Limitations on the Importation of Net Built-In Losses, 54971-54986 [2013-21662]
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Federal Register / Vol. 78, No. 174 / Monday, September 9, 2013 / Proposed Rules
data which results from this
classification is commonly referred to as
the Smith-Doxey classification or SmithDoxey data. While cotton classification
is not mandatory, practically every
cotton bale grown in the United States
today is classed by AMS under the
authority of the Cotton Statistics and
Estimates Act (7 U.S.C. 471–476) and
the U.S. Cotton Standards Act (7 U.S.C.
51–65) and under regulations found in
7 CFR part 28—Cotton Classing, Testing,
and Standards. The U.S. cotton industry
uses Smith-Doxey data to assign qualityadjusted market values to U.S. cotton
and market U.S. cotton both
domestically and internationally. SmithDoxey data is commonly used by the
cotton merchant community to indicate
which bales may be tenderable against
a cotton futures contract.
Conventional procedures employed
for verifying quality measurements for
bales to be included in futures contracts
consists of two futures classifications:
(1) Initial futures classification and (2)
final futures classification. AMS, Cotton
and Tobacco Programs revised these
procedures to incorporate Smith-Doxey
data into the cotton futures
classification process in March 2012 (77
FR 5379). When verified by a futures
classification, Smith-Doxey data serves
as an initial futures classification with
the verifying futures classification
serving as a final futures classification.
The use of Smith-Doxey data
significantly reduced the number of
futures classifications required for many
of the bales that were submitted for
certification.
The successful incorporation of
Smith-Doxey data into the futures
classification procedures prompted the
U.S. cotton industry and ICE to request
that the AMS, Cotton and Tobacco
Programs use Smith-Doxey data to
certify that bales submitted for quality
verification meet more restrictive
quality requirements and age parameters
set by ICE for use in a cotton futures
contract. The U.S. cotton industry and
ICE refer to this optional procedure the
‘‘registration option’’. Furthermore, the
U.S. cotton industry and ICE have
requested that AMS, Cotton and
Tobacco Programs make this option
available in December 2013 to coincide
with the implementation of ICE’s Cotton
Resolution No. 2, which is scheduled to
commence with the March 2014
contract month.
The established user fee for cotton
futures classification services is $3.50
per bale (7 CFR 27.80). Customers
choosing this cotton futures
classification option would incur this
charge. In the event that AMS
determines that a bale submitted under
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this option fails to meet quality or age
parameters set by the exchange
inspection agency, the owner of the bale
would be notified of the bale’s failure.
AMS, Cotton and Tobacco Programs
propose regulatory amendments that
would allow the use of original SmithDoxey data to certify that bales
submitted for quality verification meet
quality and age parameters set by the
applicable exchange inspection agency.
Accordingly, the definition of
‘‘Classification’’ in § 27.2, paragraph (n)
would be amended to allow for the
proposed registration option for the
futures classification services. Also in
§ 27.2, the term ‘‘Smith-Doxey data’’
would be defined in new paragraphs (p).
A thirty day comment period is and
deemed appropriate. It is anticipated
that AMS would make the futures
classification option available December
2013 to coincide with the
implementation of ICE’s Cotton
Resolution No. 2.
List of Subjects in 7 CFR Part 27
Commodity futures, Cotton.
For the reasons set forth in the
preamble, 7 CFR part 27 is proposed to
be amended to read as follows:
PART 27—[Amended]
1. The authority citation for 7 CFR
part 27 is revised to read as follows:
■
Authority: 7 U.S.C. 15b, 7 U.S.C. 473a–b,
7 U.S.C. 1622(g).
2. Amend § 27.2 to revise paragraph
(n) and add paragraph (p) to read as
follows:
■
§ 27.2
Terms Defined.
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(n) Classification. The classification of
any cotton shall be determined by the
quality of a sample in accordance with
the Universal Cotton Standards (the
official cotton standards of the United
States) for cotton property
measurements of American Upland
cotton. High Volume Instruments will
determine all cotton property
measurements except extraneous matter.
Cotton classers authorized by the Cotton
and Tobacco Programs will determine
the presence of extraneous matter.
Original Smith-Doxey data may serve as
certification that bales submitted for
quality verification meet quality and age
parameters set by an applicable
exchange inspection agency as a futures
classification option.
*
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(p) Smith-Doxey data. Data reflecting
the original classification of a cotton
bale provided to producers of cotton
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54971
under the Smith-Doxey Act of April 13,
1937 (Pub. L. 75–28).
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Dated: August 30, 2013.
Rex A. Barnes,
Associate Administrator, Agricultural
Marketing Service.
[FR Doc. 2013–21658 Filed 9–6–13; 8:45 am]
BILLING CODE 3410–02–P
DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 1
[REG–161948–05]
RIN 1545–BF43
Limitations on the Importation of Net
Built-In Losses
Internal Revenue Service (IRS),
Treasury.
ACTION: Notice of proposed rulemaking.
AGENCY:
This document contains
proposed regulations under sections
334(b)(1)(B) and 362(e)(1) of the Internal
Revenue Code of 1986 (Code). The
proposed regulations apply to certain
nonrecognition transfers of loss property
to corporations that are subject to
Federal income tax. The proposed
regulations affect the corporations
receiving the loss property. This
document also invites comments from
the public regarding these proposed
regulations.
SUMMARY:
Written or electronic comments
and a request for a public hearing must
be received by December 9, 2013.
ADDRESSES: Send submissions to
CC:PA:LPD:PR (REG 161948–05), Room
5203, Internal Revenue Service, P.O.
Box 7604, Ben Franklin Station,
Washington, DC 20044. Submissions
may be hand-delivered Monday through
Friday between the hours of 8 a.m. and
4 p.m. to CC:PA:LPD:PR (REG–161948–
05), Courier’s Desk, Internal Revenue
Service, 1111 Constitution Avenue NW.,
Washington, DC, or sent electronically,
via the Federal eRulemaking Portal at
www.regulations.gov (IRSREG–161948–
05).
DATES:
FOR FURTHER INFORMATION CONTACT:
Concerning the proposed regulations,
John P. Stemwedel (202) 622–7790 or
Theresa A. Abell (202) 622–7000, and,
concerning submissions of comments
and requests for a public hearing,
Oluwafunmilayo (Funmi) Taylor at
(202) 622–7180 (not toll free numbers).
SUPPLEMENTARY INFORMATION:
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Paperwork Reduction Act
The collection of information
contained in this notice of proposed
rulemaking revises a collection of
information approved by the Office of
Management and Budget in accordance
with the Paperwork Reduction Act of
1995 (44 U.S.C. 3507(d)) under control
number 1545–2019. Comments on the
revised collection of information should
be sent to the Office of Management and
Budget, Attn: Desk Officer for the
Department of the Treasury, Office of
Information and Regulatory Affairs,
Washington, DC 20503, with copies to
the Internal Revenue Service, Attn: IRS
Reports Clearance Officer,
SE:W:CAR:MP:T:T:SP, Washington, DC
20224. Comments on the collection of
information should be received by
November 8, 2013. Comments are
specifically requested concerning:
Whether the proposed revised
collection of information is necessary
for the proper performance of the
functions of the Internal Revenue
Service, including whether the
information will have practical utility;
The accuracy of the estimated burden
associated with the proposed collection
of information;
How the quality, utility and clarity of
the information to be collected may be
enhanced;
How the burden of complying with
the proposed collection of information
may be minimized, including through
the application of automated collection
techniques or other forms of information
technology; and
Estimates of capital or start-up costs
and costs of operation, maintenance,
and purchase of service to provide
information.
The revised collection of information
in these proposed regulations is in
§§ 1.332–6, 1.351–3, and 1.368–3. By
requiring that taxpayers separately
report the fair market value and basis of
property (including stock) described in
section 362(e)(1)(B) and in 362(e)(2)(A)
that is transferred in a tax-free
transaction, this revised collection of
information aides in identifying
transactions within the scope of sections
334(b)(1)(B), 362(e)(1), and 362(e)(2) and
thereby facilitates the IRS’ verification
that taxpayers are complying with
sections 334(b)(1)(B), 362(e)(1), and
362(e)(2). The respondents will be
corporations and their shareholders.
Revised estimated total annual
reporting burden: 375,000 hours.
Revised estimated average annual
burden hours per respondent: 1.25
hours.
Estimated number of respondents:
225,000 (of the originally estimated
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350,000; original 0.75 hour estimate
unchanged for the remaining 125,000
respondents).
Estimated frequency of responses:
once.
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
Sections 334(b)(1)(B) and 362(e)(1)
(the anti-loss importation provisions)
were enacted in the American Jobs
Creation Act of 2004 (Pub. L. 108–357,
188 Stat. 1418 (2004)) to prevent erosion
of the corporate tax base through the
importation of loss in nonrecognition
transfers. This notice of proposed
rulemaking proposes regulations under
both of these anti-loss importation
provisions.
Explanation of Provisions
1. The Anti-Loss Importation Provisions:
Sections 334(b)(1)(B) and 362(e)(1)
Section 334(b)(1)(B) applies to
corporate acquisitions of loss property
in liquidations described in section 332
(complete liquidation of subsidiary).
Section 362(e)(1) applies to corporate
acquisitions of loss property 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, each a section 362(a)
transaction) and in transactions
described in section 362(b)
(reorganizations). The application and
effect of the anti-loss importation
provisions are materially identical, and
so the proposed regulations use the
same nomenclature and operating rules
for both anti-loss importation
provisions.
The anti-loss importation provisions
apply when a corporation acquires
property that is described in section
362(e)(1)(B) in a transaction described
in section 332, 362(a), or 362(b), and,
under the generally applicable basis
rules (other than the anti-loss
duplication rule in section 362(e)(2)),
the acquiring corporation (Acquiring)
would take the property with an
aggregate basis in excess of ‘‘value’’
(generally equal to fair market value
under the proposed regulations; see
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paragraph 1.b.ii. of this preamble).
When an anti-loss importation rule
applies, Acquiring’s basis in each such
property is equal to the property’s value.
To the extent Acquiring receives
property in the transaction that is not
subject to the anti-loss importation
rules, Acquiring’s basis in the property
is determined under generally
applicable basis rules, including section
362(e)(2).
Property is described in section
362(e)(1)(B) (designated ‘‘importation
property’’ in the proposed regulations) if
two conditions are satisfied. First, any
gain or loss recognized on a disposition
of the property would not be subject to
Federal income tax in the hands of the
transferor immediately before the
transfer. Section 362(e)(1)(B)(i). Second,
any gain or loss recognized on a
disposition of the property would be
subject to Federal income tax in the
hands of the transferee immediately
after the transfer. Section
362(e)(1)(B)(ii).
Since the enactment of the anti-loss
importation provisions, a number of
questions have arisen concerning their
application. The principal concern has
been the determination of whether
property is importation property, but
various other questions (discussed
subsequently in this preamble) have
also been raised regarding the
application of the anti-loss importation
provisions and their interaction with
other rules of law. To address these
issues, the proposed regulations provide
a framework for identifying importation
property and determining whether the
transfer of the property is a transaction
subject to the anti-loss importation
provisions (designated a ‘‘loss
importation transaction’’ under the
proposed regulations).
a. Importation Property
The proposed regulations use a
hypothetical sale analysis to identify
importation property. Under this
approach, the actual tax treatment of
any gain or loss that would be
recognized on a sale of the property,
first by the transferor immediately
before and then by Acquiring
immediately after the transfer,
determines whether an individual
property is importation property. If any
gain or loss that would be recognized on
a hypothetical sale of the property by
the transferor immediately before the
transfer would not be subject to Federal
income tax in the hands of the
transferor, the first condition for
classification as importation property is
satisfied. If any gain or loss that would
be recognized on a hypothetical sale of
the property by Acquiring immediately
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after the transfer would be subject to
Federal income tax in the hands of
Acquiring, the second condition for
classification as importation property is
satisfied. Property is importation
property only if both conditions are
satisfied.
In general, the determination is made
by reference to the tax treatment of the
hypothetical seller of the transferred or
acquired property, that is, whether the
hypothetical seller would take the gain
or loss into account in determining its
Federal income tax liability. This
determination must take into account all
relevant facts and circumstances. The
proposed regulations include a number
of examples illustrating this approach.
Thus, in one example, a tax-exempt
entity transfers property to a taxable
domestic corporation, and the
determination takes into account
whether the transferor, though generally
tax-exempt, would nevertheless be
required to include the amount of the
gain or loss in unrelated business
taxable income under sections 511
through 514 of the Code. In other
examples, a foreign corporation
transfers property to a taxable domestic
corporation and the determination takes
into account whether the foreign
corporation would be required to
include the amount of gain or loss under
section 864 or 897 as income effectively
connected with, or treated as effectively
connected with, the conduct of a U.S.
trade or business. Although the
examples assume there is no applicable
income tax treaty, in the case of an
applicable income tax treaty, the
determination of whether property is
importation property would take into
account whether the transferor would be
taxable under the business profits article
or gains article of the income tax treaty.
i. Partnerships, S Corporations, Grantor
Trusts as Hypothetical Seller
Although the general rule in the
proposed regulations looks solely to the
tax treatment of the hypothetical seller,
a modified rule applies if a hypothetical
seller is a partnership, a small business
corporation that has elected under
section 1362(a) to be an S corporation,
or a grantor trust. In these cases, the
determination is made by reference to
the tax treatment of the gain or loss as
taken into account by the partners,
shareholders, or owners of the entities.
The modified rule recognizes that, in
these cases, the Code provides that the
gain or loss on the hypothetical sale
would be included by the partner,
shareholder, or owner, and would not
be taxable to the hypothetical seller,
irrespective of whether any amount is
actually distributed to such other
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person. See section 701 (partnership not
subject to tax), flush language in section
362(e)(1)(B) (partners treated as owning
partnership property); sections 1363 and
1366 (S corporation’s income generally
taxable to shareholders, not S
corporation); section 671 (grantor or
other person treated as owning trust
property).
If an organizing instrument assigns
gain and loss to partners or beneficiaries
in different amounts, including by
reason of a special allocation under a
partnership agreement, the proposed
regulations make clear that the
hypothetical sale model makes the
determination of whether gain or loss is
subject to Federal income tax by
reference to the person to whom, under
the terms of the instrument, the
hypothetical gain or loss would actually
be allocated, taking into account the
entity’s net gain or loss actually
recognized in the tax period in which
the transaction occurs.
ii. Other Pass-Through Entities: AntiAvoidance Rule
In certain circumstances, the Code
permits distributions to effect a similar
shifting of tax consequences. For
example, under sections 651 and 652,
and sections 661 and 662, distributions
made by a trust are deducted from the
trust’s income and included in the
beneficiary’s (or beneficiaries’) income.
Certain domestic corporations are also
able to shift tax consequences by
distributing income or gain from a
property sale. These corporations
include regulated investment companies
(RICs, as defined in section 851(a)), real
estate investment trusts (REITs, as
defined in section 856(a)), and domestic
corporations taxable as cooperatives (see
section 1381).
The IRS and the Treasury Department
are concerned that disregarding the
effects of this shifting of tax liability
would in certain circumstances
undermine the anti-importation
provisions. However, the IRS and the
Treasury Department are also concerned
that applying a look-through rule in all
such cases would present a significant
administrative burden.
Accordingly, the proposed regulations
contain an anti-avoidance rule that
applies to domestic trusts, estates, RICs,
REITs, and cooperatives that directly or
indirectly transfer property (including
through other such entities) in a section
362 transaction, if the property had been
directly or indirectly transferred to or
acquired by the entity as part of a plan
to avoid the application of the antiimportation provisions. For purposes of
this rule, it is immaterial who had the
plan to avoid the anti-importation
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provisions. When the anti-avoidance
rule applies, the domestic entity, which,
absent application of the anti-avoidance
rule, would be treated under these
regulations as subject to Federal income
tax, is treated as subject to a lookthrough rule. Under the look-through
rule, the entity is presumed to distribute
the proceeds of the hypothetical sale
(which, for this purpose, are presumed
to be an amount greater than zero), and,
to the fullest extent permitted by the
terms of its organizing instrument, it is
presumed to make the distributions to
persons that would not take
distributions from the entity into
account in determining a Federal
income tax liability. If an interest in
such an entity is held indirectly through
one or more other such entities, the
principles of this rule apply to look to
the ultimate owners of the interest. The
determination of whether the property
is importation property is then made by
reference to the deemed distributees or,
in the case of tiered entities, to the
ultimate deemed distributees.
To illustrate, assume 90 percent of a
REIT’s shares are owned by persons that
would not take into account any gain or
loss in determining a Federal income
tax liability and that each share has an
equal right to any distribution by the
REIT. The REIT holds property that was
transferred to the REIT as part of a plan
to avoid the application of the antiimportation rule to a section 362
transaction. At a time when the
acquired property has a built-in loss, the
REIT transfers the property to a
domestic corporation in a section 362
transaction. In this case, the antiavoidance rule would apply. Thus, the
REIT is presumed to distribute all the
proceeds of the hypothetical sale of the
property transferred in the section 362
transaction, and the determination of
whether any gain or loss on that
hypothetical sale would be taken into
account in determining a Federal
income tax liability is made by reference
to the distributee REIT shareholders.
Thus, 90 percent of the property
transferred in the section 362
transaction would be importation
property. Alternatively, assume that the
property was originally acquired (as part
of a plan to avoid the application of the
anti-importation rule to a section 362
transaction) by a trust whose trustee has
discretion to distribute all or a portion
of the trust’s gain or loss to a person that
would not take any amount of such
distribution into account in determining
a Federal income tax liability and, when
the property has a built-in loss, the trust
transfers the property to a domestic
corporation in a section 362 transaction.
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In this case, all of the property
transferred in the section 362
transaction would be importation
property because the trustee could
distribute all of the proceeds from the
hypothetical sale to a person that would
not take the distribution into account in
determining a Federal income tax
liability.
The IRS and the Treasury Department
continue to study whether a lookthrough approach should be generally
applied to trusts and request comments
on the need for, and potential scope of,
such a rule.
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iii. Gain or Loss Affecting Certain
Income Inclusions
Practitioners have raised numerous
questions regarding the treatment of
property held by or transferred to
controlled foreign corporations (CFC), as
defined in section 957 (taking into
account section 953(c)). Because the
general rule looks to the tax treatment
of the hypothetical seller, and no
exception applies for CFCs, the general
operation of the proposed regulations
would not treat such amounts as subject
to Federal income tax. Nevertheless,
because the characterization of gain or
loss that would be taken into account in
determining a potential income
inclusion under section 951(a) has
generated some concern among
practitioners, the proposed regulations
include an express provision stating that
gain or loss recognized by a CFC is not
considered subject to Federal income
tax solely by reason of an income
inclusion under section 951(a). The
proposed regulations include a similar
provision to clarify that gain or loss
recognized by a passive foreign
investment company, as defined in
section 1297(a), is also considered not
subject to Federal income tax
notwithstanding that it could affect an
inclusion under section 1293(a).
Comments are specifically requested on
this approach.
iv. Gain or Loss Taxed to More Than
One Person
If any gain or loss realized on a
hypothetical sale would be includible in
income by more than one person, the
proposed regulations treat such property
as tentatively divided into separate
portions in proportion to the allocation
of gain or loss to each person.
Tentatively divided portions are treated
and analyzed in the same manner as any
other property for purposes of applying
the anti-importation provisions. (See
paragraph c. of this preamble for an
illustration of the application of this
rule.) Thus, the generally applicable
rules determine whether a portion of
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tentatively divided property is
importation property, and, if the
tentatively divided portion is
importation property, it is taken into
account (as described subsequently in
this preamble) with all other
importation property to determine
whether the transaction is a loss
importation transaction.
b. Loss Importation Transaction
Once the importation property has
been identified, Acquiring determines
the aggregate basis that it would have in
all importation property acquired in the
transaction (including the tentatively
divided portions of transferred
property), without regard to the anti-loss
importation provisions or section
362(e)(2). If the aggregate basis of the
importation property exceeds such
property’s aggregate value, the
transaction is a loss importation
transaction and subject to the anti-loss
importation provisions. If the aggregate
basis of importation property does not
exceed such property’s value, the antiloss importation provisions have no
further application.
i. Aggregate, Not Transferor-byTransferor, Approach
Under section 362(e)(1) and the
proposed regulations, the determination
of whether a section 362 transaction is
a loss importation transaction is made
by reference to the net amount of builtin gain and built-in loss in all
importation property acquired from all
transferors in the transaction. This
approach differs from the transferor-bytransferor approach of section 362(e)(2),
which expressly focusses on the net
built-in loss transferred by a particular
transferor in a section 362(a)
transaction.
ii. Valuing Partnership Interests
In general, the anti-loss importation
rules do not take liabilities into account
in determining the value of transferred
property and, thus, whether the transfer
of such property is a transfer of loss
property.
However, in both informal inquiries
and written comments, 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 that the inclusion of a
partner’s share of partnership liabilities
in outside basis may create the
appearance of a built-in loss because
partnership liabilities do not
correspondingly increase the value of
the interest. The amount of cash at
which the partnership interest would
change hands between a willing buyer
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and willing seller, neither being under
any compulsion to buy or sell and both
having reasonable knowledge of
relevant facts, should reflect the
appropriate measure of fair market
value. When a partnership interest is
sold, the amount realized may include
a share of partnership liabilities from
which the transferor is discharged,
which is generally equal to the amount
of liabilities included in the transferor’s
outside basis. As such, the sale of a
partnership interest properly accounts
for the transferee partner’s share of
partnership liabilities and therefore,
reflects the value of that partnership
interest.
To address this issue, the proposed
regulations generally adopt the
approach proposed by commentators
and modify the definition of ‘‘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 proposed
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 752.
The proposed regulations include an
example that illustrates the application
and effect of this rule. The proposed
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.
c. Acquiring’s Basis in Acquired
Property
If a transaction is a loss importation
transaction, Acquiring’s basis in each
importation property received
(including the tentatively divided
portions of property determined to be
importation property) is an amount
equal to value, notwithstanding the
general rules in sections 334(b)(1)(B),
362(a), and 362(b). This rule applies to
all importation property, regardless of
whether the property’s value is greater
or less than its basis prior to the loss
importation transaction.
Immediately following the application
of the anti-loss importation provisions
(and prior to any application of section
362(e)(2)), any property that was treated
as tentatively divided for purposes of
applying these provisions ceases to be
treated as divided and is treated as one
undivided property (re-constituted
property) with a basis equal to the sum
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of the bases of the portions determined
under the anti-importation provision
and the bases of all other portions
determined under generally applicable
provisions (other than section 362(e)(2)).
For example, assume that property is
transferred in a section 362(a)
transaction and the property is treated
as tentatively divided for purposes of
applying section 362(e)(1) (see
paragraph a.iv. of this preamble).
Further assume that one tentatively
divided portion (basis $125, value $100)
is determined to be importation
property and the other (basis $125,
value $100) is not. Finally, assume that,
the aggregate basis of all importation
property transferred in the transaction
(including the $125 basis of the
tentatively divided portion) is $900 and
the aggregate value of all importation
property (including the $100 value of
the tentatively divided portion) is only
$800. Thus, the importation property
has a net loss, the transaction is a loss
importation transaction, and the basis of
each importation property is equal to its
value. Accordingly, immediately after
the application of section 362(e)(1), the
tentatively divided property is treated as
one single property with a basis of $225
($100 basis in the importation portion
plus $125 basis in the non-importation
portion).
If the transaction is described in
section 362(a), the transferred property
(including the re-constituted property
that was tentatively divided for
purposes of applying section 362(e)(1))
is then aggregated on a transferor-bytransferor basis to determine whether
further adjustment will be required to
the bases of loss property under section
362(e)(2). Therefore in the example in
the preceding paragraph, after the
application of section 362(e)(1), the
provisions of section 362(e)(2) may
apply to adjust the basis of the property
further because the transfer is a section
362(a) transaction. The proposed
regulations include a cross-reference to
section 362(e)(2) as well as examples
illustrating the application of both
sections 362(e)(1) and section 362(e)(2)
to situations involving multiple
transferors and multiple properties that
are not all importation properties.
Because section 362(e)(2) only applies
to transactions described in section
362(a), section 362(e)(2) has no
application to liquidations or to
reorganizations that do not include a
transaction described in section 362(a).
The proposed regulations include
examples illustrating the interaction of
these provisions.
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2. Filing Requirements
To facilitate the administration of
both the anti-loss importation
provisions and the anti-duplication
provisions in section 362(e)(2), the
proposed regulations modify the
reporting requirements applicable in all
affected transactions (section 332
liquidations and transactions described
in section 362(a) or section 362(b)) to
require taxpayers to identify the basis
and value of property subject to those
sections.
3. Modifications to Liquidation
Regulations
The proposed regulations also include
several modifications to the regulations
applicable to corporate liquidations.
These modifications are not changes to
current substantive law; they are
intended solely to update the
regulations to reflect certain statutory
changes. The statutory changes reflected
in these modifications include the
repeal of the General Utilities doctrine
(reflected in the modification of sections
334(a) and 337(a), and the repeal of
sections 333 and 334(c)), the removal of
former section 334(b)(2) (replaced by
section 338), and the relocation of
former section 332(c) (subsidiary
indebtedness) to current section 337(b).
In response to certain regulatory
changes, the proposed regulations also
add several cross-references to
regulations under section 367 and 897
to highlight the treatment of certain
transfers between foreign corporations.
The proposed regulations do not
address the regulations under section
346 and no inference should be drawn
from the omission of a proposal under
that section.
Effective/Applicability Date
These regulations are generally
proposed to apply to transactions
occurring on or after the date the
regulations are published as final
regulations in the Federal Register,
unless completed pursuant to a binding
agreement that was in effect
immediately before the date such final
regulations are published and all times
afterwards. It is also proposed that
taxpayers would be permitted to apply
the final regulations (when published)
to transactions occurring after October
22, 2004.
