Allocation of Basis in All Cash D Reorganizations, 67059-67063 [2014-26780]

Download as PDF Federal Register / Vol. 79, No. 218 / Wednesday, November 12, 2014 / Rules and Regulations added May 13, 2014, at 79 FR 27439, effective November 10, 2014, by adding an items paragraph .y to read as follows: * * Country chart (see supp. No. 1 to part 738) * * * * * * * * * Items: * y. Items that would otherwise be within the scope of ECCN 9A004.x but that have been identified in an interagency-cleared commodity classification (CCATS) pursuant to § 748.3(e) as warranting control in 9A004.y. * * * * * 9A515 ‘‘Spacecraft’’ and Related Commodities, as Follows (See List of Items Controlled) License Requirements * * * * List of Items Controlled Related Controls: * * * See ECCN 9A610.g for pressure suits used for high altitude aircraft. * * * * * * * * * Items: wreier-aviles on DSK5TPTVN1PROD with RULES * a. * * * Note: ECCN 9A515.a includes commercial communications satellites, remote sensing satellites, planetary rovers, planetary and interplanetary probes, and in-space habitats, not identified in USML Category XV(a). * * * * * f. Pressure suits (i.e., space suits) capable of operating at altitudes 55,000 feet above sea level. * * * VerDate Sep<11>2014 * * 17:11 Nov 10, 2014 12. In Supplement No. 1 to Part 774, Category 9—Aerospace and Propulsion, Product Group E. ‘‘Technology’’ is amended by: ■ a. Redesignating the Note to Product Group E: ‘‘Technology’’ as Note 1 and revising newly redesignated Note 1; and ■ b. Adding a Note 2 to Product Group E: ‘‘Technology’’ to read as follows: Category 9—Aerospace and Propulsion * * * * * USML Category XV or ECCNs 9A515, and defense services using the classified technical data remains subject to the ITAR. This note does not affect controls in USML XV(f), ECCN 9D515, or ECCN 9E515 on software source code or commands that control a ‘‘spacecraft,’’ payload, or associated subsystems for purposes of 9A515. This note also does not affect controls in ECCNs 9D001, 9D002, 9E001, or 9E002 on software source code or commands that control a ‘‘spacecraft,’’ payload, or associated subsystems for purposes of 9A004. E. ‘‘Technology’’ 11. In Supplement No. 1 to Part 774, Category 9—Aerospace and Propulsion, Export Control Classification Number (ECCN) 9A515 is amended by: ■ a. Adding a sentence at the end of the Related Controls paragraph in the List of Items Controlled section as added May 13, 2014, at 79 FR 27440, effective November 10, 2014; ■ b. Revising the note to paragraph .a in the List of Items Controlled section as added May 13, 2014, at 79 FR 27440, effective November 10, 2014; and ■ c. Adding paragraph .f in the Items paragraph in the List of Items Controlled section as added May 13, 2014, at 79 FR 27440, effective November 10, 2014, to read as follows: ■ * NS Column 1. AT Column 1. ■ List of Items Controlled * Reason for Control: * * * 9A004 Space Launch Vehicles and ‘‘Spacecraft,’’ as Follows (See List of Items Controlled) NS applies to entire entry except .y ......................................................... AT applies to entire entry ......................................................................... * License Requirements Supplement No. 1 to Part 774—The Commerce Control List Control(s) * Jkt 235001 67059 * Note 1: ‘‘Development’’ or ‘‘production’’ ‘‘technology’’ controlled by 9E001 to 9E003 for gas turbine engines remains controlled when used for repair or overhaul. Excluded from 9E001 to 9E003 control are: technical data, drawings or documentation for maintenance activities directly associated with calibration, removal or replacement of damaged or unserviceable line replaceable units, including replacement of whole engines or engine modules. ■ Note 2: USML Category XV(f) and ECCNs 9E001, 9E002 and 9E515 do not control the data transmitted to or from a satellite or ‘‘spacecraft,’’ whether real or simulated, when limited to information about the health, operational status, or measurements or function of, or raw sensor output from, the ‘‘spacecraft,’’ ‘‘spacecraft’’ payload(s), or its associated subsystems or components. Such information is not within the scope of information captured within the definition of ‘‘technology’’ in the EAR for purposes of Category 9 Product Group E. Examples of such information, which are commonly referred to as ‘‘housekeeping data,’’ include (i) system, hardware, component configuration, and operation status information pertaining to temperatures, pressures, power, currents, voltages, and battery charges; (ii) ‘‘spacecraft’’ or payload orientation or position information, such as state vector or ephemeris information; (iii) payload raw mission or science output, such as images, spectra, particle measurements, or field measurements; (iv) command responses; (v) accurate timing information; and (vi) link budget data. The act of processing such telemetry data—i.e., converting raw data into engineering units or readable products—or encrypting it does not, in and of itself, cause the telemetry data to become subject to the ITAR or to ECCN 9E515 for purposes of 9A515, or to ECCNs 9E001 or 9E002 for purposes of 9A004. All classified technical data directly related to items controlled in PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 * * * * 13. In Supplement No. 1 to Part 774, Category 9—Aerospace and Propulsion, Export Control Classification Number (ECCN) 9E515 is amended by removing Note 3 to 9E515 at the end of the Items paragraph in the List of Items Controlled section as added May 13, 2014, at 79 FR 27442, effective November 10, 2014. Dated: November 5, 2014. Kevin J. Wolf, Assistant Secretary of Commerce for Export Administration. [FR Doc. 2014–26664 Filed 11–10–14; 8:45 am] BILLING CODE 3510–33–P DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [TD 9702] RIN 1545–BJ21 Allocation of Basis in All Cash D Reorganizations Internal Revenue Service (IRS), Treasury. ACTION: Final regulations and removal of temporary regulations. AGENCY: This document contains final regulations regarding the determination of the basis of stock or securities in certain reorganizations where no stock or securities of the issuing corporation is issued and distributed in the transaction. These final regulations clarify that only a shareholder that owns actual shares in the issuing corporation SUMMARY: E:\FR\FM\12NOR1.SGM 12NOR1 67060 Federal Register / Vol. 79, No. 218 / Wednesday, November 12, 2014 / Rules and Regulations substantially all of the assets of the transferor corporation, and the stock, securities, and other properties received by the transferor corporation, as well as the other properties of the transferor corporation, are distributed in pursuance of the plan of reorganization. Further, section 356 provides, in part, that if section 354 would apply to an exchange but for the fact that property other than permitted property is also received, the recipient recognizes gain, but not in excess of the amount of money and fair market value of such other property. in such a reorganization can designate the actual share of stock of the issuing corporation to which the basis, if any, of the stock or securities surrendered will attach. These regulations affect corporations engaging in such transactions and their shareholders. DATES: These regulations are effective on November 12, 2014. FOR FURTHER INFORMATION CONTACT: Michael R. Gould, (202) 317–5363, or Kevin M. Jacobs, (202) 317–5024 (not toll-free numbers). SUPPLEMENTARY INFORMATION: Background and Explanation of Provisions wreier-aviles on DSK5TPTVN1PROD with RULES 1. Introduction This Treasury Decision contains final regulations that amend the Income Tax Regulations (26 CFR part 1) under section 358(a) of the Internal Revenue Code (Code). In the case of certain reorganizations under section 368, section 358(a) and the regulations thereunder provide, in part, rules for determining a taxpayer’s basis in stock or securities of an issuing corporation received without the recognition of gain or loss (permitted property), as well as rules relating to the basis of other property received in the reorganization. These final regulations clarify the rules under section 358(a) regarding the allocation of stock basis in a transaction that qualifies as a reorganization under section 368(a)(1)(D) (D reorganization) in which no permitted property is actually issued (All Cash D reorganization). 