e)(2)(C)
election not been made. As a result, A's basis in the X stock is
$100, and X's basis in Asset 2 is $30.
Example 7. Section 304 sale of built-in loss stock--(i) Basic
transaction--(A) Facts. A owns all the stock of X (basis $90, value
$60) and all the stock of Y. A sells all his X stock to Y for $60.
Under section 304, A is treated as though he transferred the X stock
to Y in exchange for Y stock in a transaction to which section 351
applies. Then, Y is treated as redeeming the Y stock it was treated
as having issued to A in the deemed section 351 transaction.
(B) Analysis--(1) Loss duplication transaction. A's deemed
transfer of X stock to Y is a section 362(a) transaction. But for
section 362(e)(2) and this section, Y's aggregate basis in the X
stock would be $90, which would exceed the X stock's value of $60
immediately after the transaction. Accordingly, the transfer is a
loss duplication transaction and A has a net built-in loss of $30.
(2) Identifying loss duplication property. But for section
362(e)(2) and this section, Y's basis in the X stock would be $90,
which would exceed the X stock's $60 value immediately after the
transaction. Accordingly, the X stock is loss duplication property.
(C) Basis in loss duplication property. Y's basis in the X stock
is $60, its $90 basis determined without regard to section 362(e)(2)
and this section, reduced by A's $30 net built-in loss.
(D) Basis in other property. Under section 358(a), A has an
exchanged basis of $90 in the Y stock he is deemed to receive in the
exchange; the effect of the deemed redemption of that stock is then
determined under section 302.
(ii) Section 362(e)(2)(C) election. The facts are the same as in
paragraph (i)(A) of this Example 7, except that the parties elect to
reduce A's stock basis under section 362(e)(2)(C). For the reasons
set forth in paragraphs (i)(B) and (C) of this Example 7, Y's basis
in the X stock would be reduced by $30. Accordingly, A's basis in
the deemed-issued Y stock is $60, his $90 basis otherwise determined
under section 358(a) reduced by the $30 that would have been applied
to reduce Y's basis in the X stock under section 362(e)(2) and this
section; the effect of the deemed redemption of that stock is then
determined under section 302. Y's basis in the X stock is $90.
Example 8. Transactions involving partnerships--(i) Transfer by
a partnership--(A) Basic application of section--(1) Facts. PRS owns
Asset 1 (basis $100, value $70). PRS contributes Asset 1 to X in a
transaction to which section 351 applies.
[[Page 54166]]
(2) Analysis--(i) Loss duplication transaction. PRS's transfer
of Asset 1 is a section 362(a) transaction. But for section
362(e)(2) and this section, X's basis in Asset 1 would be $100,
which would exceed Asset 1's $70 value immediately after the
transaction. Accordingly, the transfer is a loss duplication
transaction and PRS has a net built-in loss of $30 ($100-$70).
(ii) Identifying loss duplication property. But for section
362(e)(2) and this section, X's basis in Asset 1 would be $100,
which would exceed Asset 1's $70 value immediately after the
transaction. Accordingly, Asset 1 is loss duplication property.
(3) Basis in loss duplication property. X's basis in Asset 1 is
$70, computed as its $100 basis under section 362(a) reduced by
PRS's $30 net built-in loss.
(4) Basis in other property. Under section 358(a), PRS has an
exchanged basis of $100 in the X stock it receives in the exchange.
(B) Section 362(e)(2)(C) election. The facts are the same as in
paragraph (i)(A)(1) of this Example 8, except that PRS and X elect
to reduce PRS's stock basis under section 362(e)(2)(C). In this
case, PRS's $30 net built-in loss (as determined in paragraph
(i)(A)(2)(i) of this Example 8) that would have been applied to
reduce X's basis in Asset 1 is applied to reduce PRS's basis in the
X stock received. As a result, PRS's basis in the X stock is $70
($100-$30) and X's basis in Asset 1 is $100. The $30 reduction to
PRS's basis in the X stock is treated as an expenditure of PRS under
section 705(a)(2)(B) and paragraph (e)(1) of this section. As a
result, the partners of PRS must reduce their bases in their PRS
interests.
(ii) Transfer of interest in partnership with liability--(A)
Basic application of section--(1) Facts. A and two other individuals
are equal partners in PRS. A's basis in its partnership interest is
$247. A's share of PRS's Sec. 1.752-1 liabilities (as defined in
Sec. 1.752-1(a)(4)) is $145. A transfers his partnership interest
to X in a transaction to which section 351 applies. PRS has no
election in effect under section 754. If X were to sell the PRS
interest immediately after the transfer, X would receive $100 in
cash or other property. In addition, assume that, taking into
account the rules under Sec. 1.752-4, X's share of PRS's Sec.
