PART II—CORPORATE LIQUIDATIONS
Editorial Notes
Amendments
2003—
1982—
1976—
Subpart A—Effects on Recipients
Editorial Notes
Amendments
1986—
§331. Gain or loss to shareholder in corporate liquidations
(a) Distributions in complete liquidation treated as exchanges
Amounts received by a shareholder in a distribution in complete liquidation of a corporation shall be treated as in full payment in exchange for the stock.
(b) Nonapplication of section 301
Section 301 (relating to effects on shareholder of distributions of property) shall not apply to any distribution of property (other than a distribution referred to in paragraph (2)(B) of section 316(b)) in complete liquidation.
(c) Cross reference
For general rule for determination of the amount of gain or loss recognized, see section 1001.
(Aug. 16, 1954, ch. 736,
Editorial Notes
Amendments
2018—
1982—Subsec. (a).
Subsec. (b).
1976—Subsec. (c).
1964—Subsec. (b).
Statutory Notes and Related Subsidiaries
Effective Date of 1982 Amendment
Amendment by
Effective Date of 1976 Amendment
Amendment by
Effective Date of 1964 Amendment
Amendment by
Liquidations Before January 1, 1966
§332. Complete liquidations of subsidiaries
(a) General rule
No gain or loss shall be recognized on the receipt by a corporation of property distributed in complete liquidation of another corporation.
(b) Liquidations to which section applies
For purposes of this section, a distribution shall be considered to be in complete liquidation only if—
(1) the corporation receiving such property was, on the date of the adoption of the plan of liquidation, and has continued to be at all times until the receipt of the property, the owner of stock (in such other corporation) meeting the requirements of section 1504(a)(2); and either
(2) the distribution is by such other corporation in complete cancellation or redemption of all its stock, and the transfer of all the property occurs within the taxable year; in such case the adoption by the shareholders of the resolution under which is authorized the distribution of all the assets of such corporation in complete cancellation or redemption of all its stock shall be considered an adoption of a plan of liquidation, even though no time for the completion of the transfer of the property is specified in such resolution; or
(3) such distribution is one of a series of distributions by such other corporation in complete cancellation or redemption of all its stock in accordance with a plan of liquidation under which the transfer of all the property under the liquidation is to be completed within 3 years from the close of the taxable year during which is made the first of the series of distributions under the plan, except that if such transfer is not completed within such period, or if the taxpayer does not continue qualified under paragraph (1) until the completion of such transfer, no distribution under the plan shall be considered a distribution in complete liquidation.
If such transfer of all the property does not occur within the taxable year, the Secretary may require of the taxpayer such bond, or waiver of the statute of limitations on assessment and collection, or both, as he may deem necessary to insure, if the transfer of the property is not completed within such 3-year period, or if the taxpayer does not continue qualified under paragraph (1) until the completion of such transfer, the assessment and collection of all income taxes then imposed by law for such taxable year or subsequent taxable years, to the extent attributable to property so received. A distribution otherwise constituting a distribution in complete liquidation within the meaning of this subsection shall not be considered as not constituting such a distribution merely because it does not constitute a distribution or liquidation within the meaning of the corporate law under which the distribution is made; and for purposes of this subsection a transfer of property of such other corporation to the taxpayer shall not be considered as not constituting a distribution (or one of a series of distributions) in complete cancellation or redemption of all the stock of such other corporation, merely because the carrying out of the plan involves (A) the transfer under the plan to the taxpayer by such other corporation of property, not attributable to shares owned by the taxpayer, on an exchange described in section 361, and (B) the complete cancellation or redemption under the plan, as a result of exchanges described in section 354, of the shares not owned by the taxpayer.
(c) Deductible liquidating distributions of regulated investment companies and real estate investment trusts
If a corporation receives a distribution from a regulated investment company or a real estate investment trust which is considered under subsection (b) as being in complete liquidation of such company or trust, then, notwithstanding any other provision of this chapter, such corporation shall recognize and treat as a dividend from such company or trust an amount equal to the deduction for dividends paid allowable to such company or trust by reason of such distribution.
(d) Recognition of gain on liquidation of certain holding companies
(1) In general
In the case of any distribution to a foreign corporation in complete liquidation of an applicable holding company—
(A) subsection (a) and section 331 shall not apply to such distribution, and
(B) such distribution shall be treated as a distribution of property to which section 301 applies.
(2) Applicable holding company
For purposes of this subsection:
(A) In general
The term "applicable holding company" means any domestic corporation—
(i) which is a common parent of an affiliated group,
(ii) stock of which is directly owned by the distributee foreign corporation,
(iii) substantially all of the assets of which consist of stock in other members of such affiliated group, and
(iv) which has not been in existence at all times during the 5 years immediately preceding the date of the liquidation.
(B) Affiliated group
For purposes of this subsection, the term "affiliated group" has the meaning given such term by section 1504(a) (without regard to paragraph (2) of section 1504(b)).
(3) Coordination with subpart F
If the distributee of a distribution described in paragraph (1) is a controlled foreign corporation (as defined in section 957), then notwithstanding paragraph (1) or subsection (a), such distribution shall be treated as a distribution to which section 331 applies.
(4) Regulations
The Secretary shall provide such regulations as appropriate to prevent the abuse of this subsection, including regulations which provide, for the purposes of clause (iv) of paragraph (2)(A), that a corporation is not in existence for any period unless it is engaged in the active conduct of a trade or business or owns a significant ownership interest in another corporation so engaged.
(Aug. 16, 1954, ch. 736,
Editorial Notes
Amendments
2018—Subsec. (d)(2)(B).
2005—Subsec. (d)(1)(B).
2004—Subsec. (d).
1998—Subsec. (b).
Subsec. (c).
1986—Subsec. (b)(1).
Subsec. (c).
1976—Subsec. (b).