2. D Reorganizations Generally Section 368(a)(1)(D) provides, in part, that a reorganization includes a transfer by a corporation (transferor corporation) of all or a part of its assets to another corporation (issuing corporation) if, immediately after the transfer, the transferor corporation or one or more of its shareholders (including persons who were shareholders immediately before the transfer), or any combination thereof, is in control of the issuing corporation, but only if, in pursuance of the plan, stock or securities of the issuing corporation are distributed under section 354, 355, or 356. Under section 354(a)(1), a shareholder or security holder of the transferor corporation generally recognizes no gain or loss if the shareholder or security holder exchanges stock or securities of the transferor corporation, in pursuance of the plan of reorganization, solely for permitted property. Section 354(b)(1) provides that section 354(a)(1) is inapplicable to a D reorganization unless the issuing corporation acquires VerDate Sep<11>2014 14:57 Nov 10, 2014 Jkt 235001 3. All Cash D Reorganizations On December 18, 2009, the IRS and the Treasury Department published final regulations (TD 9475) in the Federal Register (74 FR 67053) (2009 regulations) providing that the distribution requirement of section 368(a)(1)(D) and 354(b)(1)(B) is satisfied in the case of an All Cash D reorganization even though there is no actual distribution of permitted property by the transferor corporation, provided the same person(s) own, directly or indirectly, all of the stock of the transferor and issuing corporations in identical proportions. See § 1.368– 2(l)(2)(i). In such cases, assuming a value-for-value exchange between the transferor and issuing corporations, the issuing corporation is deemed to issue a nominal share of its stock in addition to the actual consideration exchanged for the transferor corporation’s assets. If the issuing corporation provides the transferor corporation with no consideration or consideration having a value less than the transferor corporation’s assets (bargain exchange), the issuing corporation is treated as issuing shares of its stock having a value necessary to result in a value-for-value exchange. The rules of § 1.368–2(l) further provide that all stock treated as issued, or deemed issued, by the issuing corporation to the transferor corporation is then deemed distributed by the transferor corporation to its shareholders and, if appropriate, further transferred through chains of ownership to the extent necessary to reflect the actual ownership of the transferor and issuing corporations. The 2009 regulations also amended the regulations under § 1.358– 2(a)(2)(iii). Prior to being amended by the 2009 regulations, these regulations provided a two-step rule under section 358 for allocating the basis of stock or securities of a transferor corporation surrendered as a result of a bargain exchange by a shareholder or security holder (bargain exchange basis rule). First, a shareholder or security holder PO 00000 Frm 00024 Fmt 4700 Sfmt 4700 was generally treated as receiving the consideration actually received in the transaction and an amount of stock of the issuing corporation having a value equal to the difference in value between the stock or securities surrendered in the transaction and the consideration actually received. Second, the shareholder or security holder was treated as surrendering all of its stock and securities that it actually owned and was treated as owning of the issuing corporation in a reorganization under section 368(a)(1)(E) in exchange for the shares of stock and securities of the issuing corporation actually held immediately after the transaction. The 2009 regulations added a new sentence after the bargain exchange basis rule that permitted a shareholder that was deemed to have received a nominal share of issuing corporation stock under § 1.368–2(l) to, after adjusting the basis of the nominal share under the rules of §§ 1.358–1 and 1.358– 2, designate a share of the issuing corporation’s stock to which the basis, if any, of the nominal share would attach (nominal share basis designation rule). 4. Temporary Regulations On November 21, 2011, the IRS and the Treasury Department published temporary regulations (TD 9558) in the Federal Register (76 FR 71878) to amend § 1.358–2(a)(2)(iii) of the 2009 regulations in response to an inappropriate interpretation of those rules. Certain taxpayers had taken the position that a shareholder of a transferor corporation who did not own any actual shares of an issuing corporation’s stock immediately after the section 354 or section 356 exchange in a value-for-value All Cash D reorganization was permitted to designate another person’s share of the issuing corporation’s stock as the share to which the nominal share’s basis could attach. For example, assume that corporation P owns all of the stock of corporations S1 and S2, and that S1 owns all of the stock of corporation S3. If S3 (the transferor corporation) transfers to S2 all of its assets (subject to liabilities) having a value of $100x in exchange for $100x of cash, S2 (the issuing corporation) would be deemed to issue a nominal share of its stock to S3 under § 1.368–2(l)(2), provided the transaction otherwise qualified as a D reorganization. S3 would then be deemed to distribute the nominal S2 share to S1 in the section 356 exchange. Because S1 received a nominal S2 share but did not actually own any S2 stock, § 1.368–2(l)(2) would require that the nominal S2 share be treated as E:\FR\FM\12NOR1.SGM 12NOR1 wreier-aviles on DSK5TPTVN1PROD with RULES Federal Register / Vol. 79, No. 218 / Wednesday, November 12, 2014 / Rules and Regulations distributed by S1 to P to reflect the actual ownership of S2 and P’s basis in the nominal share would be its fair market value under section 301(d). In an attempt to avoid this result under similar circumstances, certain taxpayers took the position that S1 was permitted to, after allocating the basis of its S3 stock to the nominal S2 share under the rules of §§ 1.358–1 and 1.358–2, designate a share of S2 stock that was actually held by P to which S1’s basis in the nominal S2 share would attach. These taxpayers further took the position that such designation and allocation could occur immediately before the nominal S2 share was deemed (under § 1.368–2(l)) to be further transferred through the chain of ownership to reflect the actual ownership of S3 and S2. Under this interpretation, any built-in loss in the shares of transferor corporation stock (which the 2009 regulations allocated to the nominal share of issuing corporation stock) would be preserved even if a direct shareholder of the transferor corporation did not directly own stock of the issuing corporation. Taxpayers could thus avoid losing the built-in loss in the nominal share, which may have occurred as a result of the deemed transfer(s) of the nominal share through the chains of ownership to the actual shareholder(s) of the issuing corporation. In addition, the actual shareholder could then sell the share of the issuing corporation’s stock to which the nominal share’s basis was allocated and recognize a loss or a reduced amount of gain. The IRS and the Treasury Department did not intend for the nominal share basis designation rule of the 2009 regulations to allow such an inappropriate allocation of basis and do not believe the 2009 regulations have ever supported such an allocation. The temporary regulations therefore clarified the application of the nominal share basis designation rule of the 2009 regulations. Specifically, the temporary regulations provided that, using the facts of the example described earlier in this section, because P (an actual shareholder of S2 (the issuing corporation)) is deemed to receive a nominal share of S2 stock described in § 1.368–2(l), P must, after allocating and adjusting the basis of the nominal S2 share in accordance with the rules of §§ 1.358–1 and 1.358–2, and after adjusting the basis in the nominal S2 share for any transfers described in § 1.368–2(l) (that is the transfer from S3 to S1 and from S1 to P), designate the share of S2 stock actually held by P to which the basis, if any, of the nominal S2 share will attach. The purpose of the VerDate Sep<11>2014 14:57 Nov 10, 2014 Jkt 235001 temporary regulations was to clarify that only a shareholder that owned actual shares of the issuing corporation’s stock immediately after a value-for-value All Cash D reorganization could designate one of its actual shares of the issuing corporation’s stock to which the nominal share’s basis, if any, would attach. A notice of proposed rulemaking (REG–101273–10) cross-referencing the temporary regulations was also published in the Federal Register (76 FR 71919) on November 21, 2011. No written comments were received in response to the notice of proposed rulemaking. In addition, no requests for a public hearing were received, and accordingly, no hearing was held. 5. Final Regulations This Treasury Decision adopts the temporary regulations with clarifying changes. These changes include redesignating the paragraphs under § 1.358–2(a)(2)(iii) to separate newly designated § 1.358–2(a)(2)(iii)(A), the bargain exchange basis rule, and newly designated § 1.358–2(a)(2)(iii)(B), the nominal share basis designation rule, and clarifying the language of these rules. The IRS and the Treasury Department