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Course: Corporate Taxation Fall 2002
School: Wayne State University
Year: 2002
Professor: McIntyre
Course Outline provided by

Corporate Tax


For every problem provide for every party involved:

(1) Taxable gain or loss

(2) Their A/B in each of their assets

(3) E&P of any corps., beginning of year and end.


I. Rates and Choice of Form


A. The Rates

Tax Income Over
But Not Over
Marginal Rate
Effective Rate Range
And up

- the rates are not indexed and do not adjust for inflation

- a corp. can’t be split into multiple corps. to avoid high marginal taxes – will be combined under §1561


B. Choice of Form

1. Forms – C corp., S corp., Partnership, Sole proprietorship, LLC

a. Passthroughs – income is passed through to owners as if they owned produced it - distributions are not taxed – problems w/ passive activity rules for losses

(1) S corp. - §1361 – income based on pro-rata ownership. S corp. requirements.:

(a) Can’t have > 75 s/h

(b) s/h can only be individual s/h… no corp. s/h and no non-resident aliens

(c) only one class of stock is allowed

(2) Partnership – income can be distributed in any way the partners want as long as there is a legitimate economic business reason. However, personal liab.

- Limited P-ships – Limited partners are not liab., but general partner is. Can’t use a corp. as a general partner.

(3) LLC – taxed almost the same as p-ship, but no liab. & no general p-ner. However, restrictions on transferability… if publicly traded, taxed as C corp. Also problems w/ corp. reorgs… do not apply to p-ship interests and can’t use transitory entity change to C corp. to qualify as for corp. reorg.

b. C corp.

(1) Double taxation either as dividends or cap gains.

(2) Triple taxation if corp. is sold to someone else - corp., cap gain., and then div

(3) May be better off as a C corp. if low income from business.

(4) Corp. form gives incentive to invest w/ retained earnings rather than new cap.

- If corp. under state law, you are taxed as corp. If not corp., you are taxed as a p-ship unless you want to be taxed as a corp.

2. Getting money out of corp. without double taxation

a. Salaries

(1) not deductible if corp. officer salary > $1M unless incentive based

(2) if too high, the IRS can recharacterize as dividends… IRS will compare corp. income and salary and look to see if dividends have been distributed.

b. Set up capital structure with debt

(1) interest is deductible and repayment is not taxable to debt-holder

(2) IRS can recharacterize the debt as equity investment since it is the same as ownership interest if debt is owned by s/h’s – need to look if third party would have made the loan.. is there sufficient equity?

c. Not pay dividends and accumulate earnings

- accumulated earnings tax – §531 - accumulations > the reasonable needs of the business are taxed as 39.6%, but can pay dividends to get the IRS off your back once they assert the problem.

II. Corporate Formation - §351


A. §351 Generally

1. Defers tax on corporate formation and additional capital contributions. No gain or loss on the transaction, but the A/B of the prop. carries over to the stock.

2. It is based on the notion that the s/h still have an indirect interest in their transferred property through the corp. – continuity of interest.

3. It is a mandatory provision if it applies – is not elective.

4. Sales of assets from s/h to corp. may have to be reclassified as a §351 exchange


B. Requirements for §351 to Apply: (§351(a))

1. Property - One of more persons (including entities) transfer property to the corp.,

a. property does not include - §351(d)

(1) services,

- a person who contributes services is not considered part of the control group for the 80% test, but if the other people pass, §351 will apply for them, but not for the person contributing services… must recognize G.

(2) debt not evidenced by a security, and

– a security is long-term debt… short-term debt does not qualify as prop.

(3) unpaid interest of debt owed by the corp.

b. De minimis prop. - If prop. is relatively small in comparison to the value of the stock already owned by the transferor, the prop. will not be considered prop. for purposes of §351 (§1.351-1(a)(ii)). The IRS defines “relatively small” as < 10% of the stock or securities already owned by the transferor (Rev. Proc. 77-37)

ex: A wants to transfer prop. to corp. for 10% of its stock and avoid tax. To meet 80% test, A gets B, a 75% s/h, to contribute $1 to the corp, so that the two contributors now own 80%… doesn’t qualify under this rule.

c. stock given for prop. and services – recognize G for services, but the stock received for services counts towards 80% control test. (§1.351-1(a)(2)). De minimis prop. rules apply for this as well.. the FMV of the prop. should be at least 10% of the FMV of the services. (Rev. Proc. 77-37)

d. S/h can contribute shares back to the corp. to increase the % of stock held by other s/h. The contributing s/h can’t take a loss… can only allocate the basis of the contributed shares to his remaining shares. (Fink)

e. A/R is prop. If cash basis s/h contributes A/R to corp. that s/h has not recognized income on yet, the corp. must recognize income when it receives payment for the A/R. (Hempt Bros.).

- If A/P is contributed to corp. by cash basis s/h, the corp. recognizes expense when paid. (Rev. Rul. 80-198)

2. The transfer is solely in exchange for the stock of the corp., and

a. Stock rights and warrants are not stock

b. If the stock distribution to the s/h is unequal to the FMV of the prop. each contributed, §351 applies, but disproportionate amount may be considered a gift or payment for an unrelated service or liability and treated as a separate taxable transaction. (§1.351-1(b))

3. The transferors are in “control” of the corp. “immediately after the exchange”

a. Control - §368(c) – ownership of stock w/ >= 80% of the total combined voting power of all classes of voting stock and >= 80% of the total number of shares of all other classes of stock

- §318 attribution rules for constructive ownership do not apply for control test (Rev. Rul. 56-613)

b. It doesn’t matter how much stock the transfer group owned before the transfer, only after the exchange.

c. For immediately after the exchange:

(1) All transactions are considered together. If part of the same plan, it qualifies.

(2) If s/h gives away some shares to fall below 80% rule, §351 will still apply and the shares given away will be considered a separate gift transaction.

(3) A prior commitment by a contributor of prop. to sell the corp. stock at the time of the transaction will ruin §351.

- Exception for underwriters, who are treated as agents (§1.351-1(a)(3))


C. Results of §351 Transaction

1. The Corporation

a. Gain/Loss

(1) §1032 – A corp. does not recognize G/L on transfer of its own stock (including treasury stock) for prop. Rule applies whether or not §351 applies.

(a) Services are considered prop. for these purposes (Reg. §1.1032-1(a))

(b) §1032 doesn’t apply to a corp. reacquiring its own stock unless it is issuing its own stock in return.

(2) §118 – Contributions of money or prop. to corp. is not income to the corp.

(a) The corp. does not have to issue new stock to existing s/h for this to apply

(b) Contributions

(i) excludes amounts given as part of the ordinary course of business from customers and amounts used to aid construction.

(ii) does include non-quid pro quo grants of prop. from unrelated parties… e.g., gov’t or civic group grants land to corp. as inducement to relocate – falls under §118.

(c) Exception - §108(e)(6) – if a s/h forgives debt owed to him by the corp., §118 doesn’t apply and the corp. recognizes income equal to the difference between the face value of the debt and the s/h A/B in the debt.

b. Adjusted Basis - §362(a) – A/B of prop to corp. is A/B of transferor + G recognized by transferor

(1) Assumption of liab. doesn’t affect corp’s A/B unless transferor recognizes a G

(2) If multiple assets were transferred and G is only recognized on some of them after the boot is allocated to them, the corp. adjusts the A/B of only the assets that had gain recognized on them by the s/h (Rev. Rul. 68-55)

c. Holding Period - §1223(2) - the holding period of all assets carry over for corp.

2. The transferor

a. Gain/Loss - §351 - no G/L on the transaction w/o boot

If there is Boot

(1) G recognized up the FMV of the prop. – no L recognized (§351(b))

(2) Assumption of liab. is not treated as boot (§357(a)) - exceptions:

(a) Liab. in Excess of Basis: If aggregate liab. on prop. transferred > aggregate A/B of prop. transferred, the excess liab. is treated as a gain from sale (§357(c))

(i) If liab. would produce a deduction in the hands of the corp., it isn’t a liab. for these purposes (§357(c)(3)). This includes contingent liabilities, such as possible environmental suits (Rev. Rul. 95-74)…. however, payment of mtg. doesn’t produce an expense.

(ii) the s/h may be able to avoid gain for excess liab., by promising to pay the corp., though a bona fide debt instrument, the excess of liab. over the basis of the assets… this will increase his A/B in the prop. transferred by the face value of the debt. (Lessinger)

- However, this rule has only been accepted by the 2nd and 9th Cir. and may not be valid law elsewhere.

(b) If the debt is taken or the assumption is done for a clear tax avoidance reason (no valid business reason), the entire assumption of liab. will be taxed, even if only a portion of the debt was assumed/taken for improper reasons. The burden is on the taxpayer to show business reason. (§357(b))


(3) Installment Sales Accounting - §453 - installment method of accounting may apply to defer G when boot prop. (e.g., corp. note) is received

(a) Applies if non-inventory prop is transferred and there is at least one payment to be received after the current taxable year (i.e., through debt instruments) - §453(b)

(b) New amendment to the law in 2000…. Accrual method taxpayers can’t use the installment method (§453)

(c) Installment method:

(i) Allocate the A/B of the prop to the stock up to the FMV of the stock

(ii) If A/B in the prop. exceeds the FMV of the stock, the excess basis is allocated to the note for installment treatment.

(iii) Installment treatment:

(A) First, determine the gross profit on the note = FMV of the note – excess basis

(B) Then, determine the gross profit ratio on the note = gross profit / FMV of the note (or selling price)

(C) Every time a payment of principal is made, the amount of payment is multiplied by the gross profit ratio and that amount is taxable as a G to the s/h.

(D) For each payment that creates a G to the s/h, the corp. must increase it’s A/B in the prop. by the amount of that G.

(4) If multiple assets are transferred in exchange for stock that comes with boot, the boot is allocated to each of the assets based upon FMV and the G on each asset is determined separately. (Rev. Rul. 68-55)

(5) The character of the G depends on the type of prop. given up.

b. Basis

(1) if no boot, the A/B of the stock is the same as prop. exchanged (§358)

(2) if boot

(a) A/B of stock = A/B in prop. – FMV of boot + G recognized – L recognized + amount treated as a dividend

(b) A/B of boot is FMV (§358(a)(2))

(c) A/B is allocated among non-recognition prop. (§358(b)(1))

- If the transferor receives non-recognition property of stock and securities or stock of different classes, basis is allocated to each based upon the FMV of each security/stock (§1.358-2(b)).

(d) Assumption of liab. is treated as boot for purposes of A/B. (§358(d)(1))

- If liab. would produce a deduction in the hands of the corp., it is not considered a liab. for these purposes (§357(c)(3)). This includes contingent liabilities, such as possible environmental suits (Rev. Rul. 95-74)…. however, payment of mtg. doesn’t produce an expense.

c. Holding period – holding period carries over to the stock for §1221 capital asset and §1231 business asset property. However, the holding period of assets used in the ordinary course of business do not carry over.

3. Transactions involving §1231 depreciable prop. - §1245 depreciation recapture

a. Any boot recognized as G is automatically considered ordinary income up to the amount of depreciation taken on the prop. (§1245(b)(3))

b. Depreciation recapture that isn’t recognized is transferred to the corp., and the corp. has to recognize the carryover depreciation recapture when it sells the asset.

c. Even if the transferor did not use the asset as a §1231 depreciable asset, if the org. is a related party under §267 rules (see below), any gain on the transfer is ordinary income if the corp. uses the asset as a depreciable asset. (§1239)


D. If §351 Does Not Apply to Transaction

1. Corp.

a. G/L - Should not recognize gain on transfer of stock for prop. under §1032 – even services are considered prop. for these purposes. (§1.1032-1(a)). The corp. is allowed an expense deduction for the FMV of the services provided

b. A/B – the corp. will take the prop. at FMV.

c. The corp. will have a new holding period at the date of transfer.

2. Contributors (s/h’s)

a. Recognize G as if sale of assets and bought stock with proceeds.

b. May be able to recognize loss, if §267 related party transaction rules do not prevent s/h from doing so.