Statutory Notes and Related Subsidiaries
Effective Date of 2004 Amendment
Effective Date of 1998 Amendment
Effective Date of 1986 Amendment
Amendment by section 631(e)(2) of
"(i)
"(ii)
"(iii)
Savings Provision
For provisions that nothing in amendment by
Plan Amendments Not Required Until January 1, 1989
For provisions directing that if any amendments made by subtitle A or subtitle C of title XI [§§1101–1147 and 1171–1177] or title XVIII [§§1800–1899A] of
[§333. Repealed. Pub. L. 99–514, title VI, §631(e)(3), Oct. 22, 1986, 100 Stat. 2273 ]
Section, acts Aug. 16, 1954, ch. 736,
Statutory Notes and Related Subsidiaries
Effective Date of Repeal
Repeal applicable to any distribution in complete liquidation, and any sale or exchange, made by a corporation after July 31, 1986, unless such corporation is completely liquidated before Jan. 1, 1987, any transaction described in
§334. Basis of property received in liquidations
(a) General rule
If property is received in a distribution in complete liquidation, and if gain or loss is recognized on receipt of such property, then the basis of the property in the hands of the distributee shall be the fair market value of such property at the time of the distribution.
(b) Liquidation of subsidiary
(1) In general
If property is received by a corporate distributee in a distribution in a complete liquidation to which section 332 applies (or in a transfer described in section 337(b)(1)), the basis of such property in the hands of such distributee shall be the same as it would be in the hands of the transferor; except that, in the hands of such distributee—
(A) the basis of such property shall be the fair market value of the property at the time of the distribution in any case in which gain or loss is recognized by the liquidating corporation with respect to such property, and
(B) the basis of any property described in section 362(e)(1)(B) shall be the fair market value of the property at the time of the distribution in any case in which such distributee's aggregate adjusted basis of such property would (but for this subparagraph) exceed the fair market value of such property immediately after such liquidation.
(2) Corporate distributee
For purposes of this subsection, the term "corporate distributee" means only the corporation which meets the stock ownership requirements specified in section 332(b).
(Aug. 16, 1954, ch. 736,
Editorial Notes
Amendments
2005—Subsec. (b)(1).
"(A) in any case in which gain or loss is recognized by the liquidating corporation with respect to such property, or
"(B) in any case in which the liquidating corporation is a foreign corporation, the corporate distributee is a domestic corporation, and the corporate distributee's aggregate adjusted bases of property described in section 362(e)(1)(B) which is distributed in such liquidation would (but for this subparagraph) exceed the fair market value of such property immediately after such liquidation."
2004—Subsec. (b)(1).
1998—Subsec. (b)(1).
1988—Subsec. (b).
"(1)
"(2)
"(3)
1986—Subsec. (a).
Subsec. (c).
1982—Subsec. (a).
Subsec. (b).
1976—Subsec. (b)(2).
1966—Subsec. (b)(2)(B).
Subsec. (b)(3).
Statutory Notes and Related Subsidiaries
Effective Date of 2005 Amendment
Amendment by
Effective Date of 2004 Amendment
Effective Date of 1998 Amendment
Amendment by
Effective Date of 1988 Amendment
Amendment by
Effective Date of 1986 Amendment
Amendment by
Effective Date of 1982 Amendment
Amendment by section 222(e)(1)(C) of
Amendment by section 224(b) of
Effective Date of 1976 Amendment
Amendment by section 1901(a)(45) of
Effective Date of 1966 Amendment
Adjustment for Liability to Basis of Property Distributed in Complete Liquidation of Corporation Prior to July 1, 1957; Deduction for Uncompensated Liability
"(a) Notwithstanding the provisions of section 334 of the Internal Revenue Code of 1986 [formerly I.R.C. 1954] (relating to basis of property received in liquidations), no adjustment to the basis of any property distributed in complete liquidation of a corporation prior to July 1, 1957, shall be made for any liability if—
"(1) the distributor and distributee did not consider the liability relevant to the value of the stock with respect to which the distribution was made,
"(2) the distributor and distributee reasonably relied upon a decision of a United States district court specifically adjudicating the amount of the liability and its affirmance by the appropriate United States court of appeals, and
"(3) the amount of liability so adjudicated was not greater than would be compensated for by insurance.
The provisions of this section apply without regard to whether such decision was subsequently reversed or modified by that United States court of appeals following distribution of such property in complete liquidation.
"(b) To the extent that the liability described in subsection (a) is not compensated for by insurance or otherwise, the amount thereof shall be allowed as a deduction under the appropriate provision of the Internal Revenue Code of 1986 for the taxable year in which payment thereof was made and shall be effective in determining income tax liabilities of all taxable years prior thereto."
Subpart B—Effects on Corporation
Editorial Notes
Amendments
1986—
1982—
§336. Gain or loss recognized on property distributed in complete liquidation
(a) General rule
Except as otherwise provided in this section or section 337, gain or loss shall be recognized to a liquidating corporation on the distribution of property in complete liquidation as if such property were sold to the distributee at its fair market value.
(b) Treatment of liabilities
If any property distributed in the liquidation is subject to a liability or the shareholder assumes a liability of the liquidating corporation in connection with the distribution, for purposes of subsection (a) and section 337, the fair market value of such property shall be treated as not less than the amount of such liability.
(c) Exception for liquidations which are part of a reorganization
For provision providing that this subpart does not apply to distributions in pursuance of a plan of reorganization, see section 361(c)(4).
(d) Limitations on recognition of loss
(1) No loss recognized in certain distributions to related persons
(A) In general
No loss shall be recognized to a liquidating corporation on the distribution of any property to a related person (within the meaning of section 267) if—
(i) such distribution is not pro rata, or
(ii) such property is disqualified property.
(B) Disqualified property
For purposes of subparagraph (A), the term "disqualified property" means any property which is acquired by the liquidating corporation in a transaction to which section 351 applied, or as a contribution to capital, during the 5-year period ending on the date of the distribution. Such term includes any property if the adjusted basis of such property is determined (in whole or in part) by reference to the adjusted basis of property described in the preceding sentence.