Special Analyses
It has been determined that this notice
of proposed rulemaking 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. It has also
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54975
been determined that section 553(b) of
the Administrative Procedure Act (5
U.S.C. chapter 5) does not apply to these
regulations. Further, it is hereby
certified that these proposed 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 requirement in these
regulations modifies an existing
collection of information by requiring
that certain information be reported
separately instead of in the aggregate.
Although there may be an increase in
reporting burden, the increased burden
is expected to be minimal because
taxpayers should have ready access to
the requested information as the
proposed regulations would not require
taxpayers to report or maintain records
on information that is not, in the
aggregate, already required to be
reported and maintained under the
current regulations. 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, this notice
of proposed rulemaking has been
submitted to the Chief Counsel for
Advocacy of the Small Business
Administration for comment on its
impact on small business.
Comments and Requests for Public
Hearing
Before these proposed regulations are
adopted as final regulations,
consideration will be given to any
written comments (a signed original and
eight (8) copies) or electronic comments
that are timely submitted to the IRS.
Alternatively, taxpayers may submit
comments electronically via the Federal
e-Rulemaking Portal at
www.regulations.gov (IRS REG–161948–
05). The IRS and the Treasury
Department request comments on all
aspects of the proposed regulations.
Comments are specifically requested on
the appropriate treatment of
transactions subject to both section
367(b) and either section 334(b)(1)(B) or
362(e)(1). Comments are also
specifically requested on what effect a
basis reduction required under section
334(b)(1)(B) or section 362(e)(1) may
have on earnings and profits and any
inclusion required under § 1.367(b)–3.
All comments that are submitted by
public will be available for public
inspection and copying at
www.regulations.gov or upon request. A
public hearing may be scheduled if
requested in writing by any person who
timely submits comments. If a public
hearing is scheduled, notice of the date,
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time, and place of the hearing will be
published in the Federal Register.
Drafting Information
The principal author of these
regulations is John P. Stemwedel of the
Office of Associate Chief Counsel
(Corporate), IRS. However, other
personnel from the IRS and the Treasury
Department participated in their
development.
List of Subjects in 26 CFR Part 1
Income taxes, Reporting and
recordkeeping requirements.
Proposed Amendments to the
Regulations
Accordingly, 26 CFR part 1 is
proposed to be amended as follows:
PART 1—INCOME TAXES
Paragraph 1. The authority citation
for part 1 is amended by adding entries
to read in part as follows:
■
Authority: 26 U.S.C. 7805 * * *
Par. 2. Section 1.332–6 is amended by
revising paragraph (a)(3) and adding a
new sentence at the end of paragraph (e)
to read as follows:
■
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§ 1.332–6 Records to be kept and
information to be filed with return.
(a) * * *
(3) The fair market value and basis of
assets of the liquidating corporation that
have been or will be transferred to any
recipient corporation, aggregated as
follows:
(i) Importation property distributed in
a loss importation transaction, as
defined in § 1.362–3(c)(2) and (c)(3)
(except that ‘‘section 332 liquidation’’ is
substituted for ‘‘section 362
transaction’’), respectively;
(ii) Property with respect to which
gain or loss was recognized on the
distribution;
(iii) Property not described in
paragraph (a)(3)(i) or paragraph (a)(3)(ii)
of this section;
*
*
*
*
*
(e) Effective/applicability date. * * *
Paragraph (a)(3) of this section applies
to any taxable year beginning on or after
these regulations are published as final
regulations in the Federal Register,
unless effected pursuant to a binding
agreement that was in effect prior to that
date and at all times thereafter.
■ Par. 3. Section 1.332–7 is amended by
adding a new sentence after the first
sentence of the paragraph to read as
follows:
§ 1.332–7
parent.
Indebtedness of subsidiary to
* * * See section 337(b)(1) (for any
taxable year beginning on or after these
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regulations are published as final
regulations in the Federal Register).
* * *
■ Par. 4. Section 1.334–1 is revised to
read as follows:
§ 1.334–1 Basis of property received in
liquidations.
(a) In general. Section 334 sets forth
rules for determining a distributee’s
basis in property received in a
distribution in complete liquidation of a
corporation. The general rule is set forth
in section 334(a) and provides that, if
property is received in a distribution in
complete liquidation of a corporation
and if gain or loss is recognized on the
receipt of the property, then the
distributee’s basis in the property is the
fair market value of the property at the
time of the distribution. However, if
property is received in a complete
liquidation to which section 332
applies, including property received in
satisfaction of an indebtedness
described in section 337(b)(1), see
section 334(b)(1) and paragraph (b) of
this section.
(b) Liquidations under section 332—
(1) General rule. Except as otherwise
provided in paragraph (b)(2) or (b)(3) of
this section, if a corporation (P) meeting
the ownership requirements of section
332(b)(1) receives property from a
subsidiary (S) in a complete liquidation
to which section 332 applies (section
332 liquidation), including property
received in a transfer in satisfaction of
indebtedness that satisfies the
requirements of section 337(b)(1), P’s
basis in the property received is the
same as S’s basis in the property
immediately before the property was
distributed. However, see § 1.460–
4(k)(3)(iv)(B)(2) for rules relating to
adjustments to the basis of certain
contracts accounted for using a longterm contract method of accounting that
are acquired in a section 332
liquidation.
(2) Basis in property with respect to
which gain or loss was recognized.
Except as otherwise provided in the
Internal Revenue Code and regulations,
if S recognizes gain or loss on the
distribution of property to P in a section
332 liquidation, P’s basis in that
property is the fair market value of the
property at the time of the distribution.
Section 334(b)(1)(A) (certain tax-exempt
distributions under section 337(b)(2));
see also, for example, § 1.367(e)–
2(b)(3)(i).
(3) Basis in importation property
received in loss importation
transaction—(i) Purpose. The purpose
of section 334(b)(1)(B) and this
paragraph (b)(3) is to prevent P from
importing a net built-in loss in a
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transaction described in section 332.
See paragraph (b)(3)(iii)(A) of this
section for definitions of terms used in
this paragraph (b)(3).
(ii) Determination of basis.
Notwithstanding paragraph (b)(1) of this
section, if a section 332 liquidation is a
loss importation transaction, P’s basis in
each importation property received from
S in the liquidation is an amount that
is equal to the value of the property. The
basis of property received in a section
332 liquidation that is not importation
property received in a loss importation
transaction is determined under
generally applicable basis rules without
regard to whether the liquidation also
involves the receipt of importation
property in a loss importation
transaction.
(iii) Operating rules—(A) In general.
For purposes of section 334(b)(1)(B) and
this paragraph (b)(3), the provisions of
§ 1.362–3 (basis of importation property
received in a loss importation
transaction) apply, adjusted as
appropriate to apply to section 332
liquidations. Thus, when used in this
paragraph (b)(3), the terms ‘‘importation
property,’’ ‘‘loss importation
transaction,’’ and ‘‘value’’ have the same
meaning as in § 1.362–3(c)(2), (c)(3) and
(c)(4), respectively, except that ‘‘section
332 liquidation’’ is substituted for
‘‘section 362 transaction.’’ Similarly,
when gain or loss on property would be
owned or treated as owned by multiple
persons, the provisions of § 1.362–
3(d)(2) apply to tentatively divide the
property in applying this section,
substituting ‘‘section 332 liquidation’’
for ‘‘section 362 transaction’’ and
making such other adjustments as
necessary.
(B) Time for making determinations.
For purposes of section 334(b)(1)(B) and
this paragraph (b)(3)—
(1) P’s basis in distributed property.
P’s basis in each property S distributes
to P in the section 332 liquidation is
determined immediately after S
distributes each such property;
(2) Value of distributed property. The
value of each property S distributes to
P in the section 332 liquidation is
determined immediately after S
distributes the property;
(3) Importation property. The
determination of whether each property
distributed by S is importation property
is made as of the time S distributes each
such property;
(4) Loss importation transaction. The
determination of whether a section 332
liquidation is a loss importation
transaction is made immediately after S
makes the final liquidating distribution
to P.
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(iv) Examples. The examples in this
paragraph (b)(3)(iv) illustrate the
application of section 334(b)(1)(B) and
the provisions of this paragraph (b)(3).
Unless the facts indicate otherwise, the
examples use the following
nomenclature and assumptions: USP is
a domestic corporation that has not
elected to be an S corporation within
the meaning of section 1361(a)(1); FC,
CFC1, and CFC2 are controlled foreign
corporations within the meaning of
section 957(a), which are not engaged in
a U.S. trade or business, have no U.S.
real property interests, and have no
other relationships, activities, or
interests that would cause their property
to be subject to Federal income taxation;
there is no applicable income tax treaty;
and all persons and transactions are
unrelated. All other relevant facts are set
forth in the examples:
Example 1. Basic application of this
paragraph (b)(3). (i) Distribution of
importation property in a loss importation
transaction. (A) Facts. USP owns the sole
outstanding share of FC stock. FC owns three
assets, A1 (basis $40, value $50), A2 (basis
$120, value $30), and A3 (basis $140, value
$20). On Date 1, FC distributes A1, A2, and
A3 to USP in a complete liquidation that
qualifies under section 332.
(B) Importation property. Under § 1.362–
3(d)(2), the fact that any gain or loss
recognized by a CFC may affect an income
inclusion under section 951(a) does not alone
cause gain or loss recognized by the CFC to
be treated as taken into account in
determining a Federal income tax liability for
purposes of this section. Thus, if FC had sold
either A1, A2, or A3 immediately before the
transaction, no gain or loss recognized on the
sale would have been taken into account in
determining a Federal income tax liability.
Further, if USP had sold A1, A2, or A3
immediately after the transaction, USP would
take into account any gain or loss recognized
on the sale in determining its Federal income
tax liability. Therefore, A1, A2, and A3 are
all importation properties. See paragraph
(b)(3)(iii)(A) of this section and § 1.362–
3(c)(2).
(C) Loss importation transaction.
Immediately after the distribution, USP’s
aggregate basis in the importation properties,
A1, A2, and A3, would, but for section
334(b)(1)(B) and this section, be $300 ($40 +
$120 + $140) and the properties’ aggregate
value would be $100 ($50 + $30 + $20).
Therefore, the importation properties’
aggregate basis would exceed their aggregate
value and the distribution is a loss
importation transaction. See paragraph
(b)(3)(iii)(A) of this section and § 1.362–
3(c)(3).
(D) Basis of importation property
distributed in loss importation transaction.
Because the importation properties, A1, A2,
and A3, were transferred in a loss
importation transaction, the basis in each of
the importation properties received is equal
to its value immediately after FC distributes
the property. Accordingly, USP’s basis in A1
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is $50; USP’s basis in A2 is $30; and USP’s
basis in A3 is $20.
(ii) Distribution of both importation and
non-importation property in a loss
importation transaction. (A) Facts. The facts
are the same as in paragraph (i)(A) of this
Example 1 except that FC is engaged in a
U.S. trade or business and A3 is used in that
U.S. trade or business.
(B) Importation property. A1 and A2 are
importation properties for the reasons set
forth in paragraph (i)(B) of this Example 1.
However, if FC had sold A3 immediately
before the transaction, FC would take into
account any gain or loss recognized on the
sale in determining its Federal income tax
liability. Therefore, A3 is not importation
property. See paragraph (b)(3)(iii)(A) of this
section and § 1.362–3(c)(2).
(C) Loss importation transaction.
Immediately after the distribution, USP’s
aggregate basis in the importation properties,
A1 and A2, would, but for section
334(b)(1)(B) and this section, be $160 ($40 +
$120). Further, the properties’ aggregate
value would be $80 ($50 + $30). Therefore,
the importation properties’ aggregate basis
would exceed their aggregate value and the
distribution is a loss importation transaction.
See paragraph (b)(3)(iii)(A) of this section
and § 1.362–3(c)(3).
(D) Basis of importation property
distributed in loss importation transaction.
Because the importation properties, A1 and
A2, were transferred in a loss importation
transaction, the basis in each of the
importation properties received is equal to its
value immediately after FC distributes the
property. Accordingly, USP’s basis in A1 is
$50 and USP’s basis in A2 is $30.
(E) Basis of other property. Because A3 is
not importation property distributed in a loss
importation transaction, USP’s basis in A3 is
determined under generally applicable basis
rules. Accordingly, USP’s basis in A3 is $140,
the adjusted basis that FC had in the property
immediately before the distribution. See
section 334(b)(1).
(iii) FC not wholly owned. The facts are the
same as in paragraph (i)(A) of this Example
1 except that USP owns only 80% of the sole
outstanding class of FC stock and the
remaining 20% is owned by individual X.
Further, on Date 1 and pursuant to the plan
of liquidation, FC distributes A1 and A2 to
USP and A3 to X. A1 and A2 are importation
properties, the distribution to USP is a loss
importation transaction, and USP’s bases in
A1 and A2 are equal to their value ($50 and
$30, respectively) for the reasons set forth in
paragraphs (ii)(C) and (ii)(D) of this Example
1. Under section 334(a), X’s basis in A3 is
$20.
(iv) Importation property, no net built in
loss. (A) Facts. The facts are the same as in
paragraph (i)(A) of this Example 1 except that
the value of A2 is $230.
(B) Importation property. A1, A2, and A3,
are importation properties for the reasons set
forth in (i)(B) of this Example 1.
(C) Loss importation transaction.
Immediately after the distribution, USP’s
aggregate basis in the importation properties,
A1, A2, and A3, would, but for section
334(b)(1)(B) and this section, be $300 ($40 +
$120 + $140). However, the properties’
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54977
aggregate value would also be $300 ($50 +
$230 + $20). Therefore, the importation
properties’ aggregate basis would not exceed
their aggregate value and the distribution is
not a loss importation transaction. See
paragraph (b)(3)(iii)(A) of this section and
§ 1.362–3(c)(3).
(D) Basis of importation property not
distributed in loss importation transaction.
Because the importation properties, A1, A2,
and A3, were not distributed in a loss
importation transaction, the basis of each of
the importation properties is determined
under the generally applicable basis rules.
Accordingly, immediately after the
distribution, USP’s basis in A1 is $40, USP’s
basis in A2 is $120, and USP’s basis in A3
is $140, the adjusted bases that FC had in the
properties immediately before the
distribution. See section 334(b)(1).
(v) CFC stock as importation property
distributed in loss importation transaction.
(A) Facts. USP owns the sole outstanding
share of FC stock. FC owns the sole
outstanding share of CFC1 stock (basis $80,
value $100) and the sole outstanding share of
CFC2 stock (basis $100, value $5). On Date
1, FC distributes its shares of CFC1 and CFC2
stock to USP in a complete liquidation that
qualifies under section 332.
(B) Importation property. No special rule
applies to the treatment of property that is
the stock of a CFC. Thus, if FC had sold
either the CFC1 share or the CFC2 share
immediately before the transaction, no gain
or loss recognized on the sale would have
been taken into account in determining a
Federal income tax liability. Further, if USP
had sold either the CFC1 share or the CFC2
share immediately after the transaction, USP
would take into account any gain or loss
recognized on the sale in determining its
Federal income tax liability. Thus, the CFC1
share and the CFC2 share are importation
property. See paragraph (b)(3)(iii)(A) of this
section and § 1.362–3(c)(2).
(C) Loss importation transaction.
Immediately after the distribution, USP’s
aggregate basis in importation property (the
CFC1 share and the CFC2 share) would, but
for section 334(b)(1)(B) and this section, be
$180 ($80 + $100) and the shares’ aggregate
value is $105 ($100 + $5). Therefore, the
importation property’s aggregate basis would
exceed their aggregate value and the
distribution is a loss importation transaction.
See paragraph (b)(3)(iii)(A) of this section
and § 1.362–3(c)(3).
(D) Basis of importation property
distributed in loss importation transaction.
Because the importation property (the CFC1
share and the CFC2 share) was transferred in
a loss importation transaction, USP’s basis in
each of the shares received is equal to its
value immediately after FC distributes the
shares. Accordingly, USP’s basis in the CFC1
share is $100 and USP’s basis in the CFC2
share is $5.
Example 2. Multiple step liquidation. (i)
Facts. USP owns the sole outstanding share
of FC stock. On January 1 of year 1, FC
adopts a plan of liquidation. FC makes the
following distributions to USP in a
transaction that qualifies as a complete
liquidation under section 332. In year 1, FC
distributes A1 and, immediately before the
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distribution, FC’s basis in A1 is $100 and
A1’s value is $120. In Year 2, FC distributes
A2, and, immediately before the distribution,
FC’s basis in A2 is $100 and A2’s value is
$120. In year 3, in its final liquidating
distribution, FC distributes A3 and,
immediately before the distribution, FC’s
basis in A3 is $100 and A3’s value is $120.
As of the time of the final distribution, USP
had depreciated the bases of A1 and A2 to
$90 and $95, respectively; the value of A1
had appreciated to $160; and, the value of A2
has declined to $0.
(ii) Importation property. If FC had sold
either A1, A2, or A3 immediately before it
was distributed, no gain or loss recognized
on the sale would have been taken into
account in determining a Federal income tax
liability. Further, if USP had sold either A1,
A2, or A3 immediately after it was
distributed, USP would take into account any
gain or loss recognized on the sale in
determining its Federal income tax liability.
Therefore, A1, A2, and A3 are all importation
properties. See paragraph (b)(3)(iii)(A) of this
section and § 1.362–3(c)(2).
(iii) Loss importation transaction.
Immediately after it was distributed, USP’s
basis in each of the importation properties,
A1, A2, and A3, would, but for section
334(b)(1)(B) and this section, have been $100.
Further, immediately after each such
property was distributed, its value was $120.
Thus, the properties’ aggregate basis, $300,
would not have exceeded the properties’
aggregate value, $360. Accordingly, the
distribution is not a loss importation
transaction irrespective of the fact that, when
the liquidation was completed, the
properties’ aggregate basis was $285 and the
properties’ aggregate value was $280. See
paragraph (b)(3)(iii)(B) of this section and
§ 1.362–3(c)(3).
(iv) Basis of importation property not
distributed in loss importation transaction.
Because the importation properties, A1, A2,
and A3, were not distributed in a loss
importation transaction, the basis of each of
the importation properties is determined
under the generally applicable basis rules.
Accordingly, USP takes each of the
properties with a basis of $100 and,
immediately after the final distribution, has
an adjusted basis of $90 in A1 (USP’s $100
basis less the $10 depreciation), $95 in A2
(USP’s $100 basis less the $5 depreciation),
and $100 in A3. See section 334(b).
(c) Effective/applicability date. This
section applies to any taxable year
beginning on or after these regulations
are published as final regulations in the
Federal Register, unless effected
pursuant to a binding agreement that
was in effect prior to that date and at all
times thereafter. However, taxpayers
may apply this section to transactions
occurring after October 22, 2004.
■ Par. 5. Section 1.337–1 is added to
read as follows:
§ 1.337–1 Nonrecognition for property
distributed to parent in complete liquidation
of subsidiary.
(a) General rule. If section 332(a) is
applicable to the receipt of a
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subsidiary‘s property in complete
liquidation, no gain or loss is recognized
to the liquidating subsidiary with
respect to such property (including
property distributed with respect to
indebtedness, see section 337(b)(1) and
§ 1.332–7), except as provided in section
337(b)(2) (distributions to certain taxexempt distributees), section 367(e)(2)
(distributions to foreign corporations),
and section 897(d) (distributions of U.S.
real property interests by foreign
corporations).
(b) Effective/applicability date. This
section applies to any taxable year
beginning on or after these regulations
are published as final regulations in the
Federal Register.
■ Par. 6. Section 1.351–3 is amended by
revising paragraphs (a)(3) and (b)(3), and
adding a sentence at the end of
paragraph (f) to read as follows:
§ 1.351–3 Records to be kept and
information to be filed.
(a) * * *
(3) The fair market value and basis of
the property transferred by such
transferor in the exchange, determined
immediately before the transfer and
aggregated as follows:
(i) Importation property transferred in
a loss importation transaction, as
defined in § 1.362–3(c)(2) and § 1.362–
3(c)(3), respectively;
(ii) Loss duplication property as
defined in § 1.362–4(c)(1);
(iii) Property with respect to which
any gain or loss was recognized on the
transfer (without regard to whether such
property is also identified in paragraph
(a)(3)(i) or (ii) of this section); and
(iv) Property not described in
paragraphs (a)(3)(i), (a)(3)(ii), or
(a)(3)(iii) of this section.
*
*
*
*
*
(b) * * *
(3) The fair market value and basis of
property received in the exchange,
determined immediately before the
transfer and aggregated as follows:
(i) Importation property transferred in
a loss importation transaction, as
defined in § 1.362–3(c)(2) and § 1.362–
3(3), respectively;
(ii) Loss duplication property as
defined in § 1.362–4(c)(1);
(iii) Property with respect to which
any gain or loss was recognized on the
transfer (without regard to whether such
property is also identified in paragraph
(b)(3)(ii) of this section);
(iv) Property not described in
paragraphs (b)(3)(i), (b)(3)(ii), or
(b)(3)(iii) of this section; and
*
*
*
*
*
(f) Effective/applicability date. * * *
Paragraphs (a)(3) and (b)(3) of this
section apply to any taxable year
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beginning on or after these regulations
are published as final regulations in the
Federal Register, unless effected
pursuant to a binding agreement that
was in effect prior to that date and at all
times thereafter.
■ Par. 7. Section 1.358–6 is amended by
revising paragraphs (c)(1)(i)(A),
(c)(2)(ii)(B), (c)(3)(i), (c)(3)(ii), (c)(4), (e),
(f)(1), and the first sentence of paragraph
(f)(3), and adding new paragraph (f)(4)
to read as follows:
§ 1.358–6 Stock basis in certain triangular
reorganizations.
*
*
*
*
*
(c) * * *
(1) * * *
(i) * * *
(A) P acquired the T assets acquired
by S in the reorganization (and P
assumed any liabilities which S
assumed or to which the T assets
acquired by S were subject) directly
from T in a transaction in which P’s
basis in the T assets was determined
under section 362(b) (taking into
account the provisions of section
362(e)(1)); and
*
*
*
*
*
(2) * * *
(ii) * * *
(B) Determine the basis in the T stock
acquired as if P acquired such stock
from the former T shareholders in a
transaction in which P’s basis in the T
stock was determined under section
362(b) (taking into account the
provisions of section 362(e)(1) and, to
the extent the transfer is a transaction
described in section 362(a), the
provisions of section 362(e)(2)).
(3) * * *
(i) P acquired the T stock acquired by
S in the reorganization directly from the
T shareholders in a transaction in which
P’s basis in the T stock was determined
under section 362(b) (taking into
account the provisions of section
362(e)(1)); and
(ii) P transferred the T stock to S in
a transaction in which P’s basis in its S
stock was determined under section 358
(taking into account the provisions of
section 362(e)(2) to the extent the
transfer is a transaction described in
section 362(a)).
(4) Examples. The rules of this
paragraph (c) are illustrated by the
following examples. For purposes of
these examples, P, S, and T are domestic
corporations, the property transferred is
not importation property within the
meaning of § 1.362–3(c)(2) or loss
duplication property within the
meaning of § 1.362–4(c)(2), P and S do
not file consolidated returns, P owns all
of the shares of the only class of S stock,
the P stock exchanged in the transaction
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satisfies the requirements of the
applicable triangular reorganization
provisions, and the facts set forth the
only corporate activity.
*
*
*
*
*
(e) Cross-references—(1) Triangular
reorganizations involving members of a
consolidated group. For rules relating to
stock basis adjustments made as a result
of a triangular reorganization in which
P and S, or P and T, as applicable, are,
or become, members of a consolidated
group, see § 1.1502–30. However, if a
transaction is a group structure change,
stock basis adjustments are determined
under § 1.1502–31 and not under
§ 1.1502–30, even if the transaction also
qualifies as a reorganization otherwise
subject to § 1.1502–30.
(2) Transfers of importation property
in loss importation transaction and
transfers of loss duplication property.
For rules relating to stock basis
adjustments made as a result of a
triangular reorganization in which the
property treated as acquired by P would
be importation property received in a
loss importation transaction, see
§ 1.362–3. For rules relating to
adjustments made as a result of a
triangular reorganization that also
qualifies under section 362(a), see
§ 1.362–4.
(3) Triangular reorganizations
involving certain foreign corporations.
For rules relating to stock basis
adjustments made as a result of
triangular reorganizations involving
certain foreign corporations, see
§§ 1.367(b)–4(b), 1.367(b)–10, and
1.367(b)–13.
(f) * * * (1) General rule. In general,
this section applies to triangular
reorganizations occurring on or after
December 23, 1994. However,
paragraphs (c)(1)(i)(A), (c)(2)(ii)(B),
(c)(3)(i), and (c)(3)(ii) of this section
apply to triangular reorganizations
occurring on or after the date these
regulations are published as final
regulations in the Federal Register.
*
*
*
*
*
(3) * * * Paragraphs (b)(2)(v) and
(e)(1) of this section shall apply to
triangular reorganizations occurring on
or after September 17, 2008. * * *
(4) Triangular reorganizations
involving importation property acquired
in loss importation transaction or loss
duplication transaction; triangular
reorganizations involving certain foreign
corporations. Paragraphs (e)(2) and
(e)(3) of this section shall apply to
triangular reorganizations occurring on
or after the date these regulations are
published as final regulations in the
Federal Register.
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Par. 8. Section 1.362–3 is added to
read as follows:
■
§ 1.362–3 Basis of importation property
acquired in loss importation transaction.
(a) Purpose. The purpose of section
362(e)(1) and this section is to prevent
a corporation (Acquiring) from
importing a net built-in loss in a
transaction described in either section
362(a) (section 351 transfers,
contributions to capital, or paid-in
surplus) or section 362(b)
(reorganizations). See paragraph (c) of
this section for definitions of terms used
in this section.