do not intend any substantive changes to the rules of the temporary regulations. The changes to newly designated § 1.358–2(a)(2)(iii)(A)(1) and (2) were made to clarify that the deemed recapitalization under the second step of the bargain exchange basis rule occurs only after the stock treated as issued by the issuing corporation pursuant to § 1.368–2(l) is held by a shareholder that actually owns issuing corporation stock. Thus, using the facts of the example described in section 4 of this preamble, except that the consideration provided by S2 is not $100 of cash but only $90 of cash, because S1 (the shareholder of S3 (the transferor corporation)) does not actually own any stock of S2 (the issuing corporation), the basis of the S2 stock treated as issued under the first step of the bargain exchange basis rule that S1 receives in the section 356 exchange is determined under §§ 1.358– 1 and 1.358–2 (without regard to the second step of the bargain exchange basis rule or the nominal share basis designation rule) and then further adjusted for the transfer to P described in § 1.368–2(l) prior to the deemed recapitalization of the stock of S2 that P actually holds and is deemed to hold. The numbering changes reflected in newly designated § 1.358– 2(a)(2)(iii)(A)(1), (2) and (B) were made to clarify that the nominal share basis PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 67061 designation rule applies in cases in which a nominal share of issuing corporation stock is deemed issued under § 1.368–2(l). Additional changes were made under § 1.358–2(a)(2)(iii) to emphasize that the nominal share basis designation rule applies only after an actual shareholder of the issuing corporation receives the nominal share pursuant to § 1.368–2(l), and that such a shareholder must attach the nominal share’s basis to a share of the issuing corporation’s stock that the particular shareholder actually owns. In addition, the analysis of Example 16 of § 1.358–2(c) has been clarified to confirm that Corporation P must designate a share of Corporation Y stock to which the distributed nominal share’s zero basis will attach. This designation of the share to which the basis of a nominal share must attach is relevant in various scenarios, including if an affiliated group files a consolidated return and must determine the particular share that is a successor asset for purposes of § 1.1502–13. Finally, minor editorial changes were made to reflect the new paragraph designations under § 1.358–2(a)(2)(iii) and to make Examples 15 and 16 of § 1.358–2(c) consistent with the clarifying changes adopted by the final regulations. Special Analyses It has been determined that this Treasury Decision is not a significant regulatory action as defined in Executive Order 12866, as supplemented by Executive Order 13563. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because these regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Code, the notice of proposed rulemaking preceding these regulations was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small businesses, and no comments were received. Drafting Information The principal author of these regulations is Michael R. Gould of the Office of Associate Chief Counsel (Corporate). However, other personnel from the IRS and the Treasury Department participated in their development. E:\FR\FM\12NOR1.SGM 12NOR1 67062 Federal Register / Vol. 79, No. 218 / Wednesday, November 12, 2014 / Rules and Regulations Adoption of Amendments to the Regulations Accordingly, 26 CFR part 1 is amended as follows: PART 1—INCOME TAXES Paragraph 1. The authority citation for part 1 continues to read in part as follows: ■ Authority: 26 U.S.C. 7805 * * * Section 1.358–2 is also issued under 26 U.S.C. 358(b). Par. 2. Section 1.358–2 is amended by: ■ 1. Revising paragraph (a)(2)(iii). ■ 2. Adding Example 15 and Example 16 to paragraph (c). ■ 3. Revising paragraph (d). The revisions and additions are as follows: ■ wreier-aviles on DSK5TPTVN1PROD with RULES § 1.358–2 Allocation of basis among nonrecognition property. (a) * * * (2) * * * (iii)(A) For purposes of this section, if a shareholder or security holder surrenders a share of stock or a security in a transaction under the terms of section 354 (or so much of section 356 as relates to section 354) in which the shareholder or security holder receives no property or property (including property permitted by section 354 to be received without the recognition of gain or ‘‘other property’’ or money) with a fair market value less than that of the stock or securities surrendered in the transaction: (1) Such shareholder or security holder shall be treated as receiving the stock, securities, other property, and money actually received by the shareholder or security holder in the transaction and an amount of stock of the issuing corporation (as defined in § 1.368–1(b)) that has a value equal to the excess of the value of the stock or securities the shareholder or security holder surrendered in the transaction over the value of the stock, securities, other property, and money the shareholder or security holder actually received in the transaction. If the shareholder owns only one class of stock of the issuing corporation the receipt of which would be consistent with the economic rights associated with each class of stock of the issuing corporation, the stock deemed received by the shareholder pursuant to the previous sentence shall be stock of such class. If the shareholder owns multiple classes of stock of the issuing corporation the receipt of which would be consistent with the economic rights associated with each class of stock of VerDate Sep<11>2014 14:57 Nov 10, 2014 Jkt 235001 the issuing corporation, the stock deemed received by the shareholder shall be stock of each such class owned by the shareholder immediately prior to the transaction, in proportion to the value of the stock of each such class owned by the shareholder at that time. The basis of each share of stock or security of the issuing corporation deemed received and actually received shall be determined under the rules of this section. If and to the extent necessary to reflect the actual ownership of the issuing corporation immediately after the exchange to which section 354 (or so much of section 356 as relates to section 354) applies, an appropriate amount of the stock of the issuing corporation treated as issued to the shareholder or security holder in the exchange is deemed further transferred in accordance with § 1.368–2(l) to reflect the actual ownership of the issuing corporation. Paragraph (a)(2)(iii)(A)(2) of this section is only applied to any shareholder of the issuing corporation after all of the deemed transfers pursuant to § 1.368– 2(l) are completed. The transferred shares’ basis shall be adjusted for all deemed transfers required by § 1.368– 2(l). (2) A direct shareholder of the issuing corporation that receives the shares deemed issued as part of the transaction, as described in paragraph (a)(2)(iii)(A)(1) of this section, shall then be treated as surrendering all of its shares of stock and securities in the issuing corporation, including those shares of stock or securities held immediately prior to the transaction, those shares of stock or securities actually received in the transaction, and those shares of stock deemed received as described in paragraph (a)(2)(iii)(A)(1) of this section, in a reorganization under section 368(a)(1)(E) in exchange for the shares of stock and securities of the issuing corporation that the shareholder or security holder actually holds immediately after the transaction. The basis of each share of stock and security deemed received in the reorganization under section 368(a)(1)(E) shall be determined under the rules of this section. (B) For purposes of this section, if an actual shareholder of the issuing corporation is deemed to receive a nominal share of stock of the issuing corporation as provided in § 1.368–2(l), then that shareholder must, after allocating and adjusting the basis of the nominal share in accordance with the rules of this section and § 1.358–1, designate the share of stock of the issuing corporation that it owns to PO 00000 Frm 00026 Fmt 4700 Sfmt 4700 which the basis, if any, of the nominal share will attach. If the shareholder does not actually own any shares of stock in the issuing corporation immediately after the exchange to which section 354 (or so much of section 356 as relates to section 354) applies, the nominal share of stock of the issuing corporation received by the shareholder in the exchange is deemed further transferred in accordance with § 1.368–2(l) without applying the designation rule set forth in the first sentence of this paragraph until it is transferred to a person that actually owns stock in the issuing corporation. The transferred share’s basis shall be adjusted for all deemed transfers required by § 