(2) Special rule for certain property acquired in certain carryover basis transactions
(A) In general
For purposes of determining the amount of loss recognized by any liquidating corporation on any sale, exchange, or distribution of property described in subparagraph (B), the adjusted basis of such property shall be reduced (but not below zero) by the excess (if any) of—
(i) the adjusted basis of such property immediately after its acquisition by such corporation, over
(ii) the fair market value of such property as of such time.
(B) Description of property
(i) In general
For purposes of subparagraph (A), property is described in this subparagraph if—
(I) such property is acquired by the liquidating corporation in a transaction to which section 351 applied or as a contribution to capital, and
(II) the acquisition of such property by the liquidating corporation was part of a plan a principal purpose of which was to recognize loss by the liquidating corporation with respect to such property in connection with the liquidation.
Other property shall be treated as so described if the adjusted basis of such other property is determined (in whole or in part) by reference to the adjusted basis of property described in the preceding sentence.
(ii) Certain acquisitions treated as part of plan
For purposes of clause (i), any property described in clause (i)(I) acquired by the liquidated corporation after the date 2 years before the date of the adoption of the plan of complete liquidation shall, except as provided in regulations, be treated as acquired as part of a plan described in clause (i)(II).
(C) Recapture in lieu of disallowance
The Secretary may prescribe regulations under which, in lieu of disallowing a loss under subparagraph (A) for a prior taxable year, the gross income of the liquidating corporation for the taxable year in which the plan of complete liquidation is adopted shall be increased by the amount of the disallowed loss.
(3) Special rule in case of liquidation to which section 332 applies
In the case of any liquidation to which section 332 applies, no loss shall be recognized to the liquidating corporation on any distribution in such liquidation. The preceding sentence shall apply to any distribution to the 80-percent distributee only if subsection (a) or (b)(1) of section 337 applies to such distribution.
(e) Certain stock sales and distributions may be treated as asset transfers
Under regulations prescribed by the Secretary, if—
(1) a corporation owns stock in another corporation meeting the requirements of section 1504(a)(2), and
(2) such corporation sells, exchanges, or distributes all of such stock,
an election may be made to treat such sale, exchange, or distribution as a disposition of all of the assets of such other corporation, and no gain or loss shall be recognized on the sale, exchange, or distribution of such stock.
(Added
Editorial Notes
Prior Provisions
A prior section 336, acts Aug. 16, 1954, ch. 736,
Amendments
1988—Subsec. (b).
Subsec. (c).
Subsec. (d)(2)(B)(ii).
Subsec. (d)(3).
Subsec. (e).
Statutory Notes and Related Subsidiaries
Effective Date of 1988 Amendment
Amendment by
Effective Date
"(a)
"(1) any distribution in complete liquidation, and any sale or exchange, made by a corporation after July 31, 1986, unless such corporation is completely liquidated before January 1, 1987,
"(2) any transaction described in section 338 of the Internal Revenue Code of 1986 for which the acquisition date occurs after December 31, 1986, and
"(3) any distribution (not in complete liquidation) made after December 31, 1986.
"(b)
"(1)
"(2)
" '(1) an amount equal to 34 percent of the amount by which the net capital gain of the corporation for the taxable year exceeds $25,000, or'[.]
"(c)
"(1)
"(A) any distribution or sale or exchange made pursuant to a plan of liquidation adopted before August 1, 1986, if the liquidating corporation is completely liquidated before January 1, 1988,
"(B) any distribution or sale or exchange made by any corporation if more than 50 percent of the voting stock (by value) of such corporation is acquired on or after August 1, 1986, pursuant to a written binding contract in effect before such date and if such corporation is completely liquidated before January 1, 1988,
"(C) any distribution or sale or exchange made by any corporation if substantially all of the assets of such corporation are sold on or after August 1, 1986, pursuant to 1 or more written binding contracts in effect before such date and if such corporation is completely liquidated before January 1, 1988, or
"(D) any transaction described in section 338 of the Internal Revenue Code of 1986 with respect to any target corporation if a qualified stock purchase of such target corporation is made on or after August 1, 1986, pursuant to a written binding contract in effect before such date and the acquisition date (within the meaning of such section 338) is before January 1, 1988.
"(2)
"(A) before November 20, 1985—
"(i) the board of directors of the liquidating corporation adopted a resolution to solicit shareholder approval for a transaction of a kind described in section 336 or 337, or
"(ii) the shareholders or board of directors have approved such a transaction,
"(B) before November 20, 1985—
"(i) there has been an offer to purchase a majority of the voting stock of the liquidating corporation, or
"(ii) the board of directors of the liquidating corporation has adopted a resolution approving an acquisition or recommending the approval of an acquisition to the shareholders, or
"(C) before November 20, 1985, a ruling request was submitted to the Secretary of the Treasury or his delegate with respect to a transaction of a kind described in section 336 or 337 of the Internal Revenue Code of 1954 (as in effect before the amendments made by this subtitle).
For purposes of the preceding sentence, any action taken by the board of directors or shareholders of a corporation with respect to any subsidiary of such corporation shall be treated as taken by the board of directors or shareholders of such subsidiary.
"(d)
"(1)
"(2)
"(A) any gain or loss which is an ordinary gain or loss (determined without regard to section 1239 of the Internal Revenue Code of 1986),
"(B) any gain or loss on a capital asset held for not more than 6 months, and
"(C) any gain on an asset acquired by the qualified corporation if—
"(i) the basis of such asset in the hands of the qualified corporation is determined (in whole or in part) by reference to the basis of such asset in the hands of the person from whom acquired, and
"(ii) a principal purpose for the transfer of such asset to the qualified corporation was to secure the benefits of this subsection.
"(3)
"(A) 100 percent if the applicable value of the qualified corporation is less than $5,000,000, or
"(B) 100 percent reduced by an amount which bears the same ratio to 100 percent as—
"(i) the excess of the applicable value of the corporation over $5,000,000, bears to
"(ii) $5,000,000.