(b) Basis determinations under this
section—(1) Basis of importation
property received in loss importation
transaction. Notwithstanding any other
provision of law, Acquiring’s basis in
importation property (as defined in
paragraph (c)(2) of this section) acquired
in a loss importation transaction (as
defined in paragraph (c)(3) of this
section) is equal to the value of the
property immediately after the
transaction.
(2) Adjustment to basis of subsidiary
stock in triangular reorganizations. If a
corporation (P) computes its basis in
stock of a subsidiary (whether S or T)
under § 1.358–6 (stock basis in certain
triangular reorganizations), P’s basis in
property treated as acquired by P in
§ 1.358–6(c) is determined under section
362(e)(1) and this section to the extent
such property, if actually acquired by P,
would be importation property acquired
in a loss importation transaction. See
§ 1.358–6(c)(1)(i)(A), paragraphs
(c)(2)(ii)(B), and (c)(3)(i). The
subsidiary’s basis in the property
actually acquired in the transaction is
determined under applicable law
(including this section), without regard
to the amount of any adjustment to P’s
basis in the subsidiary’s stock. Thus, the
basis of the property in S’s or T’s hands
may differ from the amount of the
adjustment to P’s basis in its stock of S
or T.
(3) Acquiring’s basis in other property
transferred. In general, Acquiring’s basis
in property received in a section 362
transaction (as defined in paragraph
(c)(1) of this section) that is not
determined under section 362(e)(1) and
this section is determined under section
362(a) or section 362(b). However, if the
transaction is described in section
362(a) (without regard to whether it is
also described in any other section),
further adjustment may be required
under section 362(e)(2). See § 1.362–4.
(c) Definitions. For purposes of this
section, the following definitions apply:
(1) Section 362 transaction. The term
section 362 transaction means any
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54979
transaction described in section 362(a)
or in section 362(b).
(2) Importation property.—(i) General
rule. The term importation property
means any property (including separate
portions of property tentatively divided
under paragraph (e)(2) of this section)
with respect to which—
(A) Any gain or loss that would be
recognized on its sale by the transferor
immediately before the transaction (the
transferor’s hypothetical sale) would not
be subject to tax imposed under any
provision of subtitle A of the Internal
Revenue Code (Federal income tax)
(taking into account the provisions of
paragraph (d) of this section); and
(B) Any gain or loss that would be
recognized on its sale by Acquiring
immediately after the transaction
(Acquiring’s hypothetical sale) would be
subject to Federal income tax (taking
into account the provisions of paragraph
(d) of this section)
(ii) Special rules for applying this
paragraph (c)(2). See paragraph (d) of
this section for rules for determining
whether gain or loss on a hypothetical
sale would be taken into account in
determining a Federal income tax
liability and paragraph (e) of this section
for rules applicable when more than one
person would take such gain or loss into
account.
(3) Loss importation transaction. The
term loss importation transaction means
any section 362 transaction in which
Acquiring’s aggregate basis in all
importation property received from all
transferors in the transaction would
exceed the aggregate value of such
property immediately after the
transaction. For this purpose,
Acquiring’s basis in property received is
determined without regard to this
section or section 362(e)(2).
(4) 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 (c)(4)(i) of
this section, when referring to a
partnership interest, for purposes of 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.
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(d) Rules for determining whether
gain or loss would be taken into account
in determining a Federal income tax
liability—(1) General rule. In general,
any gain or loss that would be
recognized on a hypothetical sale
described in either paragraph (c)(2)(i) or
paragraph (c)(2)(ii) of this section is
considered to be subject to Federal
income tax if, taking into account all
relevant facts and circumstances, such
gain or loss would affect or be taken into
account in determining the Federal
income tax liability of the transferor or
Acquiring, respectively. This
determination is made without regard to
whether such person has or would have
any actual Federal income tax liability
for the taxable year of the transaction.
(2) Look-through rule in the case of
certain pass-through entities.
Notwithstanding the general rule in
paragraph (d)(1) of this section, the
determination of whether any gain or
loss on a hypothetical sale would be
treated as subject to Federal income tax
is made by reference to the person that
would be required to include such gain
or loss in its taxable income if the
hypothetical seller is—
(i) A trust treated as owned by its
grantors or others (see section 671);
(ii) A partnership (see section 701); or
(iii) An S corporation (see sections
1363 and 1366).
(3) Controlled foreign corporations
(CFC), passive foreign investment
companies (PFIC). For purposes of this
section, gain or loss that would be
recognized by a CFC (as defined in
section 957(a)) or a PFIC (as defined in
section 1297(a)) is not deemed taken
into account in determining a Federal
income tax liability solely because it
could affect an inclusion under section
951(a) or section 1293(a).
(4) Look-through treatment in the case
of certain avoidance transactions. (i)
Application of section. This paragraph
(d)(4) applies if—
(A) The transferor is a domestic entity
that is a trust, estate, regulated
investment company (RIC) (as defined
in section 851(a)), a real estate
investment trust (REIT) (as defined in
section 856(a)), or a cooperative (see
section 1381); and
(B) The transferor transfers, directly or
indirectly, property that was transferred
to or acquired by it as part of a plan
(whether of transferor, Acquiring, or any
other person) to avoid the application of
section 362(e)(1) and this section to a
section 362 transaction.
(ii) Effect of application of section.
Notwithstanding paragraph (d)(1) of this
section, if a transferor is described in
both paragraphs (d)(4)(ii)(A) and
(d)(4)(ii)(B) of this section—
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(A) The transferor is treated as though
it distributes the proceeds of the
hypothetical sale (which, for this
purpose, are presumed to be an amount
greater than zero);
(B) To the fullest extent possible
under the transferor’s organizing
instrument, taking into account the
beneficiaries or owners of interests (as
applicable) in the transferor, the deemed
distribution is treated as made to a
distributee or distributees that would
not take distributions from the
transferor into account in determining a
Federal income tax liability; and
(C) The determination of whether the
gain or loss on the hypothetical sale is
treated as subject to Federal income tax
is made by reference to the deemed
distributee or distributees.
(iii) Tiered entities. If a deemed
distributee is an entity described in
paragraph (d)(4)(i)(A) of this section, the
determination of whether gain or loss on
the hypothetical sale is taken into
account in determining a Federal
income tax liability is made by treating
the deemed distributee, and any
successive such deemed distributees, as
a transferor and applying the rules in
paragraphs (d)(4)(i) and (d)(4)(ii) of this
section to its deemed distribution (and
to all successive deemed distributions),
until no deemed distributee or
successive deemed distributee is an
entity described in paragraph
(d)(4)(i)(A) of this section.
(e) Special rules for gain or loss that
would be taken into account by multiple
persons—(1) In general. If gain or loss
from a disposition of property would be
includible in income by more than one
person, the property is treated as
tentatively divided into separate
portions in proportion to the amount of
gain or loss recognized with respect to
the property that would be allocated to
each such person. If an entity’s
organizing instrument specially
allocates gain and loss, the tentative
division of property under this
paragraph (e) must reflect the manner in
which gain or loss on the disposition of
such property would be allocated under
the terms of the organizing instrument,
taking into account the net gain or loss
actually recognized by the entity in that
tax year.
(2) Application of section. The rules
of this section apply independently to
each tentatively divided portion to
determine if the portion is importation
property. Each tentatively divided
portion that is determined to be
importation property is included with
all other importation property in the
determination of whether the
transaction is a loss importation
transaction.
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(3) Acquiring’s basis in property
tentatively divided into separate
portions. Immediately after the
application of section 362(e)(1) and this
section and before the application of
section 362(e)(2), each property treated
as tentatively divided into separate
portions for purposes of applying
section 362(e)(1) and this section ceases
to be treated as tentatively divided and
Acquiring has a single, undivided basis
in such property that is equal to the sum
of—
(i) The value of each tentatively
divided portion that is importation
property, if the transaction is a loss
importation transaction; and
(ii) Acquiring’s basis in each
tentatively divided portion that is not
importation property received in a loss
importation transaction, as determined
under section 362(a) or section 362(b),
as applicable, and without regard to any
potential application of section
362(e)(2).
(f) Examples. The examples in this
paragraph (f) illustrate the application of
section 362(e)(1) and the provisions of
this section. Unless otherwise indicated,
the examples use the following
nomenclature and assumptions: A and B
are U.S. citizens. DC, DC1, and P are
domestic corporations that have not
elected to be S corporations within the
meaning of section 1361(a)(1) and that
are not members of a consolidated
group. F is a foreign individual. FP is a
foreign partnership. FC, FC1, and FC2
are foreign corporations. Unless the
facts indicate otherwise, the foreign
individuals, corporations, and
partnerships are not engaged in a U.S.
trade or business, have no U.S. real
property interests, and have no other
relationships, activities, or interests that
would cause them, their shareholders,
their partners, or their property to be
subject to Federal income taxation.
There is no applicable income tax
treaty, and all persons and transactions
are unrelated unless the facts indicate
otherwise.
Example 1. Basic application of section. (i)
Section 351 transfer of importation property
in a loss importation transaction. (A) Facts.
FC owns three assets, A1 (basis $40, value
$150), A2 (basis $120, value $30), and A3
(basis $140, value $20). On Date 1, FC
transfers A1, A2, and A3 to DC in a
transaction to which section 351 applies.
(B) Importation property. If FC had sold
A1, A2, or A3 immediately before the
transaction, no gain or loss recognized on the
sale would have been taken into account in
determining a Federal income tax liability.
Further, if DC had sold A1, A2, or A3
immediately after the transaction, DC would
take into account any gain or loss recognized
on the sale in determining its Federal income
tax liability. Therefore, A1, A2, and A3 are
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all importation properties. See paragraph
(c)(2) of this section.
(C) Loss importation transaction. FC’s
transfer of A1, A2, and A3 is a section 362
transaction. Furthermore, but for section
362(e)(1) and this section and section
362(e)(2), DC’s aggregate basis in the
importation properties, A1, A2, and A3,
would be $300 ($40 + $120 + $140) under
section 362(a) and the properties’ aggregate
value would be $200 ($150 + $30 + $20).
Therefore, the importation properties’
aggregate basis would exceed their aggregate
value and the transaction is a loss
importation transaction. See paragraph (c)(3)
of this section.
(D) Application of section 362(e)(1) and
this section to importation property received
in loss importation transaction. Because the
importation properties, A1, A2, and A3, were
transferred in a loss importation transaction,
paragraph (b)(1) of this section applies and
DC’s basis in A1, A2, and A3 will each be
equal to the property’s value ($150, $30, and
$20, respectively) immediately after the
transfer.
(E) Basis of property received in
transaction. Following the application of
section 362(e)(1) and this section, the
provisions of section 362(e)(2) must be taken
into account because the transfer is a section
362(a) transaction. Taking into account the
application of section 362(e)(1) and this
section, DC’s aggregate basis in the
transferred properties would not exceed their
aggregate value immediately after the
transfer. Therefore, FC does not have a net
built-in loss, FC’s transfer is not a loss
duplication transaction, and section 362(e)(2)
does not apply to this transaction. DC’s bases
in A1, A2, and A3, as determined under
paragraph (i)(D) of this Example 1, are $150,
$30, and $20, respectively. Under section
358(a), FC receives the DC stock with a basis
of $300 (the sum of FC’s bases in A1, A2, and
A3 immediately before the exchange).
(ii) Reorganization. The facts are the same
as in paragraph (i)(A) of this Example 1
except that, instead of transferring property
to DC in a section 351 exchange, FC merges
with and into DC in a transaction described
in section 368(a)(1)(A). The analysis and
results are the same as set forth in paragraphs
(i)(B), (i)(C), (i)(D), and (i)(E) of this Example
1, except that, under section 358(a), FC’s
shareholders will take the DC stock with a
basis determined by reference to their FC
stock basis.
(iii) FC’s property used in U.S. trade or
business. (A) Facts. The facts are the same as
in paragraph (i)(A) of this Example 1, except
that FC is engaged in a U.S. trade or business
and uses all the properties in that U.S. trade
or business. In this case, none of the
properties would be importation property
because FC would take any gain or loss on
the disposition of the properties into account
in determining its Federal income tax
liability. Accordingly, this section does not
apply to the transaction.
(B) Basis of property received in
transaction. Following the application of
section 362(e)(1) and this section, the
provisions of section 362(e)(2) must be taken
into account because the transfer is a section
362(a) transaction. Taking into account the
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application of section 362(e)(1) and this
section but without taking into account the
provisions of section 362(e)(2), DC’s
aggregate basis in the transferred properties
would be $300 ($40 + $120 + $140) under
section 362(a) and the properties’ aggregate
value immediately after the transfer would be
$200 ($150 + $30 + $20). Therefore, FC has
a net built-in loss and FC’s transfer of A1, A2,
and A3 is a loss duplication transaction.
Accordingly, under the general rule of
section 362(e)(2), FC’s $100 net built-in loss
($300 aggregate basis over $200 aggregate
value) would be allocated proportionately (by
the amount of built-in loss in each property)
to reduce DC’s basis in the loss properties,
A2 and A3. See § 1.362–4. As a result, DC’s
basis in A2 would be $77.14 ($120 basis
under section 362(a) reduced by $42.86, A2’s
proportionate share of FC’s net built-in loss,
computed as $90/$210 × $100) and DC’s basis
in A3 would be $82.86 ($140 basis under
section 362(a) reduced by $57.14, A3’s
proportionate share of FC’s net built-in loss,
computed as $120/$210 × $100). However, if
FC and DC were to elect under section
362(e)(2)(C) to apply the $100 basis reduction
to FC’s basis in the DC stock received in the
transaction, DC’s bases in A2 and A3 would
remain their section 362(a) bases of $120 and
$140, respectively. Under section 362(a),
DC’s basis in A1 is $40 (irrespective of
whether the section 362(e)(2)(C) election is
made). If FC and DC do not make a section
362(e)(2)(C) election, FC’s basis in the DC
stock received in the exchange will be $300;
if FC and DC do make the election, FC’s basis
in the DC stock will be $200 ($300–$100 net
built-in loss). See § 1.362–4(b).
Example 2. Multiple transferors. (i) Facts.
The facts are the same as in paragraph (i)(A)
of Example 1, except that FC only owns A1
(basis $40, value $150) and A2 (basis $120,
value $30) and F owns A3 (basis $140, value
$20). On Date 1, FC transfers A1 and A2, and
F transfers A3, to DC in a single transaction
described in section 351.
(ii) Importation property. A1 and A2 are
importation properties for the reasons set
forth in paragraph (i)(B) of Example 1. A3 is
also an importation property because, if F
had sold A3 immediately before the
transaction, no gain or loss recognized on the
sale would have been taken into account in
determining a Federal income tax liability,
and, further, if DC had sold A3 immediately
after the transaction, DC would take into
account any gain or loss recognized on the
sale in determining its Federal income tax
liability.
(iii) Loss importation transaction. The
transfers by FC and F are a section 362
transaction. The transaction is a loss
importation transaction for the reasons set
forth in paragraph (i)(C) of Example 1
(notwithstanding that one of the transferors,
FC, did not transfer a net built-in loss). See
paragraph (c)(3) of this section.
(iv) Application of section 362(e)(1) and
this section to importation property received
in loss importation transaction. Because the
importation properties, A1, A2, and A3, were
transferred in a loss importation transaction,
paragraph (b)(1) of this section applies and
DC’s basis in A1, A2, and A3 will each be
equal to the property’s value ($150, $30, and
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54981
$20, respectively) immediately after the
transfer.
(v) Basis of property received in
transaction. Following the application of
section 362(e)(1) and this section, the
provisions of section 362(e)(2) must be taken
into account because the transfer is a section
362(a) transaction. The application of section
362(e)(2) is determined separately for each
transferor. See § 1.362–4(b). Taking into
account the application of section 362(e)(1)
and this section, neither DC’s aggregate basis
in FC’s properties nor DC’s basis in F’s
property would exceed the properties’
respective values immediately after the
transaction. Therefore neither FC nor F has
a net built-in loss, neither transfer is a loss
duplication transaction, and section 362(e)(2)
does not apply to either transfer. DC’s bases
in A1, A2, and A3, as determined under
paragraph (iv) of this Example 2, are $150,
$30, and $20, respectively. Under section
358(a), FC’s basis in the DC stock received is
$160 ($40 + $120) and F’s basis in the DC
stock received in the exchange is $140.
Example 3. Transfer of importation and
non-importation property. (i) Facts. As in
paragraph (i) of Example 2, FC owns A1
(basis $40, value $150) and A2 (basis $120,
value $30), and F owns A3 (basis $140, value
$20). In addition, A2 is a U.S. real property
interest as defined in section 897(c)(1). On
Date 1, FC transfers A1 and A2, and F
transfers A3, to DC in a single transaction
described in section 351.
(ii) Importation property. A1 and A3 are
importation properties for the reasons set
forth in paragraph (i)(B) of Example 1 and
paragraph (i) of Example 2, respectively.
However, A2 is not importation property
because, if FC had sold A2 immediately
before the transaction, FC would take into
account any gain or loss recognized on the
sale in determining its Federal income tax
liability.
(iii) Loss importation transaction. FC’s
transfer is a section 362 transaction.
Furthermore, but for section 362(e)(1) and
this section and section 362(e)(2), DC’s
aggregate basis in the importation properties,
A1 and A3, would be $180 ($40 + $140) and
the properties’ aggregate value would be $170
($150 + $20) immediately after the
transaction. Therefore, the importation
properties’ aggregate basis would exceed
their aggregate value immediately after the
transaction, and the transfer is a loss
importation transaction.
(iv) Application of section 362(e)(1) and
this section to importation property received
in loss importation transaction. Because the
importation properties, A1 and A3, were
transferred in a loss importation transaction,
paragraph (b)(1) of this section applies and
DC’s basis in A1 and in A3 will each be equal
to the property’s value ($150 and $20,
respectively) immediately after the transfer.
(v) Basis of property received in
transaction. Following the application of
section 362(e)(1) and this section, the
provisions of section 362(e)(2) must be taken
into account because the transfer is a section
362(a) transaction. The application of section
362(e)(2) is determined separately for each
transferor. See § 1.362–4(b).
(A) FC’s transfer. Taking into account the
application of section 362(e)(1) and this
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section but without taking into account the
provisions of section 362(e)(2), DC would
have an aggregate basis of $270 in the
transferred properties ($150 in A1, as
determined under paragraph (iv) of this
Example 3, plus $120 in A2, determined
under section 362(a)), and the properties
would have an aggregate value of $180 ($150
+ $30) immediately after the transfer.
Therefore, FC has a net built-in loss and FC’s
transfer of A1 and A2 is a loss duplication
transaction. Accordingly, under the general
rule of section 362(e)(2), FC’s $90 net builtin loss ($270 aggregate basis to DC over $180
aggregate value) would be allocated
proportionately to reduce DC’s basis in the
loss property transferred by FC. As a result,
FC’s entire net built-in loss would be
allocated to A2, the only loss property
transferred by FC, and DC’s basis in A2
would be $30 ($120 basis under section
362(a) reduced by $90 net built-in loss).
However, if FC and DC were to elect under
section 362(e)(2)(C) to apply the $90 basis
reduction to FC’s basis in the DC stock
received in the transaction, DC’s basis in A2
would remain its section 362(a) basis of $120.
DC’s basis in A1 is $150 as determined under
paragraph (iv) of this Example 3 (irrespective
of whether the section 362(e)(2)(C) election is
made). If FC and DC do not make a section
362(e)(2)(C) election, FC’s basis in the DC
stock received in the exchange will be $270;
if FC and DC do make the election, FC’s basis
in the DC stock will be $180 ($270–$90 net
built-in loss). See § 1.362–4.
(B) F’s transfer of A3. Taking into account
the application of section 362(e)(1) and this
section, DC’s basis in A3, the property
transferred by F, would not exceed its value
immediately after the transfer. Therefore, F
does not have a built-in loss, F’s transfer is
not a loss duplication transaction, and
section 362(e)(2) does not apply to F’s
transfer. DC’s basis in A3, as determined
under paragraph (iv) of this Example 3, is
$20. Under section 358(a), F receives the DC
stock with a basis of $140.
Example 4. Multiple transferors of nonimportation properties. (i) Facts. DC1 owns
A1 (basis $40, value $150). In addition, as in
Example 3, FC owns A2 (basis $120, value
$30), a U.S. real property interest as defined
in section 897(c)(1), and F owns A3 (basis
$140, value $20). On Date 1, DC1 transfers
A1, FC transfers A2, and F transfers A3, to
DC in a single transaction described in
section 351.
(ii) Importation property. A2 is not
importation property and A3 is importation
property for the reasons set forth in
paragraph (ii) of Example 3 and paragraph
(i)(B) of Example 1, respectively. A1 is not
importation property because, if DC1 had
sold A2 immediately before the transaction,
DC1 would take into account any gain or loss
recognized on the sale in determining its
Federal income tax liability.
(iii) Loss importation transaction. The
transfer of A1, A2, and A3 is a section 362
transaction. Furthermore, but for section
362(e)(1) and this section and section
362(e)(2), DC’s basis in importation property,
A3, would be $140 and the value of the
property would be $20 immediately after the
transaction. Therefore, the importation
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property’s basis would exceed value and the
transfer is a loss importation transaction.
(iv) Application of section 362(e)(1) and
this section to importation property received
in loss importation transaction. Because the
importation property, A3, was transferred in
a loss importation transaction, section
362(e)(1) and paragraph (b)(1) of this section
applies and DC’s basis in A3 will be equal
to A3’s $20 value immediately after the
transfer.
(v) Basis of property received in
transaction. Following the application of
section 362(e)(1) and this section, the
provisions of section 362(e)(2) must be taken
into account because the transfer is a section
362(a) transaction. The application of section
362(e)(2) is determined separately for each
transferor. See § 1.362–4.
(A) DC1’s transfer. Taking into account the
application of section 362(e)(1) and this
section, DC’s basis in A1 ($40 under section
362(a)) would not exceed its value
immediately after the transfer. Therefore,
DC1 does not have a net built-in loss, DC1’s
transfer is not a loss duplication transaction,
and section 362(e)(2) does not apply to DC1’s
transfer. DC’s basis in A1, determined under
section 362(a), is $40. Under section 358(a),
DC1 receives the DC stock with a basis of
$40.
(B) FC’s transfer. Taking into account the
application of section 362(e)(1) and this
section, but without taking into account the
provisions of section 362(e)(2), DC would
have a section 362(a) basis of $120 in A2,
which would exceed A2’s $30 value
immediately after the transfer. Therefore, FC
has a net built-in loss and FC’s transfer of A2
is a loss duplication transaction.
Accordingly, under the general rule of
section 362(e)(2), FC’s $90 net built-in loss
(DC’s $120 basis in A2 over A2’s $30 value)
would be applied to reduce DC’s basis in A2,
the only loss property transferred by FC. As
a result, DC’s basis in A2 would be $30 ($120
basis under section 362(a), reduced by the
$90 net built-in loss). However, if FC and DC
were to elect under section 362(e)(2)(C) to
apply the $90 basis reduction to FC’s basis
in the DC stock received in the transaction,
DC’s basis in A2 would be its $120 basis
determined under section 362(a). If FC and
DC do not make a section 362(e)(2)(C)
election, FC’s basis in the DC stock received
in the exchange will be $120; if FC and DC
do make the election, FC’s basis in the DC
stock will be $30 ($120–$90). See § 1.362–4.
(C) F’s transfer. F’s transfer of A3 is a
transaction described in section 362(a).
However, taking into account the application
of section 362(e)(1) and this section, DC’s
basis in A3 ($20) would not exceed its value
immediately after the transfer. Therefore, F
does not have a built-in loss, F’s transfer is
not a loss duplication transaction, and
section 362(e)(2) does not apply to F’s
transfer. DC’s basis in A3, as determined
under paragraph (iv) of this Example 4, is
$20. Under section 358(a), FC receives the DC
stock with a basis of $140.
Example 5. Partnership transactions. (i)
Transfer by foreign partnership, foreign and
domestic partners. (A) Facts. A and F are
equal partners in FP. FP owns A1 (basis
$100, value $70). Under the terms of the FP
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partnership agreement, FP’s items of income,
gain, deduction, and loss are allocated
equally between A and F. FP transfers A1 to
DC in a transfer to which section 351 applies.
No election is made under section
362(e)(2)(C).
(B) Importation property. If FP had sold A1
immediately before the transaction, any gain
or loss recognized on the sale would be
allocated to and includible by A and F
equally under the partnership agreement.
Thus, A1 is treated as tentatively divided
into two equal portions, one treated as owned
by A and one treated as owned by F. If FP
had sold A1 immediately before the
transaction, any gain or loss recognized on
the portion treated as owned by A would
have been taken into account in determining
a Federal income tax liability (A’s); thus A’s
tentatively divided portion of A1 is not
importation property. However, no gain or
loss recognized on the tentatively divided
portion treated as owned by F would have
been taken into account in determining a
Federal income tax liability. Further, if DC
had sold A1 immediately after the
transaction, any gain or loss recognized on
the sale would have been taken into account
in determining a Federal income tax liability
(DC’s); thus, F’s tentatively divided portion
of A1 is importation property.
(C) Loss importation transaction. FP’s
transfer of A1 is a section 362 transaction.
Furthermore, but for section 362(e)(1) and
this section and section 362(e)(2), DC’s basis
in the importation property, F’s portion of
A1, would be $50 under section 362(a) and
the property’s value would be $35
immediately after the transaction. Therefore,
the importation property’s basis would
exceed its value and the transfer is a loss
importation transaction.
(D) Application of section 362(e)(1) and
this section to importation property received
in loss importation transaction. Because the
importation property, F’s tentatively divided
portion of A1, was transferred in a loss
importation transaction, section 362(e)(1) and
paragraph (b)(1) of this section applies and
DC’s basis in F’s portion of A1 will be equal
to its $35 value.