§267 – no deduction or loss is allowed for transactions between related parties. (1) Related parties includes: (§267(b))

(a) Individual and corp. where individual owns, either directly or indirectly through constructive ownership rules, > 50% of outstanding stock (§267(b)(2))

(b) Two corps which are members of a controlled group

(c) C corp. and p-ship, S corp. and C corp., or two S corps. if same person owns > 50% of the value of the stock/p-ship interest (§267(b)(10)-(12))

(2) Constructive ownership (§267(c))

(a) Stock owned by a corp., p-ship, or trust is owned proportionately by s/h, p-ners, and beneficiaries. (§267(c)(1))

- This is treated as actual ownership, so a second constructive ownership can apply beyond this (§267(c)(5))

(b) Stock owned by family - family is sibling, spouse, lineal ancestors and lineal descendants.

- A second constructive ownership cannot apply beyond this (§267(c)(1) is not treated as constructive ownership for this purpose)

(c) Person owning stock in a corp. owns the stock of his partners in a p-ship.

- A second constructive ownership cannot apply beyond this (§267(c)(1) is not treated as constructive ownership for this purpose).

Ex: 3 members of family each contribute prop. for 25% stock. One of the person’s prop. has a built in loss. They do not qualify for §351 because they fail the 80% test, and because the family member’s stock is attributed to each other, each owns >50% of corp., meaning that losses from transaction between s/h and corp. will be disallowed.

- If loss is disallowed, and s/h later sells his stock for a gain, the amount of gain up to the disallowed loss is not recognized on the sale.

c. A/B in stock – s/h take the stock at the FMV of the net assets (assets-liabilities) that they gave up or the FMV of the services that they provided.


III. Dividends and Corporate Distributions


A. Corporate Distributions in General

1. Tax consequences to s/h

a. Prop. distributed to s/h

(1) Are treated as dividends to the extent that the corp. has E&P.

(2) When the corp. runs out of E&P, the distributions are treated as returns of capital and reduce the s/h’s A/B in his stock.

(3) Once A/B drops to 0, additional distributions are treated as G from sales of prop. (§301(c))

(a) It is subject to cap G. if prop. is cap. asset in hands of s/h and it is LTCG if the stock was held for > 1yr by the distribution date

(b) However, it is technically not a sale and rules specifically designed for sales do not apply (i.e., installment method for notes received) (Cox)

b. Property

(1) For dividend purposes, prop. includes money, securities, and other prop., but does not include stock or stock rights of the corp. making the distribution. (§317(a))

(2) If the corp. cancels debt owed by the s/h, it is treated as distribution of prop. (§1.301-1(m))

c. Amount Realized - amount realized by the s/h from the distribution is the FMV of the asset on date of distribution minus liab. assumed. This amount can’t drop below 0, though. (§301(b))

d. A/B - s/h takes the prop. at FMV on date of distribution, but it is not reduced by liab. assumed (§301(d))

e. The holding period of the corp. in the asset doesn’t carry over.

f. Dividends Received Deduction - §243 – see below

2. Tax effect to distributing corp.

a. Corp. must recognize G for appreciated prop. as if it sold the prop, but it can’t recognize a L. (§311(a) & (b))

(1) If a liab. > FMV of the prop. is transferred in addition, the FMV of the prop. for the G is the amount of the liab. (§311(b)(2) & 336(b)) The s/h takes the amount of the liab. as his A/B.

(2) Until the 1986 tax act, the rule was that there was no G or L from distribution of prop. (General Utilities). This rule allowed a single layer of tax on asset sales by distributing appreciated prop. and having s/h sell it… resulted in a lot of abuse.

b. A corp. does not recognize G or L when it distributes its own notes to s/h (§311(b)(1)(A))

c. If corp. is distributing an installment note from someone else,

(1) corp. must recognize a G from the diff. Between FMV and A/B. (§453B(a))

(2) A/B is face value minus unrecognized gross margin remaining from original sale.

3. Constructive dividends – includes excessive salary, excessive payment to buy or use prop., corp. payments for s/h benefit, bargain purchase of corp. prop. by s/h, and free use of corp. prop. by s/h

Bargain purchase treated as part sale/part distribution:

a. the price paid is sale, and the FMV above the price paid is distribution.

b. the A/B is allocated for each part based on dollar amount to determine G or L to corp. (loss disallowed for distribution and may be disallowed for sale under §267)

c. s/h takes A/B as FMV of assets.


B. Earnings and Profits – Current and Accumulated

1. E&P provides a measure of the corp’s economic ability to pay dividends to s/h’s.

2. Dividends are distributions made out of either accumulated E&P or current E&P at the end of the year. (§316(a))

a. If curr. E&P for the yr is positive, only look at curr. E&P as of the end of the year, not at the time the dividend is made… if there is E&P during the middle of the yr, but not at the end, the distribution is treated as if made at the end of the yr and is return of cap. (Rev. Rul. 74-164)

b. If curr. E&P for the yr is negative, the amount of E&P must be pro-rated for the yr at the time the distribution is made to reevaluate accum. E&P, to see if there is sufficient accum. E&P to cover the distribution. (Rev. Rul. 74-164)

c. Dividends come out of curr. E&P first, then accum. E&P (§1.316-2(a)) If curr. E&P is sufficient to cover the distributions, then all is div. even if accum. E&P is at a deficit.

d. Multiple distributions: If multiple distributions total > curr. E&P for yr,

(1) current E&P is allocated to each distribution on a pro-rate basis of distribution amount, regardless of when the payments are actually made (§1.316-2(b)).

ex: distributions in Feb of $15K, Mar of $21K, Nov of §24K, Curr. E&P for yr is $40K… current E&P is §10K for Feb., $14K for Mar., $16K for Nov.


(2) accum. E&P is distributed on a first come first serve basis - §316(a)

3. Timing of Dividend

a. S/h recognize a distribution on the date of receipt of stock (§1.301-1(b)), but the corp. adjusts E&P when the dividend is payable. If payment not received until following yr, the corp. will adjust E&P, but the s/h will not have income for the current yr.

b. If the stock is sold during the dividend declaration process, the dividend is taxed to the person who has ownership of stock on the date of record (§1.61-9(c))

4. Calculating E&P - §312

a. Adjustments to E&P from distributions – should be net of taxes

(1) Curr. E&P is increased by any G recognized on the distribution

- losses aren’t recognized in these transactions, so losses don’t affect E&P

(2) Accum. E&P is decreased by distributions for the following yr… these do not affect current E&P

(a) at FMV if appreciated prop., otherwise A/B (§312(b))

(b) it is increased by any liab. distributed (§312(c))

(3) If the corp. distributes its own debt instruments to the s/h, E&P is reduced by the principal amount of the note. §(312(a)(2)

b. Distribution of the corp’s stock, securities, or stock rights, or the stock or security of another corp., or any other prop. doesn’t affect E&P if the s/h does not recognize a G from the receipt of the prop./stock. (§312(d))

c. Only gains that are recognized in the current yr are included in E&P, even if they are realized…. deferred gains are not part of E&P (§1.312-7(b) and Bangor)

(1) Tax-exempt transactions where G will never be realized (e.g., interest on tax-exempt bonds) are included in E&P when received.

(2) If the L is recognized, but disallowed for some other reason (e.g., §267), the L is still included in E&P. (§1.312-7(b))

d. E&P is based upon the tax books, not accounting books (§1.312-6(a)). To calc. Curr. E&P:

(1) start w/ corp’s taxable income or NOL for the yr.

(2) subtract amounts that reduce the amount available to pay dividends to s/h: fed income taxes; life insurance premiums where corp. is beneficiary; excess charitable contributions and capital losses that must be carried over; expenses related to tax-exempt income; and amounts that are nondeductible from losses on sales to related parties, penalties and fines, and political contributions.

(3) add amounts that are not contributions to capital but increase the corp’s ability to pay a dividend: tax-exempt income; life insurance proceeds where corp. is beneficiary; fed. tax refunds from prior years; div. rec. deduction; carryovers used in the current yr from NOL’s, charitable contributions, and capital losses;

(4) also need to adjust deprec. – must be on alternative deprec. system for MACRS prop. (§312(k)(3)). Also have to adjust §179 & spread it out over 5 yrs.

(5) deferred amounts from installment sales are added back to current E&P in the year of the sale.

(6) When determining the taxability of a distribution made to a 20% corp. s/h, the distributing corp. doesn’t have to make the depreciation adjustment or adjust for installment sales under §312(n). (§301(e)).

- This only applies in treatment to the 20% corp. s/h. The distributing corp. determines E&P normally, but when distributions are made to the corp. s/h, the corp s/h does not get to use E&P to label distribution as dividends.


C. Dividends Received Deduction (DRD)

1. §243 – A corp. can exclude dividend income received from corps. that it owns

(a) own <20% of stock = 70% DRD

(b) own b/w 20% and 80% of vote and value = 80% DRD (§243(c))

(c) own 80%+ of vote and value = 100% DRD

- ownership is measured on day of distribution

2. Dividends distributed in connection with a sale of a corp. without a valid business reason may be considered part of the sales price. (Waterman Steamship)

a. The corp. saves on taxes by having part of the sale be a div, since it gets the DRD

b. Factors to determine whether div. is part of sale or separate div.

(1) Time lag between div. and sale… the farther the sale is from the div., the more likely it is to be a div. (Litton)

(2) If the div is paid before a buyer is found, it is more likely to be div. (Litton)

(3) Legitimate business reason - buyer doesn’t want assets and won’t pay more for them (TSN Liquidating Co.). This includes cash that buyer isn’t interested in (Litton & Rev. Rul. 77-493)

(4) What kind of prop. is distribution? Better if cash or tangible prop. If a note is distributed, the buyer is still obligated to pay the note, so it is part of the sale (Rev. Rul. 77-493)

c. Best way to avoid this problem is to have sub. distribute div. to parent each yr, and if it needs cash, the parent can make a loan… avoids the issue of whether the distribution is connected with the sale.

3. Limitations on DRD

a. §246(c) – the corp. must hold the stock for > 45 days to qualify for DRD… this prevents corp. from creating a tax arbitrage with its DRD by buying stock, getting the div. and immediately selling for a loss equal to the div…. net tax loss because of DVD, but no economic loss.

- If §246(c) applies, §246A and §1059 are not used.

b. §246A – Debt financed stock

(1) If the stock acquisition was debt financed, the DRD is reduced by the % of the stock cost (A/B) that was debt financed.

(a) Formula: DRD% x (100% - avg. indebtedness %)

(b) Avg. indebtedness % = avg. amount of portfolio debt / avg. A/B of stock

(2) Doesn’t apply to 80% controlled subsidiary – gets full 100% DRD

(3) The stock is not portfolio stock subject to the provision if the s/h owns 50% of vote and value or 20% of vote and value if only < 5 corp. s/h (§246A(c))

(4) The reduction in DRD can’t be > amount of interest deduction allocable to dividend (§246A(e)). When §246A applies, the s/h’s DRD will be the greater of the reduced DRD or the normal DRD less interest expense on the debt.

(5) There must be a direct relationship between the loan and the stock purchase for the loan to be portfolio debt (§246A(d)(3)(A)). Simply having outstanding debt does not cause a problem if the debt was not taken to finance the acquisition of the stock.

(6) §1059 still applies after §246A

c. Extra-ordinary dividends - §1059

(1) If a corp. s/h receives extra-ordinary div. when it has not held the stock for at least 2 yrs, the A/B in the stock is reduced by the amount of the DRD. Once the A/B hits 0, excess amounts are treated as income from sale of the stock in the yr the div. is received.

- It doesn’t matter how long the corp. holds the stock after the div.

(2) “Extra-ordinary div.” – Div is >= 10% of A/B - §1059(c)

(a) FMV can be used instead of A/B if FMV is reasonably attainable on the day of the div. (i.e., public stock) - §1059(c)(4)

(b) A 5% div. threshold is used instead of 10% for preferred stock.

(3) Aggregation of div.

(a) Dividends received in an 85 day period are aggregated for this test

(b) If total dividends within 1 yr period is > 20% of A/B (or FMV if attainable) they are all aggregated for this test.