"(4)
"(5)
"(A) on August 1, 1986, and at all times thereafter before the corporation is completely liquidated, more than 50 percent (by value) of the stock in such corporation is held by a qualified group, and
"(B) the applicable value of such corporation does not exceed $10,000,000.
"(6)
"(A)
"(i)
"(ii) 5
"(I) any complete liquidation pursuant to a plan of liquidation adopted before March 31, 1988,
"(II) any distribution not in liquidation made before March 31, 1988,
"(III) an election to be an S corporation filed before March 31, 1988, or
"(IV) a transaction described in section 338 of the Internal Revenue Code of 1986 where the acquisition date (within the meaning of such section 338) is before March 31, 1988,
the term 'qualified group' means any group of 10 or fewer qualified persons.
"(B)
"(i) an individual,
"(ii) an estate, or
"(iii) any trust described in clause (ii) or clause (iii) of section 1361(c)(2)(A) of the Internal Revenue Code of 1986.
"(C)
"(i)
"(ii)
"(iii)
"(D)
"(E)
"(7)
"(8)
"(9)
"(e)
"(f)
"(1) The amendments made by this subtitle shall not apply to any liquidation of a corporation incorporated under the laws of Pennsylvania on August 3, 1970, if—
"(A) the board of directors of such corporation approved a plan of liquidation before January 1, 1986,
"(B) an agreement for the sale of a material portion of the assets of such corporation was signed on May 9, 1986 (whether or not the assets are sold in accordance with such agreement), and
"(C) the corporation is completely liquidated on or before December 31, 1988.
"(2) The amendments made by this subtitle shall not apply to any liquidation (or deemed liquidation under section 338 of the Internal Revenue Code of 1986) of a diversified financial services corporation incorporated under the laws of Delaware on May 9, 1929 (or any direct or indirect subsidiary of such corporation), pursuant to a binding written contract entered into on or before December 31, 1986; but only if the liquidation is completed (or in the case of a section 338 election, the acquisition date occurs) before January 1, 1988.
"(3) The amendments made by this subtitle shall not apply to any distribution, or sale, or exchange—
"(A) of the assets owned (directly or indirectly) by a testamentary trust established under the will of a decedent dying on June 15, 1956, or its beneficiaries,
"(B) made pursuant to a court order in an action filed on January 18, 1984, if such order—
"(i) is issued after July 31, 1986, and
"(ii) directs the disposition of the assets of such trust and the division of the trust corpus into 3 separate sub-trusts.
For purposes of the preceding sentence, an election under section 338(g) of the Internal Revenue Code of 1986 (or an election under section 338(h)(10) of such Code qualifying as a section 337 liquidation pursuant to regulations prescribed by the Secretary under section 1.338(h)(10)–1T(j)) made in connection with a sale or exchange pursuant to a court order described in subparagraph (B) shall be treated as a sale of [or] exchange.
"(4)(A) The amendments made by this subtitle shall not apply to any distribution, or sale, or exchange—
"(i) if—
"(I) an option agreement to sell substantially all of the assets of a selling corporation organized under the laws of Massachusetts on October 20, 1976, is executed before August 1, 1986, the corporation adopts (by approval of its shareholders) a conditional plan of liquidation before August 1, 1986 to become effective upon the exercise of such option agreement (or modification thereto), and the assets are sold pursuant to the exercise of the option (as originally executed or subsequently modified provided that the purchase price is not thereby increased), or
"(II) in the event that the optionee does not acquire substantially all the assets of the corporation, the optionor corporation sells substantially all its assets to another purchaser at a purchase price not greater than that contemplated by such option agreement pursuant to an effective plan of liquidation, and
"(ii) the complete liquidation of the corporation occurs within 12 months of the time the plan of liquidation becomes effective, but in no event later than December 31, 1989.
"(B) For purposes of subparagraph (A), a distribution, or sale, or exchange, of a distributee corporation (within the meaning of section 337(c)(3) of the Internal Revenue Code of 1986) shall be treated as satisfying the requirements of subparagraph (A) if its subsidiary satisfies the requirements of subparagraph (A).
"(C) For purposes of section 56 of the Internal Revenue Code of 1986 (as amended by this Act), any gain or loss not recognized by reason of this paragraph shall not be taken into account in determining the adjusted net book income of the corporation.
"(5) In the case of a corporation incorporated under the laws of Wisconsin on April 3, 1948—
"(A) a voting trust established not later than December 31, 1987, shall qualify as a trust permitted as a shareholder of an S corporation and shall be treated as only 1 shareholder if the holders of beneficial interests in such voting trust are—
"(i) employees or retirees of such corporation, or
"(ii) in the case of stock or voting trust certificates acquired from an employee or retiree of such corporation, the spouse, child, or estate of such employee or retiree or a trust created by such employee or retiree which is described in section 1361(c)(2) of the Internal Revenue Code of 1986 (or treated as described in such section by reason of section 1361(d) of such Code), and
"(B) the amendment made by section 632 (other than subsection (b) thereof) shall not apply to such corporation if it elects to be an S corporation before January 1, 1989.
"(6) The amendments made by this subtitle shall not apply to the liquidation of a corporation incorporated on January 26, 1982, under the laws of the State of Alabama with a principal place of business in Colbert County, Alabama, but only if such corporation is completely liquidated on or before December 31, 1987.
"(7) The amendments made by this subtitle shall not apply to the acquisition by a Delaware bank holding company of all of the assets of an Iowa bank holding company pursuant to a written contract dated December 9, 1981.
"(8) The amendments made by this subtitle shall not apply to the liquidation of a corporation incorporated under the laws of Delaware on January 20, 1984, if more than 40 percent of the stock of such corporation was acquired by purchase on June 11, 1986, and there was a tender offer with respect to all additional outstanding shares of such corporation on July 29, 1986, but only if the corporation is completely liquidated on or before December 31, 1987.