(E) Basis of property received in
transaction. Following the application of
section 362(e)(1) and this section, the
provisions of section 362(e)(2) must be taken
into account because the transfer is a section
362(a) transaction. Taking into account the
application of section 362(e)(1) and this
section but without taking into account the
provisions of section 362(e)(2), DC’s
aggregate basis in A1 would be $85 (the sum
of the $35 basis in F’s tentatively divided
portion of A1, as determined under
paragraph (i)(D) of this Example 5, and the
$50 basis in A’s tentatively divided portion
of A1, determined under section 362(a), see
paragraph (d)(2) of this section) and A1’s
value immediately after the transfer would be
$70. Therefore, FP has a net built-in loss and
FP’s transfer of A1 is a loss duplication
transaction. Accordingly, under the general
rule of section 362(e)(2), FP’s $15 net builtin loss ($85 basis over $70 value) would be
allocated to reduce DC’s basis in the loss
asset, A1, the only loss property transferred
by FP. As a result, DC’s basis in A1 would
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be $70 ($85 basis under section 362(a) and
this section, reduced by the $15 net built-in
loss). Under section 358, FP’s basis in the DC
stock received in the exchange will be $100.
See § 1.362–4.
(ii) Transfer with election to apply section
362(e)(2)(C). The facts are the same as in
paragraph (i)(A) of this Example 5, except
that FP and DC elect to apply section
362(e)(2)(C) to reduce FP’s basis in the DC
stock received in the exchange. The analysis
and results are the same as in paragraphs
(i)(B), (i)(C), (i)(D), and (i)(E) of this Example
5, except that the $15 reduction to DC’s basis
in A1 is not made and, as a result, DC’s basis
in A1 remains $85, and FP’s basis in the DC
stock received in the exchange is reduced
from $100 to $85. The $15 reduction to FP’s
basis in DC stock reduces A’s basis in its FP
interest under section 705(a)(2)(B). See
§ 1.362–4(f)(1).
(iii) Transfer by domestic partnership. The
facts are the same as in paragraph (i)(A) of
this Example 5 except that FP is a domestic
partnership. The analysis and results are the
same as in paragraphs (i)(B), (i)(C), (i)(D), and
(i)(E) of this Example 5.
(iv) Transfer of interest in partnership with
liability. (A) Facts. F and two other
individuals are equal partners in FP. F’s basis
in its partnership interest is $247. F’s share
of FP’s § 1.752–1 liabilities (as defined in
§ 1.752–1(a)(4)) is $150. F transfers his
partnership interest to DC in a transaction to
which section 351 applies. FP has no section
754 election in effect. If DC were to sell the
FP interest immediately after the transfer, DC
would receive $100 in cash or other property.
In addition, taking into account the rules
under § 1.752–4, DC’s share of FP’s § 1.152–
1 liabilities (as defined in § 1.752–1(a)(4)) is
$145 immediately after the transfer.
(B) Importation property. If F had sold his
partnership interest immediately before the
transaction, no gain or loss recognized on the
sale would have been taken into account in
determining a Federal income tax liability.
Further, if DC had sold the partnership
interest immediately after the transaction,
any gain or loss recognized on the sale would
have been taken into account in determining
a Federal income tax liability. Therefore, F’s
partnership interest is importation property.
(C) Loss importation transaction. F’s
transfer is a section 362 transaction.
However, but for section 362(e)(1) and this
section and section 362(e)(2), DC’s basis in
the importation property, the partnership
interest, determined under section 362(a) and
taking into account the rules under section
752, would be $242 (F’s $247 basis reduced
by F’s $150 share of PRS liabilities and
increased by DC’s $145 share of PRS
liabilities) and, under § 1.362–4(c)(12)(ii), the
value of the PRS interest would be $245 (the
sum of $100, the cash DC would receive if
DC immediately sold the partnership interest,
and $145, DC’s share of the § 1.752–1
liabilities (as defined in § 1.752–1(a)(4))
under section 752 immediately after the
transfer to DC). Therefore, the importation
property’s basis ($242) would not exceed its
value ($245), and the transfer is not a loss
importation transaction.
(D) Basis in property received in
transaction. Following the application of
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section 362(e)(1) and this section, the
provisions of section 362(e)(2) must be taken
into account because the transfer is a section
362(a) transaction. As described in paragraph
(iv)(C) of this Example 5, taking into account
the application of section 362(e)(1) and this
section, DC’s basis in the partnership interest
would not exceed its value. Therefore, under
§ 1.362–4, F does not have a net built-in loss,
the transfer is not a loss duplication
transaction, and section 362(e)(2) does not
apply to the transfer. DC’s basis in F’s
partnership interest is $242, determined
under sections 362(a) and 752. Under section
358, taking into account the rules under
section 752, F’s basis in the DC stock
received in the exchange is $97 ($247
reduced by F’s $150 share of FP liabilities).
Example 6. Transactions involving taxexempt entities. (i) Exempt transferor. (A)
Facts. InsCo is a benevolent life insurance
association of a purely local character exempt
from Federal income tax under section 501(a)
because it is described in section 501(c)(12).
InsCo owns shares of stock of DC1 (basis
$100, value $70) for investment purposes,
which are not debt-financed property (as
defined in section 514). On December 31,
Year 1, InsCo transfers the DC1 stock to DC
in a transaction to which section 351 applies.
No election is made under section
362(e)(2)(C).
(B) Importation property. If InsCo had sold
the DC1 stock immediately before the
transaction, any gain or loss realized would
be excluded from unrelated business taxable
income (UBTI) under section 512(b)(5), and
thus no gain or loss recognized on the sale
would have been taken into account in
determining Federal income tax liability.
Further, if DC had sold the DC1 stock
immediately after the transaction, any gain or
loss recognized on the sale would have been
taken into account in determining Federal
income tax liability. Therefore, the DC1 stock
is importation property.
(C) Loss importation transaction. InsCo’s
transfer is a section 362 transaction.
Furthermore, but for section 362(e)(1) and
this section and section 362(e)(2), DC’s basis
in importation property, the DC1 stock,
would be $100, and the stock’s value would
be $70 immediately after the transaction.
Therefore, the importation property’s basis
would exceed its value and the transfer is a
loss importation transaction.
(D) Application of section 362(e)(1) and
this section to importation property received
in loss importation transaction. Because the
importation property, the DC1 stock, was
transferred in a loss importation transaction,
paragraph (b)(1) of this section applies and
DC’s basis in the stock will be equal to its $70
value.
(E) Basis of property received in
transaction. Following the application of
section 362(e)(1) and this section, the
provisions of section 362(e)(2) must be taken
into account because the transfer is a section
362(a) transaction. Taking into account the
application of section 362(e)(1) and this
section, DC’s basis in the DC1 stock would
not exceed its value immediately after the
transaction. Therefore, InsCo does not have a
net built-in loss, InsCo’s transfer is not a loss
duplication transaction, and section 362(e)(2)
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has no application to the transaction. DC’s
basis in the DC1 stock, as determined under
paragraph (i)(D) of this Example 6, is $70.
Under section 358, InsCo’s basis in the DC
stock received in the exchange will be $100.
(ii) Transferor loses tax-exempt status. (A)
Facts. The facts are the same as in paragraph
(i)(A) of this Example 6 except that InsCo
fails to be described in section 501(c)(12) in
Year 1.
(B) Importation property. If InsCo had sold
the DC1 stock immediately before the
transaction, any gain or loss recognized on
the sale would have been taken into account
in determining a Federal income tax liability.
Therefore, the DC1 stock is not importation
property and this section does not apply to
the transaction.
(C) Basis of property received in
transaction. Following the application of
section 362(e)(1) and this section, the
provisions of section 362(e)(2) must be taken
into account because the transfer is a section
362(a) transaction. Taking into account the
application of section 362(e)(1) and this
section but without taking into account the
provisions of section 362(e)(2), DC would
have a section 362(a) basis of $100 in the
stock, which would exceed its value of $70
immediately after the transfer. Therefore,
InsCo has a net built-in loss and InsCo’s
transfer of the DC1 stock is a loss duplication
transaction. Accordingly, under the general
rule of section 362(e)(2), InsCo’s $30 net
built-in loss ($100 basis over $70 value)
would be allocated to reduce DC’s basis in
the loss asset, the DC1 stock, the only loss
property transferred by InsCo. As a result,
DC’s basis in the DC1 stock would be $70
($100 basis under section 362(a), reduced by
the $30 net built-in loss). Under section 358,
InsCo’s basis in the DC stock received in the
exchange will be $100.
(iii) Transfer of property that is subject to
unrelated business tax. (A) Facts. The facts
are the same as in paragraph (i)(A) of this
Example 6 except that, on December 31, Year
1, instead of the DC1 stock, InsCo transfers
A1 (basis $200, value $150) to DC. A1 is an
office building that InsCo owned from
January 1 to December 31 of Year 1. During
the entirety of this period, A1 constitutes
debt-financed property (as defined in section
514). Pursuant to sections 512 and 514, InsCo
would be required to include in UBTI a
portion of the gains or losses from a sale of
A1 at the end of Year 1. DC does not take the
property subject to the debt.
(B) Importation property. If InsCo had sold
A1 immediately before the transaction, the
gain or loss recognized on the sale would
have been taken into account in determining
a Federal income tax liability, even though at
a lesser rate of inclusion. Therefore, A1 is not
importation property and this section does
not apply to the transaction.
(C) Basis of property received in
transaction. The analysis and results are the
same as in paragraph (ii)(C) of this Example
6.
Example 7. Transactions involving CFCs.
(i) Transfer by CFC. (A) Facts. FC is a CFC
with 100 shares of stock outstanding. A owns
60 of the shares and F owns the remaining
40 shares. FC owns two assets, A1 (basis $70,
value $100), which is used in the conduct of
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a U.S. trade or business, and A2 (basis $100,
value $75), which is not used in the conduct
of a U.S. trade or business. FC transfers both
assets to DC in a transaction to which section
351 applies.
(B) Importation property. If FC had sold A1
immediately before the transaction, any gain
or loss recognized on the sale would have
been taken into account in determining a
Federal income tax liability (FC’s). See
section 882(a). Therefore, A1 is not
importation property. If FC had sold A2
immediately before the transaction, FC
would not take the gain or loss recognized
into account in determining its Federal
income tax liability, but the gain or loss
could be taken into account in determining
a section 951 inclusion to FC’s U.S.
shareholders. However, under paragraph
(d)(3) of this section, gain or loss is not
deemed taken into account in determining a
Federal income tax liability solely because it
could affect an inclusion under section
951(a). Further, if DC had sold A2
immediately after the transaction, any gain or
loss recognized on the sale would have been
taken into account in determining a Federal
income tax liability. Therefore, A2 is
importation property.
(C) Loss importation transaction. FC’s
transfer is a section 362 transaction.
Furthermore, but for section 362(e)(1) and
this section and section 362(e)(2), DC’s basis
in the importation property, A2, would be
$100 and the property’s value would be $75
immediately after the transaction. Therefore,
the importation property’s basis would
exceed its value and the transfer is a loss
importation transaction.
(D) Application of section 362(e)(1) and
this section to importation property received
in loss importation transaction. Because the
importation property, A2, was transferred in
a loss importation transaction, paragraph
(b)(1) of this section applies and DC’s basis
in A2 will be equal to A2’s $75 value
immediately after the transfer.
(E) Basis of property received in
transaction. Following the application of
section 362(e)(1) and this section, the
provisions of section 362(e)(2) must be taken
into account because the transfer is a section
362(a) transaction. Taking into account the
application of section 362(e)(1) and this
section but without taking into account the
provisions of section 362(e)(2), DC would
have an aggregate basis of $145 in the
transferred properties ($70 in A1, determined
under section 362(a), plus $75 in A2,
determined under this section) and the
properties would have an aggregate value of
$175 ($100 + $75) immediately after the
transfer. Therefore, FC does not have a net
built-in loss, FC’s transfer is not a loss
duplication transaction, and section 362(e)(2)
does not apply to the transaction. DC’s basis
in A1 will be $70, determined under section
362(a), and DC’s basis in A2 will be $75, as
determined under paragraph (i)(D) of this
Example 7. Under the general rule in section
358(a), FC receives the DC stock with a basis
of $170 ($70 attributable to A1 plus $100
attributable to A2).
(ii) Transfer of CFC stock. (A) Facts. The
facts are the same as in paragraph (i)(A) of
this Example 7, except that A transfers its 60
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shares of FC stock (basis $80, value $105) and
F transfers its 40 shares of FC stock (basis
$100, value $70) to DC in an exchange that
qualifies under section 351.
(B) Importation property. If A had sold its
FC shares immediately before the transaction,
any gain or loss recognized on the sale would
have been taken into account in determining
a Federal income tax liability (A’s).
Therefore, A’s FC shares are not importation
property. However, if F had sold its FC
shares immediately before the transaction, no
gain or loss recognized on the sale would
have been taken into account in determining
a Federal income tax liability. Further, if DC
had sold F’s FC shares immediately after the
transaction, any gain or loss recognized on
the sale would have been taken into account
in determining a Federal income tax liability.
Therefore, F’s FC shares are importation
property.
(C) Loss importation transaction. The
transfer of the FC shares is a section 362
transaction. Furthermore, but for section
362(e)(1) and this section and section
362(e)(2), DC’s aggregate basis in the
importation property, F’s shares of FC stock,
would be $100 under section 362(a) and the
shares’ aggregate value would be $70.
Therefore, the importation property’s
aggregate basis would exceed its aggregate
value, and the transfer is a loss importation
transaction.
(D) Application of section 362(e)(1) and
this section to importation property received
in loss importation transaction. Because the
importation property, F’s shares of FC stock,
was transferred in a loss importation
transaction, paragraph (b)(1) of this section
applies and DC’s aggregate basis in the shares
will be equal to their $70 aggregate value
immediately after the transfer.
(E) Basis of property received in
transaction. Following the application of
section 362(e)(1) and this section, the
provisions of section 362(e)(2) must be taken
into account because the transfer is a section
362(a) transaction. The application of section
362(e)(2) is determined separately for each
transferor. See § 1.362–4(b).
(1) A’s transfer. Taking into account the
application of section 362(e)(1) and this
section, DC’s aggregate basis in the shares
($80 under section 362(a)) would not exceed
the shares’ value ($105) immediately after the
transaction. Therefore A does not have a
built-in loss, A’s transfer is not a loss
duplication transaction, and section 362(e)(2)
does not apply to A’s transfer. DC’s aggregate
basis in A’s shares, determined under section
362(a), is $80. Under section 358(a), A
receives the DC stock with a basis of $80.
(2) F’s transfer. Taking into account the
application of section 362(e)(1) and this
section, DC’s aggregate basis in the shares
would not exceed their value immediately
after the transaction. Therefore, F does not
have a built-in loss, F’s transfer is not a loss
duplication transaction, and section 362(e)(2)
does not apply to F’s transfer. DC’s aggregate
basis in F’s shares, as determined under
paragraph (ii)(D) of this Example 7, is $70.
Under section 358(a), F receives the DC stock
with a basis of $100.
Example 8. Property subject to withholding
tax. (i) Facts. FC owns a share of DC1 stock
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(basis $100, value $70) as an investment. FC
receives dividends on the share that are
subject to Federal withholding tax of 30
percent of the amount received under section
881(a); under section 1442(a), DC1 must
withhold tax on the dividends paid. FC
transfers the DC1 share to DC in a transaction
to which section 351 applies.
(ii) Importation property. Although any
dividends received with respect to the DC1
stock were subject to withholding tax, if FC
had sold the share of stock of DC1, no gain
or loss recognized on the sale would have
been taken into account in determining a
Federal income tax liability. See section
865(a)(2). Further, if DC had sold the share
of DC1 stock immediately after the
transaction, any gain or loss recognized on
the sale would be taken into account in
determining Federal income tax liability.
Therefore, the share of DC1 stock is
importation property.
(iii) Loss importation transaction. FC’s
transfer is a section 362 transaction.
Furthermore, but for section 362(e)(1) and
this section and section 362(e)(2), DC’s basis
in the importation property, the share of DC1
stock, would be $100 and the share’s value
would be $70 immediately after the
transaction. Therefore, the share’s basis
would exceed its value and the transfer is a
loss importation transaction.
(iv) Application of section 362(e)(1) and
this section to importation property received
in loss importation transaction. Because the
importation property, the DC1 share, was
transferred in a loss importation transaction,
paragraph (b)(1) of this section applies and
DC’s basis in the share will be equal to the
share’s $70 value.
(v) Basis of property received in
transaction. Following the application of
section 362(e)(1) and this section, the
provisions of section 362(e)(2) must be taken
into account because the transfer is a section
362(a) transaction. Taking into account the
application of section 362(e)(1) and this
section, DC’s basis in the DC1 share would
not exceed the share’s value immediately
after the transaction. Therefore, FC does not
have a net built-in loss, FC’s transfer is not
a loss duplication transaction, and section
362(e)(2) does not apply to the transaction.
DC’s basis in the DC1 share, as determined
under paragraph (iv) of this Example 8, is
$70. Under section 358, FC’s basis in the DC
stock received in the exchange will be $100.
Example 9. Property transferred in
triangular reorganization. (i) Foreign
subsidiary. (A) Facts. P owns the sole
outstanding share of stock of FC (basis $1),
FC1 owns the sole outstanding share of FC2
(basis $100), and FC2 owns one asset, A1
(basis $100, value $20). In a forward
triangular merger described in § 1.358–
6(b)(2)(i), FC2 merges with and into FC, and
FC1 receives shares of P stock in exchange
for its FC2 stock. The forward triangular
merger is a transaction described in section
368(a)(2)(D) and, therefore, in section 362(b).
(B) Determining P’s basis in its FC share.
Pursuant to § 1.358–6, for purposes of
determining the adjustment to P’s basis in its
FC shares, P is treated as though it first
received A1 in a transaction in which its
basis in A1 would be determined under
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section 362(b) and then it transferred A1 to
FC in a transaction in which P’s basis in its
FC stock would be determined under section
358.
(1) P’s deemed acquisition and transfer of
A1. If FC2 had sold A1 for its value
immediately before the deemed transaction,
no gain or loss recognized on the sale would
have been taken into account in determining
a Federal income tax liability. If P had sold
A1 immediately after the deemed transaction,
any gain or loss recognized on the sale would
have been taken into account in determining
a Federal income tax liability (P’s). Therefore,
with respect to P’s deemed acquisition, A1 is
importation property. Furthermore,
immediately after the deemed transaction, P’s
basis in A1, but for section 362(e)(1) and this
section and section 362(e)(2), would be $100
and A1’s value is $20. Therefore, the
importation property’s basis would exceed its
value and the transfer is a loss importation
transaction. Accordingly, P’s deemed basis in
A1 will be equal to A1’s $20 value.
(2) P’s FC stock basis. As a result of P’s
deemed transfer of A1 to FC (and applying
the principles of § 1.367(b)–13), P’s basis in
its FC stock is increased by its $20 deemed
basis in A1. Accordingly, following the
transaction, P’s basis in its share of FC stock
will be $21 (the sum of its original $1 basis
and the $20 adjustment for the deemed
transfer of A1).
(C) FC’s basis in A1. FC’s basis in A1 is
determined under the rules of this section
without regard to the determination of P’s
adjustment to its basis in FC stock. If FC2 had
sold A1 for its value immediately before the
transaction, no gain or loss recognized on the
sale would have been taken into account in
determining a Federal income tax liability.
However, if FC had sold A1 immediately
after the transaction, no gain or loss
recognized on the sale would have been
taken into account in determining a Federal
income tax liability, so A1 is not importation
property. Accordingly, this section will not
apply to the transaction. Although there is a
net built-in loss in A1, the transaction is not
described in section 362(a), and so section
362(e)(2) and § 1.362–4 will not apply to the
transaction. Thus, under section 362(b), FC’s
basis in A1 will be $100.
(D) FC1’s basis in P stock. Under section
358, FC1’s basis in the P stock it receives in
the exchange will be $100.
(ii) Property transferred to U.S. subsidiary
in triangular reorganization. (A) Facts. The
facts are the same as in paragraph (i)(A) of
this Example 9, except that P also owns the
sole outstanding share of DC (basis $1) and,
instead of merging into FC, FC2 merged into
DC.
(B) Determining P’s basis in its DC share.
As determined under paragraph (i)(B)(2) of
this Example 9, P’s basis in its DC share is
$21, the sum of its original $1 basis plus the
$20 adjustment for the deemed transfer of
A1.
(C) DC’s basis in A1. If FC2 had sold A1
for its value immediately before the
transaction, no gain or loss recognized on the
sale would have been taken into account in
determining a Federal income tax liability.
However, if DC had sold A1 immediately
after the transaction, any gain or loss
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recognized on the sale would have been
taken into account in determining a Federal
income tax liability, so A1 is importation
property with respect to DC. Furthermore,
immediately after the transaction, DC’s basis
in A1, but for section 362(e)(1) and this
section and section 362(e)(2), would be $100
and A1’s value is $20. Therefore, the
importation property’s basis would exceed its
value and the transfer is a loss importation
transaction. Accordingly, DC’s basis in A1
will be $20, A1’s value immediately after the
transaction.
(D) FC1’s basis in P stock. Under
section 358, FC1’s basis in the P stock
it receives in the exchange is $100.
(g) Effective/applicability date. This
section applies to any transaction
occurring on or after the date these
regulations are published as final
regulations in the Federal Register,
unless effected pursuant to a binding
agreement that was in effect prior to that
date and at all times thereafter.
However, taxpayers may apply this
section to transactions occurring after
October 22, 2004.
■ Par. 9. Section 1.362–4 is amended
by:
■ 1. Revising the introductory text in
paragraph (h).
■ 2. Revising paragraph (h) Example 11.
■ 3. Adding a new sentence to the end
of paragraph (j).
The revisions and addition read as
follows:
§ 1.362–4
Basis of loss duplication.
*
*
*
*
*
(h) * * * The examples in this
paragraph (h) illustrate the application
of section 362(e)(2) and the provisions
of this section. Unless the facts
otherwise indicate, the examples use the
following nomenclature and
assumptions: X, Y, P, S, S1, and S2 are
domestic corporations; A and B are U.S.
individuals; FC1 and FC2 are foreign
corporations and are not engaged in a
U.S. trade or business, have no U.S. real
property interests, and have no other
relationships, activities, or interests that
would cause them, their shareholders,
or their property to be subject to Federal
income taxation; there is no applicable
income tax treaty; PRS is a domestic
partnership; no election is made under
section 362(e)(2)(C); and the transferred
property is not importation property (as
defined in § 1.362–3(c)(2)) and the
transfers are not loss importation
transactions (as defined in § 1.362–
3(c)(3)), so that the basis of no property
is determined under section 362(e)(1).
All persons and transactions are
unrelated unless the facts indicate
otherwise, and all other relevant facts
are set forth in the examples. See
§ 1.362–3(f) for additional examples
illustrating the application of section
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54985
362(e)(2) and this section, including to
transactions that are subject to section
362(e)(2), and section 362(e)(1).
*
*
*
*
*
Example 11. Transfers of importation
property with non-importation property. (i)
Single transferor, loss importation
transaction. (A) 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
importation property within the meaning of
§ 1.362–3(c)(2). Asset 2 is importation
property within the meaning of § 1.362–
3(c)(2).
(B) Application of section 362(e)(1).
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 importation property (Asset 2) would
be $120. The aggregate value of the
importation property immediately after the
transfer is $110. Accordingly, the transaction
is a loss importation transaction within the
meaning of § 1.362–3(c)(3) and, under section
362(e)(1), DC’s basis in Asset 2 would equal
its value, $110.
(C) Application of section 362(e)(2) and
this section. (1) Analysis. (i) Loss duplication
transaction. FC1’s transfer of Asset 1 and
Asset 2 is a transaction described in section
362(a). But for section 362(e)(2) and this
section, DC’s aggregate basis in those assets
would be $190 ($80 under section 362(a) +
$110 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).
(ii) 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.
(C) 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.
(D) 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.
(ii) Multiple transferors, no importation of
loss. (A) Facts. The facts are the same as
paragraph (i)(A) of this Example 11, except
that, in addition, FC2 transfers Asset 3 (basis
$100, value $150) to DC as part of the same
transaction. Asset 3 is importation property
within the meaning of § 1.362–3(c)(2).
(B) Application of section 362(e)(1).
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 importation property (Asset 2 and
Asset 3) would be $220 ($120 + $100). The
aggregate value of the importation property
immediately after the transfer is $260 ($110
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Federal Register / Vol. 78, No. 174 / Monday, September 9, 2013 / Proposed Rules
+ $150). Accordingly, the transaction is not
a loss importation transaction within the
meaning of § 1.362–3(c)(3) and DC’s bases in
the importation property is not determined
under section 362(e)(1).
(C) Application of section 362(e)(2) and
this section: FC1. Notwithstanding that the
transfers by FC1 and FC2 are pursuant to a
single plan forming one transaction, section
362(e)(2) and this section apply to each
transferor separately.
(1) Analysis. (i) Loss duplication
transaction. FC1’s transfer of Asset 1 and
Asset 2 is a transaction described in section
362(a). But for section 362(e)(2) and this
section, DC’s aggregate basis in those assets
would be $200 ($80 + $120), 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 $40 ($200—$160).
(ii) 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 $120,
which would exceed Asset 2’s $110 value
immediately after the transaction.
Accordingly, Asset 2 is also loss duplication
property.
(2) Basis in loss duplication property. DC’s
basis in Asset 1 is $50, computed as its $80
basis under section 362(a) reduced by $30, its
allocable portion of FC1’s $40 net built-in
loss ($80/$200 × $40). DC’s basis in Asset 2
is $110, computed as its $120 basis under
section 362(a) reduced by $10, its allocable
portion of FC1’s $40 net built-in loss ($120/
$200 × $40).
