Reg. § 1.338-9 International aspects of section 338.
(a) Scope This section provides guidance regarding international aspects of section . As provided in , a foreign corporation, a DISC, or a corporation for which a section election has been made is considered a target affiliate for all purposes of section . In addition, stock described in section held by a target affiliate is not excluded from the operation of section .
(b) Application of section 338 to foreign targets
(1) In general For purposes of subtitle A, the deemed sale tax consequences, as defined in , of a foreign target for which a section election is made (FT), and the corresponding earnings and profits, are taken into account in determining the taxation of FT and FT's direct and indirect shareholders. See, however, section . For example, the income and earnings and profits of FT are determined, for purposes of sections 551, , , and , by taking into account the deemed sale tax sentence consequences.
(2) Ownership of FT stock on the acquisition date A person who transfers FT stock to the purchasing corporation on FT's acquisition date is considered to own the transferred stock at the close of FT's acquisition date. See, e.g., (relating to determination of holding period for purposes of sections through ). If on the acquisition date the purchasing corporation owns a block of FT stock that was acquired before FT's acquisition date, the purchasing corporation is considered to own such block of stock at the close of the acquisition date.
(3) Carryover FT stock
(i) Definition FT stock is carryover FT stock if—
(A) FT was a controlled foreign corporation within the meaning of section (taking into account section ) at any time during the portion of the 12-month acquisition period that ends on the acquisition date; and
(B) Such stock is owned as of the beginning of the day after FT's acquisition date by a person other than a purchasing corporation, or by a purchasing corporation if the stock is nonrecently purchased and is not subject to a gain recognition election under .
(ii) Carryover of earnings and profits The earnings and profits of old FT (and associated foreign taxes) attributable to the carryover FT stock (adjusted to reflect deemed sale tax sentence consequences) carry over to new FT solely for purposes of—
(A) Characterizing an actual distribution with respect to a share of carryover FT stock as a dividend;
(B) Characterizing gain on a post-acquisition date transfer of a share of carryover FT stock as a dividend under section (if such section is otherwise applicable);
(C) Characterizing an investment of earnings in United States property as income under sections and (if such sections are otherwise applicable); and
(D) Determining foreign taxes deemed paid under sections and with respect to the amount treated as a dividend or income by virtue of this (subject to the operation of section ).
(iii) Cap on carryover of earnings and profits The amount of earnings and profits of old FT taken into account with respect to a share of carryover FT stock is limited to the amount that would have been included in gross income of the owner of such stock as a dividend under section if—
(A) The shareholder transferred that share to the purchasing corporation on FT's acquisition date for a consideration equal to the fair market value of that share on that date; or
(B) In the case of nonrecently purchased FT stock treated as carryover FT stock, a gain recognition election under section applied to that share. For purposes of the preceding sentence, a shareholder that is a controlled foreign corporation is considered to be a United States person, and the principle of section (concerning a United States person's indirect ownership of stock in a foreign corporation) applies in determining the correct holding period.
(iv) Post-acquisition date distribution of old FT earnings and profits A post-acquisition date distribution with respect to a share of carryover FT stock is considered to be derived first from earnings and profits derived after FT's acquisition date and then from earnings and profits derived on or before FT's acquisition date.
(v) Old FT earnings and profits unaffected by post-acquisition date deficits The carryover amount for a share of carryover FT stock is not reduced by deficits in earnings and profits incurred by new FT. This rule applies for purposes of determining the amount of foreign taxes deemed paid regardless of the fact that there are no accumulated earnings and profits. For example, a distribution by new FT with respect to a share of carryover FT stock is treated as a dividend by the distributee to the extent of the carryover amount for that share notwithstanding that new FT has no earnings and profits.
(vi) Character of FT stock as carryover FT stock eliminated upon disposition A share of FT stock is not considered carryover FT stock after it is disposed of provided that all gain realized on the transfer is recognized at the time of the transfer, or that, if less than all of the realized gain is recognized, the recognized amount equals or exceeds the remaining carryover amount for that share.
(4) Passive foreign investment company stock Stock that is owned as of the beginning of the day after FT's acquisition date by a person other than a purchasing corporation, or by a purchasing corporation if the FT stock is nonrecently purchased stock not subject to a gain recognition election under , is treated as passive foreign investment company stock to the extent provided in section .
(c) Dividend treatment under section 1248(e) The principles of this apply to shareholders of a domestic corporation subject to section .
(d) Allocation of foreign income taxes
(1) In general Except as provided in of this section, if a section election is made for target (whether foreign or domestic), and target's taxable year under foreign law (if any) does not close at the end of the acquisition date, foreign income tax as defined in ) (other than a withholding tax as defined in section ) paid or accrued by new target with respect to such foreign taxable year is allocated between old target and new target. If there is more than one section election with respect to target during target's foreign taxable year, foreign income tax paid or accrued with respect to that foreign taxable year is allocated among all old targets and new targets. The allocation is made based on the respective portions of the taxable income (as determined under foreign law) for the foreign taxable year that are attributable under the principles of to the period of existence of each old target and new target during the foreign taxable year.
(2) Foreign income taxes imposed on partnerships and disregarded entities If a section election is made for target and target holds an interest in a disregarded entity (as described in ) or partnership, the rules of and apply to determine the person who is considered for Federal income tax purposes to pay foreign income tax imposed at the entity level on the income of the disregarded entity or partnership.