"(g)
"(1)
"(2)
"(A)
"(i) by parent of all of the stock of a qualified subsidiary in exchange for stock of parent which was acquired for purposes of such exchange pursuant to a tender offer dated February 16, 1982, and
"(ii) pursuant to a contract dated February 13, 1982, and
"(iii) which was made not more than 60 days after the board of directors of parent recommended rejection of an unsolicited tender offer to obtain control of parent.
"(B)
§337. Nonrecognition for property distributed to parent in complete liquidation of subsidiary
(a) In general
No gain or loss shall be recognized to the liquidating corporation on the distribution to the 80-percent distributee of any property in a complete liquidation to which section 332 applies.
(b) Treatment of indebtedness of subsidiary, etc.
(1) Indebtedness of subsidiary to parent
If—
(A) a corporation is liquidated in a liquidation to which section 332 applies, and
(B) on the date of the adoption of the plan of liquidation, such corporation was indebted to the 80-percent distributee,
for purposes of this section and section 336, any transfer of property to the 80-percent distributee in satisfaction of such indebtedness shall be treated as a distribution to such distributee in such liquidation.
(2) Treatment of tax-exempt distributee
(A) In general
Except as provided in subparagraph (B), paragraph (1) and subsection (a) shall not apply where the 80-percent distributee is an organization (other than a cooperative described in section 521) which is exempt from the tax imposed by this chapter.
(B) Exception where property will be used in unrelated business
(i) In general
Subparagraph (A) shall not apply to any distribution of property to an organization described in section 511(a)(2) if, immediately after such distribution, such organization uses such property in an activity the income from which is subject to tax under section 511(a).
(ii) Later disposition or change in use
If any property to which clause (i) applied is disposed of by the organization acquiring such property, notwithstanding any other provision of law, any gain (not in excess of the amount not recognized by reason of clause (i)) shall be included in such organization's unrelated business taxable income. For purposes of the preceding sentence, if such property ceases to be used in an activity referred to in clause (i), such organization shall be treated as having disposed of such property on the date of such cessation.
(c) 80-percent distributee
For purposes of this section, the term "80-percent distributee" means only the corporation which meets the 80-percent stock ownership requirements specified in section 332(b). For purposes of this section, the determination of whether any corporation is an 80-percent distributee shall be made without regard to any consolidated return regulation.
(d) Regulations
The Secretary shall prescribe such regulations as may be necessary or appropriate to carry out the purposes of the amendments made by subtitle D of title VI of the Tax Reform Act of 1986, including—
(1) regulations to ensure that such purposes may not be circumvented through the use of any provision of law or regulations (including the consolidated return regulations and part III of this subchapter) or through the use of a regulated investment company, real estate investment trust, or tax-exempt entity, and
(2) regulations providing for appropriate coordination of the provisions of this section with the provisions of this title relating to taxation of foreign corporations and their shareholders.
(Added
Editorial Notes
References in Text
The Tax Reform Act of 1986, referred to in subsec. (d), is
Prior Provisions
A prior section 337, acts Aug. 16, 1954, ch. 736,
Amendments
1988—Subsec. (b)(2)(B)(i).
Subsec. (b)(2)(B)(ii).
Subsec. (d).
1987—Subsec. (c).
Statutory Notes and Related Subsidiaries
Effective Date of 1988 Amendment
"(i) the board of directors of a party to the reorganization adopted a resolution to solicit shareholder approval for the transaction, or
"(ii) the shareholders or the board of directors of a party to the reorganization approved the transaction."
Amendment by
Effective Date of 1987 Amendment
Amendment by
Effective Date
Section applicable to any distribution in complete liquidation, and any sale or exchange, made by a corporation after July 31, 1986, unless such corporation is completely liquidated before Jan. 1, 1987, any transaction described in
§338. Certain stock purchases treated as asset acquisitions
(a) General rule
For purposes of this subtitle, if a purchasing corporation makes an election under this section (or is treated under subsection (e) as having made such an election), then, in the case of any qualified stock purchase, the target corporation—
(1) shall be treated as having sold all of its assets at the close of the acquisition date at fair market value in a single transaction, and
(2) shall be treated as a new corporation which purchased all of the assets referred to in paragraph (1) as of the beginning of the day after the acquisition date.
(b) Basis of assets after deemed purchase
(1) In general
For purposes of subsection (a), the assets of the target corporation shall be treated as purchased for an amount equal to the sum of—
(A) the grossed-up basis of the purchasing corporation's recently purchased stock, and
(B) the basis of the purchasing corporation's nonrecently purchased stock.
(2) Adjustment for liabilities and other relevant items
The amount described in paragraph (1) shall be adjusted under regulations prescribed by the Secretary for liabilities of the target corporation and other relevant items.
(3) Election to step-up the basis of certain target stock
(A) In general
Under regulations prescribed by the Secretary, the basis of the purchasing corporation's nonrecently purchased stock shall be the basis amount determined under subparagraph (B) of this paragraph if the purchasing corporation makes an election to recognize gain as if such stock were sold on the acquisition date for an amount equal to the basis amount determined under subparagraph (B).
(B) Determination of basis amount
For purposes of subparagraph (A), the basis amount determined under this subparagraph shall be an amount equal to the grossed-up basis determined under subparagraph (A) of paragraph (1) multiplied by a fraction—
(i) the numerator of which is the percentage of stock (by value) in the target corporation attributable to the purchasing corporation's nonrecently purchased stock, and
(ii) the denominator of which is 100 percent minus the percentage referred to in clause (i).
(4) Grossed-up basis
For purposes of paragraph (1), the grossed-up basis shall be an amount equal to the basis of the corporation's recently purchased stock, multiplied by a fraction—
(A) the numerator of which is 100 percent, minus the percentage of stock (by value) in the target corporation attributable to the purchasing corporation's nonrecently purchased stock, and
(B) the denominator of which is the percentage of stock (by value) in the target corporation attributable to the purchasing corporation's recently purchased stock.
(5) Allocation among assets
The amount determined under paragraphs (1) and (2) shall be allocated among the assets of the target corporation under regulations prescribed by the Secretary.
