Reg. § 1.245A-5 Limitation of section 245A deduction and section 954(c)(6) exception.
(a) Overview This section provides rules that limit a deduction under section to the portion of a dividend that exceeds the ineligible amount of such dividend or the applicability of section when a portion of a dividend is paid out of an extraordinary disposition account or when an extraordinary reduction occurs. of this section provides rules regarding ineligible amounts. of this section provides rules for determining ineligible amounts attributable to an extraordinary disposition. of this section provides rules that limit the application of section when one or more section shareholders of a lower-tier CFC have an extraordinary disposition account. of this section provides rules for determining ineligible amounts attributable to an extraordinary reduction. of this section provides rules that limit the application of section when a lower-tier CFC has an extraordinary reduction amount. of this section provides special rules for purposes of applying this section. of this section provides an anti-abuse rule. of this section provides definitions. of this section provides examples illustrating the application of this section. of this section provides the applicability date of this section.
(b) Limitation of deduction under section 245A
(1) In general A section shareholder is allowed a section deduction for any dividend received from an SFC (provided all other applicable requirements are satisfied) only to the extent that the dividend exceeds the ineligible amount of the dividend. See , , and of this section for examples illustrating the application of this .
(2) Definition of ineligible amount The term ineligible amount means, with respect to a dividend received by a section shareholder from an SFC, an amount equal to the sum of—
(i) 50 percent of the extraordinary disposition amount (as determined under of this section); and
(ii) The extraordinary reduction amount (as determined under of this section).
(c) Rules for determining extraordinary disposition amount
(1) Definition of extraordinary disposition amount The term extraordinary disposition amount means the portion of a dividend received by a section shareholder from an SFC that is paid out of the extraordinary disposition account with respect to the section shareholder. See of this section for an example illustrating the application of this .
(2) Determination of portion of dividend paid out of extraordinary disposition account
(i) In general For purposes of determining the portion of a dividend received by a section shareholder from an SFC that is paid out of the extraordinary disposition account with respect to the section shareholder, the following rules apply—
(A) The dividend is first considered paid out of non-extraordinary disposition E&P with respect to the section shareholder; and
(B) The dividend is next considered paid out of the extraordinary disposition account to the extent of the section shareholder's extraordinary disposition account balance.
(ii) Definition of non-extraordinary disposition E&P The term non-extraordinary disposition E&P means, with respect to a section shareholder and an SFC, an amount of earnings and profits of the SFC equal to the excess, if any, of—
(A) The product of—
(1) The amount of the SFC's earnings and profits described in section , determined as of the end of the SFC's taxable year (for purposes of of this section, without regard to distributions during the taxable year other than as provided in this ), but, if during the taxable year the SFC pays more than one dividend, reduced (but not below zero) by the amounts of any dividends paid by the SFC earlier in the taxable year; and
(2) The percentage of the stock (by value) of the SFC that the section shareholder owns directly or indirectly immediately before the distribution; over
(B) The balance of the section shareholder's extraordinary disposition account with respect to the SFC, determined immediately before the distribution.
(3) Definitions with respect to extraordinary disposition accounts
(i) Extraordinary disposition account
(A) In general The term extraordinary disposition account means, with respect to a section shareholder of an SFC, an account, the balance of which is equal to the product of the extraordinary disposition ownership percentage and the extraordinary disposition E&P, reduced (but not below zero) by the prior extraordinary disposition amount and as provided in or , and adjusted under of this section, as applicable. An extraordinary disposition account is maintained in the same functional currency as the extraordinary disposition E&P.
(B) Extraordinary disposition ownership percentage The term extraordinary disposition ownership percentage means the percentage of stock (by value) of an SFC that a section shareholder owns directly or indirectly at the beginning of the disqualified period or, if later, on the first day during the disqualified period on which the SFC is a CFC, regardless of whether the section shareholder owns directly or indirectly such stock of the SFC on the date of an extraordinary disposition giving rise to extraordinary disposition E&P; if not, see of this section.
(C) Extraordinary disposition E&P The term extraordinary disposition E&P means an amount of earnings and profits of an SFC equal to the sum of the net gain recognized by the SFC with respect to specified property in each extraordinary disposition. In the case of an extraordinary disposition with respect to the SFC arising as a result of a disposition of specified property by a specified entity (other than a foreign corporation), an interest of which is owned directly or indirectly (through one or more other specified entities that are not foreign corporations) by the SFC, the net gain taken into account for purposes of the preceding sentence is the SFC's distributive share of the net gain recognized by the specified entity with respect to the specified property.
(D) Prior extraordinary disposition amount
(1) General rule The term prior extraordinary disposition amount means, with respect to an SFC and a section shareholder, the sum of the extraordinary disposition amount of each prior dividend received by the section shareholder from the SFC by reason of of this section and 200 percent of the sum of the amounts included in the section shareholder's gross income under section by reason of of this section (in the case in which the SFC is, or has been, a lower-tier CFC). A section shareholder's prior extraordinary disposition amount also includes—
(i) A prior dividend received by the section shareholder from the SFC to the extent not an extraordinary reduction amount and to the extent the dividend would have been an extraordinary disposition amount but for the failure of the dividend to qualify for the section deduction by reason of one or more of the following: Application of section ; the recipient domestic corporation does not satisfy the holding period requirement of section ; or the recipient domestic corporation is not a United States shareholder with respect to the foreign corporation from whose earnings and profits the dividend is sourced;
(ii) The portion of a prior dividend (to the extent not a tiered extraordinary disposition amount by reason of of this section) received by an upper-tier CFC from the SFC that by reason of section or being properly allocable to subpart F income of the SFC for the taxable year of the dividend pursuant to section was included in the upper-tier CFC's foreign personal holding company income and was included in gross income by the section shareholder under section but would have been a tiered extraordinary disposition amount by reason of of this section had paragraph (d) applied to the dividend;
(iii) If a prior dividend received by an upper-tier CFC from a lower-tier CFC gives rise to a tiered extraordinary disposition amount with respect to the section shareholder by reason of of this section, the qualified portion; and
(iv) 200 percent of an amount included in the gross income of a domestic corporation under section with respect to a CFC for the taxable year of the domestic corporation in which or with which the CFC's taxable year ends, to the extent so included by reason of the application of this section to the hypothetical distribution described in , or to the extent the amount would have been so included by reason of the application of this section to the hypothetical distribution but for the application of section or the holding period requirement in section to the hypothetical distribution.
(2) Definition of qualified portion
(i) In general The term qualified portion means, with respect to a tiered extraordinary disposition amount of a section shareholder and a lower-tier CFC, 200 percent of the portion of the disqualified amount with respect to the tiered extraordinary disposition amount equal to the sum of the amounts included in gross income by each U.S. tax resident under section in the taxable year in which the tiered extraordinary disposition amount arose with respect to the lower-tier CFC by reason of of this section. For purposes of the preceding sentence, the reference to a U.S. tax resident does not include any section shareholder with a tiered extraordinary disposition amount with respect to the lower-tier CFC.
(ii) Determining a qualified portion if multiple section 245A shareholders have tiered extraordinary disposition amounts For the purposes of applying of this section, if more than one section shareholder has a tiered extraordinary disposition amount with respect to a dividend received by an upper-tier CFC from a lower-tier CFC, then the qualified portion with respect to each section shareholder is equal to the amount described in of this section, without regard to this , multiplied by a fraction, the numerator of which is the section shareholder's tiered extraordinary disposition amount with respect to the lower-tier CFC and the denominator of which is the sum of the tiered extraordinary disposition amounts with respect to each section shareholder and the lower-tier CFC.
(ii) Extraordinary disposition
(A) In general Except as provided in of this section, the term extraordinary disposition means, with respect to an SFC, any disposition of specified property by the SFC on a date on which it was a CFC and during the SFC's disqualified period to a related party if the disposition occurs outside of the ordinary course of the SFC's activities. An extraordinary disposition also includes a disposition during the disqualified period on a date on which the SFC is not a CFC if there is a plan, agreement, or understanding involving a section shareholder to cause the SFC to recognize gain that would give rise to an extraordinary disposition if the SFC were a CFC.
(B) Facts and circumstances A determination as to whether a disposition is undertaken outside of the ordinary course of an SFC's activities is made on the basis of facts and circumstances, taking into account whether the transaction is consistent with the SFC's past activities, including with respect to quantity and frequency. In addition, a disposition of specified property by an SFC to a related party may be considered outside of the ordinary course of the SFC's activities notwithstanding that the SFC regularly disposes of property of the same type of, or similar to, the specified property to persons that are not related parties.
(C) Per se rules
(1) In general Even if a disposition would otherwise be considered to be undertaken in the ordinary course of an SFC's activities under the requirements of of this section, that disposition is treated as occurring outside of the ordinary course of an SFC's activities if the disposition is undertaken with a principal purpose of generating earnings and profits during the disqualified period or, except as provided in of this section, if the disposition is of intangible property, as defined in section .
(2) Exception to the per se rule for certain property
(i) Exception of this section does not apply to a disposition of intangible property that is not described in section or (F), provided that the property is transferred to a related person during the disqualified period with a reasonable expectation that the related person will resell the property to an unrelated customer within one year. Subject to of this section, a disposition of intangible property that satisfies the requirements of this is determined to be within or without the ordinary course of an SFC's activities based on the test described in of this section.
(ii) Facts and circumstances presumption for property described in section 367(d)(4)(A) Notwithstanding of this section, any disposition described in of this section of a copyright right within the meaning of or of intangible property described in section is presumed to take place outside of the ordinary course of an SFC's activities for purposes of of this section. The presumption in the preceding sentence may be rebutted only if the taxpayer can show that the facts and circumstances clearly establish that the disposition took place in the ordinary course of the SFC's activities.