(4) §1059(e)(2) - §1059 does not apply to div. from a controlled sub, which is measured as 80% of vote and value under §1504(a)(2) through §243(b)

(5) If div. from redemption or reorg. under §356, the 2 yr period is not relevant… any extraordinary div. falls under the rule. (§1059(e)(1))


IV. Redemptions


A. Introduction

1. If a repurchase of stock by a corp. qualifies as a redemption that is an exchange under §302(a), it is treated as a sale. If not, it is treated as s/h distribution, subject to §301 dividend rules. (§302(d))

a. A corp. redeems its stock when it acquires the stock for prop., no matter what it does with the stock afterwards (§317(b))

b. The corp. can’t take an expense for reacquiring its own stock (§162(k))

2. Tax Effects from Redemption

a. The A/B of the stock redeemed is allocated to the s/h’s remaining shares, no matter how few are left. (1.302-2(c))

- If the s/h has no more shares, but did not qualify under complete termination rule because of attribution, the A/B is allocated to the person or entity who attributed ownership to him. (1.302-2(c))

b. Accumulated E&P is reduced pro-rata for shares redeemed. (§312(n)(7)). The E&P is reduced by the % of stock outstanding that is eliminated…. e.g., if 30% of total original stock is eliminated, the Accumulated E&P is reduced by 30%. Current E&P is unaffected by this.

(1) This rule doesn’t apply if the redemption is a div. (so §301(e) is not an issue). If it is a div., use normal §301 rules for E&P.

(2) If the price paid by corp. to redeem the stock is less than amount of E&P reduced, the price paid is used. If §312(a) is less, it will be used.

c. If the redemption is treated as a sale, and the s/h suffers a loss on the sale, the loss may be disallowed by §267 if the s/h owns > 50% of the corp. before the sale.

d. If the redemption is treated as a div., it may be subject to §1059 extra-ordinary dividend restrictions if the s/h is a corp. However, under §1059(e), for redemptions under §302 or §304 (affiliated corps), the length of ownership before the redemption doesn’t matter.

3. If there are other transactions connected with the redemption, the final result of all the transactions is what matters (Zenz (final result was complete termination of interest) and Rev. Rul. 75-447 (capital contribution w/ redemption - final result passed (b)(2) test)… the rule is consistent with Waterman Steamship

a. The order of the transactions is irrelevant.

b. Ownership is measured before and after the set of transactions.

4. Redemptions as Constructive Dividends:

a. If the s/h has created an unconditional primary obligation to repurchase other s/h’s stock (i.e., upon death or retirement), he will be considered to have received a constructive dividend if the corp. redeems the other s/h’s stock for him. (Rev. Rul. 69-608 – based on law of Old Colony Trust)


(1) Easy ways to avoid this: (Rev. Rul. 69-608)

(a) promise that the corp. will repurchase the stock,

(b) make it a right of first refusal or option to buy,

(c) make it a secondary obligation… e.g., if the corp. doesn’t pay.

(d) not agree to buy it in your own name… i.e., B or B’s assignee will buy stock.. This isn’t a firm obligation

(2) Tearing up a K with an unconditional primary obligation before it is executory (i.e., person has retired or died) and writing a new one without an unconditional primary obligation is fine. (Rev. Rul. 69-608)

(3) The corp. cannot deduct any expenses that it incurs in repurchasing the stock (e.g., appraisal, legal, or administration fees) - §162(k).

b. Just because the other s/h’s interest increases from a redemption doesn’t mean that he is forced to recognize a constructive div… must get actual monetary benefit (Holsey)


B. Constructive Ownership of Stock under §318

1. Family attribution – attributed stock owned by spouse, children, grandchildren (but not from grandparent to grandchild), and parent. (§318(a)(1))

- The fact that the family doesn’t get along is generally meaningless to combat this (although one ct. held so (Robin Haft Trust), the IRS will not follow it (Rev. Rul. 80-26))

2. Attribution from entities to s/h – attributed proportional to s/h interest (§318(a)(2))

a. P-ship, trust, and estate – stock owned by entity is owned proportionately by partners or beneficiaries.

b. Corp. – if s/h directly or indirectly (do other attributions first) owns >50% of value of stock of the corp., the s/h owns a the stock that the corp. owns in prop. to his interest in the corp.

3. Attribution to entities from s/h – no proportionality – entity owns all of the s/h’s interest (§318(a)(3))

a. P-ship, trust, and estate – stock owned by beneficiary or partner is owned by the entity.

- rule doesn’t apply for trusts is the beneficiary only owns a remote contingent interest worth < 5% of trust prop.

b. Corp. – if s/h directly or indirectly (do other attributions first) owns > 50% of the value of stock of the corp., the corp. owns all of the s/h’s stock.

4. Options/warrants are treated as stock ownership. (§318(a)(4))

a. This attribution takes place only if the s/h has a unilateral right to exercise the options. (Seagram’s)

b. The option rule takes precedence over family attribution rule (§318(a)(5)(D)).

5. Only 1 attribution is allowed for some. Some ownership is only constructively owned after the attribution.. can’t be attributed a second time: (§318(a)(5)(B)&(C))

a. Family attribution

b. No sidewise attribution - Stock attributed to an entity from an owner/beneficiary can’t be reattributed to another owner.

- However, stock can be attributed from one entity to owner to then another entity.


C. Qualifying a Redemption as a Sale: (§302(b))

1. The redemption is not equivalent to a dividend (§302(b)(1))

a. There must be a meaningful reduction of the s/h’s proportionate interest in the corp., directly and by attribution (Davis).

(1) A legitimate business purpose is irrelevant for these purposes. (Davis)

(2) The constructive ownership rules of §318 apply. (Davis)

(3) It is determined on a s/h by s/h basis (Davis)

(4) It is based upon facts and circumstances. Significant factors that should be compared from before to after the redemption: (Himmel and Rev Rul 81-289)

(a) the right to vote and exercise control – Most Important (Rev. Rul. 85-106),

(b) the right to participate in current and retained earnings,

(c) the right to share in net assets upon liquidation.

(5) What is meaningful?

(a) A reduction to deadlock control (two equal 50% s/h) is meaningful (Rev. Rul. 75-502). It is significant that the other 50% not be widely owned.

(b) A reduction that requires another significant control block to support you is meaningful. (Rev. Rul. 76-364)

ex: 4 s/h, A w/ 27%, rest w/ 24% - A only needs 1 other s/h’s support for control. Change to 22% for A and rest went to 26% - A now needs 2 other s/h support for control.

(c) A reduction below super-voting level (e.g., 66%) isn’t meaningful if the s/h still owns > 50% and there is no showing of an extra-ordinary corp. event requiring super-voting on the horizon. (Rev. Rul. 78-401)

(d) if the redeemed s/h is not in control after the redemption and barely misses mechanical test, it may be meaningful. (Rev. Rul. 76-364)

(e) if a s/h owns a de minimus amount of stock (e.g., < 1% of a public co.), the rule is very liberal… a small reduction in voting interest will qualify. (Rev. Rul. 76-385… only 4%). However, there must be some reduction, not a pro-rata redemption among all s/h (Rev. Rul. 81-289)

b. The fact that it doesn’t meet the other §302(b) tests is irrelevant (§1.302-2)

c. The corp. doesn’t need E&P to qualify for this. (§1.302-2)

2. There is a substantially disproportionate redemption (§302(b)(2))

a. Three part test… all must be met:

(1) s/h must own < 50% of voting total power after redemption, AND

(2) s/h must have less than 80% of the voting stock that he held before the redemption

(a) based on total votes, not shares… interest must be reallocated among remaining shares for test

(b) # of sh that need to be = votes owned x total votes in corp. redeemed to hit 80% rule (5 x total votes) – (4 x votes owned)

(c) doesn’t matter whether the stock is common or preferred as long as it can vote.

(3) s/h must own less than 80% of the FMV of common (voting and non-voting) stock he owned before the redemption.

(a) if one class of common stock, (b) & (c) are the same.

(b) preferred stock doesn’t affect this, only common.

(c) this part of the test doesn’t apply if the s/h doesn’t own any common stock (Rev. Rul. 81-41) – i.e., only owns voting preferred stock.

b. Disproportionate rules are applied separately to each s/h

c. If there are a series of redemptions as part of a plan, the redemptions must be aggregated for the test. (§302(b)(2)(D)). A plan can be just a design by one redeemed s/h to arrange a redemption of another s/h as a sequence of events that would ultimately return control to the first s/h… no need for an agreement among s/h (Rev. Rul. 85-14)

d. Disproportionate redemption test does not apply to a redemption of solely non-voting stock. (§1.302-3)

(1) If both voting and non-voting redeemed, the rule applies. If it passes, the non-voting stock is piggybacked on the voting stock to get sale treatment. (1.302-3(a)). However, §306 preferred stock doesn’t piggyback (see §306 stock)

(2) If it is solely non-voting stock or a de minimus amount of voting stock, may be able to qualify as exchange under b(1) if the non-voting stock redemption is highly material (i.e., > 50% reduction), based on economic consequences. (Rev. Rul. 85-106)

(3) Contingent voting or conversion to voting stock is not voting stock.

3. Complete termination of s/h interest – can’t have any interest, direct or indirect attribution (§302(b)(3))

a. Waiver of family attribution – only applies to termination of interest: (§302(c)(2))

(1) Requirements: (§302(c)(2)(A))

(a) s/h can’t have direct or non-family indirect interest after distribution other than as a creditor,

(i) To be a creditor, the former s/h’s rights can’t be beyond the scope of what is necessary to enforce his claim (§1.302-4(d))… the interest can’t be too similar to equity:

(i) loan/note is too long-term – 15-20 yrs

(ii) the interest is based upon profits

(iii) the debt does not pay market interest

(iv) subordinated to all other creditors

(v) undercapitalization of corp. (debt to equity ratio of 4:1 is usually OK)

(ii) If the former s/h’s loan is secured by the stock of the corp., it is allowable under the rule. However, if there is a default on the note, the former s/h can’t take back his stock… he must sell it. (§1.302-4(e))

(iii) The s/h can’t have any kind of employment interest either, including working as an independent contractor (Lynch).

- Even if he is uncompensated, the s/h may fail the test if he is active in the business as a director.

(b) s/h can’t reacquire his interest within 10 yrs from date of distribution, and

(c) s/h must file waiver w/ IRS.

(2) If the stock redeemed was acquired: (§302(c)(2)(B))

(a) by the s/h from a §318(a)(1) family member, or

(b) by a family member from the s/h

in the 10 yrs before the redemption, it must be shown that primary purpose of the transaction was not tax avoidance.

Tax avoidance purpose:

(i) A mere gift of stock to a person in a lower tax bracket is not tax avoidance motive (§1.302-4(g)(2))

(ii) If the main purpose was to transfer business control to another family member, then tax avoidance was no the principle purpose in the transaction (Rev. Rul. 77-293)

b. Waiver of family attributions by entities (§302(c)(2)(C))

(1) For attribution from family member to owner/beneficiary to entity, the attribution from the family member to the owner is waived.

- However, if the owner/beneficiary still has his own direct or indirect non-family interest, it is not waived at all

(2) Requirements to qualify for the waiver:

(a) The entity and each related person (i.e., owner/beneficiary) must meet the family waiver provisions under (§302(c)(2)(A)), and

(b) Each related person (i.e., owner/beneficiary) agrees to be jointly and severally liable for any tax deficiency if the entity or any one of the related parties takes an interest in the distributing corp. w/in 10 yrs.

- Related persons – any person to whom ownership of stock in the corp. (at the time of the distribution) is attributable under family attribution of §318(a)(1) if the stock is further attributable to the entity under §318(a)(3). – i.e., owner or beneficiary.


4. Partial liquidation (§302(b)(4)) – a substantial change in the distributing corp.

a. If the co. is engaged in 2 or more qualified trade or businesses (i.e., engaged for 5 yrs itself, not through a sub). If it then liquidates one trade, but continues the other, it will qualify.

b. Corp. s/h can’t take advantage of partial liquidation treatment.

b. The distribution must be pursuant to a plan and occur within the yr the plan is adopted.

5. For the ownership tests, the attribution rules of §318 apply

6. Seagram’s - abuse of the rules – the corp. redeemed most of it’s stock for cash and out of the money options that weren’t worth much so that it could get it’s money out of the corp., but have div. treatment and get DRD. Attribution rules of §318(a) for options meant that it still had the same ownership interest, even though it had little financial interest, so it didn’t pass any of the three redemption as exchange tests. The corp. faced the §1059 excess dividend rule, but §1059 used to only suspend dividends in excess of A/B rather than treat them as a sale… since corp. had relatively low basis, much of the gain on the sale could be suspended for a long time. Congress changed §1059 in response to this action by Seagram’s.