(6) Definitions of recently purchased stock and nonrecently purchased stock
For purposes of this subsection—
(A) Recently purchased stock
The term "recently purchased stock" means any stock in the target corporation which is held by the purchasing corporation on the acquisition date and which was purchased by such corporation during the 12-month acquisition period.
(B) Nonrecently purchased stock
The term "nonrecently purchased stock" means any stock in the target corporation which is held by the purchasing corporation on the acquisition date and which is not recently purchased stock.
[(c) Repealed. Pub. L. 99–514, title VI, §631(b)(2), Oct. 22, 1986, 100 Stat. 2272 ]
(d) Purchasing corporation; target corporation; qualified stock purchase
For purposes of this section—
(1) Purchasing corporation
The term "purchasing corporation" means any corporation which makes a qualified stock purchase of stock of another corporation.
(2) Target corporation
The term "target corporation" means any corporation the stock of which is acquired by another corporation in a qualified stock purchase.
(3) Qualified stock purchase
The term "qualified stock purchase" means any transaction or series of transactions in which stock (meeting the requirements of section 1504(a)(2)) of 1 corporation is acquired by another corporation by purchase during the 12-month acquisition period.
(e) Deemed election where purchasing corporation acquires asset of target corporation
(1) In general
A purchasing corporation shall be treated as having made an election under this section with respect to any target corporation if, at any time during the consistency period, it acquires any asset of the target corporation (or a target affiliate).
(2) Exceptions
Paragraph (1) shall not apply with respect to any acquisition by the purchasing corporation if—
(A) such acquisition is pursuant to a sale by the target corporation (or the target affiliate) in the ordinary course of its trade or business,
(B) the basis of the property acquired is determined wholly by reference to the adjusted basis of such property in the hands of the person from whom acquired,
(C) such acquisition was before September 1, 1982, or
(D) such acquisition is described in regulations prescribed by the Secretary and meets such conditions as such regulations may provide.
(3) Anti-avoidance rule
Whenever necessary to carry out the purpose of this subsection and subsection (f), the Secretary may treat stock acquisitions which are pursuant to a plan and which meet the requirements of section 1504(a)(2) as qualified stock purchases.
(f) Consistency required for all stock acquisitions from same affiliated group
If a purchasing corporation makes qualified stock purchases with respect to the target corporation and 1 or more target affiliates during any consistency period, then (except as otherwise provided in subsection (e))—
(1) any election under this section with respect to the first such purchase shall apply to each other such purchase, and
(2) no election may be made under this section with respect to the second or subsequent such purchase if such an election was not made with respect to the first such purchase.
(g) Election
(1) When made
Except as otherwise provided in regulations, an election under this section shall be made not later than the 15th day of the 9th month beginning after the month in which the acquisition date occurs.
(2) Manner
An election by the purchasing corporation under this section shall be made in such manner as the Secretary shall by regulations prescribe.
(3) Election irrevocable
An election by a purchasing corporation under this section, once made, shall be irrevocable.
(h) Definitions and special rules
For purposes of this section—
(1) 12-month acquisition period
The term "12-month acquisition period" means the 12-month period beginning with the date of the first acquisition by purchase of stock included in a qualified stock purchase (or, if any of such stock was acquired in an acquisition which is a purchase by reason of subparagraph (C) of paragraph (3), the date on which the acquiring corporation is first considered under section 318(a) (other than paragraph (4) thereof) as owning stock owned by the corporation from which such acquisition was made).
(2) Acquisition date
The term "acquisition date" means, with respect to any corporation, the first day on which there is a qualified stock purchase with respect to the stock of such corporation.
(3) Purchase
(A) In general
The term "purchase" means any acquisition of stock, but only if—
(i) the basis of the stock in the hands of the purchasing corporation is not determined (I) in whole or in part by reference to the adjusted basis of such stock in the hands of the person from whom acquired, or (II) under section 1014(a) (relating to property acquired from a decedent),
(ii) the stock is not acquired in an exchange to which section 351, 354, 355, or 356 applies and is not acquired in any other transaction described in regulations in which the transferor does not recognize the entire amount of the gain or loss realized on the transaction, and
(iii) the stock is not acquired from a person the ownership of whose stock would, under section 318(a) (other than paragraph (4) thereof), be attributed to the person acquiring such stock.
(B) Deemed purchase under subsection (a)
The term "purchase" includes any deemed purchase under subsection (a)(2). The acquisition date for a corporation which is deemed purchased under subsection (a)(2) shall be determined under regulations prescribed by the Secretary.
(C) Certain stock acquisitions from related corporations
(i) In general
Clause (iii) of subparagraph (A) shall not apply to an acquisition of stock from a related corporation if at least 50 percent in value of the stock of such related corporation was acquired by purchase (within the meaning of subparagraphs (A) and (B)).
(ii) Certain distributions
Clause (i) of subparagraph (A) shall not apply to an acquisition of stock described in clause (i) of this subparagraph if the corporation acquiring such stock—
(I) made a qualified stock purchase of stock of the related corporation, and
(II) made an election under this section (or is treated under subsection (e) as having made such an election) with respect to such qualified stock purchase.
(iii) Related corporation defined
For purposes of this subparagraph, a corporation is a related corporation if stock owned by such corporation is treated (under section 318(a) other than paragraph (4) thereof) as owned by the corporation acquiring the stock.
(4) Consistency period
(A) In general
Except as provided in subparagraph (B), the term "consistency period" means the period consisting of—
(i) the 1-year period before the beginning of the 12-month acquisition period for the target corporation,
(ii) such acquisition period (up to and including the acquisition date), and
(iii) the 1-year period beginning on the day after the acquisition date.
(B) Extension where there is plan
The period referred to in subparagraph (A) shall also include any period during which the Secretary determines that there was in effect a plan to make a qualified stock purchase plus 1 or more other qualified stock purchases (or asset acquisitions described in subsection (e)) with respect to the target corporation or any target affiliate.