(D) Treatment of dispositions by certain specified entities For purposes of of this section, an extraordinary disposition with respect to an SFC includes a disposition by a specified entity other than a foreign corporation, provided that immediately before or immediately after the disposition the specified entity is a related party with respect to the SFC, the SFC directly or indirectly (through one or more other specified entities other than foreign corporations) owns an interest in the specified entity, and the disposition would have otherwise qualified as an extraordinary disposition had the specified entity been a foreign corporation.
(E) De minimis exception to extraordinary disposition If the sum of the net gain recognized by an SFC with respect to specified property in all dispositions otherwise described in of this section does not exceed the lesser of $50 million or 5 percent of the gross value of all of the SFC's property held immediately before the beginning of its disqualified period, then no disposition of specified property by the SFC is an extraordinary disposition.
(iii) Disqualified period The term disqualified period means, with respect to an SFC that is a CFC on any day during the taxable year that includes January 1, 2018, the period beginning on January 1, 2018, and ending as of the close of the taxable year of the SFC, if any, that begins before January 1, 2018, and ends after December 31, 2017.
(iv) Specified property The term specified property means any property if gain recognized with respect to such property during the disqualified period is not described in section through (V). If only a portion of the gain recognized with respect to property during the disqualified period is gain that is not described in section through (V), then a portion of the property is treated as specified property in an amount that bears the same ratio to the value of the property as the amount of gain not described in section through (V) bears to the total amount of gain recognized with respect to such property during the disqualified period. Specified property is also property with respect to which a loss was recognized during the disqualified period if the loss is properly allocable to income not described in section through (V) under the principles of section (specified loss). If only a portion of the loss recognized with respect to property during the disqualified period is specified loss, then a portion of the property is treated as specified property in an amount that bears the same ratio to the value of the property as the amount of specified loss bears to the total amount of loss recognized with respect to such property during the disqualified period.
(4) Successor rules for extraordinary disposition accounts This applies with respect to an extraordinary disposition account upon certain direct or indirect transfers of stock of an SFC by a section shareholder.
(i) Another section 245A shareholder succeeds to all or portion of account Except as provided in of this section, through of this section apply when a section shareholder of an SFC (the transferor) transfers directly or indirectly a share of stock (or a portion of a share of stock) of the SFC that it owns directly or indirectly (the share or portion thereof, a transferred share).
(A) If immediately after the transfer (taking into account all transactions related to the transfer) another person is a section shareholder of the SFC, then such other person's extraordinary disposition account with respect to the SFC is increased by the person's proportionate share of the amount allocated to the transferred share.
(B) For purposes of of this section, the amount allocated to a transferred share is equal to the product of—
(1) The balance of the transferor's extraordinary disposition account with respect to the SFC, determined after any reduction pursuant to of this section by reason of dividends and before the application of this ; and
(2) A fraction, the numerator of which is the value of the transferred share and the denominator of which is the value of all of the stock of the SFC that the transferor owns directly or indirectly immediately before the transfer.
(C) For purposes of of this section, a person's proportionate share of the amount allocated to a transferred share under of this section is equal to the product of—
(1) The amount allocated to the share; and
(2) The percentage of the share (by value) that the person owns directly or indirectly immediately after the transfer (taking into account all transactions related to the transfer).
(D) The transferor's extraordinary disposition account with respect to the SFC is decreased by the amount by which another person's extraordinary disposition account with respect to the SFC is increased pursuant to of this section.
(ii) Certain section 381 transactions
(A) In general If assets of an SFC (the acquired corporation) are acquired by another SFC (the acquiring corporation) pursuant to a transaction described in section in which the acquired corporation is the transferor corporation for purposes of section , then a section shareholder's extraordinary disposition account with respect to the acquiring corporation is increased by the balance of its extraordinary disposition account with respect to the acquired corporation, determined after any reduction pursuant to of this section by reason of dividends and before the application of this .
(B) Certain triangular asset reorganizations If, in a transaction described in of this section, the section shareholder receives stock of a domestic corporation that controls (within the meaning of section ) the acquiring corporation, the domestic corporation's extraordinary disposition account with respect to the acquiring corporation is increased by the balance of the section shareholder's extraordinary disposition account with respect to the acquired corporation, determined after any reduction pursuant to of this section by reason of dividends and before the application of this .
(iii) Certain distributions involving section 355 or 356 In the case of a transaction involving a distribution under section (or so much of section as it relates to section ) by an SFC (the distributing corporation) of stock of another SFC (the controlled corporation), a section shareholder's extraordinary disposition account with respect to the distributing corporation is attributed to (and treated as) an extraordinary disposition account with respect to the controlled corporation in a manner similar to how earnings and profits of the distributing corporation and the controlled corporation are adjusted under . To the extent that a section shareholder's extraordinary disposition account with respect to the distributing CFC is not so attributed to (and treated as) an extraordinary disposition account with respect to the controlled corporation, the extraordinary disposition account remains as an extraordinary disposition account with respect to the distributing corporation.
(iv) Transfer of all of the stock of the SFC owned by a section 245A shareholder
(A) In general If, in a transaction described in of this section, a section shareholder of an SFC transfers directly or indirectly all of the stock of the SFC that it owns directly or indirectly, then, except as provided in of this section, any remaining balance of the section shareholder's extraordinary disposition account that is not allocated or attributed under of this section is eliminated and therefore not taken into account by any person.
(B) Related party retains the extraordinary distribution account If any related party with respect to the section shareholder described in of this section is a section shareholder with respect to the SFC immediately after the transfer (taking into account all transactions related to the transfer), then the remaining balance of the section shareholder's extraordinary disposition account with respect to the SFC is added to the related party's extraordinary disposition account. If multiple related parties are section shareholders of the SFC, then the remaining balance of the extraordinary disposition account is allocated between the related parties in proportion to the value of the stock of the SFC that they own directly or indirectly immediately after the transfer (taking into account all transactions related to the transfer).
(v) Effect of section 338(g) election
(A) In general Except as provided in of this section, if an election under section is made with respect to a qualified stock purchase (as defined in section ) of stock of an SFC, then a section shareholder's extraordinary disposition account with respect to the old target (as defined in ) is not treated as (or attributed to) an extraordinary disposition account with respect to the new target (as defined in ). Accordingly, the remaining balance of the old target's extraordinary disposition account is eliminated and is not thereafter taken into account by any person.
(B) Special rules regarding carryover foreign target stock If an election under section is made with respect to a qualified stock purchase (as described in section ) of stock of an SFC and there are one or more shares of carryover foreign target stock (“FT stock”) (as described in ), then the following rules apply as to a section shareholder of the new target that after the qualified stock purchase directly or indirectly owns carryover FT stock (such shareholder, the carryover FT stock shareholder):
(1) In a case in which before the qualified stock purchase the carryover FT stock shareholder directly or indirectly owned carryover FT stock, the carryover FT stock shareholder's extraordinary disposition account with respect to the old target, determined after any reduction pursuant to of this section by reason of dividends, is treated as its extraordinary disposition account with respect to the new target.
(2) In a case in which before the qualified stock purchase the carryover FT stock shareholder did not directly or indirectly own carryover FT stock, but the stock retains its character as carryover FT stock (taking into account ), a ratable portion of each section shareholder's extraordinary disposition account with respect to the old target, determined after any reduction pursuant to of this section by reason of dividends, is treated as the carryover FT stock shareholder's extraordinary disposition account with respect to the new target, based on the value of the carryover FT stock that the carryover FT stock shareholder owns directly or indirectly after the qualified stock purchase relative to the value of all of the stock of the new target.
(vi) Certain transfers described in § 1.1248-8(a)(1)
(A) In general If a person transfers stock of an SFC with respect to which a section shareholder has an extraordinary disposition account to a foreign acquiring corporation in a transaction described (other than a transfer that is also described in or ) in which stock of a foreign corporation is received by the transferor, then, except in the case in which the transfer is also described in or of this section, the section shareholder's extraordinary disposition account is not adjusted under this .
(B) Certain transfers described in § 1.1248(f)-1(b) In the case of a transfer directly or indirectly of stock of an SFC by a section shareholder described in or , but which does not result in an income inclusion, in whole or in part, by reason of , the section shareholder's extraordinary disposition account with respect to the SFC, determined after any reduction pursuant to of this section by reason of dividends and before the application of this , is allocated and adjusted in the same manner as under of this section, except that, for purposes of applying and of this section, stock of the SFC that is owned directly or indirectly by persons who are not section shareholders (as defined in ) is disregarded.
(vii) Anti-abuse rule Pursuant to of this section, if a principal purpose of a transaction or series of transactions is to shift to another person, or to avoid, an amount of a section shareholder's extraordinary disposition account with respect to an SFC or otherwise avoid the purposes of this section, then appropriate adjustments are made for purposes of this section, including disregarding the transaction or series of transactions. A principal purpose described in the preceding sentence is deemed to exist if stock of an SFC is directly or indirectly acquired by one of more section shareholders within one year of a transaction or transactions to which of this section would otherwise apply.
(d) Limitation of amount eligible for section 954(c)(6) when there is an extraordinary disposition account with respect to a lower-tier CFC
(1) In general If an upper-tier CFC receives a dividend from a lower-tier CFC, then the dividend is eligible for the exception to foreign personal holding company income under section (provided all other applicable requirements are satisfied) with respect to the portion of the dividend that exceeds the disqualified amount. With respect to the portion of the dividend that does not exceed the disqualified amount, the exception to foreign personal holding company income under section is allowed (provided all other applicable requirements are satisfied) only for the amount equal to 50 percent of the portion of the dividend that does not exceed the disqualified amount. The disqualified amount is the quotient of the amounts described in and of this section.
(i) The sum of each section shareholder's tiered extraordinary disposition amount with respect to the lower-tier CFC.
