Federal Register: PROPOSED RULES Income taxes: [26 CFR Part 1]

DEPARTMENT OF THE TREASURY

CFR Citation: 26 CFR Part 1

RIN ID: RIN 1545-BC29

REG ID: [REG-131486-03]

NOTICE: PROPOSED RULES

ACTION: Income taxes:

DOCUMENT ACTION: Notice of proposed rulemaking.

SUBJECT CATEGORY: Adjustment To Net Unrealized Built-in Gain

DATES: Written or electronic comments must be received by September 23, 2004.

DOCUMENT SUMMARY: This document contains proposed regulations under section 1374 that provide for an adjustment to the amount that may be subject to tax under section 1374 in certain cases in which an S corporation acquires assets from a C corporation in an acquisition to which section 1374(d)(8) applies. These proposed regulations provide guidance to certain S corporations that acquire assets from a C corporation in a carryover basis transaction.

SUMMARY: Adjustment to net unrealized built-in gain,

SUPPLEMENTAL INFORMATION

Background and Explanation of Provisions

Section 1374 of the Internal Revenue Code of 1986 (Code) generally imposes a corporate level tax on the income or gain of an S corporation that formerly was a C corporation to the extent the income or gain is attributable to the period during which the corporation was a C corporation. Congress amended
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section 1374 to provide this rule as part of the Tax Reform Act of 1986, which repealed the General Utilities doctrine. Under the General Utilities doctrine, a C corporation, in certain cases, could distribute appreciated assets to its shareholders, or sell appreciated assets and distribute the sale proceeds in connection with a complete liquidation to its shareholders, without recognizing gain. Section 1374 prevents a corporation from circumventing General Utilities repeal by converting to S corporation status before distributing its appreciated assets to its shareholders, or selling its appreciated assets and distributing the sale proceeds in connection with a complete liquidation to its shareholders.

Specifically, section 1374 imposes a tax on an S corporation's net recognized builtin gain attributable to assets that it held on the date it converted from a C corporation to an S corporation for the 10 year recognition period beginning on the first day the corporation is an S corporation. Under section 1374, the total amount subject to tax is limited to the S corporation's net unrealized builtin gain (NUBIG), which is the ``aggregate net builtin gain of the corporation at the time of conversion to S corporation status.'' See H.R. Conf. Rep. No. 99841, at II203 (1986). Section 1374 also imposes a tax on an S corporation's net recognized builtin gain attributable to assets that it acquired in a carryover basis transaction from a C corporation for the 10year recognition period beginning on the day of the carryover basis transaction. The legislative history of section 1374 provides that each acquisition of assets from a C corporation is subject to a separate determination of the amount of net unrealized builtin gain and is subject to a separate 10year recognition period. See H.R. Rep. No. 100795, at 63 (1988).

Sections 337(d) and 1374(e) authorize the Secretary of the Treasury to prescribe regulations as necessary to carry out the purposes of General Utilities repeal generally and section 1374 specifically. The Treasury Department and the IRS have promulgated regulations consistent with these provisions. See, e.g., Sec. Sec. 1.337(d)4 through 1.337(d)7, 1.13741 through 1.137410.

Under Sec. 1.13743, an S corporation's NUBIG generally is the amount of gain the S corporation would recognize on the conversion date if it sold all of its assets at fair market value to an unrelated party that assumed all of its liabilities on that date. Consistent with the legislative history of section 1374, section 1374(d)(8) and Sec. 1.13748 require a separate determination of the amount subject to tax under section 1374 for the pool of assets the S corporation held on the date it converted to C status and each pool of assets acquired in a carryover basis transaction from a C corporation.