(3) Basis in other property. Under section
358(a), FC1 has an exchanged basis of $200
in the DC stock it receives in the transaction.
(D) Application of section: FC2. FC2’s
transfer of Asset 3 is not a loss duplication
transaction because Asset 3’s value exceeds
its basis immediately after the transaction.
Accordingly, under section 362(a), DC’s basis
in Asset 3 is $100.
tkelley on DSK3SPTVN1PROD with PROPOSALS
*
*
*
*
*
(j) * * * The introductory text and
Example 11 of paragraph (h) of this
section apply to transactions on or after
the date these regulations are published
as final regulations in the Federal
Register unless effected pursuant to a
binding agreement that was in effect
prior to that date and at all times
thereafter; however, taxpayers may
apply such provisions to transactions
occurring after October 22, 2004.
■ Par. 10. Section 1.368–3 is amended
by revising paragraphs (a)(3), (b)(3) and
adding a sentence to the end of
paragraph (e) to read as follows:
§ 1.368–3 Records to be kept and
information to be filed with returns.
(a) * * *
(3) The value and basis of the assets,
stock or securities of the target
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corporation transferred in the
transaction, determined immediately
before the transfer and aggregated as
follows—
(i) Importation property transferred in
a loss importation transaction, as
defined in §§ 1.362–3(c)(2) and 1.362–
3(c)(3), respectively;
(ii) Loss duplication property as
defined in § 1.362–4(c)(1);
(iii) Property with respect to which
any gain or loss was recognized on the
transfer (without regard to whether such
property is also identified in paragraph
(a)(3)(i) or (a)(3)(ii) of this section);
(iv) Property not described in
paragraphs (a)(3)(i), (a)(3)(ii) or (a)(3)(iii)
of this section; and
*
*
*
*
*
(b) * * *
(3) The value and basis of all the stock
or securities of the target corporation
held by the significant holder that is
transferred in the transaction and such
holder’s basis in that stock or securities,
determined immediately before the
transfer and aggregated as follows—
(i) Stock and securities with respect to
which an election is made under section
362(e)(2)(C); and
(ii) Stock and securities not described
in paragraph (b)(3)(i) of this section.
*
*
*
*
*
(e) Effective/applicability date. * * *
Paragraphs (a)(3) and (b)(3) of this
section apply to any taxable year
beginning on or after these regulations
are published as final regulations in the
Federal Register, unless effected
pursuant to a binding agreement that
was in effect prior to that date and at all
times thereafter.
Beth Tucker,
Deputy Commissioner for Operations
Support.
[FR Doc. 2013–21662 Filed 9–6–13; 8:45 am]
BILLING CODE 4830–01–P
guidance to providers of minimum
essential health coverage that are subject
to the information reporting
requirements of section 6055 of the
Internal Revenue Code (Code), enacted
by the Affordable Care Act. Health
insurance issuers, certain employers,
and others that provide minimum
essential coverage to individuals must
report to the IRS information about the
type and period of coverage and furnish
related statements to covered
individuals. These proposed regulations
affect health insurance issuers,
employers, governments, and other
persons that provide minimum essential
coverage to individuals.
DATES: Written or electronic comments
must be received by November 8, 2013.
Requests to speak and outlines of topics
to be discussed at the public hearing
scheduled for November 19, 2013, at 10
a.m., must be received by November 8,
2013.
ADDRESSES: Send submissions to:
CC:PA:LPD:PR (REG–132455–11), Room
5203, Internal Revenue Service, P.O.
Box 7604, Ben Franklin Station,
Washington, DC 20044. Submissions
may be hand-delivered Monday through
Friday between the hours of 8 a.m. and
4 p.m. to CC:PA:LPD:PR (REG–132455–
11), Courier’s Desk, Internal Revenue
Service, 1111 Constitution Avenue NW.,
Washington, DC, or sent electronically
via the Federal eRulemaking Portal at
https://www.regulations.gov (IRS REG–
132455–11).
FOR FURTHER INFORMATION CONTACT:
Concerning the proposed regulations,
Andrew Braden, (202) 622–4960;
concerning the submission of comments
and/or to be placed on the building
access list to attend the public hearing,
Oluwafunmilayo (Funmi) Taylor, (202)
622–7180 (not toll-free calls).
SUPPLEMENTARY INFORMATION:
Paperwork Reduction Act
DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Parts 1 and 301
[REG–132455–11]
RIN 1545–BL31
Information Reporting of Minimum
Essential Coverage
Internal Revenue Service (IRS),
Treasury.
ACTION: Notice of proposed rulemaking
and notice of public hearing.
AGENCY:
This document contains
proposed regulations providing
SUMMARY:
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The collection of information
contained in this notice of proposed
rulemaking has been submitted to the
Office of Management and Budget in
accordance with the Paperwork
Reduction Act of 1995 (44 U.S.C.
3507(d)). Comments on the collection of
information should be sent to the Office
of Management and Budget, Attn: Desk
Officer for the Department of the
Treasury, Office of Information and
Regulatory Affairs, Washington, DC
20503, with copies to the Internal
Revenue Service, Attn: IRS Reports
Clearance Officer,
SE:W:CAR:MP:T:T:SP, Washington, DC
20224. Comments on the collection of
information should be received by
E:\FR\FM\09SEP1.SGM
09SEP1
Agencies
[Federal Register Volume 78, Number 174 (Monday, September 9, 2013)]
[Proposed Rules]
[Pages 54971-54986]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-21662]
=======================================================================
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DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 1
[REG-161948-05]
RIN 1545-BF43
Limitations on the Importation of Net Built-In Losses
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: This document contains proposed regulations under sections
334(b)(1)(B) and 362(e)(1) of the Internal Revenue Code of 1986 (Code).
The proposed regulations apply to certain nonrecognition transfers of
loss property to corporations that are subject to Federal income tax.
The proposed regulations affect the corporations receiving the loss
property. This document also invites comments from the public regarding
these proposed regulations.
DATES: Written or electronic comments and a request for a public
hearing must be received by December 9, 2013.
ADDRESSES: Send submissions to CC:PA:LPD:PR (REG 161948-05), Room 5203,
Internal Revenue Service, P.O. Box 7604, Ben Franklin Station,
Washington, DC 20044. Submissions may be hand-delivered Monday through
Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-
161948-05), Courier's Desk, Internal Revenue Service, 1111 Constitution
Avenue NW., Washington, DC, or sent electronically, via the Federal
eRulemaking Portal at www.regulations.gov (IRSREG-161948-05).
FOR FURTHER INFORMATION CONTACT: Concerning the proposed regulations,
John P. Stemwedel (202) 622-7790 or Theresa A. Abell (202) 622-7000,
and, concerning submissions of comments and requests for a public
hearing, Oluwafunmilayo (Funmi) Taylor at (202) 622-7180 (not toll free
numbers).
SUPPLEMENTARY INFORMATION:
[[Page 54972]]
Paperwork Reduction Act
The collection of information contained in this notice of proposed
rulemaking revises a collection of information approved by the Office
of Management and Budget in accordance with the Paperwork Reduction Act
of 1995 (44 U.S.C. 3507(d)) under control number 1545-2019. Comments on
the revised collection of information should be sent to the Office of
Management and Budget, Attn: Desk Officer for the Department of the
Treasury, Office of Information and Regulatory Affairs, Washington, DC
20503, with copies to the Internal Revenue Service, Attn: IRS Reports
Clearance Officer, SE:W:CAR:MP:T:T:SP, Washington, DC 20224. Comments
on the collection of information should be received by November 8,
2013. Comments are specifically requested concerning:
Whether the proposed revised collection of information is necessary
for the proper performance of the functions of the Internal Revenue
Service, including whether the information will have practical utility;
The accuracy of the estimated burden associated with the proposed
collection of information;
How the quality, utility and clarity of the information to be
collected may be enhanced;
How the burden of complying with the proposed collection of
information may be minimized, including through the application of
automated collection techniques or other forms of information
technology; and
Estimates of capital or start-up costs and costs of operation,
maintenance, and purchase of service to provide information.
The revised collection of information in these proposed regulations
is in Sec. Sec. 1.332-6, 1.351-3, and 1.368-3. By requiring that
taxpayers separately report the fair market value and basis of property
(including stock) described in section 362(e)(1)(B) and in 362(e)(2)(A)
that is transferred in a tax-free transaction, this revised collection
of information aides in identifying transactions within the scope of
sections 334(b)(1)(B), 362(e)(1), and 362(e)(2) and thereby facilitates
the IRS' verification that taxpayers are complying with sections
334(b)(1)(B), 362(e)(1), and 362(e)(2). The respondents will be
corporations and their shareholders.
Revised estimated total annual reporting burden: 375,000 hours.
Revised estimated average annual burden hours per respondent: 1.25
hours.
Estimated number of respondents: 225,000 (of the originally
estimated 350,000; original 0.75 hour estimate unchanged for the
remaining 125,000 respondents).
Estimated frequency of responses: once.
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
Sections 334(b)(1)(B) and 362(e)(1) (the anti-loss importation
provisions) were enacted in the American Jobs Creation Act of 2004
(Pub. L. 108-357, 188 Stat. 1418 (2004)) to prevent erosion of the
corporate tax base through the importation of loss in nonrecognition
transfers. This notice of proposed rulemaking proposes regulations
under both of these anti-loss importation provisions.
Explanation of Provisions
1. The Anti-Loss Importation Provisions: Sections 334(b)(1)(B) and
362(e)(1)
Section 334(b)(1)(B) applies to corporate acquisitions of loss
property in liquidations described in section 332 (complete liquidation
of subsidiary). Section 362(e)(1) applies to corporate acquisitions of
loss property 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, each a section 362(a) transaction)
and in transactions described in section 362(b) (reorganizations). The
application and effect of the anti-loss importation provisions are
materially identical, and so the proposed regulations use the same
nomenclature and operating rules for both anti-loss importation
provisions.
The anti-loss importation provisions apply when a corporation
acquires property that is described in section 362(e)(1)(B) in a
transaction described in section 332, 362(a), or 362(b), and, under the
generally applicable basis rules (other than the anti-loss duplication
rule in section 362(e)(2)), the acquiring corporation (Acquiring) would
take the property with an aggregate basis in excess of ``value''
(generally equal to fair market value under the proposed regulations;
see paragraph 1.b.ii. of this preamble). When an anti-loss importation
rule applies, Acquiring's basis in each such property is equal to the
property's value. To the extent Acquiring receives property in the
transaction that is not subject to the anti-loss importation rules,
Acquiring's basis in the property is determined under generally
applicable basis rules, including section 362(e)(2).
Property is described in section 362(e)(1)(B) (designated
``importation property'' in the proposed regulations) if two conditions
are satisfied. First, any gain or loss recognized on a disposition of
the property would not be subject to Federal income tax in the hands of
the transferor immediately before the transfer. Section
362(e)(1)(B)(i). Second, any gain or loss recognized on a disposition
of the property would be subject to Federal income tax in the hands of
the transferee immediately after the transfer. Section
362(e)(1)(B)(ii).
Since the enactment of the anti-loss importation provisions, a
number of questions have arisen concerning their application. The
principal concern has been the determination of whether property is
importation property, but various other questions (discussed
subsequently in this preamble) have also been raised regarding the
application of the anti-loss importation provisions and their
interaction with other rules of law. To address these issues, the
proposed regulations provide a framework for identifying importation
property and determining whether the transfer of the property is a
transaction subject to the anti-loss importation provisions (designated
a ``loss importation transaction'' under the proposed regulations).
a. Importation Property
The proposed regulations use a hypothetical sale analysis to
identify importation property. Under this approach, the actual tax
treatment of any gain or loss that would be recognized on a sale of the
property, first by the transferor immediately before and then by
Acquiring immediately after the transfer, determines whether an
individual property is importation property. If any gain or loss that
would be recognized on a hypothetical sale of the property by the
transferor immediately before the transfer would not be subject to
Federal income tax in the hands of the transferor, the first condition
for classification as importation property is satisfied. If any gain or
loss that would be recognized on a hypothetical sale of the property by
Acquiring immediately
[[Page 54973]]
after the transfer would be subject to Federal income tax in the hands
of Acquiring, the second condition for classification as importation
property is satisfied. Property is importation property only if both
conditions are satisfied.
In general, the determination is made by reference to the tax
treatment of the hypothetical seller of the transferred or acquired
property, that is, whether the hypothetical seller would take the gain
or loss into account in determining its Federal income tax liability.
This determination must take into account all relevant facts and
circumstances. The proposed regulations include a number of examples
illustrating this approach. Thus, in one example, a tax-exempt entity
transfers property to a taxable domestic corporation, and the
determination takes into account whether the transferor, though
generally tax-exempt, would nevertheless be required to include the
amount of the gain or loss in unrelated business taxable income under
sections 511 through 514 of the Code. In other examples, a foreign
corporation transfers property to a taxable domestic corporation and
the determination takes into account whether the foreign corporation
would be required to include the amount of gain or loss under section
864 or 897 as income effectively connected with, or treated as
effectively connected with, the conduct of a U.S. trade or business.
Although the examples assume there is no applicable income tax treaty,
in the case of an applicable income tax treaty, the determination of
whether property is importation property would take into account
whether the transferor would be taxable under the business profits
article or gains article of the income tax treaty.
i. Partnerships, S Corporations, Grantor Trusts as Hypothetical Seller
Although the general rule in the proposed regulations looks solely
to the tax treatment of the hypothetical seller, a modified rule
applies if a hypothetical seller is a partnership, a small business
corporation that has elected under section 1362(a) to be an S
corporation, or a grantor trust. In these cases, the determination is
made by reference to the tax treatment of the gain or loss as taken
into account by the partners, shareholders, or owners of the entities.
The modified rule recognizes that, in these cases, the Code provides
that the gain or loss on the hypothetical sale would be included by the
partner, shareholder, or owner, and would not be taxable to the
hypothetical seller, irrespective of whether any amount is actually
distributed to such other person. See section 701 (partnership not
subject to tax), flush language in section 362(e)(1)(B) (partners
treated as owning partnership property); sections 1363 and 1366 (S
corporation's income generally taxable to shareholders, not S
corporation); section 671 (grantor or other person treated as owning
trust property).
If an organizing instrument assigns gain and loss to partners or
beneficiaries in different amounts, including by reason of a special
allocation under a partnership agreement, the proposed regulations make
clear that the hypothetical sale model makes the determination of
whether gain or loss is subject to Federal income tax by reference to
the person to whom, under the terms of the instrument, the hypothetical
gain or loss would actually be allocated, taking into account the
entity's net gain or loss actually recognized in the tax period in
which the transaction occurs.
ii. Other Pass-Through Entities: Anti-Avoidance Rule
In certain circumstances, the Code permits distributions to effect
a similar shifting of tax consequences. For example, under sections 651
and 652, and sections 661 and 662, distributions made by a trust are
deducted from the trust's income and included in the beneficiary's (or
beneficiaries') income. Certain domestic corporations are also able to
shift tax consequences by distributing income or gain from a property
sale. These corporations include regulated investment companies (RICs,
as defined in section 851(a)), real estate investment trusts (REITs, as
defined in section 856(a)), and domestic corporations taxable as
cooperatives (see section 1381).
The IRS and the Treasury Department are concerned that disregarding
the effects of this shifting of tax liability would in certain
circumstances undermine the anti-importation provisions. However, the
IRS and the Treasury Department are also concerned that applying a
look-through rule in all such cases would present a significant
administrative burden.
Accordingly, the proposed regulations contain an anti-avoidance
rule that applies to domestic trusts, estates, RICs, REITs, and
cooperatives that directly or indirectly transfer property (including
through other such entities) in a section 362 transaction, if the
property had been directly or indirectly transferred to or acquired by
the entity as part of a plan to avoid the application of the anti-
importation provisions. For purposes of this rule, it is immaterial who
had the plan to avoid the anti-importation provisions. When the anti-
avoidance rule applies, the domestic entity, which, absent application
of the anti-avoidance rule, would be treated under these regulations as
subject to Federal income tax, is treated as subject to a look-through
rule. Under the look-through rule, the entity is presumed to distribute
the proceeds of the hypothetical sale (which, for this purpose, are
presumed to be an amount greater than zero), and, to the fullest extent
permitted by the terms of its organizing instrument, it is presumed to
make the distributions to persons that would not take distributions
from the entity into account in determining a Federal income tax
liability. If an interest in such an entity is held indirectly through
one or more other such entities, the principles of this rule apply to
look to the ultimate owners of the interest. The determination of
whether the property is importation property is then made by reference
to the deemed distributees or, in the case of tiered entities, to the
ultimate deemed distributees.
To illustrate, assume 90 percent of a REIT's shares are owned by
persons that would not take into account any gain or loss in
determining a Federal income tax liability and that each share has an
equal right to any distribution by the REIT. The REIT holds property
that was transferred to the REIT as part of a plan to avoid the
application of the anti-importation rule to a section 362 transaction.
At a time when the acquired property has a built-in loss, the REIT
transfers the property to a domestic corporation in a section 362
transaction. In this case, the anti-avoidance rule would apply. Thus,
the REIT is presumed to distribute all the proceeds of the hypothetical
sale of the property transferred in the section 362 transaction, and
the determination of whether any gain or loss on that hypothetical sale
would be taken into account in determining a Federal income tax
liability is made by reference to the distributee REIT shareholders.
Thus, 90 percent of the property transferred in the section 362
transaction would be importation property. Alternatively, assume that
the property was originally acquired (as part of a plan to avoid the
application of the anti-importation rule to a section 362 transaction)
by a trust whose trustee has discretion to distribute all or a portion
of the trust's gain or loss to a person that would not take any amount
of such distribution into account in determining a Federal income tax
liability and, when the property has a built-in loss, the trust
transfers the property to a domestic corporation in a section 362
transaction.
[[Page 54974]]
In this case, all of the property transferred in the section 362
transaction would be importation property because the trustee could
distribute all of the proceeds from the hypothetical sale to a person
that would not take the distribution into account in determining a
Federal income tax liability.
The IRS and the Treasury Department continue to study whether a
look-through approach should be generally applied to trusts and request
comments on the need for, and potential scope of, such a rule.
iii. Gain or Loss Affecting Certain Income Inclusions
Practitioners have raised numerous questions regarding the
treatment of property held by or transferred to controlled foreign
corporations (CFC), as defined in section 957 (taking into account
section 953(c)). Because the general rule looks to the tax treatment of
the hypothetical seller, and no exception applies for CFCs, the general
operation of the proposed regulations would not treat such amounts as
subject to Federal income tax. Nevertheless, because the
characterization of gain or loss that would be taken into account in
determining a potential income inclusion under section 951(a) has
generated some concern among practitioners, the proposed regulations
include an express provision stating that gain or loss recognized by a
CFC is not considered subject to Federal income tax solely by reason of
an income inclusion under section 951(a). The proposed regulations
include a similar provision to clarify that gain or loss recognized by
a passive foreign investment company, as defined in section 1297(a), is
also considered not subject to Federal income tax notwithstanding that
it could affect an inclusion under section 1293(a). Comments are
specifically requested on this approach.
iv. Gain or Loss Taxed to More Than One Person
If any gain or loss realized on a hypothetical sale would be
includible in income by more than one person, the proposed regulations
treat such property as tentatively divided into separate portions in
proportion to the allocation of gain or loss to each person.
Tentatively divided portions are treated and analyzed in the same
manner as any other property for purposes of applying the anti-
importation provisions. (See paragraph c. of this preamble for an
illustration of the application of this rule.) Thus, the generally
applicable rules determine whether a portion of tentatively divided
property is importation property, and, if the tentatively divided
portion is importation property, it is taken into account (as described
subsequently in this preamble) with all other importation property to
determine whether the transaction is a loss importation transaction.
b. Loss Importation Transaction
Once the importation property has been identified, Acquiring
determines the aggregate basis that it would have in all importation
property acquired in the transaction (including the tentatively divided
portions of transferred property), without regard to the anti-loss
importation provisions or section 362(e)(2). If the aggregate basis of
the importation property exceeds such property's aggregate value, the
transaction is a loss importation transaction and subject to the anti-
loss importation provisions. If the aggregate basis of importation
property does not exceed such property's value, the anti-loss
importation provisions have no further application.
i. Aggregate, Not Transferor-by-Transferor, Approach
Under section 362(e)(1) and the proposed regulations, the
determination of whether a section 362 transaction is a loss
importation transaction is made by reference to the net amount of
built-in gain and built-in loss in all importation property acquired
from all transferors in the transaction. This approach differs from the
transferor-by-transferor approach of section 362(e)(2), which expressly
focusses on the net built-in loss transferred by a particular
transferor in a section 362(a) transaction.
ii. Valuing Partnership Interests
In general, the anti-loss importation rules do not take liabilities
into account in determining the value of transferred property and,
thus, whether the transfer of such property is a transfer of loss
property.
However, in both informal inquiries and written comments,
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 that the
inclusion of a partner's share of partnership liabilities in outside
basis may create the appearance of a built-in loss because partnership
liabilities do not correspondingly increase the value of the interest.
The amount of cash at which the partnership interest would change hands
between a willing buyer and willing seller, neither being under any
compulsion to buy or sell and both having reasonable knowledge of
relevant facts, should reflect the appropriate measure of fair market
value. When a partnership interest is sold, the amount realized may
include a share of partnership liabilities from which the transferor is
discharged, which is generally equal to the amount of liabilities
included in the transferor's outside basis. As such, the sale of a
partnership interest properly accounts for the transferee partner's
share of partnership liabilities and therefore, reflects the value of
that partnership interest.
To address this issue, the proposed regulations generally adopt the
approach proposed by commentators and modify the definition of
``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 proposed 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
752. The proposed regulations include an example that illustrates the
application and effect of this rule. The proposed 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.
c. Acquiring's Basis in Acquired Property
If a transaction is a loss importation transaction, Acquiring's
basis in each importation property received (including the tentatively
divided portions of property determined to be importation property) is
an amount equal to value, notwithstanding the general rules in sections
334(b)(1)(B), 362(a), and 362(b). This rule applies to all importation
property, regardless of whether the property's value is greater or less
than its basis prior to the loss importation transaction.
Immediately following the application of the anti-loss importation
provisions (and prior to any application of section 362(e)(2)), any
property that was treated as tentatively divided for purposes of
applying these provisions ceases to be treated as divided and is
treated as one undivided property (re-constituted property) with a
basis equal to the sum
[[Page 54975]]
of the bases of the portions determined under the anti-importation
provision and the bases of all other portions determined under
generally applicable provisions (other than section 362(e)(2)). For
example, assume that property is transferred in a section 362(a)
transaction and the property is treated as tentatively divided for
purposes of applying section 362(e)(1) (see paragraph a.iv. of this
preamble). Further assume that one tentatively divided portion (basis
$125, value $100) is determined to be importation property and the
other (basis $125, value $100) is not. Finally, assume that, the
aggregate basis of all importation property transferred in the
transaction (including the $125 basis of the tentatively divided
portion) is $900 and the aggregate value of all importation property
(including the $100 value of the tentatively divided portion) is only
$800. Thus, the importation property has a net loss, the transaction is
a loss importation transaction, and the basis of each importation
property is equal to its value. Accordingly, immediately after the
application of section 362(e)(1), the tentatively divided property is
treated as one single property with a basis of $225 ($100 basis in the
importation portion plus $125 basis in the non-importation portion).
If the transaction is described in section 362(a), the transferred
property (including the re-constituted property that was tentatively
divided for purposes of applying section 362(e)(1)) is then aggregated
on a transferor-by-transferor basis to determine whether further
adjustment will be required to the bases of loss property under section
362(e)(2). Therefore in the example in the preceding paragraph, after
the application of section 362(e)(1), the provisions of section
362(e)(2) may apply to adjust the basis of the property further because
the transfer is a section 362(a) transaction. The proposed regulations
include a cross-reference to section 362(e)(2) as well as examples
illustrating the application of both sections 362(e)(1) and section
362(e)(2) to situations involving multiple transferors and multiple
properties that are not all importation properties. Because section
362(e)(2) only applies to transactions described in section 362(a),
section 362(e)(2) has no application to liquidations or to
reorganizations that do not include a transaction described in section
362(a). The proposed regulations include examples illustrating the
interaction of these provisions.
2. Filing Requirements
To facilitate the administration of both the anti-loss importation
provisions and the anti-duplication provisions in section 362(e)(2),
the proposed regulations modify the reporting requirements applicable
in all affected transactions (section 332 liquidations and transactions
described in section 362(a) or section 362(b)) to require taxpayers to
identify the basis and value of property subject to those sections.
3. Modifications to Liquidation Regulations
The proposed regulations also include several modifications to the
regulations applicable to corporate liquidations. These modifications
are not changes to current substantive law; they are intended solely to
update the regulations to reflect certain statutory changes. The
statutory changes reflected in these modifications include the repeal
of the General Utilities doctrine (reflected in the modification of
sections 334(a) and 337(a), and the repeal of sections 333 and 334(c)),
the removal of former section 334(b)(2) (replaced by section 338), and
the relocation of former section 332(c) (subsidiary indebtedness) to
current section 337(b). In response to certain regulatory changes, the
proposed regulations also add several cross-references to regulations
under section 367 and 897 to highlight the treatment of certain
transfers between foreign corporations.
The proposed regulations do not address the regulations under
section 346 and no inference should be drawn from the omission of a
proposal under that section.
Effective/Applicability Date
These regulations are generally proposed to apply to transactions
occurring on or after the date the regulations are published as final
regulations in the Federal Register, unless completed pursuant to a
binding agreement that was in effect immediately before the date such
final regulations are published and all times afterwards. It is also
proposed that taxpayers would be permitted to apply the final
regulations (when published) to transactions occurring after October
22, 2004.
