Reg. § 1.1368-1 Distributions by S corporations.
(a) In general This section provides rules for distributions made by an S corporation with respect to its stock which, but for section and this section, would be subject to section and other rules of the Internal Revenue Code that characterize a distribution as a dividend.
(b) Date distribution made For purposes of section , a distribution is taken into account on the date the corporation makes the distribution, regardless of when the distribution is treated as received by the shareholder.
(c) S corporation with no earnings and profits A distribution made by an S corporation that has no accumulated earnings and profits as of the end of the taxable year of the S corporation in which the distribution is made is treated in the manner provided in section .
(d) S corporation with earnings and profits
(1) General treatment of distribution Except as provided in of this section, a distribution made with respect to its stock by an S corporation that has accumulated earnings and profits as of the end of the taxable year of the S corporation in which the distribution is made is treated in the manner provided in section . See section and for provisions relating to the allocation of earnings and profits among distributions.
(2) Previously taxed income This applies to distributions by a corporation that has both accumulated earnings and profits and previously taxed income (within the meaning of section , as in effect prior to its amendment by the Subchapter S Revision Act of 1982, and the regulations thereunder) with respect to one or more shareholders. In the case of such a distribution, that portion remaining after the application of section (relating to distributions from the accumulated adjustments account (AAA) as defined in ) is treated in the manner provided in section (relating to S corporations without earnings and profits) to the extent that portion is a distribution of money and does not exceed the shareholder's net share immediately before the distribution of the corporation's previously taxed income. The AAA and the earnings and profits of the corporation are not decreased by that portion of the distribution. Any distribution remaining after the application of this is treated in the manner provided in section (2) and (3).
(e) Certain adjustments taken into account
(1) Taxable years beginning before January 1, 1997 For any taxable year of the corporation beginning before January 1, 1997, and of this section are applied only after taking into account—
(i) The adjustments to the basis of the shares of a shareholder's stock described in section (without regard to section (relating to decreases attributable to distributions not includible in income)) for the S corporation's taxable year; and
(ii) The adjustments to the AAA required by section (but without regard to the adjustments for distributions under ) for the S corporation's taxable year.
(2) Taxable years beginning on or after August 18, 1998 For any taxable year of the corporation beginning on or after August 18, 1998, and of this section are applied only after taking into account—
(i) The adjustments to the basis of the shares of a shareholder's stock described in section (relating to increases in basis of stock) for the S corporation's taxable year; and
(ii) The adjustments to the AAA required by section (but without regard to the adjustments for distributions under ) for the S corporation's taxable year. Any net negative adjustment (as defined in section ) for the taxable year shall not be taken into account.
(f) Elections relating to source of distributions
(1) In general An S corporation may modify the application of and of this section by electing (pursuant to of this section)—
(i) To distribute earnings and profits first as described in of this section;
(ii) To make a deemed dividend as described in of this section; or
(iii) To forego previously taxed income as described in of this section.
(2) Election to distribute earnings and profits first
(i) In general An S corporation with accumulated earnings and profits may elect under this for any taxable year to distribute earnings and profits first as provided in section . Except as provided in of this section, distributions made by an S corporation making this election are treated as made first from earnings and profits under section and second from the AAA under section . Any remaining portion of the distribution is treated in the manner provided in section . This election is effective for all distributions made during the year for which the election is made.
(ii) Previously taxed income If a corporation to which of this section (relating to corporations with previously taxed income) applies makes the election provided in this for the taxable year, and does not make the election to forego previously taxed income under of this section, distributions by the S corporation during the taxable year are treated as made first, from previously taxed income under of this section; second, from earnings and profits under section ; and third, from the AAA under section . Any portion of a distribution remaining after the previously taxed income, earnings and profits, and the AAA are exhausted is treated in the manner provided in section .
(iii) Corporation with subchapter C and subchapter S earnings and profits If an S corporation that makes the election provided in this has both subchapter C earnings and profits (as defined in section ) and subchapter S earnings and profits in a taxable year of the corporation in which the distribution is made, the distribution is treated as made first from subchapter C earnings and profits, and second from subchapter S earnings and profits. Subchapter S earnings and profits are earnings and profits accumulated in a taxable year beginning before January 1, 1983 (or in the case of a qualified casualty insurance electing small business corporation or a qualified oil corporation, earnings and profits accumulated in any taxable year), for which an election under subchapter S of chapter 1 of the Internal Revenue Code was in effect.
(3) Election to make a deemed dividend An S corporation may elect under this to distribute all or part of its subchapter C earnings and profits through a deemed dividend. If an S corporation makes the election provided in this , the S corporation will be considered to have made the election provided in of this section (relating to the election to distribute earnings and profits first). The amount of the deemed dividend may not exceed the subchapter C earnings and profits of the corporation on the last day of the taxable year, reduced by any actual distributions of subchapter C earnings and profits made during the taxable year. The amount of the deemed dividend is considered, for all purposes of the Internal Revenue Code, as if it were distributed in money to the shareholders in proportion to their stock ownership, received by the shareholders, and immediately contributed by the shareholders to the corporation, all on the last day of the corporation's taxable year.