1.368–2(l). * * * * * (c) * * * Example 15. (i) Facts. Each of Corporation X and Corporation Y has a single class of stock outstanding, all of which is owned by J, an individual. J purchased 100 shares of Corporation X stock on Date 1 for $1.50 each, resulting in J having an aggregate basis in the stock of Corporation X of $150. On Date 2, Corporation Y acquires the assets of Corporation X for $100 of cash, their fair market value, in a transaction described in § 1.368–2(l). Pursuant to the terms of the exchange, Corporation X does not receive any Corporation Y stock. Corporation X distributes the $100 of cash to J and retains no assets. (ii) Analysis. Pursuant to § 1.368–2(l), Corporation Y will be deemed to issue a nominal share of Corporation Y stock to Corporation X in addition to the $100 of cash actually exchanged for the Corporation X assets. Corporation X will then be deemed to distribute the nominal share of Corporation Y stock to J in addition to the $100 of cash actually distributed to J. Pursuant to § 1.368– 2(l), J, the actual shareholder of Corporation Y, the issuing corporation, is deemed to receive the nominal share of Corporation Y stock described in § 1.368–2(l). J will have a basis of $50 in the nominal share of Corporation Y stock under section 358(a)(1). Therefore, under paragraph (a)(2)(iii)(B) of this section, J must designate a share of Corporation Y stock to which J’s basis of $50 in the nominal share of Corporation Y stock will attach. Example 16. (i) Facts. Each of Corporation X and Corporation Y has a single class of stock outstanding, all of which is owned by Corporation P. Corporation T has a single class of stock outstanding, all of which is owned by Corporation X. The corporations do not join in the filing of a consolidated return. Corporation X purchased 100 shares of Corporation T stock on Date 1 for $1.50 each, resulting in Corporation X having an aggregate basis in the stock of Corporation T of $150. On Date 2, Corporation Y acquires the assets of Corporation T for $100 of cash, their fair market value, in a transaction described in § 1.368–2(l). Pursuant to the terms of the exchange, Corporation T does not receive any Corporation Y stock. Corporation T distributes the $100 of cash to Corporation X and retains no assets. E:\FR\FM\12NOR1.SGM 12NOR1 Federal Register / Vol. 79, No. 218 / Wednesday, November 12, 2014 / Rules and Regulations (ii) Analysis. Pursuant to § 1.368–2(l), Corporation Y will be deemed to issue a nominal share of Corporation Y stock to Corporation T in addition to the $100 of cash actually exchanged for the Corporation T assets. Corporation T will be deemed to distribute the nominal share of Corporation Y stock to Corporation X in addition to the $100 of cash actually distributed. Corporation X will have a basis of $50 in the nominal share of Corporation Y stock under section 358(a). However, Corporation X is not an actual shareholder of Corporation Y, the issuing corporation. Therefore, Corporation X cannot designate any share of Corporation Y stock under paragraph (a)(2)(iii)(B) of this section to which the basis of the nominal share of Corporation Y stock will attach and Corporation X will be deemed to distribute the nominal share of Corporation Y stock to Corporation P as required by § 1.368–2(l). Corporation X does not recognize the loss on the deemed distribution of the nominal share to Corporation P under section 311(a). Corporation P’s basis in the nominal share it receives is zero, its fair market value, under section 301(d). Under paragraph (a)(2)(iii)(B) of this section, Corporation P must designate a share of Corporation Y stock to which the nominal share’s zero basis will attach. (d) Effective/applicability date. This section generally applies to exchanges and distributions of stock and securities occurring on or after January 23, 2006. However, paragraph (a)(2)(iii) and Examples 15 and 16 of paragraph (c) of this section apply to exchanges and distributions of stock and securities occurring on or after November 12, 2014. See § 1.358–2T(a)(2)(iii) and § 1.358–2T(c), Examples 15 and 16, as contained in 26 CFR part 1, revised April 1, 2014, for exchanges and distributions of stock and securities occurring on or after November 21, 2011 and before November 12, 2014; see § 1.358–2(a)(2)(iii), as contained in 26 CFR part 1, revised as of April 1, 2011, for exchanges and distributions of stock and securities occurring on or after January 23, 2006 and before November 21, 2011. § 1.358–2T wreier-aviles on DSK5TPTVN1PROD with RULES ■ [Removed] Par. 3. Section 1.358–2T is removed. John Dalrymple, Deputy Commissioner for Services and Enforcement. Approved: October 17, 2014. Mark J. Mazur, Assistant Secretary of the Treasury (Tax Policy). [FR Doc. 2014–26780 Filed 11–10–14; 8:45 am] BILLING CODE 4830–01–P VerDate Sep<11>2014 14:57 Nov 10, 2014 Jkt 235001 DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 DHS Department of Homeland Security FR Federal Register NPRM Notice of Proposed Rulemaking RIN 1625–AA00 Safety Zone, Elizabeth River; Portsmouth, VA Coast Guard, DHS. Temporary final rule. AGENCY: The Coast Guard is establishing a safety zone on the navigable waters of the Elizabeth River in Portsmouth, VA for 12 periods of 48 hours beginning at midnight on January 5, January 12, January 19, January 22, January 27, February 9, March 2, March 5, March 10, March 23, March 30 and April 6, 2015. This action will restrict vessel traffic movement in the designated area during construction of the new Midtown Tunnel. This action is necessary to protect the life and property of the maritime public due to the number of work vessels in the designated area and their lack of maneuverability while engaged in construction operations. DATES: This rule will be effective from January 5, 2015, through April 6, 2015. This rule will be enforced for 12 periods of 48 hours in length, beginning at midnight on January 5, January 12, January 19, January 22, January 27, February 9, March 2, March 5, March 10, March 23, March 30, and April 6, 2015. SUMMARY: Documents mentioned in this preamble are part of docket [USCG– 2014–0693]. To view documents mentioned in this preamble as being available in the docket, go to http:// www.regulations.gov, type the docket number in the ‘‘SEARCH’’ box and click ‘‘SEARCH.’’ Click on Open Docket Folder on the line associated with this rulemaking. You may also visit the Docket Management Facility in Room W12–140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, call or email LCDR Gregory Knoll, Waterways Management Division Chief, Sector Hampton Roads, Coast Guard; telephone (757)-668–5580, email HamptonRoadsWaterway@uscg.mil. If you have questions on viewing or ADDRESSES: PO 00000 Frm 00027 Fmt 4700 submitting material to the docket, call Cheryl Collins, Program Manager, Docket Operations, telephone (202)– 366–9826. SUPPLEMENTARY INFORMATION: Table of Acronyms [Docket No. USCG–2014–0693] ACTION: 67063 Sfmt 4700 A. Regulatory History and Information SKW Constructors are building a second span for the Midtown Tunnel between Portsmouth and Norfolk, VA and will be conducting operations that require closures of the federal channel beginning in January 2015. A Notice of Proposed Rulemaking (NPRM) was published on August 25, 2014 in the Federal Register (79 FR 50571). The Coast Guard received one comment on the NPRM, which is addressed below in Section C. No request for a public meeting was received, and no meeting was held. B. Basis and Purpose The legal basis for the rule is the Coast Guard’s authority to establish regulated navigation areas and other limited access areas: 33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Public Law 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. Due to increased vehicle traffic in the Hampton Roads area, SKW Constructors, in concert with Elizabeth River Crossings and the Virginia Department of Transportation, is constructing a second tunnel parallel to the existing Midtown Tunnel between Portsmouth and Norfolk, VA. The construction will involve submerging elements of the new Midtown Tunnel. The presence of working vessels and the inability to maneuver submerged equipment necessitate closures of the federal channel. The closures will be in effect for 12 48-hour periods to allow SKW Constructors to install the segments of the tunnel that overlap the federal channel. The Coast Guard is establishing a safety zone in the portion of the Elizabeth River between Elizabeth River Channel Buoy 31 (LLNR 9835) and Elizabeth River Channel Buoy 34 (LLNR 9855). The first of the 12 scheduled closures will begin at midnight on January 5, 2015; the final scheduled closure will begin at midnight on April 6, 2015. The dates and hours are subject to change due to weather, scheduling conflicts, equipment failure and other unforeseen factors. Any changes to these dates will be listed in the Federal E:\FR\FM\12NOR1.SGM 12NOR1