(ii) The percentage of stock of the upper-tier CFC (by value) owned, in the aggregate, by U.S. tax residents that include in gross income their pro rata share of the upper-tier CFC's subpart F income under section on the last day of the upper-tier CFC's taxable year. If a U.S. tax resident is a direct or indirect partner in a domestic partnership that is a United States shareholder of the upper-tier CFC, the amount of stock owned by the U.S. tax resident for purposes of the preceding sentence is determined under the principles of of this section.
(2) Definition of tiered extraordinary disposition amount
(i) In general The term tiered extraordinary disposition amount means, with respect to a dividend received by an upper-tier CFC from a lower-tier CFC and a section shareholder, the portion of the dividend that would be an extraordinary disposition amount if the section shareholder received as a dividend its pro rata share of the dividend from the lower-tier CFC. The preceding sentence does not apply to an amount treated as a dividend received by an upper-tier CFC from a lower-tier CFC by reason of section (in such case, see and of this section).
(ii) Section 245A shareholder's pro rata share of a dividend received by an upper-tier CFC For the purposes of of this section, a section shareholder's pro rata share of the amount of a dividend received by an upper-tier CFC from a lower-tier CFC equals the amount by which the dividend would increase the section shareholder's pro rata share of the upper-tier CFC's subpart F income under section and and if the dividend were included in the upper-tier CFC's foreign personal holding company income under section , determined without regard to section and as if the upper-tier CFC had no deductions properly allocable to the dividend under section .
(e) Extraordinary reduction amount
(1) In general Except as provided in of this section, the term extraordinary reduction amount means, with respect to a dividend received by a controlling section shareholder from a CFC during a taxable year of the CFC ending after December 31, 2017, in which an extraordinary reduction occurs with respect to the controlling section shareholder's ownership of the CFC, the lesser of the amounts described in or of this section. See through of this section for examples illustrating the application of this .
(i) The amount of the dividend.
(ii) The amount equal to the sum of the controlling section shareholder's pre-reduction pro rata share of the CFC's subpart F income (as defined in section ) and tested income (as defined in section ) for the taxable year, reduced, but not below zero, by the prior extraordinary reduction amount.
(2) Rules regarding extraordinary reduction amounts
(i) Extraordinary reduction
(A) In general Except as provided in of this section, an extraordinary reduction occurs, with respect to a controlling section shareholder's ownership of a CFC during a taxable year of the CFC, if either of the conditions described in or of this section is satisfied. See and of this section for examples illustrating an extraordinary reduction.
(1) The condition of this requires that during the taxable year, the controlling section shareholder transfers directly or indirectly (other than by reason of a transfer occurring pursuant to an exchange described in section or (F)), in the aggregate, more than 10 percent (by value) of the stock of the CFC that the section shareholder owns directly or indirectly as of the beginning of the taxable year of the CFC, provided the stock transferred, in the aggregate, represents at least 5 percent (by value) of the outstanding stock of the CFC as of the beginning of the taxable year of the CFC; or
(2) The condition of this requires that, as a result of one or more transactions occurring during the taxable year, the percentage of stock (by value) of the CFC that the controlling section shareholder owns directly or indirectly as of the close of the last day of the taxable year of the CFC is less than 90 percent of the percentage of stock (by value) that the controlling section shareholder owns directly or indirectly on either of the dates described in and of this section (such percentage, the initial percentage), provided the difference between the initial percentage and percentage at the end of the year is at least five percentage points.
(B) Dates for purposes of the initial percentage For purposes of of this section, the dates described in and of this section are—
(1) The day of the taxable year on which the controlling section shareholder owns directly or indirectly its highest percentage of stock (by value) of the CFC; and
(2) The day immediately before the first day on which stock was transferred directly or indirectly in the preceding taxable year in a transaction (or a series of transactions) occurring pursuant to a plan to reduce the percentage of stock (by value) of the CFC that the controlling section shareholder owns directly or indirectly.
(C) Transactions pursuant to which CFC's taxable year ends A controlling section shareholder's direct or indirect transfer of stock of a CFC that but for this would give rise to an extraordinary reduction under of this section does not give rise to an extraordinary reduction if the taxable year of the CFC ends immediately after the transfer, provided that the controlling section shareholder directly or indirectly owns the stock on the last day of such year. Thus, for example, if a controlling section shareholder exchanges all the stock of a CFC pursuant to a complete liquidation of the CFC, the exchange does not give rise to an extraordinary reduction.
(ii) Rules for determining pre-reduction pro rata share
(A) In general Except as provided in of this section, the term pre-reduction pro rata share means, with respect to a controlling section shareholder and the subpart F income or tested income of a CFC, the controlling section shareholder's pro rata share of the CFC's subpart F income or tested income under section and and or section and , respectively, determined based on the controlling section shareholder's direct or indirect ownership of stock of the CFC immediately before the extraordinary reduction (or, if the extraordinary reduction occurs by reason of multiple transactions, immediately before the first transaction) and without regard to section and , but only to the extent that such subpart F income or tested income is not included in the controlling section shareholder's pro rata share of the CFC's subpart F income or tested income under section and and or section and , respectively.
(B) Decrease in section 245A shareholder's pre-reduction pro rata share for amounts taken into account by U.S. tax resident A controlling section shareholder's pre-reduction pro rata share of subpart F income or tested income of a CFC for a taxable year is reduced by an amount equal to the sum of the amounts by which each U.S. tax resident's pro rata share of the subpart F income or tested income is increased as a result of a transfer directly or indirectly of stock of the CFC by the controlling section shareholder or an issuance of stock by the CFC (such an amount with respect to a U.S. tax resident, a specified amount), in either case, during the taxable year in which the extraordinary reduction occurs. For purposes of this , if there are extraordinary reductions with respect to more than one controlling section shareholder during the CFC's taxable year, then a U.S. tax resident's specified amount attributable to an acquisition of stock from the CFC is prorated with respect to each controlling section shareholder based on its relative decrease in ownership of the CFC. See of this section for an example illustrating a decrease in a section shareholder's pre-reduction pro rata share for amounts taken into account by a U.S. tax resident.
(C) Prior extraordinary reduction amount The term prior extraordinary reduction amount means, with respect to a CFC and section shareholder and a taxable year of the CFC in which an extraordinary reduction occurs, the sum of the extraordinary reduction amount of each prior dividend received by the section shareholder from the CFC during the taxable year. A section shareholder's prior extraordinary reduction amount also includes—
(1) A prior dividend received by the section shareholder from the CFC during the taxable year to the extent the dividend was not eligible for the section deduction by reason of section or the holding period requirement of section not being satisfied but would have been an extraordinary reduction amount had this applied to the dividend;
(2) If the CFC is a lower-tier CFC for a portion of the taxable year during which the lower-tier CFC pays any dividend to an upper tier-CFC, the portion of a prior dividend received by an upper-tier CFC from the lower-tier CFC during the taxable year of the lower-tier CFC that, by reason of section , was included in the upper-tier CFC's foreign personal holding company income and that by reason of section was included in income of the section shareholder, and that would have given rise to a tiered extraordinary reduction amount by reason of of this section had paragraph (f) applied to the dividend of which the section shareholder would have included a pro rata share of the tiered extraordinary reduction amount in income by reason of section ; and
(3) If the CFC is a lower-tier CFC for a portion of the taxable year during which the lower-tier CFC pays any dividend to an upper-tier CFC, the sum of the portion of the tiered extraordinary reduction amount of each prior dividend received by an upper-tier CFC from the lower-tier CFC during the taxable year that is included in income of the section shareholder by reason of section .
(3) Exceptions
(i) Elective exception to close CFC's taxable year
(A) In general For a taxable year of a CFC in which an extraordinary reduction occurs with respect to a controlling section shareholder and for which, absent this , there would be an extraordinary reduction amount or tiered extraordinary reduction amount greater than zero, no amount is considered an extraordinary reduction amount or tiered extraordinary reduction amount with respect to the controlling section shareholder if each controlling section shareholder elects, and each U.S. tax resident described in of this section agrees, pursuant to this , to close the CFC's taxable year for all purposes of the Internal Revenue Code (and, therefore, as to all shareholders of the CFC) as of the end of the date on which the extraordinary reduction occurs, or, if the extraordinary reduction occurs by reason of multiple transactions, as of the end of each date on which a transaction forming a part of the extraordinary reduction occurs. Because the determination as to whether there would be an extraordinary reduction amount or tiered extraordinary reduction amount greater than zero is made without regard to this , this determination is made without taking into account any elections that may be available, or other events that may occur, solely by reason of an election described in this , such as the application of section to a short taxable year created as a result of the election. If an election is made pursuant to this , all shareholders of the CFC that are a controlling section shareholder or a U.S. tax resident described in of this section must file their respective U.S. income tax and information returns consistently with the election. If each controlling section shareholder elects to close the CFC's taxable year, that closing will be treated as a change in accounting period for purposes of the notice requirement in , treating any controlling section shareholders as controlling domestic shareholders for this purpose. However, the notice described in does not need to be provided to persons that are U.S. tax residents described in of this section. For purposes of applying this , a controlling section shareholder that has an extraordinary reduction (or a transaction forming a part thereof) with respect to a CFC is treated as owning the same amount of stock it owned in the CFC immediately before the extraordinary reduction (or a transaction forming a part thereof) on the end of the date on which the extraordinary reduction occurs (or such transaction forming a part thereof occurs). To the extent that shares of a CFC are treated as owned by a controlling section shareholder as of the close of the CFC's taxable year pursuant to the preceding sentence, such shares are treated as not being owned by any other person as of the close of the CFC's taxable year.
(B) Allocation of foreign taxes If an election is made pursuant to this to close a CFC's taxable year and the CFC's taxable year under foreign law (if any) does not close at the end of the date on which the CFC's taxable year closes as a result of the election, foreign taxes paid or accrued with respect to such foreign taxable year are allocated between the period of the foreign taxable year that ends with, and the period of the foreign taxable year that begins after, the date on which the CFC's taxable year closes as a result of the election. If there is more than one date on which the CFC's taxable year closes as a result of the election, foreign taxes paid or accrued with respect to the foreign taxable year are allocated to all such periods. The allocation is made based on the respective portions of the taxable income of the CFC (as determined under foreign law) for the foreign taxable year that are attributable under the principles of to the periods during the foreign taxable year. Foreign taxes allocated to a period under this are treated as paid or accrued by the CFC as of the close of that period.