(4) Election to forego previously taxed income An S corporation may elect to forego distributions of previously taxed income. If such an election is made, of this section (relating to corporations with previously taxed income) does not apply to any distribution made during the taxable year. Thus, distributions by a corporation that makes the election to forego previously taxed income for a taxable year under this and does not make the election to distribute earnings and profits first under of this section are treated in the manner provided in section (relating to distributions by corporations with earnings and profits). Distributions by a corporation that makes both the election to distribute earnings and profits first under of this section and the election to forego previously taxed income under this , are treated in the manner provided in of this section.
(5) Time and manner of making elections
(i) For earnings and profits If an election is made under of this section to distribute earnings and profits first, see section regarding the consent required by shareholders.
(ii) For previously taxed income and deemed dividends If an election is made to forego previously taxed income under of this section or to make a deemed dividend under of this section, consent by each “affected shareholder,” as defined in section , is required.
(iii) Corporate statement regarding elections A corporation makes an election for a taxable year under by attaching a statement to a timely filed (including extensions) original or amended return required to be filed under section for that taxable year. In the statement, the corporation must identify the election it is making under and must state that each shareholder consents to the election. In the case of elections for taxable years beginning before January 1, 2003, an officer of the corporation must sign under penalties of perjury the statement on behalf of the corporation. In the case of elections for taxable years beginning after December 31, 2002, the statement described in this shall be verified by signing the return. A statement of election to make a deemed dividend under must include the amount of the deemed dividend that is distributed to each shareholder.
(iv) Irrevocable elections The elections under this are irrevocable and are effective only for the taxable year for which they are made. In applying the preceding sentence to elections under this , an election to terminate the taxable year under section or is disregarded.
(g) Special rule
(1) Election to terminate year under § 1.1368-1(g)(2) If an election is made under of this section to terminate the year when there is a qualifying disposition, this section applies as if the taxable year consisted of separate taxable years, the first of which ends at the close of the day on which there is a qualifying disposition of stock.
(2) Election in case of a qualifying disposition
(i) In general In the case of a qualifying disposition, a corporation may elect under this to treat the year as if it consisted of separate taxable years, the first of which ends at the close of the day on which the qualifying disposition occurs. A qualifying disposition is—
(A) A disposition by a shareholder of 20 percent or more of the outstanding stock of the corporation in one or more transactions during any thirty-day period during the corporation's taxable year;
(B) A redemption treated as an exchange under section or section of 20 percent or more of the outstanding stock of the corporation from a shareholder in one or more transactions during any thirty-day period during the corporation's taxable year; or
(C) An issuance of an amount of stock equal to or greater than 25 percent of the previously outstanding stock to one or more new shareholders during any thirty-day period during the corporation's taxable year.
(ii) Effect of the election A corporation making an election under of this section must treat the taxable year as separate taxable years for purposes of allocating items of income and loss; making adjustments to the AAA, earnings and profits, and basis; and determining the tax effect of distributions under section (b) and (c). An election made under of this section may be made upon the occurrence of any qualifying disposition. Dispositions of stock that are taken into account as part of a qualifying disposition are not taken into account in determining whether a subsequent qualifying disposition has been made. In the case of a taxable year for which an election is made under paragraph (g)(2)(i), for purposes of section , a separate section limitation (as defined in ) applies to each separate taxable year. Any items necessary to determine the amount of business interest expense (as defined in ) that are deducted in each separate taxable year must be allocated between the two separate taxable years in accordance with an allocation methodology provided in this .
(iii) Time and manner of making election A corporation makes an election under for a taxable year by attaching a statement to a timely filed (including extensions) original or amended return required to be filed under section for a taxable year (without regard to the election under ). In the statement, the corporation must state that it is electing for the taxable year under to treat the taxable year as if it consisted of separate taxable years. The corporation also must set forth facts in the statement relating to the qualifying disposition (e.g., sale, gift, stock issuance, or redemption), and state that each shareholder who held stock in the corporation during the taxable year (without regard to the election under ) consents to this election. For purposes of this election, a shareholder of the corporation for the taxable year is a shareholder as described in section . A single election statement may be filed for all elections made under for the taxable year. An election made under is irrevocable. In the case of elections for taxable years beginning before January 1, 2003, the statement through which a corporation makes an election under must be signed by an officer of the corporation under penalties of perjury. In the case of elections for taxable years beginning after December 31, 2002, the statement described in the preceding sentence shall be verified by signing the return.
(iv) Coordination with election under section 1377(a)(2) If the event resulting in a qualifying disposition also results in a termination of a shareholder's entire interest as described in , the election under this cannot be made. Rather, the election under section and may be made. See (concerning the election under section ).
[T.D. 8508, 59 FR 19, Jan. 3, 1994, as amended by T.D. 8696, 61 FR 67455, Dec. 23, 1996; T.D. 8852, 64 FR 71650, Dec. 22, 1999; T.D. 9100, 68 FR 70706, Dec. 19, 2003; T.D. 9300, 71 FR 71043, Dec. 8, 2006; T.D. 9905, 85 FR 56842, Sept. 14, 2020]