Agencies

[Federal Register Volume 79, Number 218 (Wednesday, November 12, 2014)]
[Rules and Regulations]
[Pages 67059-67063]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-26780]


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DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Part 1

[TD 9702]
RIN 1545-BJ21


Allocation of Basis in All Cash D Reorganizations

AGENCY: Internal Revenue Service (IRS), Treasury.

ACTION: Final regulations and removal of temporary regulations.

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SUMMARY: This document contains final regulations regarding the 
determination of the basis of stock or securities in certain 
reorganizations where no stock or securities of the issuing corporation 
is issued and distributed in the transaction. These final regulations 
clarify that only a shareholder that owns actual shares in the issuing 
corporation

[[Page 67060]]

in such a reorganization can designate the actual share of stock of the 
issuing corporation to which the basis, if any, of the stock or 
securities surrendered will attach. These regulations affect 
corporations engaging in such transactions and their shareholders.

DATES: These regulations are effective on November 12, 2014.

FOR FURTHER INFORMATION CONTACT: Michael R. Gould, (202) 317-5363, or 
Kevin M. Jacobs, (202) 317-5024 (not toll-free numbers).

SUPPLEMENTARY INFORMATION:

Background and Explanation of Provisions

1. Introduction

    This Treasury Decision contains final regulations that amend the 
Income Tax Regulations (26 CFR part 1) under section 358(a) of the 
Internal Revenue Code (Code). In the case of certain reorganizations 
under section 368, section 358(a) and the regulations thereunder 
provide, in part, rules for determining a taxpayer's basis in stock or 
securities of an issuing corporation received without the recognition 
of gain or loss (permitted property), as well as rules relating to the 
basis of other property received in the reorganization. These final 
regulations clarify the rules under section 358(a) regarding the 
allocation of stock basis in a transaction that qualifies as a 
reorganization under section 368(a)(1)(D) (D reorganization) in which 
no permitted property is actually issued (All Cash D reorganization).

2. D Reorganizations Generally

    Section 368(a)(1)(D) provides, in part, that a reorganization 
includes a transfer by a corporation (transferor corporation) of all or 
a part of its assets to another corporation (issuing corporation) if, 
immediately after the transfer, the transferor corporation or one or 
more of its shareholders (including persons who were shareholders 
immediately before the transfer), or any combination thereof, is in 
control of the issuing corporation, but only if, in pursuance of the 
plan, stock or securities of the issuing corporation are distributed 
under section 354, 355, or 356.
    Under section 354(a)(1), a shareholder or security holder of the 
transferor corporation generally recognizes no gain or loss if the 
shareholder or security holder exchanges stock or securities of the 
transferor corporation, in pursuance of the plan of reorganization, 
solely for permitted property. Section 354(b)(1) provides that section 
354(a)(1) is inapplicable to a D reorganization unless the issuing 
corporation acquires substantially all of the assets of the transferor 
corporation, and the stock, securities, and other properties received 
by the transferor corporation, as well as the other properties of the 
transferor corporation, are distributed in pursuance of the plan of 
reorganization. Further, section 356 provides, in part, that if section 
354 would apply to an exchange but for the fact that property other 
than permitted property is also received, the recipient recognizes 
gain, but not in excess of the amount of money and fair market value of 
such other property.