(C) Time and manner of making election
(1) Election by controlling section 245A shareholder An election pursuant to this is made and effective if the statement described in of this section is timely filed (including extensions) by each controlling section shareholder making the election with its original U.S. tax return for the taxable year in which the extraordinary reduction occurs. If a controlling section shareholder is a member of a consolidated group (within the meaning of ) and participates in the extraordinary reduction, the agent for such group (within the meaning of ) must file the election described in this on behalf of such member.
(2) Binding agreement Before the filing of the statement described in of this section, each controlling section shareholder must enter into a written, binding agreement with each U.S. tax resident that on the end of the date on which the extraordinary reduction occurs (or, if the extraordinary reduction occurs by reason of multiple transactions, each U.S. tax resident that on the end of each date on which a transaction forming a part of the extraordinary reduction occurs) owns directly or indirectly, without regard to the final two sentences of of this section, stock of the CFC and is a United States shareholder with respect to the CFC. In the case of a U.S. tax resident that owns stock of the CFC indirectly through one or more partnerships, the partnership that directly owns the stock of the CFC may enter into the binding agreement on behalf of the U.S. tax resident partner provided that, before the due date of the partner's original Federal income tax return, including extensions, the partner delegated the authority to the partnership to enter into the binding agreement pursuant to a written partnership agreement (within the meaning of ). The written, binding agreement must provide that each controlling section shareholder will elect to close the taxable year of the CFC.
(3) Transition rule In the case of an extraordinary reduction occurring before August 27, 2020, the statement described in of this section is considered timely filed if it is attached by each controlling section shareholder to an original or amended return for the taxable year in which the extraordinary reduction occurs. In the case of an amended return, the statement is considered timely filed only if it is filed with an amended return no later than February 23, 2021.
(D) Form and content of statement The statement required by of this section is to be titled “Elective Section Year-Closing Statement.” The statement must—
(1) Identify (by name and tax identification number, if any) each controlling section shareholder, each U.S tax resident described in of this section, and the CFC;
(2) State the date of the extraordinary reduction (or, if the extraordinary reduction includes transactions on more than one date, the dates of all such transactions) to which the election applies;
(3) State the filing controlling section shareholder's pro rata share of the subpart F income, tested income, and foreign taxes described in section with respect to the stock of the CFC subject to the extraordinary reduction, and, if applicable, the amount of earnings and profits attributable to such stock within the meaning of section , as of the date of the extraordinary reduction;
(4) State that each controlling section shareholder and each U.S tax resident described in of this section have entered into a written, binding agreement to elect to close the CFC's taxable year in accordance with of this section; and
(5) Be filed in the manner, if any, prescribed by forms, publications, or other guidance published in the Internal Revenue Bulletin.
(E) Consistency requirements If multiple extraordinary reductions occur with respect to one or more controlling section shareholders' ownership in a single CFC during one or more taxable years of the CFC, then to the extent those extraordinary reductions occur pursuant to a plan or series of related transactions, the election described in this section may be made only if it is made for all such extraordinary reductions with respect to the CFC for which there was an extraordinary reduction amount. Furthermore, if an extraordinary reduction occurs with respect to a controlling section shareholders' ownership in one or more CFCs, then, to the extent those extraordinary reductions occur pursuant to a plan or series of related transactions, the election described in this may be made only if it is made for each extraordinary reduction for which there was an extraordinary reduction amount with respect to all of the CFCs that have the same or related (within the meaning of section or ) controlling section shareholders.
(ii) De minimis subpart F income and tested income For a taxable year of a CFC in which an extraordinary reduction occurs, no amount is considered an extraordinary reduction amount (or, with respect to a lower-tier CFC, a tiered extraordinary reduction amount under of this section) with respect to a controlling section shareholder of the CFC if the sum of the CFC's subpart F income and tested income (as defined in section ) for the taxable year does not exceed the lesser of $50 million or 5 percent of the CFC's total income for the taxable year.
(f) Limitation of amount eligible for section 954(c)(6) where extraordinary reduction occurs with respect to lower-tier CFC s—
(1) In general If an extraordinary reduction occurs with respect to a lower-tier CFC and an upper-tier CFC receives a dividend from the lower-tier CFC in the taxable year in which the extraordinary reduction occurs, then the dividend is eligible for the exception to foreign personal holding company income under section (provided all other applicable requirements are satisfied) only with respect to the portion of the dividend that exceeds the tiered extraordinary reduction amount. The preceding sentence does not apply to an amount treated as a dividend received by an upper-tier CFC by reason of section (in this case, see and of this section). See of this section for an example illustrating the application of this .
(2) Definition of tiered extraordinary reduction amount The term tiered extraordinary reduction amount means, with respect to the portion of a dividend received by an upper-tier CFC from a lower-tier CFC during a taxable year of the lower-tier CFC, the amount of such dividend equal to the excess, if any, of—
(i) The product of—
(A) The sum of the amount of the subpart F income and tested income of the lower-tier CFC for the taxable year; and
(B) The percentage (by value) of stock of the lower-tier CFC owned (within the meaning of section ) by the upper-tier CFC immediately before the extraordinary reduction (or the first transaction forming a part thereof); over
(ii) The following amounts—
(A) The sum of each U.S. tax resident's pro rata share of the lower-tier CFC's subpart F income and tested income under section or , respectively, that is attributable to shares of the lower-tier CFC owned (within the meaning of section ) by the upper-tier CFC immediately prior to the extraordinary reduction (or the first transaction forming a part thereof), computed without the application of this ;
(B) The sum of each prior tiered extraordinary reduction amount and sum of each amount included in an upper-tier CFC's subpart F income by reason of section with respect to prior dividends from the lower-tier CFC during the taxable year;
(C) The sum of each U.S. tax resident's pro rata share of an upper-tier CFC's subpart F income under section and that is attributable to dividends received from the lower-tier CFC in the taxable year of the extraordinary reduction that do not qualify for the exception to foreign personal holding company income under section because the dividends, or portions thereof, are properly allocable to subpart F income of the lower-tier CFC for the taxable year of the extraordinary reduction pursuant to section ;
(D) The sum of the prior extraordinary reduction amounts (but, for this purpose, computed without regard to amounts described in and of this section) of each controlling section shareholder with respect to shares of the lower-tier CFC that were owned by such controlling section shareholder (including indirectly through a specified entity other than a foreign corporation) for a portion of the taxable year but are owned by an upper-tier CFC (including indirectly through a specified entity other than a foreign corporation) at the time of the distribution of the dividend; and
(E) The product of the amount described in of this section and the sum of the amounts of each U.S. tax resident's pro rata share of subpart F income and tested income for the taxable year under section or , respectively, attributable to shares of the lower-tier CFC directly or indirectly acquired by the U.S. tax resident from the lower-tier CFC during the taxable year.
(3) Transition rule for computing tiered extraordinary reduction amount Solely for purposes of applying this in taxable years of a lower-tier CFC beginning on or after January 1, 2018, and ending before June 14, 2019, a tiered extraordinary reduction amount is determined by treating the lower-tier CFC's subpart F income for the taxable year as if it were neither subpart F income nor tested income.
(g) Special rules The rules in this apply for purposes of this section.
(1) Source of dividends A dividend received by any person is considered received directly by such person from the foreign corporation whose earnings and profits give rise to the dividend. Therefore, for example, if a section shareholder sells or exchanges stock of an upper-tier CFC and the gain recognized on the sale or exchange is included in the gross income of the section shareholder as a dividend under section , then, to the extent the dividend is attributable under section to the earnings and profits of a lower-tier CFC owned, within the meaning of section , by the section shareholder through the upper-tier CFC, the dividend is considered received directly by the section shareholder from the lower-tier CFC.
(2) Certain section 964(e) inclusions treated as dividends An amount included in the gross income of a section shareholder under section by reason of section is considered a dividend received by the section shareholder directly from the foreign corporation whose earnings and profits give rise to the amount described in section . Therefore, for example, if an upper-tier CFC sells or exchanges stock of a lower-tier CFC, and, as a result of the sale or exchange, a section shareholder with respect to the upper-tier CFC includes an amount in gross income under section by reason of section , then the inclusion is treated as a dividend received directly by the section shareholder from the lower-tier CFC whose earnings and profits give rise to the dividend, and the section shareholder is not allowed a section deduction for the dividend to the extent of the ineligible amount of such dividend.
(3) Rules regarding stock ownership and stock transfers
(i) Determining indirect ownership of stock of an SFC or a CFC For purposes of this section, if a person owns an interest in, or stock of, a specified entity, including through a chain of ownership of one or more other specified entities, then the person is considered to own indirectly a pro rata share of stock of an SFC or a CFC owned by the specified entity. To determine a person's pro rata share of stock owned by a specified entity, the principles of section apply without regard to whether the specified entity is foreign or domestic.
(ii) Determining indirect transfers for stock owned indirectly If, under of this section, a person is considered to own indirectly stock of an SFC or CFC that is owned by a specified entity, then the following rules apply in determining if the person transfers stock of the SFC or CFC—
(A) To the extent the specified entity transfers stock that is considered owned indirectly by the person immediately before the transfer, the person is considered to transfer indirectly such stock;
(B) If the person transfers an interest in, or stock of, the specified entity, then the person is considered to transfer indirectly the stock of the SFC or CFC attributable to the interest in, or the stock of, the specified entity that is transferred; and
(C) In the case in which the person owns the specified entity through a chain of ownership of one or more other specified entities, if there is a transfer of an interest in, or stock of, another specified entity in the chain of ownership, then the person is considered to transfer indirectly the stock of the SFC or CFC attributable to the interest in, or the stock of, the other specified entity transferred.