1.752-1 liabilities (as defined in Sec. 1.752-1(a)(4)) is $150
immediately after the transfer.
(2) Analysis--(i) Loss duplication transaction. A's transfer of
its PRS interest is a section 362(a) transaction. But for section
362(e)(2) and this section, X's basis in the PRS interest, would be
$252 (A's basis of $247, reduced by A's $145 share of PRS
liabilities, increased by X's $150 share of PRS liabilities) and,
under paragraph (g)(12)(ii) of this section, the value of the PRS
interest would be $250 (the sum of $100, the cash X would receive if
X immediately sold the interest, and $150, X's share of the Sec.
1.752-1 liabilities (as defined in Sec. 1.752-1(a)(4)) under
section 752 immediately after the transfer to X). Therefore, the
transfer is a loss duplication transaction and A has a net built-in
loss of $2 ($252-$250).
(ii) Identifying loss duplication property. But for section
362(e)(2) and this section, X's basis in the PRS interest would be
$252, which would exceed the PRS interest's $250 value immediately
after the transaction. Accordingly, the PRS interest is loss
duplication property.
(3) Basis in loss duplication property. X's basis in the PRS
interest is $250, computed as its $252 basis under section 362(a),
taking into account the rules under section 752, reduced by A's $2
net built-in loss.
(4) Basis in other property. Under section 358, taking into
account the rules under section 752, A has a basis of $102 ($247
reduced by A's $145 share of PRS liabilities) in the X stock he
receives in the transaction.
(B) Section 362(e)(2)(C) election. The facts are the same as in
paragraph (i)(A) of this Example 8, except that A and X make an
election under section 362(e)(2)(C). Under paragraph (d)(2)(i) of
this section, A reduces his basis in the X stock, as determined
without regard to section 362(e)(2) and this section, by the amount
of A's net built-in loss that would have been applied to reduce X's
basis in the PRS interest had the section 362(e)(2)(C) election not
been made. In addition, no reduction is made to X's basis in the PRS
interest, as determined without regard to section 362(e)(2) and this
section. As a result, A's basis in the X stock is $100 ($102-$2) and
X's basis in the PRS interest is $252.
(C) Transfer of partnership interest with liability, not loss
duplication transaction. The facts are the same as in paragraph
(ii)(A)(1) of this Example 8, except that A's share of PRS's Sec.
1.752-1 liabilities (as defined in Sec. 1.752-1(a)(4)) is $155. But
for section 362(e)(2) and this section, X's basis in the PRS
interest would be $242 (A's basis of $247, reduced by A's $155 share
of PRS liabilities, increased by X's $150 share of PRS liabilities),
which would not exceed the PRS interest's $250 value immediately
after the transaction. Accordingly, A's transfer of the PRS interest
is not a loss duplication transaction and section 362(e)(2) and this
section have no application to the transaction. Under section
362(a), X's basis in the PRS interest is $242 and, under section
358, taking into account the rules under section 752, A has a basis
of $92 ($247 reduced by A's $155 share of PRS liabilities) in the X
stock he receives in the transaction.
Example 9. Transactions involving S Corporations--(i) Transfer
by S Corporation--(A) No section 362(e)(2)(C) election--(1) Facts.
S, an S corporation as defined in section 1361(a)(1), owns Asset 1
(basis $100, value $70). S transfers Asset 1 to X in exchange for a
single outstanding share of X stock representing all the outstanding
X stock immediately after the transaction. S does not elect to treat
X as a qualified subchapter S subsidiary. The transaction is one to
which section 351 applies.
(2) Analysis--(i) Loss duplication transaction. S's transfer of
Asset 1 is a section 362(a) transaction. But for section 362(e)(2)
and this section, X's basis in Asset 1 would be $100, which would
exceed Asset 1's $70 value immediately after the transaction.
Accordingly, the transfer is a loss duplication transaction and S
has a net built-in loss of $30 ($100-$70).
(ii) Identifying loss duplication property. But for section
362(e)(2) and this section, X's basis in Asset 1 would be $100,
which would exceed Asset 1's $70 value immediately after the
transaction. Accordingly, Asset 1 is loss duplication property.
(iii) Basis in loss duplication property. X's basis in Asset 1
is $70, computed as its $100 basis under section 362(a) reduced by
S's $30 net built-in loss.
(iv) Basis in other property. Under section 358(a), S has an
exchanged basis of $100 in the X stock it receives in the exchange.
