(a) Treatment of certain stock purchases
(1) Acquisition by related corporation (other than subsidiary)
For purposes of sections 302 and 303, if—
(A) one or more persons are in control of each of two corporations, and
(B) in return for property, one of the corporations acquires stock in the other corporation from the person (or persons) so in control,
then (unless paragraph (2) applies) such property shall be treated as a distribution in redemption of the stock of the corporation acquiring such stock. To the extent that such distribution is treated as a distribution to which section 301 applies, the transferor and the acquiring corporation shall be treated in the same manner as if the transferor had transferred the stock so acquired to the acquiring corporation in exchange for stock of the acquiring corporation in a transaction to which section 351(a) applies, and then the acquiring corporation had redeemed the stock it was treated as issuing in such transaction.
(2) Acquisition by subsidiary
For purposes of sections 302 and 303, if—
(A) in return for property, one corporation acquires from a shareholder of another corporation stock in such other corporation, and
(B) the issuing corporation controls the acquiring corporation,
then such property shall be treated as a distribution in redemption of the stock of the issuing corporation.
(b) Special rules for application of subsection (a)
(1) Rules for determinations under section 302(b)
In the case of any acquisition of stock to which subsection (a) of this section applies, determinations as to whether the acquisition is, by reason of section 302(b), to be treated as a distribution in part or full payment in exchange for the stock shall be made by reference to the stock of the issuing corporation. In applying section 318(a) (relating to constructive ownership of stock) with respect to section 302(b) for purposes of this paragraph, sections 318(a)(2)(C) and 318(a)(3)(C) shall be applied without regard to the 50 percent limitation contained therein.
(2) Amount constituting dividend
In the case of any acquisition of stock to which subsection (a) applies, the determination of the amount which is a dividend (and the source thereof) shall be made as if the property were distributed—
(A) by the acquiring corporation to the extent of its earnings and profits, and
(B) then by the issuing corporation to the extent of its earnings and profits.
(3) Coordination with section 351
(A) Property treated as received in redemption
Except as otherwise provided in this paragraph, subsection (a) (and not section 351 and not so much of sections 357 and 358 as relates to section 351) shall apply to any property received in a distribution described in subsection (a).
(B) Certain assumptions of liability, etc.
(i) In general
In the case of an acquisition described in section 351, subsection (a) shall not apply to any liability—
(I) assumed by the acquiring corporation, or
(II) to which the stock is subject,
if such liability was incurred by the transferor to acquire the stock. For purposes of the preceding sentence, the term "stock" means stock referred to in paragraph (1)(B) or (2)(A) of subsection (a).
(ii) Extension of obligations, etc.
For purposes of clause (i), an extension, renewal, or refinancing of a liability which meets the requirements of clause (i) shall be treated as meeting such requirements.
(iii) Clause (i) does not apply to stock acquired from related person except where complete termination
Clause (i) shall apply only to stock acquired by the transferor from a person—
(I) none of whose stock is attributable to the transferor under section 318(a) (other than paragraph (4) thereof), or
(II) who satisfies rules similar to the rules of section 302(c)(2) with respect to both the acquiring and the issuing corporations (determined as if such person were a distributee of each such corporation).
(C) Distributions incident to formation of bank holding companies
If—
(i) pursuant to a plan, control of a bank is acquired and within 2 years after the date on which such control is acquired, stock constituting control of such bank is transferred to a BHC in connection with its formation,
(ii) incident to the formation of the BHC there is a distribution of property described in subsection (a), and
(iii) the shareholders of the BHC who receive distributions of such property do not have control of such BHC,
then, subsection (a) shall not apply to any securities received by a qualified minority shareholder incident to the formation of such BHC. For purposes of this subparagraph, any assumption of (or acquisition of stock subject to) a liability under subparagraph (B) shall not be treated as a distribution of property.
(D) Definitions
For purposes of subparagraph (C) and this subparagraph—
(i) Qualified minority shareholder
The term "qualified minority shareholder" means any shareholder who owns less than 10 percent (in value) of the stock of the BHC. For purposes of the preceding sentence, the rules of paragraph (3) of subsection (c) shall apply.
(ii) BHC
The term "BHC" means a bank holding company (within the meaning of section 2(a) of the Bank Holding Company Act of 1956).
(4) Treatment of certain intragroup transactions
(A) In general
In the case of any transfer described in subsection (a) of stock from 1 member of an affiliated group to another member of such group, proper adjustments shall be made to—
(i) the adjusted basis of any intragroup stock, and
(ii) the earnings and profits of any member of such group,
to the extent necessary to carry out the purposes of this section.