(iii) Definition of specified entity The term specified entity means any partnership, trust (other than a trust treated as a corporation for U.S. income tax purposes), or estate (in each case, domestic or foreign), or any foreign corporation.
(4) Coordination rules
(i) General rule A dividend is first subject to section . To the extent the dividend is not a hybrid dividend or tiered hybrid dividend under section , the dividend is subject to or of this section, as applicable, and then, to the extent the dividend is not subject to or of this section, it is subject to or of this section, as applicable.
(ii) Coordination rule for paragraphs (c) and (d) and (e) and (f) of this section, respectively If an SFC or CFC pays a dividend (or simultaneous dividends), a portion of which may be subject to or of this section and a portion of which may be subject to or of this section, the rules of this section apply by treating the portion of the dividend or dividends that may be subject to or of this section as if it occurred immediately before the portion of the dividend or dividends that may be subject to or of this section. For example, if a dividend arising under section occurs at the same time as a dividend that would be eligible for the exception to foreign personal holding company income under section but for the potential application of paragraph (d) this section, then the tiered extraordinary disposition amount with respect to the other dividend is determined as if the dividend arising under section occurs immediately before the other dividend.
(5) Ordering rule for multiple dividends made by an SFC or a CFC during a taxable year If an SFC or a CFC pays dividends on more than one date during its taxable year or at different times on the same date, this section applies based on the order in which the dividends are paid.
(6) Partner's distributive share of a domestic partnership's pro rata share of subpart F income or tested income If a section shareholder or a U.S. tax resident is a direct or indirect partner in a domestic partnership that is a United States shareholder with respect to a CFC and includes in gross income its distributive share of the domestic partnership's inclusion under section or with respect to the CFC then, solely for purposes of this section, a reference to the section shareholder's or U.S. tax resident's pro rata share of the CFC's subpart F income or tested income included in gross income under section or , respectively, includes such person's distributive share of the domestic partnership's pro rata share of the CFC's subpart F income or tested income. A person is an indirect partner with respect to a domestic partnership if the person indirectly owns the domestic partnership through one or more specified entities (other than a foreign corporation).
(7) Related domestic corporations treated as a single domestic corporation for certain purposes For purposes of determining the extent that a dividend is an extraordinary disposition amount or a tiered extraordinary disposition amount, as well as for purposes of determining the extent to which an extraordinary disposition account is reduced by a prior extraordinary disposition amount, domestic corporations that are related parties are treated as a single domestic corporation. Thus, for example, if two domestic corporations are related parties and either or both of them are section shareholders with respect to an SFC, then the extent to which a dividend received by either domestic corporation from the SFC is an extraordinary disposition amount is based on the sum of each domestic corporation's extraordinary disposition account with respect to the SFC. When, by reason of this , the extent to which a dividend is an extraordinary disposition amount or tiered extraordinary disposition amount is determined based on the sum of two or more extraordinary disposition accounts, a pro rata amount in each extraordinary disposition account is considered to give rise to the extraordinary disposition amount or tiered extraordinary disposition amount, if any.
(h) Anti-abuse rule Appropriate adjustments are made pursuant to this section, including adjustments that would disregard a transaction or arrangement in whole or in part, to any amounts determined under (or subject to the application of) this section if a transaction or arrangement is engaged in with a principal purpose of avoiding the purposes of this section. For examples illustrating the application of this , see through of this section.
(i) Definitions The following definitions apply for purposes of this section.
(1) Controlled foreign corporation The term controlled foreign corporation (or CFC) has the meaning provided in section .
(2) Controlling section 245A shareholder The term controlling section shareholder means, with respect to a CFC, any section shareholder that owns directly or indirectly more than 50 percent (by vote or value) of the stock of the CFC. For purposes of determining whether a section shareholder is a controlling section shareholder with respect to a CFC, all stock of the CFC owned by a related party with respect to the section shareholder or by other persons acting in concert with the section shareholder to undertake an extraordinary reduction is considered owned by the section shareholder. If section applies to a sale or exchange of a lower-tier CFC with respect to a controlling section shareholder, all United States shareholders of the CFC are considered to act in concert with regard to the sale or exchange. In addition, if all persons selling stock in a CFC, held directly, sell such stock to the same buyer or buyers (or a related party with respect to the buyer or buyers) as part of the same plan, all sellers will be considered to act in concert with regard to the sale or exchange.
(3) Disqualified amount The term disqualified amount has the meaning set forth in of this section.
(4) Disqualified period The term disqualified period has the meaning set forth in of this section.
(5) Extraordinary disposition The term extraordinary disposition has the meaning set forth in of this section.
(6) Extraordinary disposition account The term extraordinary disposition amount has the meaning set forth in of this section.
(7) Extraordinary disposition amount The term extraordinary disposition amount has the meaning set forth in of this section.
(8) Extraordinary disposition E&P The term extraordinary disposition E&P has the meaning set forth in of this section.
(9) Extraordinary disposition ownership percentage The term extraordinary disposition ownership percentage has the meaning set forth in of this section.
(10) Extraordinary reduction The term extraordinary reduction has the meaning set forth in of this section.
(11) Extraordinary reduction amount The term extraordinary reduction amount has the meaning set forth in of this section.
(12) Ineligible amount The term ineligible amount has the meaning set forth in of this section.
(13) Lower-tier CFC The term lower-tier CFC means a CFC whose stock is owned (within the meaning of section ), in whole or in part, by another CFC.
(14) Non-extraordinary disposition E&P The term non-extraordinary disposition E&P has the meaning set forth in of this section.
(15) Pre-reduction pro rata share The term pre-reduction pro rata share has the meaning set forth in of this section.
(16) Prior extraordinary disposition amount The term prior extraordinary disposition amount has the meaning set forth in of this section.
(17) Prior extraordinary reduction amount The term prior extraordinary reduction amount has the meaning set forth in of this section.
(18) Qualified portion The term qualified portion has the meaning set forth in of this section.
(19) Related party The term related party means, with respect to a person, another person bearing a relationship described in section or to the person, in which case such persons are related.
(20) Section 245A deduction The term section deduction means, with respect to a dividend received by a section shareholder from an SFC, the amount of the deduction allowed to the section shareholder by reason of the dividend.
(21) Section 245A shareholder The term section shareholder means a domestic corporation that is a United States shareholder with respect to an SFC and that owns directly or indirectly stock of the SFC.
(22) Specified 10-percent owned foreign corporation (SFC) The term specified 10-percent owned foreign corporation (or SFC) has the meaning provided in section .
(23) Specified entity The term specified entity has the meaning set forth in of this section.
(24) Specified property The term specified property has the meaning set forth in of this section.
(25) Tiered extraordinary disposition amount The term tiered extraordinary disposition amount has the meaning set forth in of this section.
(26) Tiered extraordinary reduction amount The term tiered extraordinary reduction amount has the meaning set forth in of this section.
(27) United States shareholder The term United States shareholder has the meaning provided in section .
(28) Upper-tier CFC The term upper-tier CFC means a CFC that owns (within the meaning of section ) stock in another CFC.
(29) U.S. tax resident The term U.S. tax resident means a United States person described in section or (C).
(j) Examples The application of this section is illustrated by the examples in this .
(1) Facts Except as otherwise stated, the facts described in this are assumed for purposes of the examples.
(i) US1 and US2 are domestic corporations, each with a calendar taxable year, and are not related parties with respect to each other.
(ii) CFC1, CFC2, and CFC3 are foreign corporations that are SFCs and CFCs.
(iii) Each entity uses the U.S. dollar as its functional currency.
(iv) Year 2 begins on or after January 1, 2018 and has 365 days.
(v) Absent application of this section, dividends received by US1 and US2 from a CFC meet the requirements to qualify for the section deduction, and dividends received by one CFC from another CFC qualify for the exception to foreign personal holding company income under section .
(vi) The de minimis rules in and of this section do not apply.
(vii) Section is not relevant to the tax results described in the examples in this .
(2) Example 1. Extraordinary disposition—(i) Facts. US1 and US2 own 60% and 40%, respectively, of the single class of stock of CFC1. CFC1 owns all of the single class of stock of CFC2. CFC1 and CFC2 use the taxable year ending November 30 as their taxable year. On November 1, 2018, CFC1 sells specified property to CFC2 in exchange for $200x of cash (the “Property Transfer”). The Property Transfer is outside of CFC1's ordinary course of activities. The transferred property has a basis of $100x in the hands of CFC1. CFC1 recognizes $100x of gain as a result of the Property Transfer ($200x − $100x). On December 1, 2018, CFC1 distributes $80x pro rata to US1 ($48x) and US2 ($32x), all of which is a dividend within the meaning of section and treated as a distribution out of earnings described in section . No other distributions are made by CFC1 to either US1 or US2 in CFC1's taxable year ending November 30, 2019. For its taxable year ending on November 30, 2019, CFC1 has $110x of earnings and profits described in section , without regard to any distributions during the taxable year.
(ii) Analysis—(A) Identification of extraordinary disposition. Because CFC1 is a CFC and uses the taxable year ending on November 30, under of this section, it has a disqualified period beginning on January 1, 2018, and ending on November 30, 2018. In addition, under of this section, the Property Transfer is an extraordinary disposition because it: Is a disposition of specified property by CFC1 on a date on which it was a CFC and during CFC1's disqualified period; is to CFC2, a related party with respect to CFC1; occurs outside of the ordinary course of CFC1's activities; and, is not subject to the de minimis rule in of this section.
