M&A Tax Services

IRC Title Description

IRC 338 Certain Stock Purchases Treated as Asset Acquisitions.

§ 338. Certain stock purchases treated as asset acquisitions.

(a) General rule. For purposes of this subtitle, if a purchasing corporation makes an election under this section (or is treated under subsection (e) as having made such an election), then, in the case of any qualified stock purchase, the target corporation—
(1) shall be treated as having sold all of its assets at the close of the acquisition date at fair market
value in a single transaction, and
(2) shall be treated as a new corporation which purchased all of the assets referred to in paragraph
(1) as of the beginning of the day after the acquisition date.
(b) Basis of assets after deemed purchase
(1) In general
For purposes of subsection (a), the assets of the target corporation shall be treated as purchased
for an amount equal to the sum of—
(A) the grossed-up basis of the purchasing corporation’s recently purchased stock, and
(B) the basis of the purchasing corporation’s nonrecently purchased stock.
(2) Adjustment for liabilities and other relevant items
The amount described in paragraph (1) shall be adjusted under regulations prescribed by the
Secretary for liabilities of the target corporation and other relevant items.
(3) Election to step-up the basis of certain target stock
(A) In general
Under regulations prescribed by the Secretary, the basis of the purchasing corporation’s
nonrecently purchased stock shall be the basis amount determined under subparagraph (B) of
this paragraph if the purchasing corporation makes an election to recognize gain as if such
stock were sold on the acquisition date for an amount equal to the basis amount determined
under subparagraph (B).
(B) Determination of basis amount
For purposes of subparagraph (A), the basis amount determined under this subparagraph shall
be an amount equal to the grossed-up basis determined under subparagraph (A) of paragraph
(1) multiplied by a fraction—
(i) the numerator of which is the percentage of stock (by value) in the target corporation
attributable to the purchasing corporation’s nonrecently purchased stock, and
(ii) the denominator of which is 100 percent minus the percentage referred to in clause (i).
(4) Grossed-up basis
For purposes of paragraph (1), the grossed-up basis shall be an amount equal to the basis of the
corporation’s recently purchased stock, multiplied by a fraction—
(A) the numerator of which is 100 percent, minus the percentage of stock (by value) in the
target corporation attributable to the purchasing corporation’s nonrecently purchased stock,
and
(B) the denominator of which is the percentage of stock (by value) in the target corporation
attributable to the purchasing corporation’s recently purchased stock.
(5) Allocation among assets
The amount determined under paragraphs (1) and (2) shall be allocated among the assets of the
target corporation under regulations prescribed by the Secretary.
(6) Definitions of recently purchased stock and nonrecently purchased stock
For purposes of this subsection—
(A) Recently purchased stock
The term “recently purchased stock” means any stock in the target corporation which is held
by the purchasing corporation on the acquisition date and which was purchased by such
corporation during the 12-month acquisition period.
(B) Nonrecently purchased stock
The term “nonrecently purchased stock” means any stock in the target corporation which is
held by the purchasing corporation on the acquisition date and which is not recently purchased
stock.
[(c) Repealed. Pub. L. 99–514, title VI, § 631(b)(2), Oct. 22, 1986, 100 Stat. 2272]
(d) Purchasing corporation; target corporation; qualified stock purchase
For purposes of this section—
(1) Purchasing corporation
The term “purchasing corporation” means any corporation which makes a qualified stock purchase of stock of another corporation.
(2) Target corporation
The term “target corporation” means any corporation the stock of which is acquired by another
corporation in a qualified stock purchase.
(3) Qualified stock purchase
The term “qualified stock purchase” means any transaction or series of transactions in which
stock (meeting the requirements of section 1504(a)(2)) of 1 corporation is acquired by another
corporation by purchase during the 12-month acquisition period.
(e) Deemed election where purchasing corporation acquires asset of target corporation
(1) In general
A purchasing corporation shall be treated as having made an election under this section with respect to any target corporation if, at any time during the consistency period, it acquires any asset of the target corporation (or a target affiliate).
(2) Exceptions
Paragraph (1) shall not apply with respect to any acquisition by the purchasing corporation if—
(A) such acquisition is pursuant to a sale by the target corporation (or the target affiliate) in
the ordinary course of its trade or business,
(B) the basis of the property acquired is determined wholly by reference to the adjusted basis
of such property in the hands of the person from whom acquired,
(C) such acquisition was before September 1, 1982, or
(D) such acquisition is described in regulations prescribed by the Secretary and meets such
conditions as such regulations may provide.