3. All Cash D Reorganizations

    On December 18, 2009, the IRS and the Treasury Department published 
final regulations (TD 9475) in the Federal Register (74 FR 67053) (2009 
regulations) providing that the distribution requirement of section 
368(a)(1)(D) and 354(b)(1)(B) is satisfied in the case of an All Cash D 
reorganization even though there is no actual distribution of permitted 
property by the transferor corporation, provided the same person(s) 
own, directly or indirectly, all of the stock of the transferor and 
issuing corporations in identical proportions. See Sec.  1.368-
2(l)(2)(i). In such cases, assuming a value-for-value exchange between 
the transferor and issuing corporations, the issuing corporation is 
deemed to issue a nominal share of its stock in addition to the actual 
consideration exchanged for the transferor corporation's assets. If the 
issuing corporation provides the transferor corporation with no 
consideration or consideration having a value less than the transferor 
corporation's assets (bargain exchange), the issuing corporation is 
treated as issuing shares of its stock having a value necessary to 
result in a value-for-value exchange. The rules of Sec.  1.368-2(l) 
further provide that all stock treated as issued, or deemed issued, by 
the issuing corporation to the transferor corporation is then deemed 
distributed by the transferor corporation to its shareholders and, if 
appropriate, further transferred through chains of ownership to the 
extent necessary to reflect the actual ownership of the transferor and 
issuing corporations.
    The 2009 regulations also amended the regulations under Sec.  
1.358-2(a)(2)(iii). Prior to being amended by the 2009 regulations, 
these regulations provided a two-step rule under section 358 for 
allocating the basis of stock or securities of a transferor corporation 
surrendered as a result of a bargain exchange by a shareholder or 
security holder (bargain exchange basis rule). First, a shareholder or 
security holder was generally treated as receiving the consideration 
actually received in the transaction and an amount of stock of the 
issuing corporation having a value equal to the difference in value 
between the stock or securities surrendered in the transaction and the 
consideration actually received. Second, the shareholder or security 
holder was treated as surrendering all of its stock and securities that 
it actually owned and was treated as owning of the issuing corporation 
in a reorganization under section 368(a)(1)(E) in exchange for the 
shares of stock and securities of the issuing corporation actually held 
immediately after the transaction.
    The 2009 regulations added a new sentence after the bargain 
exchange basis rule that permitted a shareholder that was deemed to 
have received a nominal share of issuing corporation stock under Sec.  
1.368-2(l) to, after adjusting the basis of the nominal share under the 
rules of Sec. Sec.  1.358-1 and 1.358-2, designate a share of the 
issuing corporation's stock to which the basis, if any, of the nominal 
share would attach (nominal share basis designation rule).

4. Temporary Regulations

    On November 21, 2011, the IRS and the Treasury Department published 
temporary regulations (TD 9558) in the Federal Register (76 FR 71878) 
to amend Sec.  1.358-2(a)(2)(iii) of the 2009 regulations in response 
to an inappropriate interpretation of those rules. Certain taxpayers 
had taken the position that a shareholder of a transferor corporation 
who did not own any actual shares of an issuing corporation's stock 
immediately after the section 354 or section 356 exchange in a value-
for-value All Cash D reorganization was permitted to designate another 
person's share of the issuing corporation's stock as the share to which 
the nominal share's basis could attach. For example, assume that 
corporation P owns all of the stock of corporations S1 and S2, and that 
S1 owns all of the stock of corporation S3. If S3 (the transferor 
corporation) transfers to S2 all of its assets (subject to liabilities) 
having a value of $100x in exchange for $100x of cash, S2 (the issuing 
corporation) would be deemed to issue a nominal share of its stock to 
S3 under Sec.  1.368-2(l)(2), provided the transaction otherwise 
qualified as a D reorganization. S3 would then be deemed to distribute 
the nominal S2 share to S1 in the section 356 exchange. Because S1 
received a nominal S2 share but did not actually own any S2 stock, 
Sec.  1.368-2(l)(2) would require that the nominal S2 share be treated 
as

[[Page 67061]]

distributed by S1 to P to reflect the actual ownership of S2 and P's 
basis in the nominal share would be its fair market value under section 
301(d). In an attempt to avoid this result under similar circumstances, 
certain taxpayers took the position that S1 was permitted to, after 
allocating the basis of its S3 stock to the nominal S2 share under the 
rules of Sec. Sec.  1.358-1 and 1.358-2, designate a share of S2 stock 
that was actually held by P to which S1's basis in the nominal S2 share 
would attach. These taxpayers further took the position that such 
designation and allocation could occur immediately before the nominal 
S2 share was deemed (under Sec.  1.368-2(l)) to be further transferred 
through the chain of ownership to reflect the actual ownership of S3 
and S2.
    Under this interpretation, any built-in loss in the shares of 
transferor corporation stock (which the 2009 regulations allocated to 
the nominal share of issuing corporation stock) would be preserved even 
if a direct shareholder of the transferor corporation did not directly 
own stock of the issuing corporation. Taxpayers could thus avoid losing 
the built-in loss in the nominal share, which may have occurred as a 
result of the deemed transfer(s) of the nominal share through the 
chains of ownership to the actual shareholder(s) of the issuing 
corporation. In addition, the actual shareholder could then sell the 
share of the issuing corporation's stock to which the nominal share's 
basis was allocated and recognize a loss or a reduced amount of gain.
    The IRS and the Treasury Department did not intend for the nominal 
share basis designation rule of the 2009 regulations to allow such an 
inappropriate allocation of basis and do not believe the 2009 
regulations have ever supported such an allocation. The temporary 
regulations therefore clarified the application of the nominal share 
basis designation rule of the 2009 regulations. Specifically, the 
temporary regulations provided that, using the facts of the example 
described earlier in this section, because P (an actual shareholder of 
S2 (the issuing corporation)) is deemed to receive a nominal share of 
S2 stock described in Sec.  1.368-2(l), P must, after allocating and 
adjusting the basis of the nominal S2 share in accordance with the 
rules of Sec. Sec.  1.358-1 and 1.358-2, and after adjusting the basis 
in the nominal S2 share for any transfers described in Sec.  1.368-2(l) 
(that is the transfer from S3 to S1 and from S1 to P), designate the 
share of S2 stock actually held by P to which the basis, if any, of the 
nominal S2 share will attach. The purpose of the temporary regulations 
was to clarify that only a shareholder that owned actual shares of the 
issuing corporation's stock immediately after a value-for-value All 
Cash D reorganization could designate one of its actual shares of the 
issuing corporation's stock to which the nominal share's basis, if any, 
would attach.
    A notice of proposed rulemaking (REG-101273-10) cross-referencing 
the temporary regulations was also published in the Federal Register 
(76 FR 71919) on November 21, 2011. No written comments were received 
in response to the notice of proposed rulemaking. In addition, no 
requests for a public hearing were received, and accordingly, no 
hearing was held.