(B) Determination of section shareholders and their extraordinary disposition accounts. Because CFC1 undertook an extraordinary disposition, under of this section, a portion of CFC1's earnings and profits are extraordinary disposition E&P and, therefore, give rise to an extraordinary disposition account with respect to each of CFC1's section shareholders. Under of this section, US1 and US2 are both section shareholders with respect to CFC1. The amount of the extraordinary disposition account with respect to US1 is $60x, which is equal to the product of the extraordinary disposition E&P (the amount of the net gain recognized by CFC1 as a result of the Property Transfer ($100x)) and the extraordinary disposition ownership percentage (the percentage of the stock of CFC1 owned directly or indirectly by US1 on January 1, 2018 (60%)), reduced by the prior extraordinary disposition amount ($0). See of this section. Similarly, the amount of the extraordinary disposition account with respect to US2 is $40x, which is equal to the product of the extraordinary disposition E&P (the net gain recognized by CFC1 as a result of the Property Transfer ($100x)) and extraordinary disposition ownership percentage (the percentage of the stock of CFC1 owned directly or indirectly by US2 on January 1, 2018 (40%)), reduced by the prior extraordinary disposition amount ($0).
(C) Determination of extraordinary disposition amount with respect to US1. The dividend of $48x paid to US1 on December 1, 2018, is an extraordinary disposition amount to the extent the dividend is paid out of the extraordinary disposition account with respect to US1. See of this section. Under of this section, the dividend is first considered paid out of non-extraordinary disposition E&P with respect to US1, to the extent thereof. With respect to US1, $6x of CFC1's earnings and profits is non-extraordinary disposition E&P, calculated as the excess of $66x (the product of $110x of earnings and profits described in section , without regard to the $80x distribution, and 60%) over $60x (the balance of US1's extraordinary disposition account with respect to CFC1, immediately before the distribution). See of this section. Thus, $6x of the dividend is considered paid out of non-extraordinary disposition E&P with respect to US1. Under of this section, the remaining $42x of the dividend is next considered paid out of US1's extraordinary disposition account with respect to CFC1, to the extent thereof. Accordingly, $42x of the dividend is considered paid out of the extraordinary disposition account with respect to CFC1 and gives rise to $42x of an extraordinary disposition amount. As a result, US1's prior extraordinary disposition amount is increased by $42x under of this section, and US1's extraordinary disposition account is reduced to $18x ($60x − $42x) under of this section.
(D) Determination of extraordinary disposition amount with respect to US2. The dividend of $32x paid to US2, on December 1, 2018, is an extraordinary disposition amount to the extent the dividend is paid out of extraordinary disposition E&P with respect to US2. See of this section. Under of this section, the dividend is first considered paid out of non-extraordinary disposition E&P with respect to US2, to the extent thereof. With respect to US2, $4x of CFC1's earnings and profits is non-extraordinary disposition E&P, calculated as the excess of $44x (the product of $110x of earnings and profits described in section , without regard to the $80x distribution, and 40%) over $40x (the balance of US2's extraordinary disposition account with respect to CFC1, immediately before the distribution). See of this section. Thus, $4x of the dividend is considered paid out of non-extraordinary disposition E&P with respect to US2. Under of this section, the remaining $28x of the dividend is next considered paid out of US2's extraordinary disposition account with respect to CFC1, to the extent thereof. Accordingly, $28x of the dividend is considered paid out of the extraordinary disposition account with respect to US2 and gives rise to $28x of an extraordinary disposition amount. As a result, US2's prior extraordinary disposition amount is increased by $28x under of this section, and US2's extraordinary disposition account is reduced to $12x ($40x − $28x) under of this section.
(E) Determination of ineligible amount with respect to US1 and US2. Under of this section, with respect to US1 and the dividend of $48x, the ineligible amount is $21x, the sum of 50 percent of the extraordinary disposition amount ($42x) and extraordinary reduction amount ($0). Therefore, with respect to the dividend received by US1 of $48x, $27x is eligible for a section deduction. With respect to US2 and the dividend of $32x, the ineligible amount is $14x, the sum of 50% of the extraordinary disposition amount ($28x) and extraordinary reduction amount ($0). Therefore, with respect to the dividend received by US2 of $32x, $18x is eligible for a section deduction.
(3) Example 2. Application of section exception with extraordinary disposition account—(i) Facts. The facts are the same as in of this section (the facts in Example 1) except that the Property Transfer is a sale by CFC2 to CFC1 instead of a sale by CFC1 to CFC2, the $80x distribution is by CFC2 to CFC1 in a separate transaction that is unrelated to the Property Transfer, and the description of the earnings and profits of CFC1 is applied to CFC2. Additionally, absent the application of this section, section would apply to the distribution by CFC2 to CFC1. Under section and and , US1's pro rata share of any subpart F income of CFC1 is 60% and US2's pro rata share of any subpart F income of CFC2 is 40%.
(ii) Analysis—(A) Identification of extraordinary disposition. The Property Transfer is an extraordinary disposition under the same analysis as provided in of this section (the analysis in Example 1).
(B) Determination of section shareholders and their extraordinary disposition accounts. Both US1 and US2 are section shareholders with respect to CFC2, US1 has an extraordinary disposition account of $60x with respect to CFC2, and US2 has an extraordinary disposition account of $40x with respect to CFC2 under the same analysis as provided in of this section (the analysis in Example 1).
(C) Determination of tiered extraordinary disposition amount—(1) In general. US1 and US2 each have a tiered extraordinary disposition amount with respect to the $80x dividend paid by CFC2 to CFC1 to the extent that US1 and US2 would have an extraordinary disposition amount if each had received as a dividend its pro rata share of the dividend from CFC2. See of this section. Under of this section, US1's pro rata share of the dividend is $48x (60% × $80x), that is, the increase to US1's pro rata share of the subpart F income if the dividend were included in CFC1's foreign personal holding company income, without regard to section and the allocation of expenses. Similarly, US2's pro rata share of the dividend is $32x (40% × $80x).
(2) Determination of tiered extraordinary disposition amount with respect to US1. The extraordinary disposition amount with respect to US1 is $42x, under the same analysis provided in of this section (the analysis in Example 1). Accordingly, the tiered extraordinary disposition amount with respect to US1 is $42x.
(3) Determination of extraordinary disposition amount with respect to US2. The extraordinary disposition amount with respect to US2 is $28x, under the same analysis provided in of this section (the analysis in Example 1). Accordingly, the tiered extraordinary disposition amount with respect to US2 is $28x.
(D) Limitation of section exception. The sum of US1 and US2's tiered extraordinary disposition amounts is $70x ($42x + $28x). The portion of the stock of CFC1 (by value) owned (within the meaning of section ) by U.S. tax residents on the last day of CFC1's taxable year is 100%. Under of this section, the disqualified amount with respect to the dividend is $70x ($70x/100%). Accordingly, the portion of the $80x dividend from CFC2 to CFC1 that is eligible for the exception to foreign personal holding company income under section is $45x, equal to the sum of $10x (the portion of the $80x dividend that exceeds the $70x disqualified amount) and $35x (50 percent of $70x, the portion of the dividend that does not exceed the disqualified amount). Under section and and , US1 includes $21x (60% × $35x) and US2 includes $14x (40% × $35x) in income under section .
(E) Changes in extraordinary disposition account of US1. Under of this section, US1's prior extraordinary disposition amount with respect to CFC2 is increased by $42x, or 200% of $21x, the amount US1 included in income under section with respect to CFC1. Under of this section, US1 has no qualified portion because all of the owners of CFC2 are section shareholders with a tiered extraordinary disposition amount with respect to CFC2. As a result, US1's extraordinary disposition account is reduced to $18x ($60x−$42x) under of this section.
(F) Changes in extraordinary disposition account of US2. Under of this section, US2's prior extraordinary disposition amount with respect to CFC2 is increased by $28x, or 200% of $14x, the amount US2 included in income under section with respect to CFC1. Under of this section, US2 has no qualified portion because all of the owners of CFC2 are section shareholders with a tiered extraordinary disposition amount with respect to CFC2. As a result, US2's extraordinary disposition account is reduced to $12x ($40x−$28x) under of this section.
(4) Example 3. Extraordinary reduction—(i) Facts. At the beginning of CFC1's taxable year ending on December 31, Year 2, US1 owns all of the single class of stock of CFC1, and no person transferred any CFC1 stock directly or indirectly in Year 1 pursuant to a plan to reduce the percentage of stock (by value) of CFC1 owned by US1. Also as of the beginning of Year 2, CFC1 has no earnings and profits described in section or (2), and US1 does not have an extraordinary disposition account with respect to CFC1. As of the end of Year 2, CFC1 has $160x of tested income and no other income. CFC1 has $160x of earnings and profits for Year 2. On October 19, Year 2, US1 sells all of its CFC1 stock to US2 for $100x in a transaction (the “Stock Sale”) in which US1 recognizes $90x of gain. Under section , the entire $90x of gain is included in US1's gross income as a dividend and, pursuant to section , the $90x is treated as a dividend for purposes of applying section . At the end of Year 2, under section , US2 takes into account $70x of tested income, calculated as $160x (100% of the $160x of tested income) less $90x, the amount described in section . The amount described in section is the lesser of $90x, the amount of dividends received by US1 with respect to the transferred stock, and $128x, the amount of tested income attributable to the transferred stock ($160x) multiplied by 292/365 (the ratio of the number of days in Year 2 that US2 did not own the transferred stock to the total number of days in Year 2). US1 does not make an election pursuant to of this section.
(ii) Analysis—(A) Determination of controlling section shareholder and extraordinary reduction of ownership. Under of this section, US1 is a controlling section shareholder with respect to CFC1. In addition, the Stock Sale results in an extraordinary reduction with respect to US1's ownership of CFC1. See of this section. The extraordinary reduction occurs because during Year 2, US1 transferred 100% of the CFC1 stock it owned at the beginning of the year and such amount is more than 5% of the total value of the stock of CFC1 at the beginning of Year 2; it also occurs because on the last day of the year the percentage of stock (by value) of CFC1 that US1 owns directly or indirectly (0%) (the end of year percentage) is less than 90% of the stock (by value) of CFC1 that US1 owns directly or indirectly on the day of the taxable year when it owned the highest percentage of CFC1 stock by value (100%) (the initial percentage), no transactions occurred in the preceding year pursuant to a plan to reduce the percentage of CFC1 stock owned by US1, and the difference between the initial percentage and the end of year percentage (100 percentage points) is at least 5 percentage points.