(B) Definitions
For purposes of this paragraph—
(i) Affiliated group
The term "affiliated group" has the meaning given such term by section 1504(a).
(ii) Intragroup stock
The term "intragroup stock" means any stock which—
(I) is in a corporation which is a member of an affiliated group, and
(II) is held by another member of such group.
(5) Acquisitions by foreign corporations
(A) In general
In the case of any acquisition to which subsection (a) applies in which the acquiring corporation is a foreign corporation, the only earnings and profits taken into account under paragraph (2)(A) shall be those earnings and profits—
(i) which are attributable (under regulations prescribed by the Secretary) to stock of the acquiring corporation owned (within the meaning of section 958(a)) by a corporation or individual which is—
(I) a United States shareholder (within the meaning of section 951(b)) of the acquiring corporation, and
(II) the transferor or a person who bears a relationship to the transferor described in section 267(b) or 707(b), and
(ii) which were accumulated during the period or periods such stock was owned by such person while the acquiring corporation was a controlled foreign corporation.
(B) Special rule in case of foreign acquiring corporation
In the case of any acquisition to which subsection (a) applies in which the acquiring corporation is a foreign corporation, no earnings and profits shall be taken into account under paragraph (2)(A) (and subparagraph (A) shall not apply) if more than 50 percent of the dividends arising from such acquisition (determined without regard to this subparagraph) would neither—
(i) be subject to tax under this chapter for the taxable year in which the dividends arise, nor
(ii) be includible in the earnings and profits of a controlled foreign corporation (as defined in section 957 and without regard to section 953(c)).
(C) Regulations
The Secretary shall prescribe such regulations as are appropriate to carry out the purposes of this paragraph.
(6) Avoidance of multiple inclusions, etc.
In the case of any acquisition to which subsection (a) applies in which the acquiring corporation or the issuing corporation is a foreign corporation, the Secretary shall prescribe such regulations as are appropriate in order to eliminate a multiple inclusion of any item in income by reason of this subpart and to provide appropriate basis adjustments (including modifications to the application of sections 959 and 961).
(c) Control
(1) In general
For purposes of this section, control means the ownership of stock possessing at least 50 percent of the total combined voting power of all classes of stock entitled to vote, or at least 50 percent of the total value of shares of all classes of stock. If a person (or persons) is in control (within the meaning of the preceding sentence) of a corporation which in turn owns at least 50 percent of the total combined voting power of all stock entitled to vote of another corporation, or owns at least 50 percent of the total value of the shares of all classes of stock of another corporation, then such person (or persons) shall be treated as in control of such other corporation.
(2) Stock acquired in the transaction
For purposes of subsection (a)(1)—
(A) General rule
Where 1 or more persons in control of the issuing corporation transfer stock of such corporation in exchange for stock of the acquiring corporation, the stock of the acquiring corporation received shall be taken into account in determining whether such person or persons are in control of the acquiring corporation.
(B) Definition of control group
Where 2 or more persons in control of the issuing corporation transfer stock of such corporation to the acquiring corporation and, after the transfer, the transferors are in control of the acquiring corporation, the person or persons in control of each corporation shall include each of the persons who so transfer stock.
(3) Constructive ownership
(A) In general
Section 318(a) (relating to constructive ownership of stock) shall apply for purposes of determining control under this section.
(B) Modification of 50-percent limitations in section 318
For purposes of subparagraph (A)—
(i) paragraph (2)(C) of section 318(a) shall be applied by substituting "5 percent" for "50 percent", and
(ii) paragraph (3)(C) of section 318(a) shall be applied—
(I) by substituting "5 percent" for "50 percent", and
(II) in any case where such paragraph would not apply but for subclause (I), by considering a corporation as owning the stock (other than stock in such corporation) owned by or for any shareholder of such corporation in that proportion which the value of the stock which such shareholder owned in such corporation bears to the value of all stock in such corporation.
References in Text
Section 2(a) of the Bank Holding Company Act of 1956, referred to in subsec. (b)(3)(D)(ii), is classified to section 1841(a) of Title 12, Banks and Banking.
Amendments
2014—Subsec. (b)(3)(D). Pub. L. 113–295, §221(a)(48)(B), struck out "and special rule" after "Definitions" in heading.
Subsec. (b)(3)(D)(iii). Pub. L. 113–295, §221(a)(48)(A), struck out cl. (iii). Text read as follows: "In the case of a BHC which is formed before 1985, clause (i) of subparagraph (C) shall not apply."