5. Final Regulations

    This Treasury Decision adopts the temporary regulations with 
clarifying changes. These changes include redesignating the paragraphs 
under Sec.  1.358-2(a)(2)(iii) to separate newly designated Sec.  
1.358-2(a)(2)(iii)(A), the bargain exchange basis rule, and newly 
designated Sec.  1.358-2(a)(2)(iii)(B), the nominal share basis 
designation rule, and clarifying the language of these rules. The IRS 
and the Treasury Department do not intend any substantive changes to 
the rules of the temporary regulations.
    The changes to newly designated Sec.  1.358-2(a)(2)(iii)(A)(1) and 
(2) were made to clarify that the deemed recapitalization under the 
second step of the bargain exchange basis rule occurs only after the 
stock treated as issued by the issuing corporation pursuant to Sec.  
1.368-2(l) is held by a shareholder that actually owns issuing 
corporation stock. Thus, using the facts of the example described in 
section 4 of this preamble, except that the consideration provided by 
S2 is not $100 of cash but only $90 of cash, because S1 (the 
shareholder of S3 (the transferor corporation)) does not actually own 
any stock of S2 (the issuing corporation), the basis of the S2 stock 
treated as issued under the first step of the bargain exchange basis 
rule that S1 receives in the section 356 exchange is determined under 
Sec. Sec.  1.358-1 and 1.358-2 (without regard to the second step of 
the bargain exchange basis rule or the nominal share basis designation 
rule) and then further adjusted for the transfer to P described in 
Sec.  1.368-2(l) prior to the deemed recapitalization of the stock of 
S2 that P actually holds and is deemed to hold.
    The numbering changes reflected in newly designated Sec.  1.358-
2(a)(2)(iii)(A)(1), (2) and (B) were made to clarify that the nominal 
share basis designation rule applies in cases in which a nominal share 
of issuing corporation stock is deemed issued under Sec.  1.368-2(l). 
Additional changes were made under Sec.  1.358-2(a)(2)(iii) to 
emphasize that the nominal share basis designation rule applies only 
after an actual shareholder of the issuing corporation receives the 
nominal share pursuant to Sec.  1.368-2(l), and that such a shareholder 
must attach the nominal share's basis to a share of the issuing 
corporation's stock that the particular shareholder actually owns.
    In addition, the analysis of Example 16 of Sec.  1.358-2(c) has 
been clarified to confirm that Corporation P must designate a share of 
Corporation Y stock to which the distributed nominal share's zero basis 
will attach. This designation of the share to which the basis of a 
nominal share must attach is relevant in various scenarios, including 
if an affiliated group files a consolidated return and must determine 
the particular share that is a successor asset for purposes of Sec.  
1.1502-13. Finally, minor editorial changes were made to reflect the 
new paragraph designations under Sec.  1.358-2(a)(2)(iii) and to make 
Examples 15 and 16 of Sec.  1.358-2(c) consistent with the clarifying 
changes adopted by the final regulations.

Special Analyses

    It has been determined that this Treasury Decision is not a 
significant regulatory action as defined in Executive Order 12866, as 
supplemented by Executive Order 13563. Therefore, a regulatory 
assessment is not required. It has also been determined that section 
553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does 
not apply to these regulations, and because these regulations do not 
impose a collection of information on small entities, the Regulatory 
Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to 
section 7805(f) of the Code, the notice of proposed rulemaking 
preceding these regulations was submitted to the Chief Counsel for 
Advocacy of the Small Business Administration for comment on its impact 
on small businesses, and no comments were received.

Drafting Information

    The principal author of these regulations is Michael R. Gould of 
the Office of Associate Chief Counsel (Corporate). However, other 
personnel from the IRS and the Treasury Department participated in 
their development.

[[Page 67062]]

Adoption of Amendments to the Regulations

    Accordingly, 26 CFR part 1 is amended as follows:

PART 1--INCOME TAXES

0
Paragraph 1. The authority citation for part 1 continues to read in 
part as follows:

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

    Section 1.358-2 is also issued under 26 U.S.C. 358(b).

0
Par. 2. Section 1.358-2 is amended by:
0
1. Revising paragraph (a)(2)(iii).
0
2. Adding Example 15 and Example 16 to paragraph (c).
0
3. Revising paragraph (d).
    The revisions and additions are as follows:


Sec.  1.358-2  Allocation of basis among nonrecognition property.