7. Charitable contributions – s/h can avoid cap G on sale and get charitable contribution by donating stock to charity and then having the corp. redeem the stock from the charity. As long as there was no binding agreement upon the charity at the time of the gift that required the redemption to occur, the s/h will get away with it. (Grove and Rev. Rul. 78-197). The taxpayer can’t retain an interest in the stock when transferring it to charity… e.g., keep stock but transfer div… the div. are income to the s/h (Hoarst and Harrison)


D. Redemptions by Affiliated Corps. - §304

1. §304 reclassifies sales between a controlling s/h and an affiliated corp. as redemptions under §302, where §302 would not otherwise be applicable.

2. Brother-Sister relationship (§304(a)(1)):

a. When one or more persons controls 2 corps, and one of the corps. (Y) acquires the stock of the other (X) from the controlling person(s) with some form of prop.

- Property includes money, securities, and other prop. (including notes of the acquiring corp.), but doesn’t include the stock of acquiring corp. – that is a §351 transaction. (§317(a)).

b. The transaction is treated as if the controlling person did a §351 transaction with the acquiring corp (Y) by contributing the other/issuing corp’s (X) stock and then had the acquiring corp. (Y) redeem the stock that it issued.

(1) If the redemption doesn’t pass the §302(b) tests and is treated as a §301 distribution

(a) transfer of stock will be treated as a contribution of cap. to the acquiring corp’s (Y) A/B.

- The acquiring corp’s (Y) A/B in the other corp. (X) stock is A/B in the hands of the controlling transferor + G recognized on the transaction by s/h excluding div (but including cap G amounts in excess of E&P and A/B). (§362(a)(2))

(b) determining if cap gain from distributions in excess of E&P and A/B

(i) It is done solely in reference to the A/B of the acquiring corp (Y) stock

(ii) The transferor’s A/B in the other/issuing corp’s (X) stock that was transferred to the acquiring corp. (Y) is added to his A/B in the acquiring corp. (Y) stock as a §351 capital contribution. (§1.304-2(a))

(iii) Then, the s/h’s A/B in the acquiring corp. (Y) is reduced as required by §301 for insufficient E&P. When the s/h’s acquiring corp. (Y) stock hits 0, he must recognize additional amounts as cap gain.

(c) Calculation of amount of dividend – amount of div. under §301(c) is calculated first to the extent of the acquiring corp’s (Y) E&P and then to the extent of the other corp’s (X) E&P (§304(b)(2))

(2) If the redemption is treated as a sale or exchange under §302(b), acquiring corp. takes FMV/cost basis and transferor recognizes cap. gain.

- The E&P that must be reduced proportionately for the redemption under §312(n)(7) is the issuers (per Kurtz)

c. Because bro-sis relationship can always be converted into par-sub by use of constructive ownership rules (i.e., the corp’s are attributed all of their controlling owner’s shares, so by definition they each own >50% of each other), only actual ownership before the transaction is used to see whether relationship is bro-sis or par-sub.

3. Parent-Subsidiary relationship (§304(a)(2)):

a. When s/h transfers stock of one corp. (X) to the acquiring corp. (Y) in exchange for prop, and the other/parent corp. (X) is in control of the acquiring/sub corp. (Y)

b. The distribution of prop. is treated as a redemption of the parent/issuing/other corp. (X) stock under §302. Mechanically it is as if Y issued dividend to X and X redeemed… however, the dividend to X is not taxed to X.

(1) Sub. will always receive FMV/cost basis in the parent’s stock.

(2) If the transfer doesn’t pass 302(b) and is treated as a §301 distribution,

(a) The transferor’s A/B in the remaining parent (X) stock in increased by the A/B of the of the parent (X) stock sold to the sub (Y). (§1.403-3(a))

(b) If the transferor has no stock remaining in parent, his A/B in the stock sold is transferred to the people or entities whose relationship caused the attribution of ownership…. the acquirer/sub (Y). (§1.302-2(c))

(c) The E&P of both corp’s is used for div., first the acquiring corp (Y), then the issuing corp. (X)

(3) If it is treated as a sale or exchange, the transferor has a cap gain on the sale.

4. Control for purposes of §304(a) (§304(c))

a. Control is owning >= 50% of voting power OR value

b. Control for §304(a) is tested before the transaction takes place

c. If person is in control of a corp. and that corp owns 50% of vote or value in another corp., then the person owns control of the other subsidiary corp. w/o regard to §318(a) attribution rules. The control is considered total control for further attributions in this case. (§304(c)(1))

d. In order to determine control in the two corps, modify §318(a)(2)(C) and (3)(C) to require only 5% control in a corp. for attribution to occur instead of 50%. However, for amounts between 5% and 50%, the ownership attribution is proportional to ownership. (§304(c)(3)(B)(ii)(II)) Amounts above 50% are attributed normally.

e. Control group - If 2 (or more) people control the stock, even if one person receives acquirer (Y) stock instead of prop. for his transfer of the other corp. (X) stock. (i.e., a §351 transaction for him), as long the other person contributed some prop. and both s/h retain or obtain some stock of acquirer (Y), the test for control includes both people - §304(c)(2)(B)

5. Redemption inquiries under §302(b) for §304 redemption (§304(b)(1))

a. The §302(b) redemption inquiry of distribution or sale is made with respect to the stock of the other/issuing corp. (X) only.

b. In order to determine the s/h’s interest for §302(b) tests, §318(a)(2)(C) and (a)(3)(C) for attributions to and from corp. entities is applied without regard for 50% limitation.

c. For a par-sub transaction, the stock sold to the sub. (Y) by the s/h is reattributed through the parent (X) back to the s/h.

6. Overlap of §304 and §351

a. If the other/issuer corp. (X) stock is transferred to the acquiring corp. (Y) in exchange for prop. and stock in the acquiring corp. (Y), the transaction is split up into a §351 transaction for the stock and a §304 transaction for the prop.

- the A/B of each stock owned in the acquiring corp. (Y) afterwards is kept separately… A/B of new stock is solely from §351 separate from other stock subject to §304 part.

b. §304 doesn’t apply for any liability assumed by the acquiring (Y) corp. if the liability was incurred by the transferor to acquire the issuing/other (X) stock (§304(b)(3)(B))

(1) The assumption of liability is considered a sale (since §304 doesn’t apply), separate from the §351 part of the transaction.

(2) If the debt is not incurred to acquire the stock, §304 applies to it.

7. Can have combination of par-sub and bro-sis relationship

Ex 1: X - Y sells S stock to Z

70% 100% - Y controls S directly and controls Z indirectly

Y Z through X.. Under §318, X’s entire ownership of

100% Z is attributed to Y(not a sidewise attribution), so Y

S owns 100% of Z… §304 applies

- It is a §301 distribution since it fails §302(b)

- However, Y’s A/B in S disappears since Y owns no other prop. to attach it to.

Ex 2: A

51% 51% - A transaction between N and Z would be an

N X affiliated corp. transaction subject to §304…

51% Z is attributed to X at 51% and to A at 51%,

Y then from A to N at A’s total ownership %,

51% which is 51%.


V. Stock Dividends


A. Stock Dividends - §305

1. Generally gross income doesn’t include distributions from a corp. of its own stock. (§305(a))(i.e., stock splits).

a. If the distribution of the stock dividend doesn’t change the proportional ownership, then the dividend is not taxed… no real economic effect from div.

b. Stock includes stock and stock rights and warrants. (§305(d)(1))

c. The fact that treasury stock is distributed as opposed to new issues isn’t a problem (§1.305-1(a))

2. Exceptions to rule – Taxable stock dividends: (§305(b))

a. If s/h has the choice to receive stock or cash/property, then the entire distribution is taxable, whichever he receives. (§305(b)(1))

(1) It doesn’t matter if nobody actually takes the cash… choice alone is enough to cause taxable dividend.

(2) If part of the distribution is subject to choice, but another part isn’t, only the part subject to the choice is considered taxable (e.g., each s/h gets 1 sh. and choice of another share or cash… the 1st share isn’t taxable, only the second one subject to choice). (§1.305-2(b)(Ex. 1))


b. If the distribution is disproportionate – (1) some s/h receive prop. and (2) others increase their proportionate interests in the assets or profits of the corp. (§305(b)(2)) (e.g., cash to preferred s/h and common stock to common s/h)

(1) Both requirements must be met for this to apply.

Ex: p/s is issued to common s/h - it reduces the interests of the old preferred s/h and increases the interests of the common s/h who now have p/s, but without additional prop. being distributed to the preferred s/h (within 3 yrs – see below), the distribution does not qualify as a §301 distribution under this exception, and is not taxed.

- the fact that the same s/h owned equal proportions of each is irrelevant… the test looks at the interests of the classes rather than the individual s/h.

(2) Prop. Requirement:

(a) Series of distributions are aggregated. (§1.305-3(b)(1))

(i) The series do not need to be a part of a plan (§1.305(b)(2))

(ii) If the receipt of cash or prop. doesn’t occur 3 yrs before or after the distribution of the stock, then they are not aggregated and the prop requirement isn’t met. (§1.305-3(b)(4))

(b) Distributions of cash in lieu of fractional shares (§1.305-3(c))

(i) Should be done for administrative purposes, rather than to increase proportional interests.

(ii) If the total cash distributed for this reason is <= 5% of the FMV of the stock distributed, it qualifies for this and is doesn’t fall under §305(b)(2).

(iii) It is treated as a distribution of the fractional shares and then a redemption of them, which would be too small to pass a §302(b) test.

(3) Disproportionate Distributions:

(a) If p/s is issued to common s/h and there are preferred s/h, the common s/h interest is increased in assets and earnings to the detriment of preferred s/h

(b) If the newly issued p/s is subordinate to the old p/s, the distribution is not treated as a §305(b)(2) distribution, because the p/s still has priority interest in the assets of the corp. (§1.305-3(e)(Ex. 3))

(c) If there is more than 1 class of stock outstanding you treat each class separately

(4) Redemptions can also be considered stock distributions to unredeemed s/h under §305(b)(2) disproportionate distributions since stock does not have to actually be issued to be a distribution (i.e., one s/h received prop and the other’s interest increased) (§1.305-3(b)(3) & §305(c)).

(a) If the s/h meets §302(b) test and the redemption is treated as a sale, §305 doesn’t apply (§305(c))

(b) If it is a §301 distribution,

(i) If the redemption is isolated and not part of a periodic redemption plan §305(c) doesn’t apply. (§1.305-3(b)(3))

(ii) §305(c) applies if the redemption isn’t isolated.

The unredeemed s/h is deemed to have received §301 distribution to the extent of their interest in the corp. is increased..

(A) # of shares considered to be distributed to the other s/h:

(old # of s/h + X) / (total old # of shares + X) = # of sh after redemption / total # of shares after redemption

(B) fictional shares are valued at the value of the shares redeemed.

Ex: 2 s/h.. 1 w/ 90 A sh. & other w/ 180 B sh…. 60 B sh redeemed. B still has control, so §301 applies. Looking for tax to A: Number of new sh for A is (90+x)/(270+x)=90/210… X=45 They are valued at the FMV of B shares

(5) Conversion ratios on convertible p/s

(a) If common s/h distributed c/s, the conversion ratio of the p/s should increase accordingly (not a problem under §305(b)(5)). (§1.305-3(d))

- If the ratio doesn’t increase, it causes an increase in the interests of the common s/h… if prop. is distributed to preferred s/h in the 3 yr period before or after, the c/s distributed to common s/h becomes taxable.

(b) If the corp. distributes cash to p/s and lowers their conversion ratio, the common s/h are taxed for their increase in interest under §305(b)(2) and §305(c), the same as a redemption. (Reg. §1.305-3(e)(Ex. 7))

c. Distributions of p/s to common s/h and c/s to other common s/h (§305(b)(3)).

(1) purely c/s to common holders can’t be taxed even if there are other classes of stock unless the other securities have conversion rights that are affected; they are already at the bottom of the pool in terms of interest

(2) if only c/s, p/s issued to them will not cause a problem because everyone still has the same interest.

d. Distributions on p/s. (§305(b)(4)) – any distribution on p/s is taxable.

(1) If preferred s/h get anything in the transaction it is taxable to all.

(2) An increase in conversion ratio of convertible p/s to keep pace w/ a common stock split isn’t a problem.

e. Distributions of convertible p/s, unless IRS is convinced that it will not cause a change in ownership interests (§305(b)(5))

3. Tax effects:

a. Income

(1) corp. - doesn’t recognize income if the distribution is under §305(a). The distribution of its own stock will not create a recognizable gain to the corp. However, it may recognize G for appreciated prop. if under §305(b). (§311(a))

- §1032 doesn’t apply because there is no transfer of the prop. in exchange. to the corp.