(3) Anti-avoidance rule
Whenever necessary to carry out the purpose of this subsection and subsection (f), the Secretary
may treat stock acquisitions which are pursuant to a plan and which meet the requirements of
section 1504 (a)(2) as qualified stock purchases.
(f) Consistency required for all stock acquisitions from same affiliated group
If a purchasing corporation makes qualified stock purchases with respect to the target corporation and 1 or more target affiliates during any consistency period, then (except as otherwise provided in subsection (e))—
(1) any election under this section with respect to the first such purchase shall apply to each other
such purchase, and
(2) no election may be made under this section with respect to the second or subsequent such
purchase if such an election was not made with respect to the first such purchase.
(g) Election
(1) When made
Except as otherwise provided in regulations, an election under this section shall be made not later
than the 15th day of the 9th month beginning after the month in which the acquisition date occurs.
(2) Manner
An election by the purchasing corporation under this section shall be made in such manner as the
Secretary shall by regulations prescribe.
(3) Election irrevocable
An election by a purchasing corporation under this section, once made, shall be irrevocable.
(h) Definitions and special rules
For purposes of this section—
(1) 12-month acquisition period
The term “12-month acquisition period” means the 12-month period beginning with the date of the first acquisition by purchase of stock included in a qualified stock purchase (or, if any of such stock was acquired in an acquisition which is a purchase by reason of subparagraph (C) of paragraph
(3), the date on which the acquiring corporation is first considered under section 318 (a) (other
than paragraph (4) thereof) as owning stock owned by the corporation from which such acquisition was made).
(2) Acquisition date
The term “acquisition date” means, with respect to any corporation, the first day on which there is
a qualified stock purchase with respect to the stock of such corporation.
(3) Purchase
(A) In general
The term “purchase” means any acquisition of stock, but only if—
(i) the basis of the stock in the hands of the purchasing corporation is not determined
(I) in whole or in part by reference to the adjusted basis of such stock in the hands
of the person from whom acquired, or
(II) under section 1014 (a) (relating to property acquired from a decedent),
(ii) the stock is not acquired in an exchange to which section 351, 354, 355, or 356 applies
and is not acquired in any other transaction described in regulations in which the transferor
does not recognize the entire amount of the gain or loss realized on the transaction, and
(iii) the stock is not acquired from a person the ownership of whose stock would, under
section 318 (a) (other than paragraph 1 (4) thereof), be attributed to the person acquiring
such stock.
(B) Deemed purchase under subsection (a)
The term “purchase” includes any deemed purchase under subsection (a)(2). The acquisition
date for a corporation which is deemed purchased under subsection (a)(2) shall be determined
under regulations prescribed by the Secretary.
(C) Certain stock acquisitions from related corporations
(i) In general
Clause (iii) of subparagraph (A) shall not apply to an acquisition of stock from a related
corporation if at least 50 percent in value of the stock of such related corporation was
acquired by purchase (within the meaning of subparagraphs (A) and (B)).
(ii) Certain distributions
Clause (i) of subparagraph (A) shall not apply to an acquisition of stock described in
clause (i) of this subparagraph if the corporation acquiring such stock—
(I) made a qualified stock purchase of stock of the related corporation, and
(II) made an election under this section (or is treated under subsection (e) as having
made such an election) with respect to such qualified stock purchase.
(iii) Related corporation defined
For purposes of this subparagraph, a corporation is a related corporation if stock owned
by such corporation is treated (under section 318 (a) other than paragraph (4) thereof) as
owned by the corporation acquiring the stock.
(4) Consistency period
(A) In general
Except as provided in subparagraph (B), the term “consistency period” means the period
consisting of—
(i) the 1-year period before the beginning of the 12-month acquisition period for the
target corporation,
(ii) such acquisition period (up to and including the acquisition date), and
(iii) the 1-year period beginning on the day after the acquisition date.
(B) Extension where there is plan
The period referred to in subparagraph (A) shall also include any period during which the
Secretary determines that there was in effect a plan to make a qualified stock purchase plus
1 or more other qualified stock purchases (or asset acquisitions described in subsection (e))
with respect to the target corporation or any target affiliate.
(5) Affiliated group
The term “affiliated group” has the meaning given to such term by section 1504 (a) (determined
without regard to the exceptions contained in section 1504 (b)).