Under the current rules, therefore, if X, a C corporation, elects to be an S corporation when it owns all of the stock of Y, a C corporation, X's NUBIG will reflect the builtin gain or builtin loss in the Y stock. That builtin gain or builtin loss may be duplicative of the builtin gain or builtin loss in Y's assets. If Y later transfers its assets to X in a liquidation to which sections 332 and 337(a) apply, the builtin gain and builtin loss in Y's assets may be reflected twice: once in the NUBIG attributable to the assets X owned on the date of its conversion (including the stock of Y) and a second time in the NUBIG attributable to Y's former assets acquired by X in the liquidation of Y. A similar result would obtain if, on the date of its conversion to an S corporation, X owned less than 80 percent of the stock of Y and later acquired the assets of Y in a reorganization to which section 368(a) applies. These results are inconsistent with the fact that a liquidation to which sections 332 and 337(a) apply, and the acquisition of the assets of a corporation some or all of the stock of which is owned by the acquiring corporation in a reorganization under section 368(a), generally have the effect of eliminating the builtin gain or builtin loss in the redeemed or canceled stock of the liquidated or target corporation.

In the course of developing these proposed regulations, the Treasury Department and the IRS considered a number of approaches to address the issue raised by the situations described above. In particular, the Treasury Department and the IRS considered adopting an approach that would provide for a single determination of NUBIG for all of the assets of an S corporation and, thus, a single determination of the amount subject to tax under section 1374. While this approach may have produced results similar to those that would have been produced had the S corporation remained a C corporation and acquired the assets of another C corporation, it was rejected because such an approach appears to be inconsistent with the legislative history of section 1374, which seems to mandate a separate determination of tax for each pool of assets. See H.R. Rep. No. 100795, at 63.

Instead, these regulations adopt an approach that adjusts (increases or decreases) the NUBIG of the pool of assets that included the stock of the liquidated or acquired C corporation to reflect the extent to which the builtin gain or builtin loss inherent in the redeemed or canceled C corporation stock at the time the pool of assets became subject to the tax under section 1374 has been eliminated from the corporate tax system in the liquidation or reorganization. These proposed regulations provide that, if section 1374(d)(8) applies to an S corporation's acquisition of assets, some or all of the stock of the C corporation from which such assets were acquired was taken into account in the computation of NUBIG for a pool of assets of the S corporation, and some or all of such stock is redeemed or canceled in such transaction, subject to certain limitations, the NUBIG of the pool of assets that included the C corporation stock redeemed or canceled in the transaction (other than stock with respect to which a loss under section 165 is claimed) is adjusted to eliminate any effect any built in gain or builtin loss in the redeemed or canceled C corporation stock had on the initial computation of NUBIG for that pool of assets. For this purpose, stock that has an adjusted basis that is determined (in whole or in part) by reference to the adjusted basis of any other asset held by the S corporation as of the first day of the recognition period (i.e., stock described in section 1374(d)(6)) is treated as taken into account in the computation of the NUBIG for the pool of assets of the S corporation.

Adjustments to NUBIG under these proposed regulations, however, are subject to two limitations. First, the NUBIG is only adjusted to reflect the amount of the builtin gain or builtin loss that was inherent in the redeemed or canceled stock at the time the pool of assets became subject to tax under section 1374 that has not resulted in recognized builtin gain or recognized builtin loss at any time during the recognition period, including on the date of the acquisition to which section 1374(d)(8) applies. For example, suppose that on the date X, a C corporation, converts to S corporation status, it owns the stock of Y, which has a basis of $0 and a value of $100. The gain inherent in the Y stock contributes $100 to X's NUBIG. During the recognition period and prior to the liquidation of Y, Y distributes $20 to X in a distribution to which section 301(c)(3) applies. That amount is recognized builtin gain under section 1374(d)(3). If Y later distributes its assets to X in a distribution to which sections 332 and 337(a) apply, pursuant to these regulations, X must adjust its [[Page 35546]]
original NUBIG to reflect the elimination of the Y stock. X will reduce that NUBIG by $80, the original builtin gain in such stock ($100) minus the recognized builtin gain with respect to such stock during the recognition period ($20).