(2) s/h - If the stock dividend is taxable, it is treated as a distribution under §301 and the distribution amount is the FMV of the stock or stock rights on the date of distribution. (§1.305-1(b))

(a) For corp. s/h - different rule for corp. s/h if prop. other than notes of the distributing corp. is distributed… the amount realized in the distribution is the lesser of: (§1.301-1(d))

(1) the FMV of prop distributed or

(2) the A/B of the prop. in the hands of the distributing corp.

(b) The FMV is not adjusted for the fact that the value of the old shares has decreased.

(c) If there is a choice of stock or cash, the stock received is valued at the higher of the FMV of the stock or amount of cash that was offered as the other choice. (1.305-1(b)(2))

b. A/B

(1) If distribution taxed as dividend under §301, the new stock’s A/B is the FMV of the stock. The A/B of the old stock is unaffected.

(2) If it isn’t taxed, the old A/B is allocated among the new shares and stock rights based upon the relative FMV of each at the date of distribution. (§1.307-1)

(a) If stock rights are exercise, the A/B of the stock issued is the A/B of the option + the exercise price.

(b) If §305(a) applies and the FMV of the stock rights distributed are less than 15% of the FMV of the stock at the time of distribution, the A/B for the rights will be 0 unless the s/h elects otherwise (then the allocation based upon FMV will occur) (§307(b))

(c) The holding period of the old stock tacks.

c. E&P – if taxable, the distributing corp. reduces E&P by amount of distribution. If it isn’t taxable, don’t reduce E&P. (§1.312-1(d))


B. §306 Stock

1. §306 stock complements §305 and catches income that §305 misses. §306 stock is subject to ordinary income upon sale. It was passed in response to Chamberlin where the controlling s/h avoided dividend treatment by distributing p/s where c/s was only class (no tax under §305), sold the p/s to a 3rd party (recognize cap G), and the corp. later redeemed the p/s from the 3rd party.

2. Qualifying as §306 stock (§306(c))

a. Stock other than c/s (p/s) issued on c/s which is received as a non-taxable stock div under §305(a) that would have been a div. if it was in cash. (§306(c)(1)(A))

b. P/s received in a tax-free corp. reorg. if the effect was the same as a stock div., or if the stock was received in exchange for §306 stock (§306(c)(1)(B)).

Ex: In merger, b/w A and B corp., A’s s/h get c/s and p/s in exchange for their c/s. The preferred stock is §306 stock.

c. Stock which has an A/B determined by reference to the A/B of §306 stock (i.e., substituted or transferred A/B) (§306(c)(1)(C)) – e.g., gifts and §351 contributions

- This rule can even make common stock §306 stock. Ex: in §351 exchange, s/h contributes §306 stock for c/s. The c/s received is §306 stock. The shares in the corp. still stay §306 stock – the tainting spreads (§1.306-3(e))

d. P/s other than c/s acquired in an exchange to which §351 applies if the receipt of money would have been treated as a div. (§306(c)(3))

e. Exceptions

(1) If the corp. has no curr. or accum. E&P in the year of issuance, the stock isn’t §306 stock. (§306(c)(2))… if there are two corps. involved in a §351 transaction, E&P of both must be analyzed, the issuer first, then the acquirer (from §304(b)(2) principles).

(2) Stock that is inherited isn’t §306 stock because the A/B of the stock is the FMV on date of death and therefore isn’t in reference to the A/B that the stock had in the hands of the decedent (§1.306-3(e))

(3) Convertible stock (§306(e))

(b) if p/s stock is convertible into c/s, the c/s received is not §306 stock

(a) if c/s stock is convertible into p/s, it is not treated as c/s

(4) Substantial change in terms and conditions of stock (§306(g))

(a) If change the FMV of the stock is the greater of the FMV at time of distribution or at time of change

(b) E&P determined at higher of time of distribution or change. To avoid §306 treatment, E&P needs to be 0 at both time of distribution and change.

- Stock includes stock rights (§306(d)) – treat as stock distributed at time of distribution of rights.. if exercised, the stock is §306 stock if the right was for §306 stock, and use FMV of rights at time of distribution as amount subject to §306 treatment. (§1.306-3(b))

3. Dispositions of §306 Stock

a. If s/h sells §306 stock, the amount realized is treated as ordinary income to the extent that the s/h would have had a div. at the time of distribution if cash in an equal amount to the FMV of the stock was distributed instead of the stock. (§306(a)(1))

(1) However, if the proceeds are less than the FMV at time of distribution, only the proceeds will be taxed as ordinary income.


(2) The E&P that is used is the year that the §306 was distributed.

(3) It is ordinary income, not dividends, so DRD can’t be used.

(4) No adjustment to E&P after the sale.(§1.306-1(b)(1))

b. Amounts received in the sale above the FMV of the p/s (max amount that would have been div. in yr of distribution) or the E&P in yr of distribution are returns of cap. and then cap G once A/B hits 0. (§306(a)(1)(B))

c. Any remaining A/B in the §306 stock after it is sold is added back to the c/s (§1.306-1(b)(2)(Ex. 2)). The remaining A/B is added to the c/s even if the s/h still has additional §306 stock shares remaining after the sale. (§1.306-1(b)(2)(Ex. 3))

4. Redemptions of §306 Stock

a. If §306 is redeemed, the total amount received by the s/h is a distribution to which §301 applies. (§306(a)(2))

- It is a div. to the extent of the redeeming corp’s E&P in the year of the redemption (instead of the year of distribution)

If E&P in yr of distribution is very low amount, e.g., $5 (but not 0, so it is §306 stock), but high now, you are much better off selling the §306 stock rather than redeeming it, and visa versa, since only a little bit would be div

b. E&P of corp. is affected like normal §301 transaction

c. Can’t piggyback §306 stock on top of voting stock in valid §302 redemption (§1.302-3) - §306 stock part is taxed as §301 distribution, while c/s is treated as §302(a) exchange.

d. Other than that it is treated the same as a sale of §306 stock.

5. Exceptions to §306 Treatment in Disposition of §306 Stock.(§306(b))

a. Complete termination of stock interest through sale - S/h sells all of his c/s and p/s and completely terminates his interest in the corp. (§306(b)(1)(A))

(1) §318 attribution rules apply (§1.306-2(a)) - the sale can’t be to a §318(a) related party – Note: family waiver rule is not available… only part of §302

(2) Can still have a credit interest (§1.306-2(a))

b. Redemption that is treated exchange under: (§306(b)(1)(B))

(1) §302(b)(3) - The corp. redeems all of the s/h c/s and p/s, completely terminating the s/h interest in the corp.

(2) §302(b)(4) - The corp. redeems an individual s/h stock in a partial liquidation under §302(b)(4)

c. Liquidations – §306 stock redeemed in complete liquidation under §331 (§306(b)(2))

d. S/h disposes of §306 stock in a way in a non-recognition transaction (e.g., reorg., §351 contribution, or gift). However, the transferred stock retains its taint and remains §306 stock in the other party’s hands. (§306(b)(3)) The stock received in return may be considered §306 stock as well, spreading the taint (§1.306-3(e))

(1) §306 stock is not considered prop. under §317(a), so §351 will apply to a transaction rather than §304

(2) However, if §306 stock is redeemed in exchange for c/s of the same co., it becomes c/s not subject to §306. (§1.306-3(f))

e. §306 doesn’t apply if the s/h can convince the IRS that the actions were not done with tax avoidance as a principle reason. (§306(b)(4)) – usually works best for isolated sales by minority s/h (§1.306-2(b)(3))

- It’s hard to get IRS to agree – Fireoved

6. Charitable contributions – Caruth – donated p/s stock to charity after extra-ordinary dividend was declared on it, but before record date. He took large contribution… the charity took the div and then he bought back the stock (not prearranged, so not a sham). Even though IRS said div. was taxable to him, the ct. said it was fine because he gave the stock away.

If stock was §306 stock

a. Donation should have been at A/B because it produces ordinary income (§170).

b. Would not have been a G as well, because charitable contribution doesn’t trigger G recognition.

- He repurchased it back from the charity rather than the corp. because if the corp. reacquired it, he couldn’t get it back from the corp. w/o it being §306 stock (unless E&P = 0 in yr of distribution).


C. Nonqualified Preferred Stock - §351(g)

1. Preferred stock issued at the time of formation is not §306 stock under §306(c)

2. Non-qualified p/s – if the p/s is subject to: (§351(g)(2)(A))

(a) pay-off: s/h forced redemption by corp. or related party, required to be called by corp. or related party, subject to redemption that will more likely than not be exercised by corp. or related party, or

- Only applies if the payoff isn’t remote. The payoff should also be exercised w/in 20 yrs from issuance of the stock. (§351(g)(2)(B))

(b) interest: div. varies w/ interest rates, commodity prices, etc.

It is more a debt security than equity, so it is treated as debt rather than equity.

- Related parties use §267 definition

3. Tax effect

(a) If no other qualified p/s or c/s is transferred in transaction, it will not qualify for §351 since it will be prop. for prop. – normal G or L on sale will be recognized.

(b) It is treated as boot for purposes of §351

(c) However, it counts towards the 80% control test for §351 for vote (if it can vote) and value. §351(g) was only intended to affect the taxation of the stock, not its status as stock for other purposes, such as control.

4. §351(g) only applies to §351 – not other sections such as §304 – no overlap

- However, it still may be §306 stock even though the s/h already pays full amount on distribution as boot… it creates a double tax. §351(g) is inconsistent w/ §306(c)(3) – never clarified in the code. §351(g) rule should be applied in §306 as well to hold that it is prop., not stock, but it isn’t clear that a ct would do that.

VI. Liquidations


A. Complete Liquidations of Non-Subsidiary Corps.

1. Complete Liquidation

a. A distribution or series of distributions in redemption or cancellation of all of the stock of the corp. pursuant to a plan. (§346(a))

b. Corp. does not have to dissolve… only need all corp. assets to be distrib. to s/h.

c. A liquidation plan doesn’t have to be adopted to get complete liquidation treatment, but without a plan which is fully executed in 1 yr, the IRS will scrutinize the transaction… IRS may recharacterize series of distributions as div. since there is no clear determination of when liquidation occurred. §1.331-1(d)

d. If the corp. can’t pay the taxes on the G from distribution, the s/h is liab. for the taxes. (§6901)

2. Tax treatment to taxpayers

a. S/h recognizes cap G/L as if they had sold their stock in exchange for the FMV of the assets received. (§331)

(1) If the s/h assumes liab. in the liquidation, his A/B in the stock will be increased by the amount of liab., which since it is redeemed, reduces his cap G on the distribution (or may throw him into a loss).

(2) The distribution from the corp. will be net of taxes, so the s/h will get less in the distribution than the corp. has.

- If the corp. has insufficient liquid assets to cover the tax (e.g., only real prop.), the tax liability is shifted to the s/h… essentially the same as the s/h receiving a liab.

(3) Review of mortgages involved in sales:

(a) If prop. is sold and buyer takes mtg., the A/B is the FMV + the mtg. Seller recognizes proceeds + relief of mtg. – A/B

(b) If prop. is distributed and s/h takes mtg., the s/h recognizes FMV – mtg. – A/B (- unpaid corp. taxes). A/B is FMV. Corp. recognizes G = FMV – A/B… the mtg. is ignored for corp. G purposes in distribution.

b. A/B is FMV at time of distribution if the liquidation transaction is taxable (§334)

c. Holding period starts after the liquidation date. (§1223(1))

d. Installment method

(1) If installment note is liquidated to s/h, s/h can use the installment method on payments for recognizing G = % of total payment x total realized G.

(2) The sale by the corp. to produce the installment note must take place w/in 12 mos. after adoption of liquidation plan and liquidation must be completed in that 12 mo. period. (§453(h)(1)).

(3) It doesn’t apply to recognition of losses.

(4) Calculation issues:

(a) If the mtg. transferred w/ the prop. to get the note exceeds the A/B of the prop., the excess is recognized as a G immediately. The A/B is reduced to 0, and the Gross Profit % = 100%, meaning that all payments will be completely recognized as income.

(b) Any boot/cash transferred with the note is considered a payment under the note and the income is recognized based on the Gross Profit %

(c) When the note is distributed to s/h, the corp. must recognize the deferred G immediately. (§453B(a))

(d) When the note is distributed to s/h, any liab. included (including tax) are unconnected and deducted in the first year.