(5) Affiliated group
The term "affiliated group" has the meaning given to such term by section 1504(a) (determined without regard to the exceptions contained in section 1504(b)).
(6) Target affiliate
(A) In general
A corporation shall be treated as a target affiliate of the target corporation if each of such corporations was, at any time during so much of the consistency period as ends on the acquisition date of the target corporation, a member of an affiliated group which had the same common parent.
(B) Certain foreign corporations, etc.
Except as otherwise provided in regulations (and subject to such conditions as may be provided in regulations)—
(i) the term "target affiliate" does not include a foreign corporation or a DISC, and
(ii) stock held by a target affiliate in a foreign corporation or a domestic corporation which is a DISC or described in section 1248(e) shall be excluded from the operation of this section.
[(7) Repealed. Pub. L. 100–647, title I, §1006(e)(20), Nov. 10, 1988, 102 Stat. 3403 ]
(8) Acquisitions by affiliated group treated as made by 1 corporation
Except as provided in regulations prescribed by the Secretary, stock and asset acquisitions made by members of the same affiliated group shall be treated as made by 1 corporation.
(9) Target not treated as member of affiliated group
Except as otherwise provided in paragraph (10) or in regulations prescribed under this paragraph, the target corporation shall not be treated as a member of an affiliated group with respect to the sale described in subsection (a)(1).
(10) Elective recognition of gain or loss by target corporation, together with nonrecognition of gain or loss on stock sold by selling consolidated group
(A) In general
Under regulations prescribed by the Secretary, an election may be made under which if—
(i) the target corporation was, before the transaction, a member of the selling consolidated group, and
(ii) the target corporation recognizes gain or loss with respect to the transaction as if it sold all of its assets in a single transaction,
then the target corporation shall be treated as a member of the selling consolidated group with respect to such sale, and (to the extent provided in regulations) no gain or loss will be recognized on stock sold or exchanged in the transaction by members of the selling consolidated group.
(B) Selling consolidated group
For purposes of subparagraph (A), the term "selling consolidated group" means any group of corporations which (for the taxable period which includes the transaction)—
(i) includes the target corporation, and
(ii) files a consolidated return.
To the extent provided in regulations, such term also includes any affiliated group of corporations which includes the target corporation (whether or not such group files a consolidated return).
(C) Information required to be furnished to the Secretary
Under regulations, where an election is made under subparagraph (A), the purchasing corporation and the common parent of the selling consolidated group shall, at such times and in such manner as may be provided in regulations, furnish to the Secretary the following information:
(i) The amount allocated under subsection (b)(5) to goodwill or going concern value.
(ii) Any modification of the amount described in clause (i).
(iii) Any other information as the Secretary deems necessary to carry out the provisions of this paragraph.
(11) Elective formula for determining fair market value
For purposes of subsection (a)(1), fair market value may be determined on the basis of a formula provided in regulations prescribed by the Secretary which takes into account liabilities and other relevant items.
[(12) Repealed. Pub. L. 99–514, title VI, §631(e)(5), Oct. 22, 1986, 100 Stat. 2273 ]
(13) Tax on deemed sale not taken into account for estimated tax purposes
For purposes of section 6655, tax attributable to the sale described in subsection (a)(1) shall not be taken into account. The preceding sentence shall not apply with respect to a qualified stock purchase for which an election is made under paragraph (10).
[(14) Repealed. Pub. L. 108–27, title III, §302(e)(4)(B)(i), May 28, 2003, 117 Stat. 763 ]
(15) Combined deemed sale return
Under regulations prescribed by the Secretary, a combined deemed sale return may be filed by all target corporations acquired by a purchasing corporation on the same acquisition date if such target corporations were members of the same selling consolidated group (as defined in subparagraph (B) of paragraph (10)).
(16) Coordination with foreign tax credit provisions
Except as provided in regulations, this section shall not apply for purposes of determining the source or character of any item for purposes of subpart A of part III of subchapter N of this chapter (relating to foreign tax credit). The preceding sentence shall not apply to any gain to the extent such gain is includible in gross income as a dividend under section 1248 (determined without regard to any deemed sale under this section by a foreign corporation).
(i) Regulations
The Secretary shall prescribe such regulations as may be necessary or appropriate to carry out the purposes of this section, including—
(1) regulations to ensure that the purpose of this section to require consistency of treatment of stock and asset sales and purchases may not be circumvented through the use of any provision of law or regulations (including the consolidated return regulations) and
(2) regulations providing for the coordination of the provisions of this section with the provision of this title relating to foreign corporations and their shareholders.
(Added
Editorial Notes
Prior Provisions
A prior section 338, act Aug. 16, 1954, ch. 736,
Amendments
2018—Subsec. (h)(3)(A)(iii).
Subsec. (h)(6)(B)(i).
2004—Subsec. (h)(13).
2003—Subsec. (h)(14).
1990—Subsec. (h)(10)(C).
1988—Subsec. (e)(3).
Subsec. (h)(7).
"(A) purchase, or
"(B) a redemption of stock of the target corporation—
"(i) to which section 302(a) applies, or
"(ii) in the case of a shareholder who is not a corporation, to which section 301 applies."
Subsec. (h)(16).
1986—Subsec. (a)(1).
Subsec. (c).
Subsec. (d)(3).
"(A) at least 80 percent of total combined voting power of all classes of stock entitled to vote, and
"(B) at least 80 percent of the total number of shares of all other classes of stock (except nonvoting stock which is limited and preferred as to dividends),
is acquired by another corporation by purchase during the 12-month acquisition period."
Subsec. (h)(3)(C)(i).
Subsec. (h)(6)(B)(i).
Subsec. (h)(10)(B).
Subsec. (h)(12).
1984—Subsec. (a)(1).
Subsec. (b).
Subsec. (b)(1).
Subsec. (b)(2).
Subsec. (b)(3).
Subsec. (b)(4).
Subsec. (b)(5).
Subsec. (b)(6).