2010—Subsec. (b)(5)(B), (C). Pub. L. 111–226 added subpar. (B) and redesignated former subpar. (B) as (C).
1998—Subsec. (b)(5)(B), (C). Pub. L. 105–206, §6010(d)(1), redesignated subpar. (C) as (B) and struck out heading and text of former subpar. (B). Text read as follows: "For purposes of subparagraph (A), the rules of section 1248(d) shall apply except to the extent otherwise provided by the Secretary."
Subsec. (b)(6). Pub. L. 105–206, §6010(d)(2), added par. (6).
1997—Subsec. (a)(1). Pub. L. 105–34, §1013(a), amended last sentence generally. Prior to amendment, last sentence read as follows: "To the extent that such distribution is treated as a distribution to which section 301 applies, the stock so acquired shall be treated as having been transferred by the person from whom acquired, and as having been received by the corporation acquiring it, as a contribution to the capital of such corporation."
Subsec. (b)(5). Pub. L. 105–34, §1013(c), added par. (5).
1988—Subsec. (b)(4)(A). Pub. L. 100–647 substituted "stock from 1 member" for "stock of 1 member".
1987—Subsec. (b)(4). Pub. L. 100–203 added par. (4).
1986—Subsec. (a)(1). Pub. L. 99–514 substituted "To the extent that such distribution is treated as a distribution to which section 301 applies" for "In any such case" in last sentence.
1984—Subsec. (b)(2). Pub. L. 98–369, §712(l)(1), consolidated former subpars. "(A) Where subsection (a)(1) applies" and "(B) Where subsection (a)(2) applies" in one paragraph, inserted provision respecting source of dividend, and incorporated in cls. (A) and (B) former subpar. (A) and (B) provisions which had required determination of amount which is a dividend to be made by reference to earnings and profits of the acquiring corporation and as if the property were distributed by the acquiring corporation to the issuing corporation and immediately thereafter distributed by the issuing corporation.
Subsec. (b)(3)(A). Pub. L. 98–369, §712(l)(2), substituted "section 351 and not so much of sections 357 and 358 as relates to section 351" for "part III".
Subsec. (b)(3)(B)(i). Pub. L. 98–369, §712(l)(3)(A)(i), substituted "In the case of an acquisition described in section 351, subsection (a)" for "Subsection (a)".
Subsec. (b)(3)(B)(iii). Pub. L. 98–369, §712(l)(3)(B), added cl. (iii).
Subsec. (b)(3)(C). Pub. L. 98–369, §712(l)(4), inserted following cl. (iii) "For purposes of this subparagraph, any assumption of (or acquisition of stock subject to) a liability under subparagraph (B) shall not be treated as a distribution of property."
Subsec. (c)(3). Pub. L. 98–369, §712(l)(5)(A), designated existing first sentence as subpar. "(A) In general" and substituted subpar. (B) for former second sentence which read "For purposes of the preceding sentence, sections 318(a)(2)(C) and 318(a)(3)(C) shall be applied without regard to the 50 percent limitation contained therein."
1982—Subsec. (b)(2)(A). Pub. L. 97–248, §226(a)(3), substituted "as if the property were distributed by the issuing corporation to the acquiring corporation and immediately thereafter distributed by the acquiring corporation" for "soley by reference to the earnings and profits of the acquiring corporation" after "dividend shall be made".
Subsec. (b)(3). Pub. L. 97–248, §226(a)(1)(A), added par. (3).
Subsec. (c)(2), (3). Pub. L. 97–248, §226(a)(2), added par. (2), redesignated former par. (2) as (3) and substituted "this section" for "paragraph (1)" after "determining control under".
1964—Subsecs. (b)(1), (c)(2). Pub. L. 88–554 inserted reference to section 318(a)(3)(C) of this title.
Effective Date of 2014 Amendment
Amendment by Pub. L. 113–295 effective Dec. 19, 2014, subject to a savings provision, see section 221(b) of Pub. L. 113–295, set out as a note under section 1 of this title.
Effective Date of 2010 Amendment
Pub. L. 111–226, title II, §215(b), Aug. 10, 2010, 124 Stat. 2400, provided that: "The amendments made by this section [amending this section] shall apply to acquisitions after the date of the enactment of this Act [Aug. 10, 2010]."
Effective Date of 1998 Amendment
Amendment by Pub. L. 105–206 effective, except as otherwise provided, as if included in the provisions of the Taxpayer Relief Act of 1997, Pub. L. 105–34, to which such amendment relates, see section 6024 of Pub. L. 105–206, set out as a note under section 1 of this title.