Special Analyses
It has been determined that this notice of proposed rulemaking 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. It has also been determined that
section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5)
does not apply to these regulations. Further, it is hereby certified
that these proposed 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 requirement in
these regulations modifies an existing collection of information by
requiring that certain information be reported separately instead of in
the aggregate. Although there may be an increase in reporting burden,
the increased burden is expected to be minimal because taxpayers should
have ready access to the requested information as the proposed
regulations would not require taxpayers to report or maintain records
on information that is not, in the aggregate, already required to be
reported and maintained under the current regulations. 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, this notice of proposed rulemaking has been submitted to the
Chief Counsel for Advocacy of the Small Business Administration for
comment on its impact on small business.
Comments and Requests for Public Hearing
Before these proposed regulations are adopted as final regulations,
consideration will be given to any written comments (a signed original
and eight (8) copies) or electronic comments that are timely submitted
to the IRS. Alternatively, taxpayers may submit comments electronically
via the Federal e-Rulemaking Portal at www.regulations.gov (IRS REG-
161948-05). The IRS and the Treasury Department request comments on all
aspects of the proposed regulations. Comments are specifically
requested on the appropriate treatment of transactions subject to both
section 367(b) and either section 334(b)(1)(B) or 362(e)(1). Comments
are also specifically requested on what effect a basis reduction
required under section 334(b)(1)(B) or section 362(e)(1) may have on
earnings and profits and any inclusion required under Sec. 1.367(b)-3.
All comments that are submitted by public will be available for public
inspection and copying at www.regulations.gov or upon request. A public
hearing may be scheduled if requested in writing by any person who
timely submits comments. If a public hearing is scheduled, notice of
the date,
[[Page 54976]]
time, and place of the hearing will be published in the Federal
Register.
Drafting Information
The principal author of these regulations is John P. Stemwedel of
the Office of Associate Chief Counsel (Corporate), IRS. However, other
personnel from the IRS and the Treasury Department participated in
their development.
List of Subjects in 26 CFR Part 1
Income taxes, Reporting and recordkeeping requirements.
Proposed Amendments to the Regulations
Accordingly, 26 CFR part 1 is proposed to be amended as follows:
PART 1--INCOME TAXES
0
Paragraph 1. The authority citation for part 1 is amended by adding
entries to read in part as follows:
Authority: 26 U.S.C. 7805 * * *
0
Par. 2. Section 1.332-6 is amended by revising paragraph (a)(3) and
adding a new sentence at the end of paragraph (e) to read as follows:
Sec. 1.332-6 Records to be kept and information to be filed with
return.
(a) * * *
(3) The fair market value and basis of assets of the liquidating
corporation that have been or will be transferred to any recipient
corporation, aggregated as follows:
(i) Importation property distributed in a loss importation
transaction, as defined in Sec. 1.362-3(c)(2) and (c)(3) (except that
``section 332 liquidation'' is substituted for ``section 362
transaction''), respectively;
(ii) Property with respect to which gain or loss was recognized on
the distribution;
(iii) Property not described in paragraph (a)(3)(i) or paragraph
(a)(3)(ii) of this section;
* * * * *
(e) Effective/applicability date. * * * Paragraph (a)(3) of this
section applies to any taxable year beginning on or after these
regulations are published as final regulations in the Federal Register,
unless effected pursuant to a binding agreement that was in effect
prior to that date and at all times thereafter.
0
Par. 3. Section 1.332-7 is amended by adding a new sentence after the
first sentence of the paragraph to read as follows:
Sec. 1.332-7 Indebtedness of subsidiary to parent.
* * * See section 337(b)(1) (for any taxable year beginning on or
after these regulations are published as final regulations in the
Federal Register). * * *
0
Par. 4. Section 1.334-1 is revised to read as follows:
Sec. 1.334-1 Basis of property received in liquidations.
(a) In general. Section 334 sets forth rules for determining a
distributee's basis in property received in a distribution in complete
liquidation of a corporation. The general rule is set forth in section
334(a) and provides that, if property is received in a distribution in
complete liquidation of a corporation and if gain or loss is recognized
on the receipt of the property, then the distributee's basis in the
property is the fair market value of the property at the time of the
distribution. However, if property is received in a complete
liquidation to which section 332 applies, including property received
in satisfaction of an indebtedness described in section 337(b)(1), see
section 334(b)(1) and paragraph (b) of this section.
(b) Liquidations under section 332--(1) General rule. Except as
otherwise provided in paragraph (b)(2) or (b)(3) of this section, if a
corporation (P) meeting the ownership requirements of section 332(b)(1)
receives property from a subsidiary (S) in a complete liquidation to
which section 332 applies (section 332 liquidation), including property
received in a transfer in satisfaction of indebtedness that satisfies
the requirements of section 337(b)(1), P's basis in the property
received is the same as S's basis in the property immediately before
the property was distributed. However, see Sec. 1.460-
4(k)(3)(iv)(B)(2) for rules relating to adjustments to the basis of
certain contracts accounted for using a long-term contract method of
accounting that are acquired in a section 332 liquidation.
(2) Basis in property with respect to which gain or loss was
recognized. Except as otherwise provided in the Internal Revenue Code
and regulations, if S recognizes gain or loss on the distribution of
property to P in a section 332 liquidation, P's basis in that property
is the fair market value of the property at the time of the
distribution. Section 334(b)(1)(A) (certain tax-exempt distributions
under section 337(b)(2)); see also, for example, Sec. 1.367(e)-
2(b)(3)(i).
(3) Basis in importation property received in loss importation
transaction--(i) Purpose. The purpose of section 334(b)(1)(B) and this
paragraph (b)(3) is to prevent P from importing a net built-in loss in
a transaction described in section 332. See paragraph (b)(3)(iii)(A) of
this section for definitions of terms used in this paragraph (b)(3).
(ii) Determination of basis. Notwithstanding paragraph (b)(1) of
this section, if a section 332 liquidation is a loss importation
transaction, P's basis in each importation property received from S in
the liquidation is an amount that is equal to the value of the
property. The basis of property received in a section 332 liquidation
that is not importation property received in a loss importation
transaction is determined under generally applicable basis rules
without regard to whether the liquidation also involves the receipt of
importation property in a loss importation transaction.
(iii) Operating rules--(A) In general. For purposes of section
334(b)(1)(B) and this paragraph (b)(3), the provisions of Sec. 1.362-3
(basis of importation property received in a loss importation
transaction) apply, adjusted as appropriate to apply to section 332
liquidations. Thus, when used in this paragraph (b)(3), the terms
``importation property,'' ``loss importation transaction,'' and
``value'' have the same meaning as in Sec. 1.362-3(c)(2), (c)(3) and
(c)(4), respectively, except that ``section 332 liquidation'' is
substituted for ``section 362 transaction.'' Similarly, when gain or
loss on property would be owned or treated as owned by multiple
persons, the provisions of Sec. 1.362-3(d)(2) apply to tentatively
divide the property in applying this section, substituting ``section
332 liquidation'' for ``section 362 transaction'' and making such other
adjustments as necessary.
(B) Time for making determinations. For purposes of section
334(b)(1)(B) and this paragraph (b)(3)--
(1) P's basis in distributed property. P's basis in each property S
distributes to P in the section 332 liquidation is determined
immediately after S distributes each such property;
(2) Value of distributed property. The value of each property S
distributes to P in the section 332 liquidation is determined
immediately after S distributes the property;
(3) Importation property. The determination of whether each
property distributed by S is importation property is made as of the
time S distributes each such property;
(4) Loss importation transaction. The determination of whether a
section 332 liquidation is a loss importation transaction is made
immediately after S makes the final liquidating distribution to P.
[[Page 54977]]
(iv) Examples. The examples in this paragraph (b)(3)(iv) illustrate
the application of section 334(b)(1)(B) and the provisions of this
paragraph (b)(3). Unless the facts indicate otherwise, the examples use
the following nomenclature and assumptions: USP is a domestic
corporation that has not elected to be an S corporation within the
meaning of section 1361(a)(1); FC, CFC1, and CFC2 are controlled
foreign corporations within the meaning of section 957(a), which are
not engaged in a U.S. trade or business, have no U.S. real property
interests, and have no other relationships, activities, or interests
that would cause their property to be subject to Federal income
taxation; there is no applicable income tax treaty; and all persons and
transactions are unrelated. All other relevant facts are set forth in
the examples:
Example 1. Basic application of this paragraph (b)(3). (i)
Distribution of importation property in a loss importation
transaction. (A) Facts. USP owns the sole outstanding share of FC
stock. FC owns three assets, A1 (basis $40, value $50), A2 (basis
$120, value $30), and A3 (basis $140, value $20). On Date 1, FC
distributes A1, A2, and A3 to USP in a complete liquidation that
qualifies under section 332.
(B) Importation property. Under Sec. 1.362-3(d)(2), the fact
that any gain or loss recognized by a CFC may affect an income
inclusion under section 951(a) does not alone cause gain or loss
recognized by the CFC to be treated as taken into account in
determining a Federal income tax liability for purposes of this
section. Thus, if FC had sold either A1, A2, or A3 immediately
before the transaction, no gain or loss recognized on the sale would
have been taken into account in determining a Federal income tax
liability. Further, if USP had sold A1, A2, or A3 immediately after
the transaction, USP would take into account any gain or loss
recognized on the sale in determining its Federal income tax
liability. Therefore, A1, A2, and A3 are all importation properties.
See paragraph (b)(3)(iii)(A) of this section and Sec. 1.362-
3(c)(2).
(C) Loss importation transaction. Immediately after the
distribution, USP's aggregate basis in the importation properties,
A1, A2, and A3, would, but for section 334(b)(1)(B) and this
section, be $300 ($40 + $120 + $140) and the properties' aggregate
value would be $100 ($50 + $30 + $20). Therefore, the importation
properties' aggregate basis would exceed their aggregate value and
the distribution is a loss importation transaction. See paragraph
(b)(3)(iii)(A) of this section and Sec. 1.362-3(c)(3).
(D) Basis of importation property distributed in loss
importation transaction. Because the importation properties, A1, A2,
and A3, were transferred in a loss importation transaction, the
basis in each of the importation properties received is equal to its
value immediately after FC distributes the property. Accordingly,
USP's basis in A1 is $50; USP's basis in A2 is $30; and USP's basis
in A3 is $20.
(ii) Distribution of both importation and non-importation
property in a loss importation transaction. (A) Facts. The facts are
the same as in paragraph (i)(A) of this Example 1 except that FC is
engaged in a U.S. trade or business and A3 is used in that U.S.
trade or business.
(B) Importation property. A1 and A2 are importation properties
for the reasons set forth in paragraph (i)(B) of this Example 1.
However, if FC had sold A3 immediately before the transaction, FC
would take into account any gain or loss recognized on the sale in
determining its Federal income tax liability. Therefore, A3 is not
importation property. See paragraph (b)(3)(iii)(A) of this section
and Sec. 1.362-3(c)(2).
(C) Loss importation transaction. Immediately after the
distribution, USP's aggregate basis in the importation properties,
A1 and A2, would, but for section 334(b)(1)(B) and this section, be
$160 ($40 + $120). Further, the properties' aggregate value would be
$80 ($50 + $30). Therefore, the importation properties' aggregate
basis would exceed their aggregate value and the distribution is a
loss importation transaction. See paragraph (b)(3)(iii)(A) of this
section and Sec. 1.362-3(c)(3).
(D) Basis of importation property distributed in loss
importation transaction. Because the importation properties, A1 and
A2, were transferred in a loss importation transaction, the basis in
each of the importation properties received is equal to its value
immediately after FC distributes the property. Accordingly, USP's
basis in A1 is $50 and USP's basis in A2 is $30.
(E) Basis of other property. Because A3 is not importation
property distributed in a loss importation transaction, USP's basis
in A3 is determined under generally applicable basis rules.
Accordingly, USP's basis in A3 is $140, the adjusted basis that FC
had in the property immediately before the distribution. See section
334(b)(1).
(iii) FC not wholly owned. The facts are the same as in
paragraph (i)(A) of this Example 1 except that USP owns only 80% of
the sole outstanding class of FC stock and the remaining 20% is
owned by individual X. Further, on Date 1 and pursuant to the plan
of liquidation, FC distributes A1 and A2 to USP and A3 to X. A1 and
A2 are importation properties, the distribution to USP is a loss
importation transaction, and USP's bases in A1 and A2 are equal to
their value ($50 and $30, respectively) for the reasons set forth in
paragraphs (ii)(C) and (ii)(D) of this Example 1. Under section
334(a), X's basis in A3 is $20.
(iv) Importation property, no net built in loss. (A) Facts. The
facts are the same as in paragraph (i)(A) of this Example 1 except
that the value of A2 is $230.
(B) Importation property. A1, A2, and A3, are importation
properties for the reasons set forth in (i)(B) of this Example 1.
(C) Loss importation transaction. Immediately after the
distribution, USP's aggregate basis in the importation properties,
A1, A2, and A3, would, but for section 334(b)(1)(B) and this
section, be $300 ($40 + $120 + $140). However, the properties'
aggregate value would also be $300 ($50 + $230 + $20). Therefore,
the importation properties' aggregate basis would not exceed their
aggregate value and the distribution is not a loss importation
transaction. See paragraph (b)(3)(iii)(A) of this section and Sec.
1.362-3(c)(3).
(D) Basis of importation property not distributed in loss
importation transaction. Because the importation properties, A1, A2,
and A3, were not distributed in a loss importation transaction, the
basis of each of the importation properties is determined under the
generally applicable basis rules. Accordingly, immediately after the
distribution, USP's basis in A1 is $40, USP's basis in A2 is $120,
and USP's basis in A3 is $140, the adjusted bases that FC had in the
properties immediately before the distribution. See section
334(b)(1).
(v) CFC stock as importation property distributed in loss
importation transaction. (A) Facts. USP owns the sole outstanding
share of FC stock. FC owns the sole outstanding share of CFC1 stock
(basis $80, value $100) and the sole outstanding share of CFC2 stock
(basis $100, value $5). On Date 1, FC distributes its shares of CFC1
and CFC2 stock to USP in a complete liquidation that qualifies under
section 332.
(B) Importation property. No special rule applies to the
treatment of property that is the stock of a CFC. Thus, if FC had
sold either the CFC1 share or the CFC2 share immediately before the
transaction, no gain or loss recognized on the sale would have been
taken into account in determining a Federal income tax liability.
Further, if USP had sold either the CFC1 share or the CFC2 share
immediately after the transaction, USP would take into account any
gain or loss recognized on the sale in determining its Federal
income tax liability. Thus, the CFC1 share and the CFC2 share are
importation property. See paragraph (b)(3)(iii)(A) of this section
and Sec. 1.362-3(c)(2).
(C) Loss importation transaction. Immediately after the
distribution, USP's aggregate basis in importation property (the
CFC1 share and the CFC2 share) would, but for section 334(b)(1)(B)
and this section, be $180 ($80 + $100) and the shares' aggregate
value is $105 ($100 + $5). Therefore, the importation property's
aggregate basis would exceed their aggregate value and the
distribution is a loss importation transaction. See paragraph
(b)(3)(iii)(A) of this section and Sec. 1.362-3(c)(3).
(D) Basis of importation property distributed in loss
importation transaction. Because the importation property (the CFC1
share and the CFC2 share) was transferred in a loss importation
transaction, USP's basis in each of the shares received is equal to
its value immediately after FC distributes the shares. Accordingly,
USP's basis in the CFC1 share is $100 and USP's basis in the CFC2
share is $5.
Example 2. Multiple step liquidation. (i) Facts. USP owns the
sole outstanding share of FC stock. On January 1 of year 1, FC
adopts a plan of liquidation. FC makes the following distributions
to USP in a transaction that qualifies as a complete liquidation
under section 332. In year 1, FC distributes A1 and, immediately
before the
[[Page 54978]]
distribution, FC's basis in A1 is $100 and A1's value is $120. In
Year 2, FC distributes A2, and, immediately before the distribution,
FC's basis in A2 is $100 and A2's value is $120. In year 3, in its
final liquidating distribution, FC distributes A3 and, immediately
before the distribution, FC's basis in A3 is $100 and A3's value is
$120. As of the time of the final distribution, USP had depreciated
the bases of A1 and A2 to $90 and $95, respectively; the value of A1
had appreciated to $160; and, the value of A2 has declined to $0.
(ii) Importation property. If FC had sold either A1, A2, or A3
immediately before it was distributed, no gain or loss recognized on
the sale would have been taken into account in determining a Federal
income tax liability. Further, if USP had sold either A1, A2, or A3
immediately after it was distributed, USP would take into account
any gain or loss recognized on the sale in determining its Federal
income tax liability. Therefore, A1, A2, and A3 are all importation
properties. See paragraph (b)(3)(iii)(A) of this section and Sec.
1.362-3(c)(2).
(iii) Loss importation transaction. Immediately after it was
distributed, USP's basis in each of the importation properties, A1,
A2, and A3, would, but for section 334(b)(1)(B) and this section,
have been $100. Further, immediately after each such property was
distributed, its value was $120. Thus, the properties' aggregate
basis, $300, would not have exceeded the properties' aggregate
value, $360. Accordingly, the distribution is not a loss importation
transaction irrespective of the fact that, when the liquidation was
completed, the properties' aggregate basis was $285 and the
properties' aggregate value was $280. See paragraph (b)(3)(iii)(B)
of this section and Sec. 1.362-3(c)(3).
(iv) Basis of importation property not distributed in loss
importation transaction. Because the importation properties, A1, A2,
and A3, were not distributed in a loss importation transaction, the
basis of each of the importation properties is determined under the
generally applicable basis rules. Accordingly, USP takes each of the
properties with a basis of $100 and, immediately after the final
distribution, has an adjusted basis of $90 in A1 (USP's $100 basis
less the $10 depreciation), $95 in A2 (USP's $100 basis less the $5
depreciation), and $100 in A3. See section 334(b).
(c) Effective/applicability date. This section applies to any
taxable year beginning on or after these regulations are published as
final regulations in the Federal Register, unless effected pursuant to
a binding agreement that was in effect prior to that date and at all
times thereafter. However, taxpayers may apply this section to
transactions occurring after October 22, 2004.
0
Par. 5. Section 1.337-1 is added to read as follows:
Sec. 1.337-1 Nonrecognition for property distributed to parent in
complete liquidation of subsidiary.
(a) General rule. If section 332(a) is applicable to the receipt of
a subsidiary`s property in complete liquidation, no gain or loss is
recognized to the liquidating subsidiary with respect to such property
(including property distributed with respect to indebtedness, see
section 337(b)(1) and Sec. 1.332-7), except as provided in section
337(b)(2) (distributions to certain tax-exempt distributees), section
367(e)(2) (distributions to foreign corporations), and section 897(d)
(distributions of U.S. real property interests by foreign
corporations).
(b) Effective/applicability date. This section applies to any
taxable year beginning on or after these regulations are published as
final regulations in the Federal Register.
0
Par. 6. Section 1.351-3 is amended by revising paragraphs (a)(3) and
(b)(3), and adding a sentence at the end of paragraph (f) to read as
follows:
Sec. 1.351-3 Records to be kept and information to be filed.
(a) * * *
(3) The fair market value and basis of the property transferred by
such transferor in the exchange, determined immediately before the
transfer and aggregated as follows:
(i) Importation property transferred in a loss importation
transaction, as defined in Sec. 1.362-3(c)(2) and Sec. 1.362-3(c)(3),
respectively;
(ii) Loss duplication property as defined in Sec. 1.362-4(c)(1);
(iii) Property with respect to which any gain or loss was
recognized on the transfer (without regard to whether such property is
also identified in paragraph (a)(3)(i) or (ii) of this section); and
(iv) Property not described in paragraphs (a)(3)(i), (a)(3)(ii), or
(a)(3)(iii) of this section.
* * * * *
(b) * * *
(3) The fair market value and basis of property received in the
exchange, determined immediately before the transfer and aggregated as
follows:
(i) Importation property transferred in a loss importation
transaction, as defined in Sec. 1.362-3(c)(2) and Sec. 1.362-3(3),
respectively;
(ii) Loss duplication property as defined in Sec. 1.362-4(c)(1);
(iii) Property with respect to which any gain or loss was
recognized on the transfer (without regard to whether such property is
also identified in paragraph (b)(3)(ii) of this section);
(iv) Property not described in paragraphs (b)(3)(i), (b)(3)(ii), or
(b)(3)(iii) of this section; and
* * * * *
(f) Effective/applicability date. * * * Paragraphs (a)(3) and
(b)(3) of this section apply to any taxable year beginning on or after
these regulations are published as final regulations in the Federal
Register, unless effected pursuant to a binding agreement that was in
effect prior to that date and at all times thereafter.
0
Par. 7. Section 1.358-6 is amended by revising paragraphs (c)(1)(i)(A),
(c)(2)(ii)(B), (c)(3)(i), (c)(3)(ii), (c)(4), (e), (f)(1), and the
first sentence of paragraph (f)(3), and adding new paragraph (f)(4) to
read as follows:
Sec. 1.358-6 Stock basis in certain triangular reorganizations.
* * * * *
(c) * * *
(1) * * *
(i) * * *
(A) P acquired the T assets acquired by S in the reorganization
(and P assumed any liabilities which S assumed or to which the T assets
acquired by S were subject) directly from T in a transaction in which
P's basis in the T assets was determined under section 362(b) (taking
into account the provisions of section 362(e)(1)); and
* * * * *
(2) * * *
(ii) * * *
(B) Determine the basis in the T stock acquired as if P acquired
such stock from the former T shareholders in a transaction in which P's
basis in the T stock was determined under section 362(b) (taking into
account the provisions of section 362(e)(1) and, to the extent the
transfer is a transaction described in section 362(a), the provisions
of section 362(e)(2)).
(3) * * *
(i) P acquired the T stock acquired by S in the reorganization
directly from the T shareholders in a transaction in which P's basis in
the T stock was determined under section 362(b) (taking into account
the provisions of section 362(e)(1)); and
(ii) P transferred the T stock to S in a transaction in which P's
basis in its S stock was determined under section 358 (taking into
account the provisions of section 362(e)(2) to the extent the transfer
is a transaction described in section 362(a)).
(4) Examples. The rules of this paragraph (c) are illustrated by
the following examples. For purposes of these examples, P, S, and T are
domestic corporations, the property transferred is not importation
property within the meaning of Sec. 1.362-3(c)(2) or loss duplication
property within the meaning of Sec. 1.362-4(c)(2), P and S do not file
consolidated returns, P owns all of the shares of the only class of S
stock, the P stock exchanged in the transaction
[[Page 54979]]
satisfies the requirements of the applicable triangular reorganization
provisions, and the facts set forth the only corporate activity.
* * * * *
(e) Cross-references--(1) Triangular reorganizations involving
members of a consolidated group. For rules relating to stock basis
adjustments made as a result of a triangular reorganization in which P
and S, or P and T, as applicable, are, or become, members of a
consolidated group, see Sec. 1.1502-30. However, if a transaction is a
group structure change, stock basis adjustments are determined under
Sec. 1.1502-31 and not under Sec. 1.1502-30, even if the transaction
also qualifies as a reorganization otherwise subject to Sec. 1.1502-
30.
(2) Transfers of importation property in loss importation
transaction and transfers of loss duplication property. For rules
relating to stock basis adjustments made as a result of a triangular
reorganization in which the property treated as acquired by P would be
importation property received in a loss importation transaction, see
Sec. 1.362-3. For rules relating to adjustments made as a result of a
triangular reorganization that also qualifies under section 362(a), see
Sec. 1.362-4.
(3) Triangular reorganizations involving certain foreign
corporations. For rules relating to stock basis adjustments made as a
result of triangular reorganizations involving certain foreign
corporations, see Sec. Sec. 1.367(b)-4(b), 1.367(b)-10, and 1.367(b)-
13.
(f) * * * (1) General rule. In general, this section applies to
triangular reorganizations occurring on or after December 23, 1994.
However, paragraphs (c)(1)(i)(A), (c)(2)(ii)(B), (c)(3)(i), and
(c)(3)(ii) of this section apply to triangular reorganizations
occurring on or after the date these regulations are published as final
regulations in the Federal Register.
* * * * *
(3) * * * Paragraphs (b)(2)(v) and (e)(1) of this section shall
apply to triangular reorganizations occurring on or after September 17,
2008. * * *
(4) Triangular reorganizations involving importation property
acquired in loss importation transaction or loss duplication
transaction; triangular reorganizations involving certain foreign
corporations. Paragraphs (e)(2) and (e)(3) of this section shall apply
to triangular reorganizations occurring on or after the date these
regulations are published as final regulations in the Federal Register.
0
Par. 8. Section 1.362-3 is added to read as follows:
Sec. 1.362-3 Basis of importation property acquired in loss
importation transaction.
(a) Purpose. The purpose of section 362(e)(1) and this section is
to prevent a corporation (Acquiring) from importing a net built-in loss
in a transaction described in either section 362(a) (section 351
transfers, contributions to capital, or paid-in surplus) or section
362(b) (reorganizations). See paragraph (c) of this section for
definitions of terms used in this section.
(b) Basis determinations under this section--(1) Basis of
importation property received in loss importation transaction.
Notwithstanding any other provision of law, Acquiring's basis in
importation property (as defined in paragraph (c)(2) of this section)
acquired in a loss importation transaction (as defined in paragraph
(c)(3) of this section) is equal to the value of the property
immediately after the transaction.
(2) Adjustment to basis of subsidiary stock in triangular
reorganizations. If a corporation (P) computes its basis in stock of a
subsidiary (whether S or T) under Sec. 1.358-6 (stock basis in certain
triangular reorganizations), P's basis in property treated as acquired
by P in Sec. 1.358-6(c) is determined under section 362(e)(1) and this
section to the extent such property, if actually acquired by P, would
be importation property acquired in a loss importation transaction. See
Sec. 1.358-6(c)(1)(i)(A), paragraphs (c)(2)(ii)(B), and (c)(3)(i). The
subsidiary's basis in the property actually acquired in the transaction
is determined under applicable law (including this section), without
regard to the amount of any adjustment to P's basis in the subsidiary's
stock. Thus, the basis of the property in S's or T's hands may differ
from the amount of the adjustment to P's basis in its stock of S or T.