(B) Determination of extraordinary reduction amount. Under of this section, the entire $90x dividend to US1 is an extraordinary reduction amount with respect to US1 because the dividend is at least equal to US1's pre-reduction pro rata share of CFC1's Year 2 tested income described in of this section ($160x), reduced by the amount of tested income taken into account by US2, a U.S. tax resident, under of this section ($70x).
(C) Determination of ineligible amount. Under of this section, with respect to US1 and the dividend of $90x, the ineligible amount is $90x, the sum of 50% of the extraordinary disposition amount ($0) and extraordinary reduction amount ($90x). Therefore, with respect to the dividend received of $90x, no portion is eligible for the dividends received deduction allowed under section .
(iii) Alternative facts—election to close CFC's taxable year. The facts are the same as in of this section (the facts of this Example 3), except that, pursuant to of this section, US1 elects to close CFC1's Year 2 taxable year for all purposes of the Code as of the end of October 19, Year 2, the date on which the Stock Sale occurs; in addition, US1 and US2 enter into a written, binding agreement that US1 will elect to close CFC1's Year 2 taxable year. Accordingly, under section , US1 takes into account 100% of CFC1's tested income for the taxable year beginning January 1, Year 2, and ending October 19, Year 2, and US2 takes into account 100% of CFC1's tested income for the taxable year beginning October 20, Year 2, and ending December 31, Year 2. Under of this section, no amount is considered an extraordinary reduction amount with respect to US1.
(5) Example 4. Extraordinary reduction; decrease in section shareholder's pre-reduction pro rata share for amounts taken into account by U.S. tax residents—(i) Facts. At the beginning of CFC1's taxable year ending December 31, Year 2, US1 owns all of the single class of stock of CFC1, and no person transferred any CFC1 stock directly or indirectly in Year 1 pursuant to a plan to reduce the percentage of stock (by value) of CFC1 owned by US1. CFC1 generates $120x of subpart F income during its taxable year ending on December 31, Year 2. On October 1, Year 2, CFC1 distributes a $120x dividend to US1. On October 19, Year 2, US1 sells 100% of its stock of CFC1 to PRS, a domestic partnership, in a transaction in which no gain or loss is realized (the “Stock Sale”). A, an individual who is a citizen of the United States, and B, a foreign individual who is not a U.S. tax resident, each own 50% of the capital and profits interests of PRS. On December 1, Year 2, US2 and FP, a foreign corporation, contribute property to CFC1; in exchange, each of US2 and FP receives 25% of the stock of CFC1. PRS owns the remaining 50% of the stock of CFC1. US1 does not make an election pursuant to of this section.
(ii) Analysis—(A) Determination of controlling section shareholder and extraordinary reduction. Under of this section, US1 is a controlling section shareholder with respect to CFC1. In addition, the Stock Sale results in an extraordinary reduction with respect to US1's ownership of CFC1. See of this section. The extraordinary reduction occurs because during Year 2, US1 transferred 100% of the CFC1 stock it owns on the first day of Year 2, and that amount is more than 5% of the total value of the stock of CFC1 at the beginning of Year 2; it also occurs because on the last day of Year 2 the percentage of stock (by value) of CFC1 that US1 owns directly or indirectly (0%) (the end of year percentage) is less than 90% of the highest percentage of stock (by value) of CFC1 that US1 owns directly or indirectly on the day of the taxable year when it owned the highest percentage of CFC1 stock by value (100%) (the initial percentage), no transactions occurred in the preceding year pursuant to a plan to reduce the percentage of CFC1 stock owned by US1, and the difference between the initial percentage and the end of year percentage (100 percentage points) is at least 5 percentage points.
(B) Determination of pre-reduction pro rata share. Before the extraordinary reduction, US1 owned 100% of the stock of CFC1. Thus, under of this section, the tentative amount of US1's pre-reduction pro rata share of CFC1's subpart F income is $120x. A and US2 are U.S. tax residents pursuant to of this section because they are United States persons described in section or (C). Thus, US1's pre-reduction pro rata share amount is subject to the reduction described in of this section because U.S. tax residents directly or indirectly acquire stock of CFC1 from US1 or CFC1 during the taxable year in which the extraordinary reduction occurs. With respect to US1's pre-reduction pro rata share of CFC1's subpart F income, the reduction equals the amount of subpart F income of CFC1 taken into account under section by these U.S. tax residents.
(C) Determination of decrease in pre-reduction pro rata share for amounts taken into account by U.S. tax resident. On December 31, Year 2, both PRS and US2 will be United States shareholders with respect to CFC1 and will include in gross income their pro rata share of CFC1's subpart F income under section . With respect to US2, this amount will be $30x, which is equal to 25% of CFC1's subpart F income for the taxable year. With respect to PRS, its pro rata share of $60x under section (50% of $120x) will be reduced under section by $48x. The section reduction is equal to the lesser of the $120x dividend paid with respect to those shares to US1 or $48x (50% × $120x × 292/365, the period during the taxable year that PRS did not own CFC1 stock). Thus, PRS includes $12x in gross income pursuant to section . Of this amount, $6x is allocated to A (as a 50% partner of PRS) and, therefore, treated as taken into account by A under and of this section. Thus, A and US2 take into account a total of $36x of CFC1's subpart F income under section . This amount reduces US1's pre-reduction pro rata share of CFC1's subpart F income to $84x ($120x−$36x) under of this section. CFC1 did not generate tested income during the taxable year and, therefore, no amount is taken into account under section with respect to CFC1, and US1 has no pre-reduction pro rata share with respect to tested income of CFC1.
(D) Determination of extraordinary reduction amount. Under of this section, the extraordinary reduction amount equals $84x, which is the lesser of the amount of the dividend received by US1 from CFC1 during Year 2 ($120x) and the sum of US1's pre-reduction pro rata share of CFC1's subpart F income ($84x) and tested income ($0).
(E) Determination of ineligible amount. Under of this section, with respect to US1 and the dividend of $120x, the ineligible amount is $84x, the sum of 50% of the extraordinary disposition amount ($0) and extraordinary reduction amount ($84x). Therefore, with respect to the dividend received by US1 from CFC1, $36x ($120x−$84x) is eligible for a section deduction.
(6) Example 5. Controlling section shareholder—(i) Facts. US1 and US2 own 30% and 25% of the stock of CFC1, respectively. FP, a foreign corporation that is not a CFC, owns all of the stock of US1 and US2. FP owns the remaining 45% of the stock of CFC1. On September 30, Year 2, US1 sells all of its stock of CFC1 to US3, a domestic corporation that is not a related party with respect to FP, US1, or US2. No person transferred any stock of CFC1 directly or indirectly in Year 1 pursuant to a plan to reduce the percentage of stock (by value) of CFC1 owned by US1.
(ii) Analysis. Under of this section, US1 is a section shareholder with respect to CFC1, an SFC. Because US1 owns, together with US2 and FP (related persons with respect to US1), more than 50% of the stock of CFC1, US1 is a controlling section shareholder of CFC1. The sale of US1's CFC1 stock results in an extraordinary reduction occurring with respect to US1's ownership of CFC1. The extraordinary reduction occurs because during Year 2, US1 transferred 100% of the stock of CFC1 that it owned at the beginning of the year and that amount is more than 5% of the total value of the stock of CFC1 at the beginning of Year 2. The extraordinary disposition also occurs because on the last day of the year the percentage of stock (by value) of CFC1 that US1 directly or indirectly owns (0%) (the end of year percentage) is less than 90% of the stock (by value) of CFC1 that US1 directly or indirectly owned on the day of the taxable year when it owned the highest percentage of CFC1 stock by value (30%) (the initial percentage), no transactions occurred in the preceding year pursuant to a plan to reduce the percentage of CFC1 stock owned by US1, and the difference between the initial percentage and end of year percentage (30 percentage points) is at least 5 percentage points.
(7) Example 6. Limitation of section exception with respect to an extraordinary reduction—(i) Facts. At the beginning of CFC1 and CFC2's taxable year ending on December 31, Year 2, US1 and A, an individual who is a citizen of the United States, own 80% and 20% of the single class of stock of CFC1, respectively. CFC1 owns 100% of the stock of CFC2. Both US1 and A are United States shareholders with respect to CFC1 and CFC2, and US1 and A are not related parties with respect to each other. No person transferred CFC2 stock directly or indirectly in Year 2 pursuant to a plan to reduce the percentage of stock (by value) of CFC2 owned by US1, and US1 does not have an extraordinary disposition account with respect to CFC2. At the end of Year 2, and without regard to any distributions during Year 2, CFC2 had $150x of tested income and no other income, and CFC1 had no income or expenses. On June 30, Year 2, CFC2 distributed $150x as a dividend to CFC1, which would qualify for the exception from foreign personal holding company income under section but for the application of this section. On August 7, Year 2, CFC1 sells all of its CFC2 stock to US2 for $100x in a transaction (the “Stock Sale”) in which CFC1 realizes no gain or loss. At the end of Year 2, under section , US2 takes into account $60x of tested income, calculated as $150x (100% of the $150x of tested income) less $90x, the amount described in section . The amount described in section is the lesser of $150x, the amount of dividends received by CFC1 during Year 2 with respect to the transferred stock, and $90x, the amount of tested income attributable to the transferred stock ($150x) multiplied by 219/365 (the ratio of the number of days in Year 2 that US2 did not own the transferred stock to the total number of days in Year 2). US1 does not make an election pursuant to of this section.