- may not be relevant now since accrual taxpayers can’t use accrual method (new amendment to §453)

e. If the stock is acquired by the s/h in different blocks, each block must be evaluated separately for G/L (§1.331-1(e))

f. Series of distributions in complete liquidation

(1) recover A/B first for each partial liquidation.

(2) once A/B runs out, amounts distributed are cap G

(3) any leftover A/B after all distributions are final is then taken as a loss.

3. Tax treatment to distributing corp.

a. Corp. recognizes G/L on assets distributed as if they were sold at FMV (§336(a))

(1) The FMV of the prop. can’t be less than any liab assumed by the s/h (§336(b))

(2) The distribution of depreciable prop. may result in ordinary income to the corp. rather than cap G under §1239 if it is to related parties (>50% ownership by value w/ constructive ownership under §267).

b. For distribution of installment notes, the corp. will recognize the unrecognized gain on the note §453B(a).

c. Losses are allowed - §267 doesn’t normally apply to losses involved in a complete liquidation (§267(a)(1)). No cherry picking possible like under §311 because all assets are distributed.

(1) Disallowance of losses with related parties (§336(d)(1))

(a) No loss is allowed for distributions by the corp. to §267 related persons if:


(i) the distribution isn’t pro-rata for each asset based on s/h ownership, or

(A) if one person receives loss prop. and other person receives cash for same amount as FMV it isn’t pro-rata.

(B) it doesn’t matter how the corp. got the prop. or from whom.

(ii) the prop. is disqualified prop – acquired by the corp. w/in the last 5 yrs through a §351 transaction or contribution to capital. (anti-stuffing provision)

(A) This includes prop. with substituted or transferred A/B from prop. used in §351 transaction

(B) The prop. doesn’t have to be contributed by the related party who receives it in distribution.

(b) neither of these need built-in losses at time of acquisition by corp. to have losses disqualified.

(c) losses disappear completely since the corp. doesn’t have anything to attach it to… no suspension.

(d) if minority s/h receive loss prop. as well, these rules don’t apply to them… the corp. must allocate the loss between parties (and see §336(d)(2)).

(2) Loss is limited for transactions that use §351 or contribution of capital involving prop. with built-in losses before liquidation, where it is done principally for tax avoidance purposes. (§336(d)(2))

(a) In the distribution to the s/h or in a third party sale pursuant to a liquidation plan, the A/B in the prop. is reduced by the built-in loss in the prop. from when the corp. received the prop. through a §351 transaction or contribution of capital. Further losses beyond built-in loss are deductible.

(b) Tax avoidance is presumed if any prop. was acquired w/in 2 yrs of the date of the adoption of the plan of complete liquidation. (§336(d)(2)(B)(ii))

- The fact that the prop. is related to the corp’s trade or business does not overcome the presumption of tax avoidance purpose.

(c) The relationship b/w the corp. and the distributee/buyer is meaningless for these purposes, but if both §336(d)(1) & (2) apply because §267 related party is involved, the (d)(1) rule will trump because it is harsher since it completely disallows any loss.

(d) Meant to catch improper double losses taken from distributions to minority s/h missed under §336(d)(1).

d. E&P is meaningless because there is nothing left to distribute or preserve.

4. Whether the corp. sells the assets and distributes the cash or distributes the assets and has the s/h sell them, the tax result is the same.


B. Complete Liquidations of a Subsidiary.

1. Liquidating Sub.

a. No recognition of G/L for the sub with respect to a distribution of prop. to the parent corp. (§337(a))

b. Sub will recognize G/L on distributions to minority s/h. However, limitations:

(1) If there is a §332 transaction, no loss is recognized to the sub on distributions to minority s/h (§336(d)(3)).

(2) §336(d)(2) will also apply – built-in losses transferred in §351 transaction for tax avoidance purposes (see above)

- §336(d)(1) normally won’t apply, because only the parent will be able to get control to be a related party, and if that is the case, §337 trumps.

c. Sub must increase or decrease E&P by amount of G/L recognized. - §312(f)… If under §332, there is no G to parent, and it can’t recognize losses to any s/h, so there shouldn’t be many E&P adjustments.

d. If corp. is liquidated under §332 and the sub owed debt to the parent, transfer of prop. in satisfaction of debt is a distribution to the parent and any G/L on reeipt of prop. in payment of the debt must be recognized. (§337(b))

2. The Parent

a. No G/L will be recognized by the parent in complete liquidation (§332(a))

b. Need to directly own 80% of voting and value over the entire period from the adoption of the plan to the receipt of the final piece of prop. to qualify (§332(b)(1))

(1) nonvoting, non-convertible p/s isn’t considered for test.

(2) no §318 attribution is applied

(3) purchase to put you above 80% before liquidation is OK as long as it is a real transaction. The IRS will respect the date chosen by the parent as the beginning of liquidation (Rev. Rul. 75-521)

(4) if corp. causes sub to redeem the stock of minority s/h in order to get to 80%, the IRS will treat the date of redemption as the date of the start of the liquidation (Rev. Rul. 70-7)

c. The parent takes the transferred A/B of the sub on distributed prop. (§334(b)(1))

d. Parent’s A/B in the Sub’s stock disappears after the liquidation. If the parent’s A/B in the stock is higher than the sub’s A/B in its assets, the parent is screwed and loses A/B.

e. Parent inherits the tax attributes of the sub, including E&P, NOL’s, inventory prop., and cap loss carryovers to the proportion of its ownership in sub. (§381)

3. Additional time qualifications:

a. If no formal plan of liquidation is adopted, it must be completed w/in 1 taxable yr (ending Dec. 31). (§332(b)(2))

b. If a formal plan is adopted, it must be completed w/in 3 yrs after the closing of the current tax year. (§332(b)(3)). It can be a series of distributions. If not, all distributions are retroactively taxable.

- If multiple distributions, must start status of liquidation before first distribution – stop going concern of business and prepare for wind-up. (§1.332-2(c))

4. Minority s/h - §332 doesn’t apply to minority s/h… they are treated separately under §331.

5. Reason for §332 & §337 is to prevent double taxation in subsidiary liquidations… parent can create sub under §351 and destroy it under §332 without any tax effects.

6. Sale and repurchase of part of sub may be recharacterized as liquidation and then sale of part of business if the sale doesn’t have economic substance (Associated Wholesale Grocers). Difference is that the parent’s A/B in the sub stock disappears if liquidation.


C. Taxable Corp. Acquisition and §338(g) Election

1. Qualified Stock Purchase - Transaction or series of transactions w/in 12 mo. period in which purchasing corp. buys 80% (by vote & value) of the target corp. (§338(d)(3))

a. 80% must actually be bought in 12 mo. period (“recently purchased stock”)... if it 25% is bought before and rest isn’t in 12 mos., the transaction won’t qualify.

b. Stock acquisitions involving substituted basis (i.e., §351, Reorgs, gifts), transfers at death, or related parties don’t count towards 80% acquisition. USUALLY CASH PURCHASES

2. §338(g) Election

a. Purchasing corp. must make election before the 15th day of 9th mo. after the mo. in which the acquisition date (when 80% is finally hit if in blocks) occurs.

b. Once the election is made, it is irrevocable.

c. The election doesn’t affect the seller

d. The new target can’t become part of buyer’s consolidated group (using buyer’s losses to offset gains from election) until after §338 effects occur.

e. The election must be applied consistently – if > 1 purchase w/in 1 yr before or after the 12 mo. test period, they must all either have the election or not. (§338(f))

f. §338(g) election isn’t available for tax-free reorganizations.

3. Effect of §338 (g) Election

a. The target corp. is treated as having: (§338(a))

(1) sold its assets on the acquisition date at their FMV in a single transaction, and

(a) Target corp. will have to pay taxes on gains from sale of the assets… the purchaser is ultimately liable on it.

(b) The actual amount paid for the corp. stock is irrelevant for these purposes… only affects A/B of buyer in the target’s stock. The FMV of the assets is used.

(2) become a new corp. that purchased all of the assets on the following day.

- The A/B of the assets of the target are stepped up to FMV (again, unrelated to proceeds received from sale of stock)

b. The new corp. is treated as a completely separate corp. for tax purposes, and can choose new tax year and accounting method, but loses characteristics such as NOL’s and carryovers (but they may be used to offset the G from §338 election).

- Buyer could simply pay less for the corp. instead of taking election, but the reduced amount will still be less than the A/B of the assets that can be used for depreciation.

4. §338(h)(10) Election – elected jointly by seller with §338(g) election

a. The election allows the seller to recognize G on sale of stock as if assets had been sold instead – better when the sub’s inside asset G is lower than parent’s outside stock G.

b. Only one set of G is recognized on the sale transaction and seller is liable for it instead of the buyer… only 1 level of tax instead of 2… seller will have to recognize G/L whether or not it elects §338(h)(10), but this will save buyer from paying taxes, so buyer will be willing to pay more.

c. (h)(10) election is only available to sellers if the target is a member of the seller’s affiliated group (selling parent must have a parent itself) and the sellers recognize G/L on sale of assets… must file consolidated return (§338(h)(10)(A)&(B))

d. The E&P of the sub goes to the parent.

5. Purchase of amounts < 100% - stepping up their basis. To get stepped up A/B of new target’s assets if less than 100% of the target bought or some is bought before the qualifying 12 mo. period: (§338(b))

Grossed-up basis of recently purchased (in 12 mo. period) stock =

Purchase price of new stock x (100% - % of old stock) % of new stock

+ Purchase price of old stock

+ All liabilities, including tax liab. on G from sale of assets.


(a) New stock is recently purchased stock… in 12 mos. period.

(b) Purchase price is technically referred to as A/B of the stock..

(c) Minority s/h get a good tax break since the increase in the A/B of the assets benefits them as well.

(d) Always keep tax liab. in mind when doing a §338 problem

VII. Corporate Reorganizations


A. Generally

1. “A”, “B”, and “C” reorgs are all acquisitive reorgs

2. When P acquires stock or assets of T and T gets stock as consideration from P, treat as if P stock went to T and T distributed the stock to it’s s/h.


3. No G/L to T, no G/L to s/h of T on distribution of P stock if no boot

4. All parties A/B remains the same if no boot.

5. Holding period tacks and tax attributes of T go to P (E&P, NOL, Cap. Loss Carryovers) for “A” & “C” reorg.

6. Should always be some business reason for deal, rather than purely tax avoidance or IRS can disallow tax treatment

7. If a distribution occurs before a merger, always have to consider whether it is a step-transaction that is related to the merger and therefore part of the same transaction… Was it done in contemplation of the deal? How close is the deal to occurring when distribution took place?

8. Continuity of interest and continuity of business enterprise are required for all reorgs., but “B” & ”C” have higher statutory requirements for continuity of interest than “A” common law requirements.


B. “A” Reorganization

1. “A” Reorg. must be statutory merger under state law (§368(a)(1)(A)) – need formal filing.

- However, some common law mergers have been allowed when the merger failed formal requirements of state law.

2. Requires continuity of interest and continuity of business enterprise (§1.368-1(b)) – both based on facts and circumstances.

a. Continuity of interest (§1.368-1(e))

(1) How much is needed?

(a) Need at least 50% continued interest for a clear ruling from the IRS. (Rev. Proc. 77-37) However, the Supreme Court has held though that 38% is enough (Nelson) and the IRS has never brought suit for amount > 40%.

(b) % of new co. acquired is irrelevant. (Minnesota Tea Co.) Only % of target’s value that paid in stock is what matters. (e.g., small car dealer can merge w/ GM)

(2) What qualifies?

(a) Debt or securities are not considered for continuity of interest (Cortland Specialty – S/T notes, Roebling – L/T bonds… 100 yrs, Paulsen – debt that w/ vote, convertible debt) – NEED EQUITY

(b) Preferred stock is continuity of interest, whether or not it can vote (Nelson). Vote is irrelevant.

(c) The s/h don’t need to hold the stock for long to qualify… can sell immediately before or after the merger as long as it isn’t to a related party. (§1.368-1(e)(6)(Ex. 1)) Can even have a binding agreement to sell to an unrelated third party after the merger before the merger actually takes place.

(d) Related party under §318(a) – cash from related party is attributed to party to the merger – e.g., If controlling party buys target w/ cash and then merges w/ sub for it’s stock, it doesn’t work (§1.368-1(e)(6)(Ex. 2))

(3) Who is required to qualify?