    (a) * * *
    (2) * * *
    (iii)(A) For purposes of this section, if a shareholder or security 
holder surrenders a share of stock or a security in a transaction under 
the terms of section 354 (or so much of section 356 as relates to 
section 354) in which the shareholder or security holder receives no 
property or property (including property permitted by section 354 to be 
received without the recognition of gain or ``other property'' or 
money) with a fair market value less than that of the stock or 
securities surrendered in the transaction:
    (1) Such shareholder or security holder shall be treated as 
receiving the stock, securities, other property, and money actually 
received by the shareholder or security holder in the transaction and 
an amount of stock of the issuing corporation (as defined in Sec.  
1.368-1(b)) that has a value equal to the excess of the value of the 
stock or securities the shareholder or security holder surrendered in 
the transaction over the value of the stock, securities, other 
property, and money the shareholder or security holder actually 
received in the transaction. If the shareholder owns only one class of 
stock of the issuing corporation the receipt of which would be 
consistent with the economic rights associated with each class of stock 
of the issuing corporation, the stock deemed received by the 
shareholder pursuant to the previous sentence shall be stock of such 
class. If the shareholder owns multiple classes of stock of the issuing 
corporation the receipt of which would be consistent with the economic 
rights associated with each class of stock of the issuing corporation, 
the stock deemed received by the shareholder shall be stock of each 
such class owned by the shareholder immediately prior to the 
transaction, in proportion to the value of the stock of each such class 
owned by the shareholder at that time. The basis of each share of stock 
or security of the issuing corporation deemed received and actually 
received shall be determined under the rules of this section. If and to 
the extent necessary to reflect the actual ownership of the issuing 
corporation immediately after the exchange to which section 354 (or so 
much of section 356 as relates to section 354) applies, an appropriate 
amount of the stock of the issuing corporation treated as issued to the 
shareholder or security holder in the exchange is deemed further 
transferred in accordance with Sec.  1.368-2(l) to reflect the actual 
ownership of the issuing corporation. Paragraph (a)(2)(iii)(A)(2) of 
this section is only applied to any shareholder of the issuing 
corporation after all of the deemed transfers pursuant to Sec.  1.368-
2(l) are completed. The transferred shares' basis shall be adjusted for 
all deemed transfers required by Sec.  1.368-2(l).
    (2) A direct shareholder of the issuing corporation that receives 
the shares deemed issued as part of the transaction, as described in 
paragraph (a)(2)(iii)(A)(1) of this section, shall then be treated as 
surrendering all of its shares of stock and securities in the issuing 
corporation, including those shares of stock or securities held 
immediately prior to the transaction, those shares of stock or 
securities actually received in the transaction, and those shares of 
stock deemed received as described in paragraph (a)(2)(iii)(A)(1) of 
this section, in a reorganization under section 368(a)(1)(E) in 
exchange for the shares of stock and securities of the issuing 
corporation that the shareholder or security holder actually holds 
immediately after the transaction. The basis of each share of stock and 
security deemed received in the reorganization under section 
368(a)(1)(E) shall be determined under the rules of this section.
    (B) For purposes of this section, if an actual shareholder of the 
issuing corporation is deemed to receive a nominal share of stock of 
the issuing corporation as provided in Sec.  1.368-2(l), then that 
shareholder must, after allocating and adjusting the basis of the 
nominal share in accordance with the rules of this section and Sec.  
1.358-1, designate the share of stock of the issuing corporation that 
it owns to which the basis, if any, of the nominal share will attach. 
If the shareholder does not actually own any shares of stock in the 
issuing corporation immediately after the exchange to which section 354 
(or so much of section 356 as relates to section 354) applies, the 
nominal share of stock of the issuing corporation received by the 
shareholder in the exchange is deemed further transferred in accordance 
with Sec.  1.368-2(l) without applying the designation rule set forth 
in the first sentence of this paragraph until it is transferred to a 
person that actually owns stock in the issuing corporation. The 
transferred share's basis shall be adjusted for all deemed transfers 
required by Sec.  1.368-2(l).
* * * * *
    (c) * * *
    Example 15. (i) Facts. Each of Corporation X and Corporation Y 
has a single class of stock outstanding, all of which is owned by J, 
an individual. J purchased 100 shares of Corporation X stock on Date 
1 for $1.50 each, resulting in J having an aggregate basis in the 
stock of Corporation X of $150. On Date 2, Corporation Y acquires 
the assets of Corporation X for $100 of cash, their fair market 
value, in a transaction described in Sec.  1.368-2(l). Pursuant to 
the terms of the exchange, Corporation X does not receive any 
Corporation Y stock. Corporation X distributes the $100 of cash to J 
and retains no assets.
    (ii) Analysis. Pursuant to Sec.  1.368-2(l), Corporation Y will 
be deemed to issue a nominal share of Corporation Y stock to 
Corporation X in addition to the $100 of cash actually exchanged for 
the Corporation X assets. Corporation X will then be deemed to 
distribute the nominal share of Corporation Y stock to J in addition 
to the $100 of cash actually distributed to J. Pursuant to Sec.  
1.368-2(l), J, the actual shareholder of Corporation Y, the issuing 
corporation, is deemed to receive the nominal share of Corporation Y 
stock described in Sec.  1.368-2(l). J will have a basis of $50 in 
the nominal share of Corporation Y stock under section 358(a)(1). 
Therefore, under paragraph (a)(2)(iii)(B) of this section, J must 
designate a share of Corporation Y stock to which J's basis of $50 
in the nominal share of Corporation Y stock will attach.
    Example 16. (i) Facts. Each of Corporation X and Corporation Y 
has a single class of stock outstanding, all of which is owned by 
Corporation P. Corporation T has a single class of stock 
outstanding, all of which is owned by Corporation X. The 
corporations do not join in the filing of a consolidated return. 
Corporation X purchased 100 shares of Corporation T stock on Date 1 
for $1.50 each, resulting in Corporation X having an aggregate basis 
in the stock of Corporation T of $150. On Date 2, Corporation Y 
acquires the assets of Corporation T for $100 of cash, their fair 
market value, in a transaction described in Sec.  1.368-2(l). 
Pursuant to the terms of the exchange, Corporation T does not 
receive any Corporation Y stock. Corporation T distributes the $100 
of cash to Corporation X and retains no assets.

[[Page 67063]]

    (ii) Analysis. Pursuant to Sec.  1.368-2(l), Corporation Y will 
be deemed to issue a nominal share of Corporation Y stock to 
Corporation T in addition to the $100 of cash actually exchanged for 
the Corporation T assets. Corporation T will be deemed to distribute 
the nominal share of Corporation Y stock to Corporation X in 
addition to the $100 of cash actually distributed. Corporation X 
will have a basis of $50 in the nominal share of Corporation Y stock 
under section 358(a). However, Corporation X is not an actual 
shareholder of Corporation Y, the issuing corporation. Therefore, 
Corporation X cannot designate any share of Corporation Y stock 
under paragraph (a)(2)(iii)(B) of this section to which the basis of 
the nominal share of Corporation Y stock will attach and Corporation 
X will be deemed to distribute the nominal share of Corporation Y 
stock to Corporation P as required by Sec.  1.368-2(l). Corporation 
X does not recognize the loss on the deemed distribution of the 
nominal share to Corporation P under section 311(a). Corporation P's 
basis in the nominal share it receives is zero, its fair market 
value, under section 301(d). Under paragraph (a)(2)(iii)(B) of this 
section, Corporation P must designate a share of Corporation Y stock 
to which the nominal share's zero basis will attach.

    (d) Effective/applicability date. This section generally applies to 
exchanges and distributions of stock and securities occurring on or 
after January 23, 2006. However, paragraph (a)(2)(iii) and Examples 15 
and 16 of paragraph (c) of this section apply to exchanges and 
distributions of stock and securities occurring on or after November 
12, 2014. See Sec.  1.358-2T(a)(2)(iii) and Sec.  1.358-2T(c), Examples 
15 and 16, as contained in 26 CFR part 1, revised April 1, 2014, for 
exchanges and distributions of stock and securities occurring on or 
after November 21, 2011 and before November 12, 2014; see Sec.  1.358-
2(a)(2)(iii), as contained in 26 CFR part 1, revised as of April 1, 
2011, for exchanges and distributions of stock and securities occurring 
on or after January 23, 2006 and before November 21, 2011.


Sec.  1.358-2T  [Removed]

0
Par. 3. Section 1.358-2T is removed.

John Dalrymple,
Deputy Commissioner for Services and Enforcement.
    Approved: October 17, 2014.
Mark J. Mazur,
Assistant Secretary of the Treasury (Tax Policy).
[FR Doc. 2014-26780 Filed 11-10-14; 8:45 am]
BILLING CODE 4830-01-P