(3) Acquiring's basis in other property transferred. In general,
Acquiring's basis in property received in a section 362 transaction (as
defined in paragraph (c)(1) of this section) that is not determined
under section 362(e)(1) and this section is determined under section
362(a) or section 362(b). However, if the transaction is described in
section 362(a) (without regard to whether it is also described in any
other section), further adjustment may be required under section
362(e)(2). See Sec. 1.362-4.
(c) Definitions. For purposes of this section, the following
definitions apply:
(1) Section 362 transaction. The term section 362 transaction means
any transaction described in section 362(a) or in section 362(b).
(2) Importation property.--(i) General rule. The term importation
property means any property (including separate portions of property
tentatively divided under paragraph (e)(2) of this section) with
respect to which--
(A) Any gain or loss that would be recognized on its sale by the
transferor immediately before the transaction (the transferor's
hypothetical sale) would not be subject to tax imposed under any
provision of subtitle A of the Internal Revenue Code (Federal income
tax) (taking into account the provisions of paragraph (d) of this
section); and
(B) Any gain or loss that would be recognized on its sale by
Acquiring immediately after the transaction (Acquiring's hypothetical
sale) would be subject to Federal income tax (taking into account the
provisions of paragraph (d) of this section)
(ii) Special rules for applying this paragraph (c)(2). See
paragraph (d) of this section for rules for determining whether gain or
loss on a hypothetical sale would be taken into account in determining
a Federal income tax liability and paragraph (e) of this section for
rules applicable when more than one person would take such gain or loss
into account.
(3) Loss importation transaction. The term loss importation
transaction means any section 362 transaction in which Acquiring's
aggregate basis in all importation property received from all
transferors in the transaction would exceed the aggregate value of such
property immediately after the transaction. For this purpose,
Acquiring's basis in property received is determined without regard to
this section or section 362(e)(2).
(4) 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 (c)(4)(i) of this
section, when referring to a partnership interest, for purposes of 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.
[[Page 54980]]
(d) Rules for determining whether gain or loss would be taken into
account in determining a Federal income tax liability--(1) General
rule. In general, any gain or loss that would be recognized on a
hypothetical sale described in either paragraph (c)(2)(i) or paragraph
(c)(2)(ii) of this section is considered to be subject to Federal
income tax if, taking into account all relevant facts and
circumstances, such gain or loss would affect or be taken into account
in determining the Federal income tax liability of the transferor or
Acquiring, respectively. This determination is made without regard to
whether such person has or would have any actual Federal income tax
liability for the taxable year of the transaction.
(2) Look-through rule in the case of certain pass-through entities.
Notwithstanding the general rule in paragraph (d)(1) of this section,
the determination of whether any gain or loss on a hypothetical sale
would be treated as subject to Federal income tax is made by reference
to the person that would be required to include such gain or loss in
its taxable income if the hypothetical seller is--
(i) A trust treated as owned by its grantors or others (see section
671);
(ii) A partnership (see section 701); or
(iii) An S corporation (see sections 1363 and 1366).
(3) Controlled foreign corporations (CFC), passive foreign
investment companies (PFIC). For purposes of this section, gain or loss
that would be recognized by a CFC (as defined in section 957(a)) or a
PFIC (as defined in section 1297(a)) is not deemed taken into account
in determining a Federal income tax liability solely because it could
affect an inclusion under section 951(a) or section 1293(a).
(4) Look-through treatment in the case of certain avoidance
transactions. (i) Application of section. This paragraph (d)(4) applies
if--
(A) The transferor is a domestic entity that is a trust, estate,
regulated investment company (RIC) (as defined in section 851(a)), a
real estate investment trust (REIT) (as defined in section 856(a)), or
a cooperative (see section 1381); and
(B) The transferor transfers, directly or indirectly, property that
was transferred to or acquired by it as part of a plan (whether of
transferor, Acquiring, or any other person) to avoid the application of
section 362(e)(1) and this section to a section 362 transaction.
(ii) Effect of application of section. Notwithstanding paragraph
(d)(1) of this section, if a transferor is described in both paragraphs
(d)(4)(ii)(A) and (d)(4)(ii)(B) of this section--
(A) The transferor is treated as though it distributes the proceeds
of the hypothetical sale (which, for this purpose, are presumed to be
an amount greater than zero);
(B) To the fullest extent possible under the transferor's
organizing instrument, taking into account the beneficiaries or owners
of interests (as applicable) in the transferor, the deemed distribution
is treated as made to a distributee or distributees that would not take
distributions from the transferor into account in determining a Federal
income tax liability; and
(C) The determination of whether the gain or loss on the
hypothetical sale is treated as subject to Federal income tax is made
by reference to the deemed distributee or distributees.
(iii) Tiered entities. If a deemed distributee is an entity
described in paragraph (d)(4)(i)(A) of this section, the determination
of whether gain or loss on the hypothetical sale is taken into account
in determining a Federal income tax liability is made by treating the
deemed distributee, and any successive such deemed distributees, as a
transferor and applying the rules in paragraphs (d)(4)(i) and
(d)(4)(ii) of this section to its deemed distribution (and to all
successive deemed distributions), until no deemed distributee or
successive deemed distributee is an entity described in paragraph
(d)(4)(i)(A) of this section.
(e) Special rules for gain or loss that would be taken into account
by multiple persons--(1) In general. If gain or loss from a disposition
of property would be includible in income by more than one person, the
property is treated as tentatively divided into separate portions in
proportion to the amount of gain or loss recognized with respect to the
property that would be allocated to each such person. If an entity's
organizing instrument specially allocates gain and loss, the tentative
division of property under this paragraph (e) must reflect the manner
in which gain or loss on the disposition of such property would be
allocated under the terms of the organizing instrument, taking into
account the net gain or loss actually recognized by the entity in that
tax year.
(2) Application of section. The rules of this section apply
independently to each tentatively divided portion to determine if the
portion is importation property. Each tentatively divided portion that
is determined to be importation property is included with all other
importation property in the determination of whether the transaction is
a loss importation transaction.
(3) Acquiring's basis in property tentatively divided into separate
portions. Immediately after the application of section 362(e)(1) and
this section and before the application of section 362(e)(2), each
property treated as tentatively divided into separate portions for
purposes of applying section 362(e)(1) and this section ceases to be
treated as tentatively divided and Acquiring has a single, undivided
basis in such property that is equal to the sum of--
(i) The value of each tentatively divided portion that is
importation property, if the transaction is a loss importation
transaction; and
(ii) Acquiring's basis in each tentatively divided portion that is
not importation property received in a loss importation transaction, as
determined under section 362(a) or section 362(b), as applicable, and
without regard to any potential application of section 362(e)(2).
(f) Examples. The examples in this paragraph (f) illustrate the
application of section 362(e)(1) and the provisions of this section.
Unless otherwise indicated, the examples use the following nomenclature
and assumptions: A and B are U.S. citizens. DC, DC1, and P are domestic
corporations that have not elected to be S corporations within the
meaning of section 1361(a)(1) and that are not members of a
consolidated group. F is a foreign individual. FP is a foreign
partnership. FC, FC1, and FC2 are foreign corporations. Unless the
facts indicate otherwise, the foreign individuals, corporations, and
partnerships are not engaged in a U.S. trade or business, have no U.S.
real property interests, and have no other relationships, activities,
or interests that would cause them, their shareholders, their partners,
or their property to be subject to Federal income taxation. There is no
applicable income tax treaty, and all persons and transactions are
unrelated unless the facts indicate otherwise.
Example 1. Basic application of section. (i) Section 351
transfer of importation property in a loss importation transaction.
(A) Facts. FC owns three assets, A1 (basis $40, value $150), A2
(basis $120, value $30), and A3 (basis $140, value $20). On Date 1,
FC transfers A1, A2, and A3 to DC in a transaction to which section
351 applies.
(B) Importation property. If FC had sold A1, A2, or A3
immediately before the transaction, no gain or loss recognized on
the sale would have been taken into account in determining a Federal
income tax liability. Further, if DC had sold A1, A2, or A3
immediately after the transaction, DC would take into account any
gain or loss recognized on the sale in determining its Federal
income tax liability. Therefore, A1, A2, and A3 are
[[Page 54981]]
all importation properties. See paragraph (c)(2) of this section.
(C) Loss importation transaction. FC's transfer of A1, A2, and
A3 is a section 362 transaction. Furthermore, but for section
362(e)(1) and this section and section 362(e)(2), DC's aggregate
basis in the importation properties, A1, A2, and A3, would be $300
($40 + $120 + $140) under section 362(a) and the properties'
aggregate value would be $200 ($150 + $30 + $20). Therefore, the
importation properties' aggregate basis would exceed their aggregate
value and the transaction is a loss importation transaction. See
paragraph (c)(3) of this section.
(D) Application of section 362(e)(1) and this section to
importation property received in loss importation transaction.
Because the importation properties, A1, A2, and A3, were transferred
in a loss importation transaction, paragraph (b)(1) of this section
applies and DC's basis in A1, A2, and A3 will each be equal to the
property's value ($150, $30, and $20, respectively) immediately
after the transfer.
(E) Basis of property received in transaction. Following the
application of section 362(e)(1) and this section, the provisions of
section 362(e)(2) must be taken into account because the transfer is
a section 362(a) transaction. Taking into account the application of
section 362(e)(1) and this section, DC's aggregate basis in the
transferred properties would not exceed their aggregate value
immediately after the transfer. Therefore, FC does not have a net
built-in loss, FC's transfer is not a loss duplication transaction,
and section 362(e)(2) does not apply to this transaction. DC's bases
in A1, A2, and A3, as determined under paragraph (i)(D) of this
Example 1, are $150, $30, and $20, respectively. Under section
358(a), FC receives the DC stock with a basis of $300 (the sum of
FC's bases in A1, A2, and A3 immediately before the exchange).
(ii) Reorganization. The facts are the same as in paragraph
(i)(A) of this Example 1 except that, instead of transferring
property to DC in a section 351 exchange, FC merges with and into DC
in a transaction described in section 368(a)(1)(A). The analysis and
results are the same as set forth in paragraphs (i)(B), (i)(C),
(i)(D), and (i)(E) of this Example 1, except that, under section
358(a), FC's shareholders will take the DC stock with a basis
determined by reference to their FC stock basis.
(iii) FC's property used in U.S. trade or business. (A) Facts.
The facts are the same as in paragraph (i)(A) of this Example 1,
except that FC is engaged in a U.S. trade or business and uses all
the properties in that U.S. trade or business. In this case, none of
the properties would be importation property because FC would take
any gain or loss on the disposition of the properties into account
in determining its Federal income tax liability. Accordingly, this
section does not apply to the transaction.
(B) Basis of property received in transaction. Following the
application of section 362(e)(1) and this section, the provisions of
section 362(e)(2) must be taken into account because the transfer is
a section 362(a) transaction. Taking into account the application of
section 362(e)(1) and this section but without taking into account
the provisions of section 362(e)(2), DC's aggregate basis in the
transferred properties would be $300 ($40 + $120 + $140) under
section 362(a) and the properties' aggregate value immediately after
the transfer would be $200 ($150 + $30 + $20). Therefore, FC has a
net built-in loss and FC's transfer of A1, A2, and A3 is a loss
duplication transaction. Accordingly, under the general rule of
section 362(e)(2), FC's $100 net built-in loss ($300 aggregate basis
over $200 aggregate value) would be allocated proportionately (by
the amount of built-in loss in each property) to reduce DC's basis
in the loss properties, A2 and A3. See Sec. 1.362-4. As a result,
DC's basis in A2 would be $77.14 ($120 basis under section 362(a)
reduced by $42.86, A2's proportionate share of FC's net built-in
loss, computed as $90/$210 x $100) and DC's basis in A3 would be
$82.86 ($140 basis under section 362(a) reduced by $57.14, A3's
proportionate share of FC's net built-in loss, computed as $120/$210
x $100). However, if FC and DC were to elect under section
362(e)(2)(C) to apply the $100 basis reduction to FC's basis in the
DC stock received in the transaction, DC's bases in A2 and A3 would
remain their section 362(a) bases of $120 and $140, respectively.
Under section 362(a), DC's basis in A1 is $40 (irrespective of
whether the section 362(e)(2)(C) election is made). If FC and DC do
not make a section 362(e)(2)(C) election, FC's basis in the DC stock
received in the exchange will be $300; if FC and DC do make the
election, FC's basis in the DC stock will be $200 ($300-$100 net
built-in loss). See Sec. 1.362-4(b).
Example 2. Multiple transferors. (i) Facts. The facts are the
same as in paragraph (i)(A) of Example 1, except that FC only owns
A1 (basis $40, value $150) and A2 (basis $120, value $30) and F owns
A3 (basis $140, value $20). On Date 1, FC transfers A1 and A2, and F
transfers A3, to DC in a single transaction described in section
351.
(ii) Importation property. A1 and A2 are importation properties
for the reasons set forth in paragraph (i)(B) of Example 1. A3 is
also an importation property because, if F had sold A3 immediately
before the transaction, no gain or loss recognized on the sale would
have been taken into account in determining a Federal income tax
liability, and, further, if DC had sold A3 immediately after the
transaction, DC would take into account any gain or loss recognized
on the sale in determining its Federal income tax liability.
(iii) Loss importation transaction. The transfers by FC and F
are a section 362 transaction. The transaction is a loss importation
transaction for the reasons set forth in paragraph (i)(C) of Example
1 (notwithstanding that one of the transferors, FC, did not transfer
a net built-in loss). See paragraph (c)(3) of this section.
(iv) Application of section 362(e)(1) and this section to
importation property received in loss importation transaction.
Because the importation properties, A1, A2, and A3, were transferred
in a loss importation transaction, paragraph (b)(1) of this section
applies and DC's basis in A1, A2, and A3 will each be equal to the
property's value ($150, $30, and $20, respectively) immediately
after the transfer.
(v) Basis of property received in transaction. Following the
application of section 362(e)(1) and this section, the provisions of
section 362(e)(2) must be taken into account because the transfer is
a section 362(a) transaction. The application of section 362(e)(2)
is determined separately for each transferor. See Sec. 1.362-4(b).
Taking into account the application of section 362(e)(1) and this
section, neither DC's aggregate basis in FC's properties nor DC's
basis in F's property would exceed the properties' respective values
immediately after the transaction. Therefore neither FC nor F has a
net built-in loss, neither transfer is a loss duplication
transaction, and section 362(e)(2) does not apply to either
transfer. DC's bases in A1, A2, and A3, as determined under
paragraph (iv) of this Example 2, are $150, $30, and $20,
respectively. Under section 358(a), FC's basis in the DC stock
received is $160 ($40 + $120) and F's basis in the DC stock received
in the exchange is $140.
Example 3. Transfer of importation and non-importation property.
(i) Facts. As in paragraph (i) of Example 2, FC owns A1 (basis $40,
value $150) and A2 (basis $120, value $30), and F owns A3 (basis
$140, value $20). In addition, A2 is a U.S. real property interest
as defined in section 897(c)(1). On Date 1, FC transfers A1 and A2,
and F transfers A3, to DC in a single transaction described in
section 351.
(ii) Importation property. A1 and A3 are importation properties
for the reasons set forth in paragraph (i)(B) of Example 1 and
paragraph (i) of Example 2, respectively. However, A2 is not
importation property because, if FC had sold A2 immediately before
the transaction, FC would take into account any gain or loss
recognized on the sale in determining its Federal income tax
liability.
(iii) Loss importation transaction. FC's transfer is a section
362 transaction. Furthermore, but for section 362(e)(1) and this
section and section 362(e)(2), DC's aggregate basis in the
importation properties, A1 and A3, would be $180 ($40 + $140) and
the properties' aggregate value would be $170 ($150 + $20)
immediately after the transaction. Therefore, the importation
properties' aggregate basis would exceed their aggregate value
immediately after the transaction, and the transfer is a loss
importation transaction.
(iv) Application of section 362(e)(1) and this section to
importation property received in loss importation transaction.
Because the importation properties, A1 and A3, were transferred in a
loss importation transaction, paragraph (b)(1) of this section
applies and DC's basis in A1 and in A3 will each be equal to the
property's value ($150 and $20, respectively) immediately after the
transfer.
(v) Basis of property received in transaction. Following the
application of section 362(e)(1) and this section, the provisions of
section 362(e)(2) must be taken into account because the transfer is
a section 362(a) transaction. The application of section 362(e)(2)
is determined separately for each transferor. See Sec. 1.362-4(b).
(A) FC's transfer. Taking into account the application of
section 362(e)(1) and this
[[Page 54982]]
section but without taking into account the provisions of section
362(e)(2), DC would have an aggregate basis of $270 in the
transferred properties ($150 in A1, as determined under paragraph
(iv) of this Example 3, plus $120 in A2, determined under section
362(a)), and the properties would have an aggregate value of $180
($150 + $30) immediately after the transfer. Therefore, FC has a net
built-in loss and FC's transfer of A1 and A2 is a loss duplication
transaction. Accordingly, under the general rule of section
362(e)(2), FC's $90 net built-in loss ($270 aggregate basis to DC
over $180 aggregate value) would be allocated proportionately to
reduce DC's basis in the loss property transferred by FC. As a
result, FC's entire net built-in loss would be allocated to A2, the
only loss property transferred by FC, and DC's basis in A2 would be
$30 ($120 basis under section 362(a) reduced by $90 net built-in
loss). However, if FC and DC were to elect under section
362(e)(2)(C) to apply the $90 basis reduction to FC's basis in the
DC stock received in the transaction, DC's basis in A2 would remain
its section 362(a) basis of $120. DC's basis in A1 is $150 as
determined under paragraph (iv) of this Example 3 (irrespective of
whether the section 362(e)(2)(C) election is made). If FC and DC do
not make a section 362(e)(2)(C) election, FC's basis in the DC stock
received in the exchange will be $270; if FC and DC do make the
election, FC's basis in the DC stock will be $180 ($270-$90 net
built-in loss). See Sec. 1.362-4.
(B) F's transfer of A3. Taking into account the application of
section 362(e)(1) and this section, DC's basis in A3, the property
transferred by F, would not exceed its value immediately after the
transfer. Therefore, F does not have a built-in loss, F's transfer
is not a loss duplication transaction, and section 362(e)(2) does
not apply to F's transfer. DC's basis in A3, as determined under
paragraph (iv) of this Example 3, is $20. Under section 358(a), F
receives the DC stock with a basis of $140.
Example 4. Multiple transferors of non-importation properties.
(i) Facts. DC1 owns A1 (basis $40, value $150). In addition, as in
Example 3, FC owns A2 (basis $120, value $30), a U.S. real property
interest as defined in section 897(c)(1), and F owns A3 (basis $140,
value $20). On Date 1, DC1 transfers A1, FC transfers A2, and F
transfers A3, to DC in a single transaction described in section
351.
(ii) Importation property. A2 is not importation property and A3
is importation property for the reasons set forth in paragraph (ii)
of Example 3 and paragraph (i)(B) of Example 1, respectively. A1 is
not importation property because, if DC1 had sold A2 immediately
before the transaction, DC1 would take into account any gain or loss
recognized on the sale in determining its Federal income tax
liability.
(iii) Loss importation transaction. The transfer of A1, A2, and
A3 is a section 362 transaction. Furthermore, but for section
362(e)(1) and this section and section 362(e)(2), DC's basis in
importation property, A3, would be $140 and the value of the
property would be $20 immediately after the transaction. Therefore,
the importation property's basis would exceed value and the transfer
is a loss importation transaction.
(iv) Application of section 362(e)(1) and this section to
importation property received in loss importation transaction.
Because the importation property, A3, was transferred in a loss
importation transaction, section 362(e)(1) and paragraph (b)(1) of
this section applies and DC's basis in A3 will be equal to A3's $20
value immediately after the transfer.
(v) Basis of property received in transaction. Following the
application of section 362(e)(1) and this section, the provisions of
section 362(e)(2) must be taken into account because the transfer is
a section 362(a) transaction. The application of section 362(e)(2)
is determined separately for each transferor. See Sec. 1.362-4.
(A) DC1's transfer. Taking into account the application of
section 362(e)(1) and this section, DC's basis in A1 ($40 under
section 362(a)) would not exceed its value immediately after the
transfer. Therefore, DC1 does not have a net built-in loss, DC1's
transfer is not a loss duplication transaction, and section
362(e)(2) does not apply to DC1's transfer. DC's basis in A1,
determined under section 362(a), is $40. Under section 358(a), DC1
receives the DC stock with a basis of $40.
(B) FC's transfer. Taking into account the application of
section 362(e)(1) and this section, but without taking into account
the provisions of section 362(e)(2), DC would have a section 362(a)
basis of $120 in A2, which would exceed A2's $30 value immediately
after the transfer. Therefore, FC has a net built-in loss and FC's
transfer of A2 is a loss duplication transaction. Accordingly, under
the general rule of section 362(e)(2), FC's $90 net built-in loss
(DC's $120 basis in A2 over A2's $30 value) would be applied to
reduce DC's basis in A2, the only loss property transferred by FC.
As a result, DC's basis in A2 would be $30 ($120 basis under section
362(a), reduced by the $90 net built-in loss). However, if FC and DC
were to elect under section 362(e)(2)(C) to apply the $90 basis
reduction to FC's basis in the DC stock received in the transaction,
DC's basis in A2 would be its $120 basis determined under section
362(a). If FC and DC do not make a section 362(e)(2)(C) election,
FC's basis in the DC stock received in the exchange will be $120; if
FC and DC do make the election, FC's basis in the DC stock will be
$30 ($120-$90). See Sec. 1.362-4.
(C) F's transfer. F's transfer of A3 is a transaction described
in section 362(a). However, taking into account the application of
section 362(e)(1) and this section, DC's basis in A3 ($20) would not
exceed its value immediately after the transfer. Therefore, F does
not have a built-in loss, F's transfer is not a loss duplication
transaction, and section 362(e)(2) does not apply to F's transfer.
DC's basis in A3, as determined under paragraph (iv) of this Example
4, is $20. Under section 358(a), FC receives the DC stock with a
basis of $140.
Example 5. Partnership transactions. (i) Transfer by foreign
partnership, foreign and domestic partners. (A) Facts. A and F are
equal partners in FP. FP owns A1 (basis $100, value $70). Under the
terms of the FP partnership agreement, FP's items of income, gain,
deduction, and loss are allocated equally between A and F. FP
transfers A1 to DC in a transfer to which section 351 applies. No
election is made under section 362(e)(2)(C).
(B) Importation property. If FP had sold A1 immediately before
the transaction, any gain or loss recognized on the sale would be
allocated to and includible by A and F equally under the partnership
agreement. Thus, A1 is treated as tentatively divided into two equal
portions, one treated as owned by A and one treated as owned by F.
If FP had sold A1 immediately before the transaction, any gain or
loss recognized on the portion treated as owned by A would have been
taken into account in determining a Federal income tax liability
(A's); thus A's tentatively divided portion of A1 is not importation
property. However, no gain or loss recognized on the tentatively
divided portion treated as owned by F would have been taken into
account in determining a Federal income tax liability. Further, if
DC had sold A1 immediately after the transaction, any gain or loss
recognized on the sale would have been taken into account in
determining a Federal income tax liability (DC's); thus, F's
tentatively divided portion of A1 is importation property.
(C) Loss importation transaction. FP's transfer of A1 is a
section 362 transaction. Furthermore, but for section 362(e)(1) and
this section and section 362(e)(2), DC's basis in the importation
property, F's portion of A1, would be $50 under section 362(a) and
the property's value would be $35 immediately after the transaction.
Therefore, the importation property's basis would exceed its value
and the transfer is a loss importation transaction.
(D) Application of section 362(e)(1) and this section to
importation property received in loss importation transaction.
Because the importation property, F's tentatively divided portion of
A1, was transferred in a loss importation transaction, section
362(e)(1) and paragraph (b)(1) of this section applies and DC's
basis in F's portion of A1 will be equal to its $35 value.
(E) Basis of property received in transaction. Following the
application of section 362(e)(1) and this section, the provisions of
section 362(e)(2) must be taken into account because the transfer is
a section 362(a) transaction. Taking into account the application of
section 362(e)(1) and this section but without taking into account
the provisions of section 362(e)(2), DC's aggregate basis in A1
would be $85 (the sum of the $35 basis in F's tentatively divided
portion of A1, as determined under paragraph (i)(D) of this Example
5, and the $50 basis in A's tentatively divided portion of A1,
determined under section 362(a), see paragraph (d)(2) of this
section) and A1's value immediately after the transfer would be $70.
Therefore, FP has a net built-in loss and FP's transfer of A1 is a
loss duplication transaction. Accordingly, under the general rule of
section 362(e)(2), FP's $15 net built-in loss ($85 basis over $70
value) would be allocated to reduce DC's basis in the loss asset,
A1, the only loss property transferred by FP. As a result, DC's
basis in A1 would
[[Page 54983]]
be $70 ($85 basis under section 362(a) and this section, reduced by
the $15 net built-in loss). Under section 358, FP's basis in the DC
stock received in the exchange will be $100. See Sec. 1.362-4.
(ii) Transfer with election to apply section 362(e)(2)(C). The
facts are the same as in paragraph (i)(A) of this Example 5, except
that FP and DC elect to apply section 362(e)(2)(C) to reduce FP's
basis in the DC stock received in the exchange. The analysis and
results are the same as in paragraphs (i)(B), (i)(C), (i)(D), and
(i)(E) of this Example 5, except that the $15 reduction to DC's
basis in A1 is not made and, as a result, DC's basis in A1 remains
$85, and FP's basis in the DC stock received in the exchange is
reduced from $100 to $85. The $15 reduction to FP's basis in DC
stock reduces A's basis in its FP interest under section
705(a)(2)(B). See Sec. 1.362-4(f)(1).