(a) Only look at the target’s s/h for the test…. Debt holders will not affect the test, but may have to recognize G.

(b) Dissenters’ stock is counted in the continuing interest test as if they participated in exchange for cash.

- Usually not a big problem because co. must have super-majority to approve merger

(c) Other redemptions connected to the merger will be treated as cash and not continuity of interest. (§1.368-1(e)(6)(Ex. 4) However, open market tender offer repurchase of shares of public co. after the merger will not affect continuity of interest… not targeted (Rev. Rul. 99-58)

(d) Each s/h doesn’t have to qualify for reorg… only the transaction as a whole. Assets can be distributed unevenly to s/h (Rev. Rul. 66-224)

b. Continuity of business enterprise (§1.368-1(d)) – must continue target’s historic business or use a significant portion of target’s assets in a business. Only target’s business enterprise needs to be continued, not the acquirer (Rev. Rul. 81-25)

(1) Business Continuity (§1.368-1(d)(2))

(a) Buyer being in same line of business helps, but isn’t conclusive

(b) Historic business is most recent business before merger plan

(c) 2 or more lines of business – only 1 significant line of business needs to be continued by the buyer

(d) Can be run through a subsidiary

(2) Asset Continuity (§1.368-1(d)(3))

(a) Significance based on relative importance of assets to business and net FMV of assets.

(b) Use of sales proceeds or cash doesn’t qualify (§1.368-1(d)(5)(Ex. 4))

(c) The assets doesn’t have to be used in a way critical to the buyer’s business - using assets as back-up plans to supply problems qualifies (§1.368-1(d)(5)(Ex. 2))

(d) If the assets are distributed from the buyer to various subs, it still qualifies even if no sub by itself uses substantial assets - they are aggregated (§1.368-1(d)(5)(Ex. 6))

(3) Partnerships using prop. - must have material financial interest and/or mgmt. control of the business to qualify as business or asset continuity. (§1.368-1(d)(4)) – does P still have the assets or business through the p-ship?

(a) If significant financial interest (>33% in §368-1(d)(5)(Ex. 9)), do not need mgmt. control

(b) If complete mgmt. control, still need material financial interest (>1% in §1.368–1(d)(5)(Ex. 8))

- If some mgmt control, need more (but 15% OK in (Ex. 7))

3. Tax effect to s/h who is party to reorg.

a. No G/L if stock or securities are exchanged solely for stock or securities of the other corp. who is a party to the reorg. (§354(a)(1))

(1) Securities – don’t count towards continuity of interest qualification, but once the transaction passes, they are considered non-recognition property. What are securities?

(a) bonds over 10 yrs is security – but still will be taxable if no bonds or lesser face value received in return

(b) bond under 5 yrs isn’t security

(c) bond in between 5 and 10 yrs may be security

(d) Stock rights are considered securities – given a face/principal amount of 0 (§1.354-1(e)). Accordingly, they will not be taxed as boot since their face value won’t be higher than face value given up for §356(d).

(2) Non-qualified p/s under §351(g) isn’t stock or securities for these purposes. It is recognized as boot if it is included in the transaction.

b. Boot

(1) G up to realized G, but not losses, is recognized on boot (§356(a)(1)&(c))

(2) G may be treated as div if the transaction has effect of div. (§356(a)(2))

(a) The div. is limited to the amount of the recognized G.

(b) Only accumulated E&P is used. Amounts beyond accum. E&P are cap. G.

(c) Apply redemption rules under §302 (including §318 attribution) to see if it should be treated as a div. or cap. gain. (Clark) – Treat as is exchange purely for stock and then acquirer redeemed its stock for cash. Cash less than 20% may be div. Usually cap gain if larger boot payment and acquirer is larger than target (<50% part of test already met).

(2) If securities received have face/principal value > face value of securities surrendered (including if no securities are given up) they are considered boot to the extent of excess face value (§356(d))… Purely based on face value, not FMV or A/B. If same face amounts, no G/L even if new FMV > old FMV or A/B… maximum of boot that can be recognized is realized G. If face of new > FMV, must be allocated for G.

Formula: G = Excess face value x FMV Face value new

Ex: Face old = 200, Face new = 220, FMV = 200; G = 20 x 200/220 = 18.2

(3) Creditors receiving stock for their debt is not boot. If creditor receives S/T bonds or cash, he will be separate from the transaction and recognize the income from his debt sale as a separate taxable transaction.

(4) When securities are received, s/h may be able to use installment method on the cap G (but not dividend) from the boot (§453(f)(6)(C))

(5) If §306 stock is exchanged for boot, the prop. is treated as a §301 distribution (§356(f))

c. Assumption of Liab. (§357) – same as §351 - assumption of liab. is not normally treated as boot (§357(a)) - exceptions:

(1) Liab. in Excess of Basis: If liab. on prop. transferred > A/B of prop. transferred, the excess liab. is treated as a gain from sale (§357(c))

(a) If liab. would produce a deduction in the hands of the corp., it isn’t a liab. for these purposes (§357(c)(3)). This includes contingent liabilities, such as possible environmental suits (Rev. Rul. 95-74)…. however, payment of mtg. doesn’t produce an expense.

(b) the s/h may be able to avoid gain for excess liab., by promising to pay the corp., though a bona fide debt instrument, the excess of liab. over the basis of the assets… this will increase his A/B in the prop. transferred by the face value of the debt. (Lessinger)

- However, this rule has only been accepted by the 2nd and 9th Cir. and may not be valid law elsewhere.

(2) If the debt is taken or the assumption is done for a clear tax avoidance reason (no valid business reason), the entire assumption of liab. will be taxed, even if only a portion of the debt was assumed/taken for improper reasons. The burden is on the taxpayer to show business reason. (§357(b))

d. A/B – same as §351

(1) if no boot, the A/B of the stock/security is the same as prop. exchanged (§358)

(2) if boot

(a) A/B of stock/security = A/B in prop. – FMV of boot + G recognized – L recognized + amount treated as a dividend

(b) A/B of boot is FMV (§358(a)(2))

(c) A/B is allocated among non-recognition prop. (§358(b)(1))

- If the transferor receives non-recognition property of stock and securities or stock of different classes, basis is allocated to each based upon the FMV of each security/stock (§1.358-2(b)).

(d) Assumption of liab. is treated as boot for purposes of A/B. (§358(d)(1))

- Only liab that wouldn’t produce a deduction in the hands of the corp.

e. A s/h who doesn’t receive any qualified prop. (e.g. a dissenter cashing out), will not be subject to the provisions of §354 and §356 at all and will have a fully taxable transaction.

4. Tax Effect to the Target Corp.

a. G/L – no G/L if solely in exchange for stock or security (§361(a))

b. Boot

(1) recognize boot received as G up to realized G if it isn’t distributed. (§361(b))


(2) If it is distributed, no G/L is recognized, unless it is boot which is appreciated prop.

(3) FMV of prop received can’t be less than liab. assumed. (§361(c)(3))

5. Tax Effect to Acquiring Corp.

a. §1032 - corp. has no G/L on exchange of its own stock for prop.

b. A/B – A/B is transferred prop. A/B in hands of target + G recognized by target, but not including target s/h’s (§362(b))

c. Tax effects transfer over – asset holding period, E&P, NOL’s, cap loss carryovers


C. “B” Reorganization

1. Stock for stock exchange (§368(a)(1)(B)) where the target (T) becomes a sub. of the acquirer (P)… usually tender offers.

2. Advantages of B reorg.

a. P will never be subject to the liabilities of the target since it does not merge with it or take its assets.

b. Do not need bd. approval or s/h approval

c. Don’t have to worry about transferring individual assets, which may be subject to debt with restrictive covenants or intellectual prop.

3. Requirements for B reorg.

a. Only voting stock can be used to pay off s/h.

(1) Qualitative - Must be able to vote for directors… ability to vote on M&A isn’t enough.

(2) Quantitative - Must be able to elect a significant amount of directors – meaningful vote… if class can vote 3 of 8 directors, that is good (Rev. Rul. 69-126)

(3) Potential voting stock (e.g., warrants, convertible debt) isn’t voting stock until it is exercised.

b. No boot can be used by P to buy stock from s/h – NO BOOT PERIOD!

(1) If any s/h receives cash, it ruins the transaction for everyone.

(2) If P pays for costs of merger (including legal fees, accounting fees, and costs of registering T s/h when they want to sell their new P stock) is OK. (Rev. Rul. 73-54 and Rev. Rul. 67-275).

- However, P can’t pay for costs of T’s s/h’s, such as their taxes.

(3) Turnbow – can’t use §356 boot rules to get around requirement, since w/o §368 satisfied, there is no merger for s/h to be a party to

c. Related to boot rules:

(1) Stock must be acquired for stock, but debt holders of T can be paid off with anything… debt, stock, cash (Rev. Rul. 98-10)

- If s/h owns debt, then there is question of valuation and whether debt was overpaid and should have been attributed to the stock.

(2) Other s/h’s of T can buy stock of T’s dissenting s/h (Rev. Rul. 68-562) – Rule is that P can’t pay cash or prop. for stock… other parties are not considered.

(3) T can redeem s/h’s before merger as long as the cash comes out of its own funds… if T borrows for it, it is ultimately paid by P. (Rev. Rul. 75-360)

- Redemptions affect continuity of interest and continuity of business enterprise. If Redemption is large, must make sure that B reorg. passes these two tests as well. (Rev. Proc. 77-37)

(4) T can declare extraordinary dividends before the reorg. as long as it uses its own funds to pay s/h (Rev. Rul. 70-172). Continuity of interest and business enterprise issues though again.

(5) P can buy treasury stock from T or advance funds to T as long as T doesn’t transfer the cash to s/h (e.g., uses it to pay off debt holders or taxes) (Rev. Rul. 72-522)

(6) Contingent consideration - pay more shares if T performs. OK as long as:

Additional consideration is voting stock; Maximum amount (cap) is stated; Must have at least 50% of cap at start; Must all be issued w/in 5 yrs; Cap must be on objective standards (e.g., earnings); and Contingent rights are not assignable. (Rev. Proc. 88-42)

d. P must have control of T after merger – 80% by vote and value of each class of shares (§368(c))

(1) Only need to get to 80% control for B reorg. – don’t actually have to acquire 80%… you must acquire 80% in transaction for C reorg.

(a) Creeping B – buy some stock with cash and then only transfer a smaller amount in the actual merger transaction later

However, can’t be clear step transaction or they will be combined and you will lose B reorg. (Chapman)

(1) How much is time is necessary? Regs give say 16 yrs is OK, but 1 yr isn’t enough (1.368-2(c). Chapman was 14 mos… disallowed since merger contemplated.

(2) Can always sell stock recently acquired with cash and then do a stock for stock transaction for the 80%.

(b) If P already has > 80% of stock, any stock for stock exchanges will be B reorgs.

(c) If P is a little short, it can always buy treasury stock from T or have T redeem it’s s/h to increase P’s ownership %, as long as the s/h do not get the cash from P.

(2) If T s/h have control of P after merger (i.e., P is really small), then it is a §351 transaction, with T stock contributed to P (can’t be §304 since no prop. is allowed to be transferred)

4. Tax effects – None really – no boot

a. G/L – no G/L to T (§361); no G/L to P (§1032); no G/L to s/h (§354)

b. A/B - is transferred basis for all… P takes T stock w/ T s/h’s A/B; T s/h’s keep old A/B in T stock for P stock.

c. Holding period of stock carries over.

d. Tax attributes (i.e., E&P, NOL’s, cap loss carryovers) do not transfer to P since T still exists.

5. Liquidation of T

a. If P liquidates T after reorg., it is a tax-free liquidation under §332. P will take T’s A/B in its assets, but lose it’s basis in T stock

Same result to P as if it merged or purchased asset – A, B, and C reorgs all have same final result if P ends up with all of the assets.

b. P can’t liquidate as part of B reorg. – must be STOCK FOR STOCK TRANSACTION … it would be a C reorg. if liquidation is part of reorg.


D. “C” Reorganization

1. Transfer of majority of assets mostly for voting stock – not statutory merger. (§368(a)(1)(C))

a. Assets are transferred individually, one at a time… more of a hassle… usually only C when A not available.

b. Liabilities are also transferred in the C reorg., but liab. relief is not considered boot unless other boot is included under boot relaxation.