Effective Date of 1997 Amendment
Pub. L. 105–34, title I, §1013(d), Aug. 5, 1997, 111 Stat. 918, provided that:
"(1)
"(2)
"(A) made pursuant to a written agreement which was binding on such date and at all times thereafter,
"(B) described in a ruling request submitted to the Internal Revenue Service on or before such date, or
"(C) described in a public announcement or filing with the Securities and Exchange Commission on or before such date."
Effective Date of 1988 Amendment
Amendment by Pub. L. 100–647 effective, except as otherwise provided, as if included in the provisions of the Revenue Act of 1987, Pub. L. 100–203, title X, to which such amendment relates, see section 2004(u) of Pub. L. 100–647, set out as a note under section 56 of this title.
Effective Date of 1987 Amendment
Pub. L. 100–203, title X, §10223(d), Dec. 22, 1987, 101 Stat. 1330–412, as amended by Pub. L. 100–647, title II, §2004(k)(3), (4), Nov. 10, 1988, 102 Stat. 3605, 3606, provided that:
"(1)
"(2)
"(A)
"(i) 80 percent or more of the stock of the distributing corporation was acquired by the distributee before December 15, 1987, or
"(ii) 80 percent or more of the stock of the distributing corporation was acquired by the distributee before January 1, 1989, pursuant to a binding written contract or tender offer in effect on December 15, 1987.
For purposes of the preceding sentence, stock described in section 1504(a)(4) of the Internal Revenue Code of 1986 shall not be taken into account.
"(B)
"(i) between corporations which are members of the same affiliated group on December 15, 1987, or
"(ii) between corporations which become members of the same affiliated group pursuant to a binding written contract or tender offer in effect on December 15, 1987.
"(C)
"(D)
"(i)
"(ii)
"(iii)
"(I) December 15, 1987, or
"(II) the date on which the acquisition meeting the requirements of subparagraph (A) occurred."
Effective Date of 1986 Amendment
Amendment by Pub. L. 99–514 effective, except as otherwise provided, as if included in the provisions of the Tax Reform Act of 1984, Pub. L. 98–369, div. A, to which such amendment relates, see section 1881 of Pub. L. 99–514, set out as a note under section 48 of this title.
Effective Date of 1984 Amendment
Pub. L. 98–369, div. A, title VII, §712(l)(7), July 18, 1984, 98 Stat. 954, as amended by Pub. L. 99–514, §2, Oct. 22, 1986, 100 Stat. 2095, provided that:
"(A)
"(B)
"(C)
"(i) such BHC was formed not later than the 90th day after the date of the last required approval of any regulatory authority to form such BHC, and
"(ii) such BHC did not elect (at such time and in such manner as the Secretary of the Treasury or his delegate shall prescribe) not to have the provisions of this subparagraph apply.
"(D)
Amendment by section 712(l)(2), (4), (5)(A) of Pub. L. 98–369 effective as if included in the provision of the Tax Equity and Fiscal Responsibility Act of 1982, Pub. L. 97–248, to which such amendment relates, see section 715 of Pub. L. 98–369, set out as a note under section 31 of this title.
Effective Date of 1982 Amendment
Pub. L. 97–248, title II, §226(c), Sept. 3, 1982, 96 Stat. 492, provided that:
"(1)
"(2)
"(A) the 90th day after the date of the last required approval of any regulatory authority to form such BHC, or
"(B) January 1, 1983.
For purposes of this paragraph, the term 'BHC' means a bank holding company (within the meaning of section 2(a) of the Bank Holding Company Act of 1956 [section 1841(a) of Title 12, Banks and Banking])."
Effective Date of 1964 Amendment
Amendment by Pub. L. 88–554 effective Aug. 31, 1964, except that for purposes of this section and section 302 of this title, such amendments shall not apply to distributions in payment for stock acquisitions or redemptions, if such acquisition or redemption occurred before Aug. 31, 1964, see section 4(c) of Pub. L. 88–554, set out as a note under section 318 of this title.
Plan Amendments Not Required Until January 1, 1989
For provisions directing that if any amendments made by subtitle A or subtitle C of title XI [§§1101–1147 and 1171–1177] or title XVIII [§§1800–1899A] of Pub. L. 99–514 require an amendment to any plan, such plan amendment shall not be required to be made before the first plan year beginning on or after Jan. 1, 1989, see section 1140 of Pub. L. 99–514, as amended, set out as a note under section 401 of this title.
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