Second, an adjustment cannot be made if it is duplicative of another adjustment to the NUBIG for a pool of assets. This rule is intended to prevent more than one adjustment to the NUBIG of a pool of assets for the same builtin gain or builtin loss stock.

Any adjustment to NUBIG under these proposed rules will only affect computations of the amount subject to tax under section 1374 for taxable years that end on or after the date of the liquidation or reorganization. It will not affect computations of the amount subject to tax under section 1374 for taxable years that end before the date of the liquidation or reorganization.

The Treasury Department and IRS request comments regarding whether the rule proposed in these regulations should be expanded to apply in other cases in which the stock basis that was taken into account in the computation of NUBIG is eliminated. This may occur, for example, where an S corporation owns stock of a C corporation on the date of its conversion to an S corporation and later distributes the stock of the C corporation in a distribution to which section 355 applies. In addition, the Treasury Department and IRS request comments concerning whether there are any situations other than those identified in these proposed regulations in which adjustments to NUBIG should be less than the builtin gain or the builtin loss in the redeemed or canceled stock as of the beginning of the recognition period.

Special Analyses

It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations and, because the regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Therefore, a Regulatory Flexibility Analysis is not required. Pursuant to section 7805(f) of the Code, these proposed regulations will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small business. Public Comment

Before these proposed regulations are adopted as final regulations, consideration will be given to any written comments (a signed original and eight (8) copies) or electronic comments that are submitted timely to the IRS. All comments will be made available for public inspection and copying. A public hearing may be scheduled. If a public hearing is scheduled, notice of the date, time, and place for the public hearing will be published in the Federal Register.

Drafting Information

The principal author of these regulations is Marie Byrne of the Office of Associate Chief Counsel (Corporate). Other personnel from Treasury and the IRS participated in their development.

List of Subjects in 26 CFR Part 1

Income taxes, Reporting and recordkeeping requirements. Proposed Amendments to the Regulations

Accordingly, 26 CFR part 1 is proposed to be amended as follows: PART 1INCOME TAXES

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

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

Par. 2. Section 1.13743 is amended by:

1. Revising paragraph (b).

2. Adding paragraph (c).

The revision and addition read as follows:
Sec. 1.13743 Net unrealized builtin gain.
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(b) Adjustment to net unrealized builtin gain(1) In general. If section 1374(d)(8) applies to an S corporation's acquisition of assets, some or all of the stock of the corporation from which such assets were acquired was taken into account in the computation of the net unrealized builtin gain for a pool of assets of the S corporation, and some or all of such stock is redeemed or canceled in such transaction, then, subject to the limitations of paragraph (b)(2) of this section, such net unrealized builtgain is adjusted to eliminate any effect any builtin gain or builtin loss in the redeemed or canceled stock (other than stock with respect to which a loss under section 165 is claimed) had on the initial computation of net unrealized builtin gain for that pool of assets. For purposes of this paragraph, stock described in section 1374(d)(6) shall be treated as taken into account in the computation of the net unrealized builtin gain for a pool of assets of the S corporation.
(2) Limitations on adjustment(i) Recognized builtin gain or loss. Net unrealized builtin gain for a pool of assets of the S corporation is only adjusted under paragraph (b)(1) of this section to reflect builtin gain or builtin loss in the redeemed or canceled stock that has not resulted in recognized builtin gain or recognized builtin loss during the recognition period.
(ii) Antiduplication rule. Paragraph (b)(1) of this section shall not be applied to duplicate an adjustment to the net unrealized built in gain for a pool of assets made pursuant to paragraph (b)(1) of this section.
(3) Effect of adjustment. Any adjustment to the net unrealized builtin gain made pursuant to this paragraph (b) only affects computations of the amount subject to tax under section 1374 for taxable years that end on or after the date of the acquisition to which section 1374(d)(8) applies.
(4) Pool of assets. For purposes of this section, a pool of assets means
(i) The assets held by the corporation on the first day it became an S corporation, if the corporation was previously a C corporation; or (ii) The assets the S corporation acquired from a C corporation in a section 1374(d)(8) transaction.
(c) Examples. The following examples illustrate the rules of this section:

Example 1. Computation of net unrealized builtin gain. (i)(A) X, a calendar year C corporation using the cash method, elects to become an S corporation on January 1, 1996. On December 31, 1995, X has assets and liabilities as follows:
Assets FMV Basis Factory......................................... $500,000 $900,000 Accounts Receivable............................. 300,000 0 Goodwill........................................ 250,000 0

Total....................................... 1,050,000 900,000 Liabilities Amount Mortgage.................................................... $200,000 Accounts Payable............................................ 100,000

Total................................................... 300,000 (B) Further, X must include a total of $60,000 in taxable income in 1996, 1997, and 1998 under section 481(a).
(ii) If, on December 31, 1995, X sold all its assets to a third party that assumed all its liabilities, X's amount realized would be $1,050,000 ($750,000 cash received + $300,000 liabilities assumed = $1,050,000). Thus, X's net unrealized builtin gain is determined as follows:
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Amount realized: $1,050,000
Deduction allowed: (100,000)
Basis of X's assets: (900,000)
Section 481 adjustments: 60,000

Net unrealized builtin gain: 110,000

Example 2. Adjustment to net unrealized builtin gain for built in gain in eliminated C corporation stock. (i) X, a calendar year C corporation, elects to become an S corporation effective January 1, 2005. On that date, X's assets (the first pool of assets) have a net unrealized builtin gain of $15,000. Among the assets in the first pool of assets is all of the outstanding stock of Y, a C
corporation, with a fair market value of $33,000 and an adjusted basis of $18,000. On March 1, 2009, X sells an asset that it owned on January 1, 2005, and as a result has $10,000 of recognized built in gain. X has had no other recognized builtin gain or builtin loss. X's taxable income limitation for 2009 is $50,000. Effective June 1, 2009, X elects under section 1362 to treat Y as a qualified subchapter S subsidiary (QSub). The election is treated as a transfer of Y's assets to X in a liquidation to which sections 332 and 337(a) apply.
(ii) Under paragraph (b) of this section, the net unrealized built ingain of the first pool of assets is adjusted to account for the elimination of the Y stock in the liquidation. The net unrealized builtin gain of the first pool of assets, therefore, is decreased by $15,000, the amount by which the fair market value of the Y stock exceeded its adjusted basis as of January 1, 2005. Accordingly, for taxable years ending after June 1, 2009, the net unrealized builtin gain of the first pool of assets is $0.
(iii) Under Sec. 1.13742(a), X's net recognized builtin gain for any taxable year equals the least of X's prelimitation amount, taxable income limitation, and net unrealized builtin gain limitation. In 2009, X's prelimitation amount is $10,000, X's taxable income limitation is $50,000, and X's net unrealized built in gain limitation is $0. Because the net unrealized builtin gain of the first pool of assets has been adjusted to $0, despite the $10,000 of recognized builtin gain in 2009, X has $0 net recognized builtin gain for the taxable year ending on December 31, 2009.