2. Qualifying for C Reorg.

a. Statute requires transfer “solely for voting stock”, but includes boot relaxation

Boot Relaxation (§368(a)(2)(B))

(1) >= 80% of the FMV of the T’s assets acquired by P must be exchanged for voting stock to qualify for reorg.

(a) Size of target (T) in comparison to acquirer (P) is irrelevant

(b) The test considers % of assets transferred by P that is voting stock, not how much of T’s total assets are actually received by P… that is substantially all test – only look at what P pays, including debt assumption.

(c) Essentially, must buy 80% control of T through it’s assets in merger, unlike B, where only need to own 80% after merger.

(2) Boot

(a) If there is other consideration besides voting stock and assumption of liab., the assumption of liab. is boot.

(b) Non-voting stock is considered boot for these purposes.

(c) Payment of expenses directly related to the reorg. by P will not cause boot. (Rev. Rul. 73-54)

(3) If debt is incurred in connection w/ the reorg, it’s counted as part of the reorg., coming from P, since P ultimately has to pay for it . (Rev. Rul. 73-102 and Southwest Consolidated)

- prevents T from taking debt to pay s/h cash and then have P cleanly transfer stock for encumbered assets of T, since liab. is not considered boot w/o other boot. The exclusion for debt assumes only ordinary business debts of T, not debt taken out for the merger

b. “Substantially all” requirement – must get substantially all of the assets of T

(1) Test to be substantially all. Transfer by P must be : (Rev. Proc. 77-37)

(a) 90% of FMV of net assets of T, AND

(b) 70% of FMV of gross assets of T

(2) Total Asset Base

(a) Cash removed from corp. because of dissenters counts as part of total asset base.

(b) Any assets distributed to s/h before the merger or in connection with the merger are considered part of the total asset base.

(3) Mechanical test is purely to get IRS ruling. If you miss mechanical test, still may be able to win in ct. Better off if: (Rev. Rul. 57-518)

(a) the assets that aren’t transferred from T to P in reorg. are non-operating rather than operating,

(b) the assets are used by T to pay off debt rather than distributed to s/h, and

(c) T does not retain a line of business.

c. Still need continuity of business enterprise.

d. C reorg. rules requires T to liquidate, unless IRS waives the requirement (§368(a)(2)(G)) However, it doesn’t have to dissolve.

If T has bondholders, it must pay them off before it liquidates – either transfer stock or boot to bondholders or sell enough P stock to pay off bondholders

(1) Distributions to creditors are treated as transfer to s/h if qualified prop (stock or security) (§368(c)(3))

(a) Corp. will have no G/L, neither will bondholder (security or stock for security or stock isn’t taxable (§354(a))).

(b) Bondholder transfers A/B of its bonds to its newly received stock.

(2) If T sells P stock to pay off bondholders, it is a fully taxable transaction.

(3) If bond goes to s/h, it is boot to the degree its face value > face value given up by s/h.(§356(d))

e. If P already owns > 80% of T before the asset sale, it can simply use a §332 tax deferred subsidiary liquidation.

3. The Tax Effects – Same as “A” reorg.

a. A/B – T’s A/B in its assets carry over to its P stock (§358) +boot received – G recognized (net of dividends).

b. Boot is recognized by s/h as G

(1) Non-voting stock is not considered boot for G/L purposes (unless it is 351(g) stock), only qualification purposes.

(2) Assumption of liab. is not considered boot for G/L purposes, either.

(3) Short-term notes are boot.

(4) Clark rule applies for character of G… if it qualifies as exchange redemption under §302 it is cap. G.. if not it is div. under §301 to the extent of E&P.

VIII. Triangular Mergers


A. Generally

1. The acquirer forms a subsidiary and the transaction occurs between the subsidiary and the target.


2. Advantageous in that it keeps the target out of the parent’s shell and limits the parent’s liability (e.g., from tort suits or environmental penalties).

3. The biggest problem is that the parent is not technically a party to the reorganization without special statutory help. (Groman, Bashford)

- If not a party to the reorg., the reorg. provisions do not apply to their actions or contributions


B. “C” Triangular Reorganizations

1. C with dropdown

a. Assets transferred from target (T) to parent (P) in C reorg. for stock of P and then contributed to the sub (S) in exchange for S stock. The P stock is then distributed to T s/h in liquidation.

b. Continuity of interest - without statutory help, there is no continuity of interest since the parent doesn’t have the assets (Bashford). Statutes were passed to make it work:

(1) §368(a)(1)(C) and §368(b) makes P a party to the reorg. if it controls S.

(2) §368(a)(2)(C) makes the drop-down part of the transaction and a continuity of interest if it controls S.

- However, cannot mix both P and S stock in the transaction… must use one or the other, even if you acquire 80% of one of the stocks. (§368(a)(1)(C))

c. The transfer between T and P

(1) The transfer between T and P must meet normal C reorg. rules.

(2) Tax the transaction as a normal C reorg.

d. The drop-down is treated as a §351 transaction. P must control (>= 80%) S

(1) If liab. are dropped down, P must reduce A/B in stock by liab.

(2) If no new stock is issued to P from S, P must allocate the A/B increase from the contribution among the S stock it already owns. If new S stock is received, it will separately carry the A/B of the assets contributed.

2. Direct Triangular C

a. P contributes P stock to S in exchange for S stock. The assets are then transferred from T to S in exchange for the P stock. The P stock is distributed to T s/h in liquidation.

b. No problem b/w T and its s/h

c. Problem is with transaction b/w P and S

(1) Problem:

(a) When P contributes stock to S in exchange for S stock, P’s A/B in S stock is 0 since it’s A/B in its own stock is 0… would have huge G on later sale.

(b) S’s basis in P stock is 0 and §1032 doesn’t apply since it the stock transferred to T isn’t S’s own stock… huge G on later sale.

(2) Solution:

(a) §1.358-6 – P’s A/B in S stock is treated as if P received the assets and liab. and then dropped them down – P’s A/B in S stock is A/B of T’s assets.

- If T’s liab. > A/B of assets, P keeps 0 A/B in S stock.

(b) §1.1032-2 – if stock is received as part of a reorg., it is to be treated as if P stock was S’s own stock – no G/L

- As a result, Direct C has the same exact tax effects as C with drop down.

d. Recently purchased P stock from market by S

(1) §1.1032-2 doesn’t apply to recently purchased stock by S, and therefore, §1032 doesn’t apply.

(a) S will have to recognize G on transfer of purchased stock to T.

(b) If some stock of P is purchased and some issued by P, only the stock purchased is subject to G… the stock issued is still under §1032.

(2) S’s A/B in the purchased P stock will be its cost to purchase the stock.

(3) P must reduce the A/B of its S stock by the FMV of the purchased P stock that is used in the transaction (§1.358-6(d)) (since normally it would have the A/B of T’s assets).

- However, the A/B can’t go below 0.

(4) However, no effect to anyone else in the Reorg… Reorg. goes on.

3. Triangular C when P delivers stock to T (or even it’s s/h) – treated exactly the same as if P received the assets and dropped them down to S (Rev. Rul. 70-224)


C. “A” Triangular Reorganizations (Triangular Merger)

1. P transfers P stock to S in exchange for S stock. S merges with T and T gives T s/h P stock.

- If merger shortcuts and P directly transfers P stock to A, it is still treated as if a full merger occurred.

2. Party to Reorg. - §368(a)(2)(D) – makes P a party to the reorg.

a. Without it, No “A” Reorg. when mainly P’s stock is used since P is not party (Groman and Bashford).

b. “B” and “C” reorg. section actually states that controlling P is party to reorg., unlike “A”

- If S uses enough of its own stock to qualify w/o P, then there is no party to reorg. problem and this section is irrelevant… just normal S-T merger and P stock that is transferred to T is boot.

3. Requirements of §368(a)(2)(D)

a. Must get “substantially all” of the prop. of T

(1) same “substantially all” test as C reorg. – 90% net assets, 70% gross assets

(2) Can get around this if P pays for dissenters or redeems dissenters’ P stock afterwards.

(a) The statute only looks at T’s assets, so the amounts used by P to buy T stock from s/h or redeem his P stock afterward would not be included.

(b) However, this does affect continuity of interest test (but it has a much lower threshold… 40% - Nelson)

b. No stock of S can be transferred to T’s s/h – absolutely none

(1) This includes non-voting stock

(2) S bonds can be issued by S, but they are other prop. (i.e., boot) and are taxed to the s/h to the extent that their face value is greater than face value given up by s/h.

- This brings up the question of whether the instrument is really debt or stock… big difference in result.

(3) Stock of unrelated corps (e.g,. IBM) is boot.

(4) P can assume T’s liabilities w/o it being boot.

c. Transaction would have been good merger if T into P (i.e., continuity of interest and continuity of business enterprise)

4. Tax consequences – same as A reorg. with P and dropdown into S

a. No G/L to P, S, T, or s/h is no boot

b. P’s A/B in S stock is equal to T’s A/B in assets (net of liab) – same as if dropdown.

- If S debt or other prop of S is used, the A/B of P’s S stock must be reduced by the FMV of the S securities/assets used. Stops at 0, but no G is recognized by P on amounts beyond that.

c. §1.1032-2 and §1.358-6 are used to make the transaction work cleanly (A/B of P and S stock used)

5. Can also merge w/ P and dropdown assets to S, but then asset must go through P and increase the chance of liab. problems (e.g., environmental, tort)

6. The P stock received by T’s s/h is not eligible for §351 treatment if other outside corps. also transfer their prop. in exchange for P stock… can’t be combined since P did not technically receive T’s assets or it’s stock… S did. (Rev. Rul. 88-44)


D. Reverse Triangular Mergers

1. S merges into T using P stock (“A” reorg) and T s/h get P stock. P acquires T, but T is survivor instead of S.

a. Very much like a regular “B” reorg., but it has different requirements and more flexible. “B” is easier if you can meet its requirements.

b. Usually done for non-tax reasons… e.g. to keep brand name of T, franchise problems, or special license.

2. Party to Reorg. - §368(a)(E) – makes controlling P a party to the reorg.

3. Requirements of §368(a)(E)

a. Must have qualified as good merger w/ parent – continuity of interest and continuity of business enterprise

b. Surviving corp, T, must hold substantially all of the assets of the two prior corps., both T and S (excluding P stock that was distributed). Same rule as C reorg.- 70% gross assets and 90% net assets.

(1) The test is applied separately on each corp. (§1.368-2(j)(3)(iii))

(2) If prop. is part of consideration in merger from P, it can be paid out to s/h w/o affecting substantially all test (reduces total asset pool) – However, this affects 80% control test.

- If T distributes it’s own funds, it is part of total asset pool for the test (but helps 80% test)… essentially P can pay cash w/o causing a problem for substantially all test, but T can’t

c. T’s s/h must exchange >= 80% of their stock for P voting stock.

(1) P Must actually buy 80%, not just hit 80%. Can’t creep.

- Of course, could always sell stock you currently own to unrelated party and then buy 80%

(2) Need to acquire 80% for voting stock, but rest can be done with cash.

(3) If T redeems stock from s/h before merger, it helps the 80% test (but hurts the substantially all test)

- “B” only requires control at end, but it also doesn’t allow any cash.

4. Tax Effects

a. P takes A/B in T stock as if it were forward merger.. received T’s assets and dropped them down (§1.358-6)

In B reorg, P takes A/B of T’s s/h in their stock as the A/B for P’s T stock.

(1) Special Rule – If transaction could have qualified as either B reorg or reverse triangular merger, but P went with reverse triangular merger, P can take A/B as either A/B of T s/h’s in T stock or A/B of T’s assets. (§1.358-6(c)(2)(ii)).

Also can choose if it qualifies for §351 and Reverse Triangular Merger.

(2) If P owns < 100% of T, the A/B is reduced in proportion to % of stock not owned.

(3) Also add any prop. distributed from P to S in the merger.

b. G/L under normal rules for “B”, except boot to s/h will be taxed.

E. “B” Triangular Reorgs

1. §368(a)(1)(B) actually makes a controlling P a party to the reorg.

2. Essentially the same as a normal “B”, but P’s stock is used. T becomes a sub. of S.

3. A/B of T stock to S is the A/B of T’s s/h. If P contributed anything other than P stock to S, that amount is added to P’s A/B in S stock. (§1.358-6)

4. Cannot mix both P and S stock in the transaction… must use one or the other, even if you have 80% of one of the stocks. (§368(a)(1)(B))






















































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