(B) Section 362(e)(2)(C) election. The facts are the same as in
paragraph (i)(A)(1) of this Example 9, except that S and X elect to
reduce S's stock basis under section 362(e)(2). In this case, S's
$30 built-in loss (as determined in paragraph (i)(A)(2)(i) of this
Example 9) that would have been applied to reduce X's basis in Asset
1 is applied to reduce S's basis in the X stock received. As a
result, S's basis in the X stock is $70 ($100 - $30) and X's basis
in Asset 1 is $100. The $30 reduction to S's basis in the X stock is
treated as an expense of S under section 1367(a)(2)(D) and paragraph
(e)(2) of this section. As a result, the shareholders of S must
reduce their bases in their S stock.
(ii) Transfer to S Corporation--(A) Basic application of
section. (1) Facts. A owns Asset 1 (basis $90, value $60) and Asset
2 (basis $110, value $120). In a transaction to which section 351
applies, A transfers Asset 1 and Asset 2 to S, an S corporation as
defined in section 1361(a)(1), in exchange for a single share of S
stock representing all the outstanding S stock immediately after the
transaction.
(2) Analysis--(i) Loss duplication transaction. A's transfer of
Asset 1 and Asset 2 is a section 362(a) transaction. But for section
362(e)(2) and this section, S's aggregate basis in those assets
would be $200 ($90 + $110), which would exceed the aggregate value
of the assets $180 ($60 + $120) immediately after the transaction.
Accordingly, the transfer is a loss duplication transaction and A
has a net built-in loss of $20 ($200 - $180).
(ii) Identifying loss duplication property. But for section
362(e)(2) and this section, S's basis in Asset 1 would be $90, which
would exceed Asset 1's $60 value immediately after the transaction.
As a result, Asset 1 is loss duplication property. But for section
362(e)(2) and this section, S's basis in Asset 2 would be $110,
which would not exceed Asset 2's $120 value immediately after the
transaction. As a result, Asset 2 is not loss duplication property.
(3) Basis in loss duplication property. S's basis in Asset 1 is
$70, computed as its $90 basis under section 362(a) reduced by S's
$20 net built-in loss. The $20 reduction to S's basis in Asset 1
does not require a reduction to A's basis in its S stock under
section 1367(a)(2)(D). See paragraph (f) of this section.
(4) Basis in other property. Under section 362(a), S has a
transferred basis of $110 in Asset 2. Under section 358(a), A has a
basis of $200 in the S stock it receives in the exchange.
(B) Section 362(e)(2)(C) election--(1) Application of section to
transaction. The facts are the same as in paragraph (ii)(A)(1) of
this Example 9, except that A and S elect
[[Page 54167]]
to reduce A's stock basis under section 362(e)(2)(C). In this case,
A's $20 built-in loss (as determined in paragraph (ii)(A)(2) of this
Example 9) that would have been applied to reduce S's basis in Asset
1 is applied to reduce A's basis in the S stock received. As a
result, A's basis in the S stock is $180 ($200 - $20), S's basis in
Asset 1 is $90, and S's basis in Asset 2 is $110.
(2) Tax consequences of subsequent disposition of transferred
assets. The facts are the same as in paragraph (ii)(B)(1) of this
Example 9 except that, in addition, the year after the transaction,
S sells Asset 1 (basis $90, value $60) and Asset 2 (basis $110,
value $120) for $180, recognizing the $20 net built-in loss. The
loss is allocated to A and reduces A's basis in the S stock from
$180 to $160 under section 1367(a)(2)(B). If A then sells its S
stock for its $180 value, A will recognize a gain of $20.
Example 10. Triangular reorganizations--(i) Facts. P owns all
the stock of S1 and X owns all the stock of S2. In a merger
described in section 368(a)(2)(D), S2 merges with and into S1, and X
receives stock of P in exchange for its S2 stock. S2 has a net
built-in loss in its assets acquired by S1 in the transaction.
(ii) Analysis. The reorganization is not a section 362(a)
transaction, notwithstanding that, under Sec. 1.358-6(c), P is
treated as acquiring and then transferring S2's assets to S1 for
purposes of determining P's adjustment to its basis in its S1 stock.
Accordingly, S1's basis in the property acquired in the transaction
is not determined under section 362(e)(2) and this section; it is
determined under section 362(b).
Example 11. Transfer that includes property described in section
362(e)(1)(B) and property not described in section 362(e)(1)(B)--(i)
Facts. FC1 transfers Asset 1 (basis $80, value $50) and Asset 2
(basis $120, value $110) to DC in a transaction to which section 351
applies. Asset 1 is not property described in section 362(e)(1)(B);
Asset 2 is property described in section 362(e)(1)(B).