(ii) Analysis—(A) Determination of controlling section shareholder and extraordinary reduction of ownership. Under of this section, US1 is a controlling section shareholder with respect to CFC2, but A is not. In addition, the Stock Sale results in an extraordinary reduction with respect to US1's ownership of CFC2. See of this section. The extraordinary reduction occurs because during Year 2, US1 transferred indirectly 100% of the CFC2 stock it owned at the beginning of the year and such amount is more than 5% of the total value of the stock of CFC2 at the beginning of Year 2. The extraordinary disposition also occurs because on the last day of the year the percentage of stock (by value) of CFC2 that US1 owns directly or indirectly (0%) (the end of year percentage) is less than 90% of the stock (by value) of CFC2 that US1 owns directly or indirectly on the day of the taxable year when it owned the highest percentage of CFC2 stock by value (80%) (the initial percentage), no transactions occurred in the preceding year pursuant to a plan to reduce the percentage of CFC2 stock owned by US1, and the difference between the initial percentage and the end of year percentage (80 percentage points) is at least 5 percentage points. Because there is an extraordinary reduction with respect to CFC2 in Year 2 and CFC1 received a dividend from CFC2 in Year 2, under of this section, it is necessary to determine the limitation on the amount of the dividend eligible for the exception under section .
(B) Determination of tiered extraordinary reduction amount. The limitation on the amount of the dividend eligible for the exception under section is based on the tiered extraordinary reduction amount. The sum of the amount of subpart F income and tested income of CFC2 for Year 2 is $150x, and immediately before the extraordinary reduction, CFC1 held 100% of the stock of CFC2. Additionally, US2 is a U.S. tax resident as defined in of this section because it is a United States person described in section or (C), and US2 has a pro rata share of $60x of tested income under section with respect to CFC2. Accordingly, under of this section, the tiered extraordinary reduction amount is $90x (($150x × 100%) − $60x).
(C) Limitation of section exception. Under of this section, the portion of the $150x dividend from CFC2 to CFC1 that is eligible for the exception to foreign personal holding company income under section is $60x ($150x − $90x). To the extent that the $90x that does not qualify for the exception gives rise to additional subpart F income to CFC1, both US1 and A will take into account their pro rata share of that subpart F income under section and and .
(8) Example 7. Application of anti-abuse rule to a prepayment of a royalty—(i) Facts. US1 owns 100% of the single class of stock of CFC1 and CFC2. CFC1 has a November 30 taxable year, and CFC2 has a calendar year taxable year. There is a license agreement between CFC1 and CFC2 pursuant to which CFC2 is obligated to pay annual royalties to CFC1 for the use of intangible property. As of November 1, 2018, the remaining term of the agreement is 10 years. On November 1, 2018, CFC1 receives from CFC2, and accrues into income, $100x of pre-paid royalties that are for the use of the intangible property for the subsequent 10 years. The form of the arrangement as a license, including the prepayment of the royalty, is respected for U.S. tax purposes; therefore CFC1's receipt of the $100x royalty prepayment does not constitute a disposition of the intangible property and is excluded from CFC1's subpart F income pursuant to section . A principal purpose of CFC2 prepaying the royalty is for CFC1 to generate earnings and profits during the disqualified period that would not be subject to current U.S. tax yet may be eligible for the section deduction and could, for example, be used to reduce the amount of gain recognized on a disposition of the stock of CFC1 that would be subject to U.S. tax by increasing the portion of such gain treated as a dividend.
(ii) Analysis. Because the royalty prepayment was carried out with a principal purpose of avoiding the purposes of this section, appropriate adjustments are required to be made under the anti-abuse rule in of this section. CFC1 is a CFC that has a November 30 taxable year, so under of this section, CFC1 has a disqualified period beginning on January 1, 2018, and ending on November 30, 2018. In addition, even though the intangible property licensed by CFC1 to CFC2 is specified property, CFC2's prepayment of the royalty would not be treated as a disposition of the specified property by CFC1 and, therefore, would not constitute an extraordinary disposition (and thus would not give rise to extraordinary disposition E&P), absent the application of the anti-abuse rule of of this section. Pursuant to of this section, the earnings and profits of CFC1 generated as a result of the $100x of prepaid royalty are treated as extraordinary disposition E&P for purposes of this section and, therefore, US1 has an extraordinary disposition account with respect to CFC1 of $100x. In addition, the prepaid royalty gives rise to a disqualified payment (as defined in ) of $100x. As a result, or , as applicable, applies to reduce the disqualified payment in the same manner as if the disqualified payment were disqualified basis, and or , as applicable, applies to reduce the extraordinary disposition account in the same manner as if the deductions directly or indirectly related to the disqualified payment were deductions attributable to disqualified basis of an item of specified property that corresponds to the extraordinary disposition account.
(9) Example 8. Application of anti-abuse rule to restructuring transaction—(i) Facts. FP, a foreign corporation with no United States shareholders, owns 100% of the single class of stock of US1. US1 owns 100% of the single class of stock of CFC1 that, in turn, owns 100% of the single class of stock of CFC2. CFC2 has $100x of extraordinary disposition E&P, and US1 has a $100x extraordinary disposition account with respect to CFC2. In Year 1, FP transfers property to CFC1 in exchange for newly issued stock of CFC1. After the transfer, FP and US1 own, respectively, 90% and 10% of the single class of stock of CFC1. In Year 3, CFC2 pays a $100x dividend to CFC1, and the dividend gives rise to a tiered extraordinary disposition amount with respect to US1 of $10x. US1 includes $10x in gross income under section with respect to the tiered extraordinary disposition amount. The $10x tiered extraordinary disposition amount reduces US1's extraordinary disposition account from $100x to $90x. In Year 5, CFC1 redeems all of the stock of CFC1 held by US1 in exchange for $100x of cash. Under sections and , the redemption results in a $100x dividend to US1. Under section , $10x of the $100x dividend is not included in US1's gross income and, but for the application of of this section, US1 would claim a section deduction of $90x with respect to $90x of the dividend. The transfer of property from FP to CFC1 in exchange for stock of CFC1, the $100x dividend from CFC2 to CFC1, and CFC1's redemption of all of its stock held by US1 (together, the “Transaction”) were undertaken with the principal purpose of avoiding the application of this section to distributions from CFC2. As a result of the redemption, CFC2 is wholly owned by FP through CFC1, and CFC2's earnings and profits can be distributed without incurring U.S. tax irrespective of the availability of the section deduction or the exception under section .
(ii) Analysis. Because the Transaction was carried out with a principal purpose of avoiding the purposes of this section, appropriate adjustments are required to be made under the anti-abuse rule in of this section. Pursuant to of this section, all $90x of the dividend included in US1's income in Year 5 is treated as an extraordinary disposition amount. Therefore, $45x of the dividend is treated as an ineligible amount for which US1 cannot claim a section deduction pursuant to of this section (that is, 50% of the extraordinary disposition amount) and, accordingly, US1 is only allowed a section deduction of $45x ($90x dividend received, less the $45x ineligible amount) with respect to the $90x dividend from CFC1 that it included in income. In addition, US1's extraordinary disposition account with respect to CFC2 is reduced from $90x to zero pursuant to and of this section.
(10) Example 9. Application of anti-abuse rule to a related-party loan—(i) Facts. US1 owns 100% of the single class of stock of CFC1 and CFC2. US1 does not own stock of any other foreign corporation. US1 intends to repatriate $100x cash from CFC1 at the end of taxable year Y1. At the end of taxable year Y1, CFC1 has $100x of earnings and profits described in section (all of which is extraordinary disposition E&P) and $100x of cash, and US1 has an extraordinary disposition account balance with respect to CFC1 equal to $100x. In addition, at the end of taxable year Y1, CFC2 has $100x of earnings and profits described in section . US1 does not have an extraordinary disposition account with respect to CFC2. Anticipating the application of this section to a distribution from CFC1, US1 instead causes CFC1 to loan $100x of cash to CFC2 during taxable year Y1 in exchange for a $100x note. The form of the transaction is respected as a loan for U.S. tax purposes. At the end of taxable Y1, CFC2 distributes $100x of cash to US1. The loan and distribution are part of a plan a principal purpose of which is to repatriate CFC1's $100x cash without triggering the application of this section.
(ii) Analysis. Because the loan from CFC1 to CFC2 and the subsequent distribution of cash were carried out with a principal purpose of avoiding the purposes of this section, appropriate adjustments are required to be made under the anti-abuse rule in of this section. Pursuant to that rule, the distribution of $100x of cash is treated as a distribution out of US1's extraordinary disposition account with respect to CFC1. Accordingly, the $100x distribution is taxed as a dividend, and only $50x of the dividend received by US1 is eligible for the section deduction pursuant to of this section. As a result of the distribution, the balance of US1's extraordinary disposition account with respect to CFC1 is reduced by $100x to zero pursuant to of this section.
(k) Applicability date
(1) In general This section applies to taxable periods of a foreign corporation ending on or after June 14, 2019, and to taxable periods of section shareholders in which or with which such taxable periods end. For taxable periods described in the previous sentence, this section (and not ) applies regardless of whether, but for this , would apply. See as contained in 26 CFR part 1 edition revised as of April 1, 2020 for distributions occurring after December 31, 2017, as to which this section does not apply.
(2) Early application of this section Notwithstanding of this section, a taxpayer may choose to apply this section to taxable periods of a foreign corporation ending before June 14, 2019, and to taxable periods of section shareholders in which or with which such taxable periods end, provided that the taxpayer and all persons bearing a relationship to the taxpayer described in section or apply this section in its entirety for all such taxable periods.
[T.D. 9909, 85 FR 53083, Aug. 27, 2020, as amended by 85 FR 60358, Sept. 25, 2020; 85 FR 72564, Nov. 13, 2020; T.D. 9934, 85 FR 76963, Dec. 1, 2020]