Subsec. (c)(1).
Subsec. (e)(2).
Subsec. (g)(1).
Subsec. (h)(1).
Subsec. (h)(3)(A)(ii).
Subsec. (h)(3)(B).
Subsec. (h)(3)(C).
Subsec. (h)(7).
Subsec. (h)(8).
Subsec. (h)(9).
Subsec. (h)(10).
Subsec. (h)(11) to (15).
Subsec. (i).
1983—Subsec. (h)(8), (9).
Statutory Notes and Related Subsidiaries
Effective Date of 2004 Amendment
Effective Date of 2003 Amendment
Amendment by
Effective Date of 1990 Amendment
"(1)
"(2)
Effective Date of 1988 Amendment
Amendment by sections 1006(e)(20) and 1018(d)(9) of
Effective Date of 1986 Amendment
Amendment by section 631(b), (e)(5) of
Amendment by section 1275(c)(6) of
Effective Date of 1984 Amendment
"(A)
"(B)
Amendment by section 712(k) of
Effective Date of 1983 Amendment
Amendment by
Effective Date
"(1)
"(2)
"(A) an acquisition date (within the meaning of section 338 of such Code without regard to paragraph (5) of this subsection) occurred after August 31, 1980, and before September 1, 1982,
"(B) the target corporation (within the meaning of section 338 of such Code) is not liquidated before September 1, 1982, and
"(C) the purchasing corporation (within the meaning of section 338 of such Code) makes, not later than November 15, 1982, an election under section 338 of such Code,
then the amendments made by this section shall apply to the acquisition of such target corporation.
"(3)
"(A) there is, on July 22, 1982, a binding contract to acquire control (within the meaning of section 368(c) of such Code) of any financial institution,
"(B) the approval of one or more regulatory authorities is required in order to complete such acquisition, and
"(C) within 90 days after the date of the final approval of the last such regulatory authority granting final approval, a plan of complete liquidation of such financial institution is adopted,
then the purchasing corporation may elect not to have the amendments made by this section apply to the acquisition pursuant to such contract.
"(4)
"(A)
"(B)
"(5)
"(A)
"(i) the date selected under subparagraph (B) of this paragraph shall be treated as the acquisition date,
"(ii) a rule similar to the last sentence of section 334(b)(2) of such Code (as in effect on August 31, 1982) shall apply, and
"(iii) subsections (e), (f), and (i) of such section 338, and paragraphs (4), (6), (8), and (9) of subsection (h) of such section 338, shall not apply.
"(B)
"(i) is after the later of June 30, 1982, or the acquisition date (within the meaning of section 338 of such Code without regard to this paragraph), and
"(ii) is on or before the date on which the election described in paragraph (2)(C) is made."
Savings Provision
For provisions that nothing in amendment by section 401(d)(1)(D)(vii) of
Treatment of Certain Corporation Organized on February 22, 1983
"(A) purchased the stock of another corporation,
"(B) filed an election under section 338(g) of the Internal Revenue Code of 1986 with respect to such purchase, and
"(C) merged into the acquired corporation,
such purchase of stock shall be considered as made by the acquiring corporation, such election shall be valid, and the acquiring corporation shall be considered a purchasing corporation for purposes of section 338 of such Code without regard to the duration of the existence of the acquiring corporation."
Special Rules for Deemed Purchases under Prior Law
Exception for Stock Purchases in Contemplation of Target Corporation as Member of Affiliated Group
"(I) any portion of a qualified stock purchase is pursuant to a binding contract entered into on or after September 1, 1982, and on or before the date of the enactment of this Act [Jan. 12, 1983], and
"(II) the purchasing corporation establishes by clear and convincing evidence that such contract was negotiated on the contemplation that, with respect to the deemed sale under section 338 of the Internal Revenue Code of 1986 [formerly I.R.C. 1954], the target corporation would be treated as a member of the affiliated group which includes the selling corporation,
then the amendment made by clause (i) [amending subsec. (h)] shall not apply to such qualified stock purchase."
[Subpart C—Repealed]
[§341. Repealed. Pub. L. 108–27, title III, §302(e)(4)(A), May 28, 2003, 117 Stat. 763 ]
Section, act Aug. 16, 1954, ch. 736,
Statutory Notes and Related Subsidiaries
Effective Date of Repeal
Repeal applicable, except as otherwise provided, to taxable years beginning after Dec. 31, 2002, see section 302(f) of
[§342. Repealed. Pub. L. 94–455, title XIX, §1901(a)(47), Oct. 4, 1976, 90 Stat. 1772 ]
Section, act Aug. 16, 1954, ch. 736,
Statutory Notes and Related Subsidiaries
Effective Date of Repeal
Repeal effective for taxable years beginning after Dec. 31, 1976, see section 1901(d) of
Subpart D—Definition and Special Rule
Editorial Notes
Amendments
1982—
§346. Definition and special rule
(a) Complete liquidation
For purposes of this subchapter, a distribution shall be treated as in complete liquidation of a corporation if the distribution is one of a series of distributions in redemption of all of the stock of the corporation pursuant to a plan.
(b) Transactions which might reach same result as partial liquidations
The Secretary shall prescribe such regulations as may be necessary to ensure that the purposes of subsections (a) and (b) of section 222 of the Tax Equity and Fiscal Responsibility Act of 1982 (which repeal the special tax treatment for partial liquidations) may not be circumvented through the use of section 355, 351, or any other provision of law or regulations (including the consolidated return regulations).
(Aug. 16, 1954, ch. 736,
Editorial Notes
References in Text
Subsections (a) and (b) of section 222 of the Tax Equity and Fiscal Responsibility Act of 1982, referred to in subsec. (b), are subsecs. (a) and (b) of
Amendments
1986—Subsec. (b).
1982—Subsec. (a).
Subsec. (b).
Subsec. (c).
Statutory Notes and Related Subsidiaries
Effective Date of 1986 Amendment
Amendment by
Effective Date of 1982 Amendment
Amendment by