Example 3. Adjustment to net unrealized builtin gain for built in loss in eliminated C corporation stock. (i) X, a calendar year C corporation, elects to become an S corporation effective January 1, 2005. On that date, X's assets (the first pool of assets) have a net unrealized builtin gain of negative $5,000. Among the assets in the first pool of assets is 10 percent of the outstanding stock of Y, a C corporation, with a fair market value of $18,000 and an adjusted basis of $33,000. On March 1, 2009, X sells an asset that it owned on January 1, 2005, resulting in $8,000 of recognized builtin gain. X has had no other recognized builtin gains or builtin losses. X's taxable income limitation for 2009 is $50,000. On June 1, 2009, Y transfers its assets to X in a reorganization under section 368(a)(1)(C).
(ii) Under paragraph (b) of this section, the net unrealized built ingain of the first pool of assets is adjusted to account for the elimination of the Y stock in the reorganization. The net unrealized builtin gain of the first pool of assets, therefore, is increased by $15,000, the amount by which the adjusted basis of the Y stock exceeded its fair market value as of January 1, 2005. Accordingly, for taxable years ending after June 1, 2009, the net unrealized builtin gain of the first pool of assets is $10,000. (iii) Under Sec. 1.13742(a), X's net recognized builtin gain for any taxable year equals the least of X's prelimitation amount, taxable income limitation, and net unrealized builtin gain limitation. In 2009, X's prelimitation amount is $8,000 and X's taxable income limitation is $50,000. The net unrealized builtin gain of the first pool of assets has been adjusted to $10,000, so X's net unrealized builtin gain limitation is $10,000. X,
therefore, has $8,000 net recognized builtin gain for the taxable year ending on December 31, 2009. X's net unrealized builtin gain limitation for 2010 is $2,000.

Example 4. Adjustment to net unrealized builtin gain in case of prior gain recognition. (i) X, a calendar year C corporation, elects to become an S corporation effective January 1, 2005. On that date, X's assets (the first pool of assets) have a net unrealized builtin gain of $30,000. Among the assets in the first pool of assets is all of the outstanding stock of Y, a C corporation, with a fair market value of $45,000 and an adjusted basis of $10,000. Y has no current or accumulated earnings and profits. On April 1, 2007, Y distributes $18,000 to X, $8,000 of which is treated as gain to X from the sale or exchange of property under section 301(c)(3). That $8,000 is recognized builtin gain to X under section 1374(d)(3), and results in $8,000 of net recognized builtin gain to X for 2007. X's net unrealized builtin gain limitation for 2008 is $22,000. On June 1, 2009, Y transfers its assets to X in a liquidation to which sections 332 and 337(a) apply.
(ii) Under paragraph (b) of this section, the net unrealized built ingain of the first pool of assets is adjusted to account for the elimination of the Y stock in the liquidation. The net unrealized builtin gain of that pool of assets, however, can only be adjusted to reflect the amount of builtin gain that was inherent in the Y stock on January 1, 2005 that has not resulted in recognized builtin gain during the recognition period. In this case, therefore, the net unrealized builtin gain of the first pool of assets cannot be reduced by more than $27,000 ($35,000, the amount by which the fair market value of the Y stock exceeded its adjusted basis as of January 1, 2005, minus $8,000, the recognized builtin gain with respect to the stock during the recognition period). Accordingly, for taxable years ending after June 1, 2009, the net unrealized builtin gain of the first pool of assets is $3,000. The net unrealized builtin gain limitation for 2009 is $0.

Par. 3. Paragraph (a) of Sec. 1.137410 is revised to read as follows:
Sec. 1.137410 Effective date and additional rules.
(a) In general. Sections 1.13741 through 1.13749, other than Sec. 1.13743(b) and (c) Examples 2 through 4, apply for taxable years ending on or after December 27, 1994, but only in cases where the S corporation's return for the taxable year is filed pursuant to an S election or a section 1374(d)(8) transaction occurring on or after December 27, 1994. Section 1.13743(b) and (c) Examples 2 through 4 apply for taxable years beginning after the date these regulations are published as final regulations in the Federal Register.
* * * * *
Mark E. Matthews,
Deputy Commissioner for Services and Enforcement.
[FR Doc. 0414391 Filed 62404; 8:45 am]
BILLING CODE 483001P

FOR FURTHER INFORMATION CONTACT Concerning the proposed regulations, Jennifer Sledge, (202) 6227750; concerning submissions of comments, Treena Garrett, (202) 6227180 (not tollfree numbers).