(6) Target affiliate
(A) In general
A corporation shall be treated as a target affiliate of the target corporation if each of such
corporations was, at any time during so much of the consistency period as ends on the
acquisition date of the target corporation, a member of an affiliated group which had the same
common parent.
(B) Certain foreign corporations, etc.
Except as otherwise provided in regulations (and subject to such conditions as may be provided
in regulations)—
(i) the term “target affiliate” does not include a foreign corporation, a DISC, or a
corporation to which an election under section 936 applies, and
(ii) stock held by a target affiliate in a foreign corporation or a domestic corporation
which is a DISC or described in section 1248 (e) shall be excluded from the operation
of this section.
[(7) Repealed. Pub. L. 100–647, title I, § 1006(e)(20), Nov. 10, 1988, 102 Stat. 3403]
(8) Acquisitions by affiliated group treated as made by 1 corporation
Except as provided in regulations prescribed by the Secretary, stock and asset acquisitions made
by members of the same affiliated group shall be treated as made by 1 corporation.
(9) Target not treated as member of affiliated group
Except as otherwise provided in paragraph (10) or in regulations prescribed under this paragraph,
the target corporation shall not be treated as a member of an affiliated group with respect to the
sale described in subsection (a)(1).
(10) Elective recognition of gain or loss by target corporation, together with nonrecognition
of gain or loss on stock sold by selling consolidated group
(A) In general
Under regulations prescribed by the Secretary, an election may be made under which if—
(i) the target corporation was, before the transaction, a member of the selling
consolidated group, and
(ii) the target corporation recognizes gain or loss with respect to the transaction as if it
sold all of its assets in a single transaction, then the target corporation shall be treated as a member of the selling consolidated group with respect to such sale, and (to the extent provided in regulations) no gain or loss will be recognized on stock sold or exchanged in the transaction by members of the selling consolidated group.
(B) Selling consolidated group
For purposes of subparagraph (A), the term “selling consolidated group” means any group of
corporations which (for the taxable period which includes the transaction)—
(i) includes the target corporation, and
(ii) files a consolidated return.
To the extent provided in regulations, such term also includes any affiliated group of
corporations which includes the target corporation (whether or not such group files a
consolidated return).
(C) Information required to be furnished to the Secretary
Under regulations, where an election is made under subparagraph (A), the purchasing
corporation and the common parent of the selling consolidated group shall, at such times
and in such manner as may be provided in regulations, furnish to the Secretary the following
information:
(i) The amount allocated under subsection (b)(5) to goodwill or going concern value.
(ii) Any modification of the amount described in clause (i).
(iii) Any other information as the Secretary deems necessary to carry out the provisions
of this paragraph.
(11) Elective formula for determining fair market value
For purposes of subsection (a)(1), fair market value may be determined on the basis of a formula
provided in regulations prescribed by the Secretary which takes into account liabilities and other
relevant items.
[(12) Repealed. Pub. L. 99–514, title VI, § 631(e)(5), Oct. 22, 1986, 100 Stat. 2273]
(13) Tax on deemed sale not taken into account for estimated tax purposes
For purposes of section 6655, tax attributable to the sale described in subsection (a)(1) shall not
be taken into account. The preceding sentence shall not apply with respect to a qualified stock
purchase for which an election is made under paragraph (10).
[(14) Repealed. Pub. L. 108–27, title III, § 302(e)(4)(B)(i), May 28, 2003, 117 Stat. 763]
(15) Combined deemed sale return
Under regulations prescribed by the Secretary, a combined deemed sale return may be filed by all
target corporations acquired by a purchasing corporation on the same acquisition date if such target corporations were members of the same selling consolidated group (as defined in subparagraph
(B) of paragraph (10)).
(16) Coordination with foreign tax credit provisions
Except as provided in regulations, this section shall not apply for purposes of determining the
source or character of any item for purposes of subpart A of part III of subchapter N of this chapter (relating to foreign tax credit). The preceding sentence shall not apply to any gain to the extent such gain is includible in gross income as a dividend under section 1248 (determined without regard to any deemed sale under this section by a foreign corporation).
(i) Regulations
The Secretary shall prescribe such regulations as may be necessary or appropriate to carry out
the purposes of this section, including—
(1) regulations to ensure that the purpose of this section to require consistency of treatment of
stock and asset sales and purchases may not be circumvented through the use of any provision of
law or regulations (including the consolidated return regulations) and
(2) regulations providing for the coordination of the provisions of this section with the provision
of this title relating to foreign corporations and their shareholders.