(ii) Basis in property described in section 362(e)(1)(B).
Immediately after the transfer and without regard to section
362(e)(1) or section 362(e)(2) and this section, DC's aggregate
basis in property described in section 362(e)(1)(B) (Asset 2) would
be $120 under section 362(a). However, the aggregate value of such
property immediately after the transfer is $110. Accordingly, the
transfer of Asset 2 is an importation of net built-in loss within
the meaning of section 362(e)(1)(C) and, under section 362(e)(1),
X's basis in Asset 2 would be Asset 2's value, $110.
(iii). Application of section--(A) Analysis--(1) Loss
duplication transaction. FC1's transfer of Asset 1 and Asset 2 is a
section 362(a) transaction. But for section 362(e)(2) and this
section, DC's aggregate basis in those assets would be $190 (Asset
1's $80 basis under section 362(a) + Asset 2's $110 basis under
section 362(e)(1)), which would exceed the aggregate value of the
assets $160 ($50 + $110) immediately after the transaction.
Accordingly, the transfer is a loss duplication transaction and FC1
has a net built-in loss of $30 ($190-$160).
(2) Identifying loss duplication property. But for section
362(e)(2) and this section, DC's basis in Asset 1 would be $80,
which would exceed Asset 1's $50 value immediately after the
transaction. Accordingly, Asset 1 is loss duplication property. But
for section 362(e)(2) and this section, DC's basis in Asset 2 would
be $110, which would not exceed Asset 2's $110 value immediately
after the transaction. Accordingly, Asset 2 is not loss duplication
property.
(B) Basis in loss duplication property. DC's basis in Asset 1 is
$50, computed as its $80 basis under section 362(a) reduced by FC1's
$30 net built-in loss.
(C) Basis in other property. Under section 362(e)(1), DC's basis
in Asset 2 is $110. Under section 358(a), FC1 has an exchanged basis
of $200 in the DC stock it receives in the transaction.
Example 12. Section 362(e)(2)(C) elections with respect to
transfers between persons that are not required to file a U.S.
return and that are not CFCs or CFPs--(i) Basic application of
section. On June 30, Year 1, FC1 transfers Asset 1 to FC2 in a
transaction to which section 351 applies (the original transfer) and
that is therefore a section 362(a) transaction. But for section
362(e)(2) and this section, FC2's basis in Asset 1 (determined
immediately after the transfer, taking into account all applicable
law, including section 362(e)(1)) exceeds the value of Asset 1
immediately after the transaction. Accordingly, the transaction is a
loss duplication transaction and Asset 1 is loss duplication
property. FC1 and FC2 executed a written, binding agreement to apply
section 362(e)(2)(C) at some point before any Section 362(e)(2)(C)
Statement is filed. However, the transfer was not entered into with
a view to reducing or avoiding the Federal income tax liability of
any person by avoiding the application of section 362(e)(2) and this
section; further, no event described in paragraph (d)(3)(ii)(E),
(F), or (G) of this section occurs prior to June 30, Year 3. As a
result, under paragraph (c)(2) of this section, section 362(e)(2)
and this section do not apply to the transfer. Accordingly, FC2's
basis in Asset 1 is determined under section 362(a), no section
362(e)(2)(C) election can be made, and any protective filing of a
Section 362(e)(2)(C) Statement will have no effect.
(ii) Loss duplication property later acquired by a person
required to file U.S. return. The facts are the same as in paragraph
(i) of this Example 12, except that, in addition, on January 1, Year
2, FC2 transfers Asset 1 to DC in an exchange to which section 351
applies. FC2's transfer is an event described in paragraph
(d)(3)(ii)(G) of this section. As a result, paragraph (c)(2) does
not except the original transfer from the application of section
362(e)(2) and this section. Under paragraph (d)(3)(ii)(G) of this
section, DC must include the Section 362(e)(2)(C) Statement for the
original transfer on or with its Year 2 U.S. return in order for
that election to be effective. The result would be the same if,
instead of FC2 transferring Asset 1 to DC, FC1 transferred its FC2
stock to DC in an exchange to which section 351 applies. (Further,
if an asset transferred by FC1 or FC2 to DC is a loss asset
immediately after its transfer to DC, DC's basis in that asset may
be subject to section 362(e)(1).)