(iii) Transfer by domestic partnership. The facts are the same
as in paragraph (i)(A) of this Example 5 except that FP is a
domestic partnership. The analysis and results are the same as in
paragraphs (i)(B), (i)(C), (i)(D), and (i)(E) of this Example 5.
(iv) Transfer of interest in partnership with liability. (A)
Facts. F and two other individuals are equal partners in FP. F's
basis in its partnership interest is $247. F's share of FP's Sec.
1.752-1 liabilities (as defined in Sec. 1.752-1(a)(4)) is $150. F
transfers his partnership interest to DC in a transaction to which
section 351 applies. FP has no section 754 election in effect. If DC
were to sell the FP interest immediately after the transfer, DC
would receive $100 in cash or other property. In addition, taking
into account the rules under Sec. 1.752-4, DC's share of FP's Sec.
1.152-1 liabilities (as defined in Sec. 1.752-1(a)(4)) is $145
immediately after the transfer.
(B) Importation property. If F had sold his partnership interest
immediately before the transaction, no gain or loss recognized on
the sale would have been taken into account in determining a Federal
income tax liability. Further, if DC had sold the partnership
interest immediately after the transaction, any gain or loss
recognized on the sale would have been taken into account in
determining a Federal income tax liability. Therefore, F's
partnership interest is importation property.
(C) Loss importation transaction. F's transfer is a section 362
transaction. However, but for section 362(e)(1) and this section and
section 362(e)(2), DC's basis in the importation property, the
partnership interest, determined under section 362(a) and taking
into account the rules under section 752, would be $242 (F's $247
basis reduced by F's $150 share of PRS liabilities and increased by
DC's $145 share of PRS liabilities) and, under Sec. 1.362-
4(c)(12)(ii), the value of the PRS interest would be $245 (the sum
of $100, the cash DC would receive if DC immediately sold the
partnership interest, and $145, DC'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 DC). Therefore, the importation
property's basis ($242) would not exceed its value ($245), and the
transfer is not a loss importation transaction.
(D) Basis in property received in transaction. Following the
application of section 362(e)(1) and this section, the provisions of
section 362(e)(2) must be taken into account because the transfer is
a section 362(a) transaction. As described in paragraph (iv)(C) of
this Example 5, taking into account the application of section
362(e)(1) and this section, DC's basis in the partnership interest
would not exceed its value. Therefore, under Sec. 1.362-4, F does
not have a net built-in loss, the transfer is not a loss duplication
transaction, and section 362(e)(2) does not apply to the transfer.
DC's basis in F's partnership interest is $242, determined under
sections 362(a) and 752. Under section 358, taking into account the
rules under section 752, F's basis in the DC stock received in the
exchange is $97 ($247 reduced by F's $150 share of FP liabilities).
Example 6. Transactions involving tax-exempt entities. (i)
Exempt transferor. (A) Facts. InsCo is a benevolent life insurance
association of a purely local character exempt from Federal income
tax under section 501(a) because it is described in section
501(c)(12). InsCo owns shares of stock of DC1 (basis $100, value
$70) for investment purposes, which are not debt-financed property
(as defined in section 514). On December 31, Year 1, InsCo transfers
the DC1 stock to DC in a transaction to which section 351 applies.
No election is made under section 362(e)(2)(C).
(B) Importation property. If InsCo had sold the DC1 stock
immediately before the transaction, any gain or loss realized would
be excluded from unrelated business taxable income (UBTI) under
section 512(b)(5), and thus no gain or loss recognized on the sale
would have been taken into account in determining Federal income tax
liability. Further, if DC had sold the DC1 stock immediately after
the transaction, any gain or loss recognized on the sale would have
been taken into account in determining Federal income tax liability.
Therefore, the DC1 stock is importation property.
(C) Loss importation transaction. InsCo's transfer is a section
362 transaction. Furthermore, but for section 362(e)(1) and this
section and section 362(e)(2), DC's basis in importation property,
the DC1 stock, would be $100, and the stock's value would be $70
immediately after the transaction. Therefore, the importation
property's basis would exceed its value and the transfer is a loss
importation transaction.
(D) Application of section 362(e)(1) and this section to
importation property received in loss importation transaction.
Because the importation property, the DC1 stock, was transferred in
a loss importation transaction, paragraph (b)(1) of this section
applies and DC's basis in the stock will be equal to its $70 value.
(E) Basis of property received in transaction. Following the
application of section 362(e)(1) and this section, the provisions of
section 362(e)(2) must be taken into account because the transfer is
a section 362(a) transaction. Taking into account the application of
section 362(e)(1) and this section, DC's basis in the DC1 stock
would not exceed its value immediately after the transaction.
Therefore, InsCo does not have a net built-in loss, InsCo's transfer
is not a loss duplication transaction, and section 362(e)(2) has no
application to the transaction. DC's basis in the DC1 stock, as
determined under paragraph (i)(D) of this Example 6, is $70. Under
section 358, InsCo's basis in the DC stock received in the exchange
will be $100.
(ii) Transferor loses tax-exempt status. (A) Facts. The facts
are the same as in paragraph (i)(A) of this Example 6 except that
InsCo fails to be described in section 501(c)(12) in Year 1.
(B) Importation property. If InsCo had sold the DC1 stock
immediately before the transaction, any gain or loss recognized on
the sale would have been taken into account in determining a Federal
income tax liability. Therefore, the DC1 stock is not importation
property and this section does not apply to the transaction.
(C) Basis of property received in transaction. Following the
application of section 362(e)(1) and this section, the provisions of
section 362(e)(2) must be taken into account because the transfer is
a section 362(a) transaction. Taking into account the application of
section 362(e)(1) and this section but without taking into account
the provisions of section 362(e)(2), DC would have a section 362(a)
basis of $100 in the stock, which would exceed its value of $70
immediately after the transfer. Therefore, InsCo has a net built-in
loss and InsCo's transfer of the DC1 stock is a loss duplication
transaction. Accordingly, under the general rule of section
362(e)(2), InsCo's $30 net built-in loss ($100 basis over $70 value)
would be allocated to reduce DC's basis in the loss asset, the DC1
stock, the only loss property transferred by InsCo. As a result,
DC's basis in the DC1 stock would be $70 ($100 basis under section
362(a), reduced by the $30 net built-in loss). Under section 358,
InsCo's basis in the DC stock received in the exchange will be $100.
(iii) Transfer of property that is subject to unrelated business
tax. (A) Facts. The facts are the same as in paragraph (i)(A) of
this Example 6 except that, on December 31, Year 1, instead of the
DC1 stock, InsCo transfers A1 (basis $200, value $150) to DC. A1 is
an office building that InsCo owned from January 1 to December 31 of
Year 1. During the entirety of this period, A1 constitutes debt-
financed property (as defined in section 514). Pursuant to sections
512 and 514, InsCo would be required to include in UBTI a portion of
the gains or losses from a sale of A1 at the end of Year 1. DC does
not take the property subject to the debt.
(B) Importation property. If InsCo had sold A1 immediately
before the transaction, the gain or loss recognized on the sale
would have been taken into account in determining a Federal income
tax liability, even though at a lesser rate of inclusion. Therefore,
A1 is not importation property and this section does not apply to
the transaction.
(C) Basis of property received in transaction. The analysis and
results are the same as in paragraph (ii)(C) of this Example 6.
Example 7. Transactions involving CFCs. (i) Transfer by CFC.
(A) Facts. FC is a CFC with 100 shares of stock outstanding. A owns
60 of the shares and F owns the remaining 40 shares. FC owns two
assets, A1 (basis $70, value $100), which is used in the conduct of
[[Page 54984]]
a U.S. trade or business, and A2 (basis $100, value $75), which is
not used in the conduct of a U.S. trade or business. FC transfers
both assets to DC in a transaction to which section 351 applies.
(B) Importation property. If FC had sold A1 immediately before
the transaction, any gain or loss recognized on the sale would have
been taken into account in determining a Federal income tax
liability (FC's). See section 882(a). Therefore, A1 is not
importation property. If FC had sold A2 immediately before the
transaction, FC would not take the gain or loss recognized into
account in determining its Federal income tax liability, but the
gain or loss could be taken into account in determining a section
951 inclusion to FC's U.S. shareholders. However, under paragraph
(d)(3) of this section, gain or loss is not deemed taken into
account in determining a Federal income tax liability solely because
it could affect an inclusion under section 951(a). Further, if DC
had sold A2 immediately after the transaction, any gain or loss
recognized on the sale would have been taken into account in
determining a Federal income tax liability. Therefore, A2 is
importation property.
(C) Loss importation transaction. FC's transfer is a section 362
transaction. Furthermore, but for section 362(e)(1) and this section
and section 362(e)(2), DC's basis in the importation property, A2,
would be $100 and the property's value would be $75 immediately
after the transaction. Therefore, the importation property's basis
would exceed its value and the transfer is a loss importation
transaction.
(D) Application of section 362(e)(1) and this section to
importation property received in loss importation transaction.
Because the importation property, A2, was transferred in a loss
importation transaction, paragraph (b)(1) of this section applies
and DC's basis in A2 will be equal to A2's $75 value immediately
after the transfer.
(E) Basis of property received in transaction. Following the
application of section 362(e)(1) and this section, the provisions of
section 362(e)(2) must be taken into account because the transfer is
a section 362(a) transaction. Taking into account the application of
section 362(e)(1) and this section but without taking into account
the provisions of section 362(e)(2), DC would have an aggregate
basis of $145 in the transferred properties ($70 in A1, determined
under section 362(a), plus $75 in A2, determined under this section)
and the properties would have an aggregate value of $175 ($100 +
$75) immediately after the transfer. Therefore, FC does not have a
net built-in loss, FC's transfer is not a loss duplication
transaction, and section 362(e)(2) does not apply to the
transaction. DC's basis in A1 will be $70, determined under section
362(a), and DC's basis in A2 will be $75, as determined under
paragraph (i)(D) of this Example 7. Under the general rule in
section 358(a), FC receives the DC stock with a basis of $170 ($70
attributable to A1 plus $100 attributable to A2).
(ii) Transfer of CFC stock. (A) Facts. The facts are the same as
in paragraph (i)(A) of this Example 7, except that A transfers its
60 shares of FC stock (basis $80, value $105) and F transfers its 40
shares of FC stock (basis $100, value $70) to DC in an exchange that
qualifies under section 351.
(B) Importation property. If A had sold its FC shares
immediately before the transaction, any gain or loss recognized on
the sale would have been taken into account in determining a Federal
income tax liability (A's). Therefore, A's FC shares are not
importation property. However, if F had sold its FC shares
immediately before the transaction, no gain or loss recognized on
the sale would have been taken into account in determining a Federal
income tax liability. Further, if DC had sold F's FC shares
immediately after the transaction, any gain or loss recognized on
the sale would have been taken into account in determining a Federal
income tax liability. Therefore, F's FC shares are importation
property.
(C) Loss importation transaction. The transfer of the FC shares
is a section 362 transaction. Furthermore, but for section 362(e)(1)
and this section and section 362(e)(2), DC's aggregate basis in the
importation property, F's shares of FC stock, would be $100 under
section 362(a) and the shares' aggregate value would be $70.
Therefore, the importation property's aggregate basis would exceed
its aggregate value, and the transfer is a loss importation
transaction.
(D) Application of section 362(e)(1) and this section to
importation property received in loss importation transaction.
Because the importation property, F's shares of FC stock, was
transferred in a loss importation transaction, paragraph (b)(1) of
this section applies and DC's aggregate basis in the shares will be
equal to their $70 aggregate value immediately after the transfer.
(E) Basis of property received in transaction. Following the
application of section 362(e)(1) and this section, the provisions of
section 362(e)(2) must be taken into account because the transfer is
a section 362(a) transaction. The application of section 362(e)(2)
is determined separately for each transferor. See Sec. 1.362-4(b).
(1) A's transfer. Taking into account the application of section
362(e)(1) and this section, DC's aggregate basis in the shares ($80
under section 362(a)) would not exceed the shares' value ($105)
immediately after the transaction. Therefore A does not have a
built-in loss, A's transfer is not a loss duplication transaction,
and section 362(e)(2) does not apply to A's transfer. DC's aggregate
basis in A's shares, determined under section 362(a), is $80. Under
section 358(a), A receives the DC stock with a basis of $80.
(2) F's transfer. Taking into account the application of section
362(e)(1) and this section, DC's aggregate basis in the shares would
not exceed their value immediately after the transaction. Therefore,
F does not have a built-in loss, F's transfer is not a loss
duplication transaction, and section 362(e)(2) does not apply to F's
transfer. DC's aggregate basis in F's shares, as determined under
paragraph (ii)(D) of this Example 7, is $70. Under section 358(a), F
receives the DC stock with a basis of $100.
Example 8. Property subject to withholding tax. (i) Facts. FC
owns a share of DC1 stock (basis $100, value $70) as an investment.
FC receives dividends on the share that are subject to Federal
withholding tax of 30 percent of the amount received under section
881(a); under section 1442(a), DC1 must withhold tax on the
dividends paid. FC transfers the DC1 share to DC in a transaction to
which section 351 applies.
(ii) Importation property. Although any dividends received with
respect to the DC1 stock were subject to withholding tax, if FC had
sold the share of stock of DC1, no gain or loss recognized on the
sale would have been taken into account in determining a Federal
income tax liability. See section 865(a)(2). Further, if DC had sold
the share of DC1 stock immediately after the transaction, any gain
or loss recognized on the sale would be taken into account in
determining Federal income tax liability. Therefore, the share of
DC1 stock is importation property.
(iii) Loss importation transaction. FC's transfer is a section
362 transaction. Furthermore, but for section 362(e)(1) and this
section and section 362(e)(2), DC's basis in the importation
property, the share of DC1 stock, would be $100 and the share's
value would be $70 immediately after the transaction. Therefore, the
share's basis would exceed its value and the transfer is a loss
importation transaction.
(iv) Application of section 362(e)(1) and this section to
importation property received in loss importation transaction.
Because the importation property, the DC1 share, was transferred in
a loss importation transaction, paragraph (b)(1) of this section
applies and DC's basis in the share will be equal to the share's $70
value.
(v) Basis of property received in transaction. Following the
application of section 362(e)(1) and this section, the provisions of
section 362(e)(2) must be taken into account because the transfer is
a section 362(a) transaction. Taking into account the application of
section 362(e)(1) and this section, DC's basis in the DC1 share
would not exceed the share's value immediately after the
transaction. Therefore, FC does not have a net built-in loss, FC's
transfer is not a loss duplication transaction, and section
362(e)(2) does not apply to the transaction. DC's basis in the DC1
share, as determined under paragraph (iv) of this Example 8, is $70.
Under section 358, FC's basis in the DC stock received in the
exchange will be $100.
Example 9. Property transferred in triangular reorganization.
(i) Foreign subsidiary. (A) Facts. P owns the sole outstanding share
of stock of FC (basis $1), FC1 owns the sole outstanding share of
FC2 (basis $100), and FC2 owns one asset, A1 (basis $100, value
$20). In a forward triangular merger described in Sec. 1.358-
6(b)(2)(i), FC2 merges with and into FC, and FC1 receives shares of
P stock in exchange for its FC2 stock. The forward triangular merger
is a transaction described in section 368(a)(2)(D) and, therefore,
in section 362(b).
(B) Determining P's basis in its FC share. Pursuant to Sec.
1.358-6, for purposes of determining the adjustment to P's basis in
its FC shares, P is treated as though it first received A1 in a
transaction in which its basis in A1 would be determined under
[[Page 54985]]
section 362(b) and then it transferred A1 to FC in a transaction in
which P's basis in its FC stock would be determined under section
358.
(1) P's deemed acquisition and transfer of A1. If FC2 had sold
A1 for its value immediately before the deemed transaction, no gain
or loss recognized on the sale would have been taken into account in
determining a Federal income tax liability. If P had sold A1
immediately after the deemed transaction, any gain or loss
recognized on the sale would have been taken into account in
determining a Federal income tax liability (P's). Therefore, with
respect to P's deemed acquisition, A1 is importation property.
Furthermore, immediately after the deemed transaction, P's basis in
A1, but for section 362(e)(1) and this section and section
362(e)(2), would be $100 and A1's value is $20. Therefore, the
importation property's basis would exceed its value and the transfer
is a loss importation transaction. Accordingly, P's deemed basis in
A1 will be equal to A1's $20 value.
(2) P's FC stock basis. As a result of P's deemed transfer of A1
to FC (and applying the principles of Sec. 1.367(b)-13), P's basis
in its FC stock is increased by its $20 deemed basis in A1.
Accordingly, following the transaction, P's basis in its share of FC
stock will be $21 (the sum of its original $1 basis and the $20
adjustment for the deemed transfer of A1).
(C) FC's basis in A1. FC's basis in A1 is determined under the
rules of this section without regard to the determination of P's
adjustment to its basis in FC stock. If FC2 had sold A1 for its
value immediately before the transaction, no gain or loss recognized
on the sale would have been taken into account in determining a
Federal income tax liability. However, if FC had sold A1 immediately
after the transaction, no gain or loss recognized on the sale would
have been taken into account in determining a Federal income tax
liability, so A1 is not importation property. Accordingly, this
section will not apply to the transaction. Although there is a net
built-in loss in A1, the transaction is not described in section
362(a), and so section 362(e)(2) and Sec. 1.362-4 will not apply to
the transaction. Thus, under section 362(b), FC's basis in A1 will
be $100.
(D) FC1's basis in P stock. Under section 358, FC1's basis in
the P stock it receives in the exchange will be $100.
(ii) Property transferred to U.S. subsidiary in triangular
reorganization. (A) Facts. The facts are the same as in paragraph
(i)(A) of this Example 9, except that P also owns the sole
outstanding share of DC (basis $1) and, instead of merging into FC,
FC2 merged into DC.
(B) Determining P's basis in its DC share. As determined under
paragraph (i)(B)(2) of this Example 9, P's basis in its DC share is
$21, the sum of its original $1 basis plus the $20 adjustment for
the deemed transfer of A1.
(C) DC's basis in A1. If FC2 had sold A1 for its value
immediately before the transaction, no gain or loss recognized on
the sale would have been taken into account in determining a Federal
income tax liability. However, if DC had sold A1 immediately after
the transaction, any gain or loss recognized on the sale would have
been taken into account in determining a Federal income tax
liability, so A1 is importation property with respect to DC.
Furthermore, immediately after the transaction, DC's basis in A1,
but for section 362(e)(1) and this section and section 362(e)(2),
would be $100 and A1's value is $20. Therefore, the importation
property's basis would exceed its value and the transfer is a loss
importation transaction. Accordingly, DC's basis in A1 will be $20,
A1's value immediately after the transaction.
(D) FC1's basis in P stock. Under section 358, FC1's basis in the P
stock it receives in the exchange is $100.
(g) Effective/applicability date. This section applies to any
transaction occurring on or after the date these regulations are
published as final regulations in the Federal Register, unless effected
pursuant to a binding agreement that was in effect prior to that date
and at all times thereafter. However, taxpayers may apply this section
to transactions occurring after October 22, 2004.
0
Par. 9. Section 1.362-4 is amended by:
0
1. Revising the introductory text in paragraph (h).
0
2. Revising paragraph (h) Example 11.
0
3. Adding a new sentence to the end of paragraph (j).
The revisions and addition read as follows:
Sec. 1.362-4 Basis of loss duplication.
* * * * *
(h) * * * The examples in this paragraph (h) illustrate the
application of section 362(e)(2) and the provisions of this section.
Unless the facts otherwise indicate, the examples use the following
nomenclature and assumptions: X, Y, P, S, S1, and S2 are domestic
corporations; A and B are U.S. individuals; FC1 and FC2 are foreign
corporations and are not engaged in a U.S. trade or business, have no
U.S. real property interests, and have no other relationships,
activities, or interests that would cause them, their shareholders, or
their property to be subject to Federal income taxation; there is no
applicable income tax treaty; PRS is a domestic partnership; no
election is made under section 362(e)(2)(C); and the transferred
property is not importation property (as defined in Sec. 1.362-
3(c)(2)) and the transfers are not loss importation transactions (as
defined in Sec. 1.362-3(c)(3)), so that the basis of no property is
determined under section 362(e)(1). All persons and transactions are
unrelated unless the facts indicate otherwise, and all other relevant
facts are set forth in the examples. See Sec. 1.362-3(f) for
additional examples illustrating the application of section 362(e)(2)
and this section, including to transactions that are subject to section
362(e)(2), and section 362(e)(1).
* * * * *
Example 11. Transfers of importation property with non-
importation property. (i) Single transferor, loss importation
transaction. (A) 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 importation property within the
meaning of Sec. 1.362-3(c)(2). Asset 2 is importation property
within the meaning of Sec. 1.362-3(c)(2).
(B) Application of section 362(e)(1). 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 importation
property (Asset 2) would be $120. The aggregate value of the
importation property immediately after the transfer is $110.
Accordingly, the transaction is a loss importation transaction
within the meaning of Sec. 1.362-3(c)(3) and, under section
362(e)(1), DC's basis in Asset 2 would equal its value, $110.
(C) Application of section 362(e)(2) and this section. (1)
Analysis. (i) Loss duplication transaction. FC1's transfer of Asset
1 and Asset 2 is a transaction described in section 362(a). But for
section 362(e)(2) and this section, DC's aggregate basis in those
assets would be $190 ($80 under section 362(a) + $110 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).
(ii) 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.
(C) 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.
(D) 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.
(ii) Multiple transferors, no importation of loss. (A) Facts.
The facts are the same as paragraph (i)(A) of this Example 11,
except that, in addition, FC2 transfers Asset 3 (basis $100, value
$150) to DC as part of the same transaction. Asset 3 is importation
property within the meaning of Sec. 1.362-3(c)(2).
(B) Application of section 362(e)(1). 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 importation
property (Asset 2 and Asset 3) would be $220 ($120 + $100). The
aggregate value of the importation property immediately after the
transfer is $260 ($110
[[Page 54986]]
+ $150). Accordingly, the transaction is not a loss importation
transaction within the meaning of Sec. 1.362-3(c)(3) and DC's bases
in the importation property is not determined under section
362(e)(1).
(C) Application of section 362(e)(2) and this section: FC1.
Notwithstanding that the transfers by FC1 and FC2 are pursuant to a
single plan forming one transaction, section 362(e)(2) and this
section apply to each transferor separately.
(1) Analysis. (i) Loss duplication transaction. FC1's transfer
of Asset 1 and Asset 2 is a transaction described in section 362(a).
But for section 362(e)(2) and this section, DC's aggregate basis in
those assets would be $200 ($80 + $120), 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 $40 ($200--$160).
(ii) 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 $120, which would exceed Asset 2's $110 value immediately after
the transaction. Accordingly, Asset 2 is also loss duplication
property.
(2) Basis in loss duplication property. DC's basis in Asset 1 is
$50, computed as its $80 basis under section 362(a) reduced by $30,
its allocable portion of FC1's $40 net built-in loss ($80/$200 x
$40). DC's basis in Asset 2 is $110, computed as its $120 basis
under section 362(a) reduced by $10, its allocable portion of FC1's
$40 net built-in loss ($120/$200 x $40).
(3) Basis in other property. Under section 358(a), FC1 has an
exchanged basis of $200 in the DC stock it receives in the
transaction.
(D) Application of section: FC2. FC2's transfer of Asset 3 is
not a loss duplication transaction because Asset 3's value exceeds
its basis immediately after the transaction. Accordingly, under
section 362(a), DC's basis in Asset 3 is $100.
* * * * *
(j) * * * The introductory text and Example 11 of paragraph (h) of
this section apply to transactions on or after the date these
regulations are published as final regulations in the Federal Register
unless effected pursuant to a binding agreement that was in effect
prior to that date and at all times thereafter; however, taxpayers may
apply such provisions to transactions occurring after October 22, 2004.
0
Par. 10. Section 1.368-3 is amended by revising paragraphs (a)(3),
(b)(3) and adding a sentence to the end of paragraph (e) to read as
follows:
Sec. 1.368-3 Records to be kept and information to be filed with
returns.
(a) * * *
(3) The value and basis of the assets, stock or securities of the
target corporation transferred in the transaction, determined
immediately before the transfer and aggregated as follows--
(i) Importation property transferred in a loss importation
transaction, as defined in Sec. Sec. 1.362-3(c)(2) and 1.362-3(c)(3),
respectively;
(ii) Loss duplication property as defined in Sec. 1.362-4(c)(1);
(iii) Property with respect to which any gain or loss was
recognized on the transfer (without regard to whether such property is
also identified in paragraph (a)(3)(i) or (a)(3)(ii) of this section);
(iv) Property not described in paragraphs (a)(3)(i), (a)(3)(ii) or
(a)(3)(iii) of this section; and
* * * * *
(b) * * *
(3) The value and basis of all the stock or securities of the
target corporation held by the significant holder that is transferred
in the transaction and such holder's basis in that stock or securities,
determined immediately before the transfer and aggregated as follows--
(i) Stock and securities with respect to which an election is made
under section 362(e)(2)(C); and
(ii) Stock and securities not described in paragraph (b)(3)(i) of
this section.
* * * * *
(e) Effective/applicability date. * * * Paragraphs (a)(3) and
(b)(3) of this section apply to any taxable year beginning on or after
these regulations are published as final regulations in the Federal
Register, unless effected pursuant to a binding agreement that was in
effect prior to that date and at all times thereafter.
Beth Tucker,
Deputy Commissioner for Operations Support.
[FR Doc. 2013-21662 Filed 9-6-13; 8:45 am]
BILLING CODE 4830-01-P