(iii) Party to exchange later becomes a person required to file
U.S. return. The facts are the same as in paragraph (i) of this
Example 12, except that, in addition, on January 1, Year 2, FC2
becomes engaged in a U.S. business. FC2's becoming engaged in a U.S.
business is an event described in paragraph (d)(3)(ii)(F) of this
section because it will cause FC2 to become a person required to
file a U.S. return. As a result, paragraph (c)(2) of this section
does not except the transfer from the application of section
362(e)(2) and this section. Under paragraph (d)(3)(ii)(F) of this
section, FC2 must include the Section 362(e)(2)(C) Statement for the
original transfer on or with its Year 2 U.S. return in order for the
section 362(e)(2)(C) election for the original transfer to be
effective.
(iv) Statement not filed with respect to designated event. The
facts are the same as in paragraph (iii) of this Example 12, except
that, in addition, FC1 became engaged in a U.S. trade or business on
October 31, Year 1 and as a result became a person required to file
a U.S. return, an event described in paragraph (d)(3)(ii)(E) of this
section. As a result, paragraph (c)(2) of this section does not
except the transfer from the application of section 362(e)(2) and
this section. Further, in order for the election to be effective,
FC1 must file the Section 362(e)(2)(C) Statement on or with its Year
1 U.S. return. See paragraph (d)(3)(ii)(E) of this section. A
statement filed by FC2 on or with its Year 2 U.S. return has no
effect. Thus, if FC1 does not file the statement, the election does
not become effective and basis is determined under the general rule
of section 362(e)(2).
(v) Nonrecognition transfer of loss duplication property outside
United States, transferee later becomes engaged in U.S. trade or
business. The facts are the same as in paragraph (i) of this Example
12, except that, in addition, on December 31, Year 1, FC2 transfers
Asset 1 to FC3 in a transferred basis transaction. In Year 2, FC3
becomes engaged in a U.S. trade or business and as a result becomes
a person required to file a U.S. return; Asset 1 is not used in or
connected with the U.S. trade or business or otherwise subject to
Federal income tax. FC3's becoming engaged in a U.S. trade or
business is an event described in paragraph (d)(3)(ii)(F) of this
section because FC3, a person who holds loss duplication property
with a basis determined by FC2's basis in the property, will be
required to file a U.S. return as a result of its becoming engaged
in a U.S. business. As a result, paragraph (c)(2) of this section
does not except the transfer from the application of section
362(e)(2) and this section. Under paragraph (d)(3)(ii)(F) of this
section, FC3 must include the Section 362(e)(2)(C) Statement for the
original transfer on or with its Year 2 U.S. return in order for the
section 362(e)(2)(C) election for the original transfer to be
effective.
(i) [Reserved].
(j) Effective/applicability date. This section applies to
transactions occurring after September 3, 2013, unless effected
[[Page 54168]]
pursuant to a binding agreement that was in effect prior to September
3, 2013, and at all times thereafter. In addition, taxpayers may apply
these regulations to transactions occurring after October 22, 2004.
0
Par. 4. In Sec. 1.705-1, paragraph (a)(9) is added to read as follows:
Sec. 1.705-1 Determination of basis of partner's interest.
(a) * * *
(9) For basis adjustments necessary to coordinate sections 705 and
362(e)(2), see Sec. 1.362-4(f)(i).
* * * * *
0
Par. 5. In Sec. 1.1367-1, a new sentence is added at the end of
paragraph (c)(2) to read as follows:
Sec. 1.1367-1 Adjustments to basis of shareholder's stock in an S
corporation.
* * * * *
(c) * * *
(2) * * * For basis adjustments necessary to coordinate sections
1367 and 362(e)(2), see Sec. 1.362-4(f)(ii).
* * * * *
PART 602--OMB CONTROL NUMBERS UNDER THE PAPERWORK REDUCTION ACT
0
Par. 6. The authority citation for part 602 continues to read as
follows:
Authority: 26 U.S.C. 7805.
0
Par. 7. In Sec. 602.101, paragraph (b) is amended by adding the
following entries to the table in numerical order to read as follows:
Sec. 602.101 OMB Control numbers.
* * * * *
(b) * * *
------------------------------------------------------------------------
Current OMB
CFR part or section where identified and described control No.
------------------------------------------------------------------------
* * * * *
1.336-2................................................. 1545-2125
1.336-4................................................. 1545-2125
* * * * *
1.362-4................................................. 1545-2247
* * * * *
------------------------------------------------------------------------
Beth Tucker,
Deputy Commissioner for Operations Support.
Approved: August 23, 2013.
Mark J. Mazur,
Assistant Secretary of the Treasury (Tax Policy).
[FR Doc. 2013-21330 Filed 8-30-13; 8:45 am]
BILLING CODE 4830-01-P