(3) Disallowance of foreign tax credits under section 901(m) For rules that may apply to disallow foreign tax credits by reason of a section election, see section and through .
(4) Applicability date This applies to foreign income taxes paid or accrued in taxable years beginning on or after December 28, 2021.
(e) Operation of section 338(h)(16) [Reserved]
(f) Examples
(1) Except as otherwise provided, all corporations use the calendar year as the taxable year, have no earnings and profits (or deficit) accumulated for any taxable year, and have only one class of outstanding stock.
(2) This section may be illustrated by the following examples:
Example 1. Gain recognition election for carryover FT stock.
(a) A has owned 90 of the 100 shares of CFCT stock since CFCT was organized on March 13, 1989. P has owned the remaining 10 shares of CFCT stock since CFCT was organized. Those 10 shares constitute nonrecently purchased stock in P's hands within the meaning of section . On November 1, 1994, P purchases A's 90 shares of CFCT stock for $90,000 and makes a section election for CFCT. P also makes a gain recognition election under section and .
(b) CFCT's earnings and profits for its short taxable year ending on November 1, 1994, are $50,000, determined without taking into account the deemed asset sale. Assume A recognizes gain of $81,000 on the sale of the CFCT stock. Further, assume that CFCT recognizes gain of $40,000 by reason of its deemed sale of assets under section .
(c) A's sale of CFCT stock to P is a transfer to which section and and of this section apply. For purposes of applying section to A, the earnings and profits of CFCT for its short taxable year ending on November 1, 1994, are $90,000 (the earnings and profits for that taxable year as determined under ($50,000) plus earnings from the deemed sale ($40,000)). Thus, A's entire gain is characterized as a dividend under section (but see section ).
(d) Assume that P recognizes a gain of $9,000 with respect to the 10 shares of nonrecently purchased CFCT stock by reason of the gain recognition election. Because P is treated as selling the nonrecently purchased stock for all purposes of the Internal Revenue Code, section applies. Thus, under , $9,000 of the $90,000 of earnings and profits for 1994 are attributable to the block of 10 shares of CFCT stock deemed sold by P at the close of November 1, 1994 ($90,000 × 10/100). Accordingly, P's entire gain on the deemed sale of 10 shares of CFCT stock is included under section in P's gross income as a dividend (but see section ).
Example 2. No gain recognition election for carryover FT stock.
(a) Assume the same facts as in Example 1, except that P does not make a gain recognition election.
(b) The 10 shares of nonrecently purchased CFCT stock held by P is carryover FT stock under of this section. Accordingly, the earnings and profits (and attributable foreign taxes) of old CFCT carry over to new CFCT solely for purposes of that block of 10 shares. The amount of old CFCT's earnings and profits taken into account with respect to that block in the event, for example, of a distribution by new CFCT with respect to that block is the amount of the section dividend that P would have recognized with respect to that block had it made a gain recognition election under section . Under the facts of Example 1, P would have recognized a gain of $9,000 with respect to that block, all of which would have been a section dividend ($90,000 × 10/100). Accordingly, the carryover amount for the block of 10 shares of nonrecently purchased CFCT stock is $9,000.
Example 3. Sale of controlled foreign corporation stock prior to and on the acquisition date.
(a) X and Y, both U.S. corporations, have each owned 50% of the CFCT stock since 1986. Among CFCT's assets are assets the sale of which would generate subpart F income. On December 31, 1994, X sells its CFCT stock to P. On June 30, 1995, Y sells its CFCT stock to P. P makes a section election for CFCT. In both 1994 and 1995, CFCT has subpart F income resulting from operations.
(b) For taxable year 1994, X and Y are United States shareholders on the last day of CFCT's taxable year, so pursuant to section each must include in income its pro rata share of CFCT's subpart F income for 1994. Because P's holding period in the CFCT stock acquired from X does not begin until January 1, 1995, P is not a United States shareholder on the last day of 1994 for purposes of section (see ). X must then determine the extent to which section recharacterizes its gain on the sale of CFCT stock as a dividend.
(c) For the short taxable year ending June 30, 1995, Y is considered to own the CFCT stock sold to P at the close of CFCT's acquisition date. Because the acquisition date is the last day of CFCT's taxable year, Y and P are United States shareholders on the last day of CFCT's taxable year. Pursuant to section , each must include its pro rata share of CFCT's subpart F income for the short taxable year ending June 30, 1995. This includes any income generated on the deemed sale of CFCT's assets. Y must then determine the extent to which section recharacterizes its gain on the sale of the CFCT stock as a dividend, taking into account any increase in CFCT's earnings and profits due to the deemed sale of assets.
Example 4. Acquisition of control for purposes of section 951 prior to the acquisition date.
FS owns 100% of the FT stock. On July 1, 1994, P buys 60% of the FT stock. On December 31, 1994, P buys the remaining 40% of the FT stock and makes a section election for FT. For tax year 1994, FT has earnings and profits of $1,000 (including earnings resulting from the deemed sale). The section election results in $500 of subpart F income. As a result of the section election, P must include in gross income the following amount under section (see § -(b)(2)):
| FT's subpart F income for 1994 | $500.00 |
| Less: reduction under section 951(a)(2)(A) for period (1-1-94 through 7-1-94) during which FT is not a controlled foreign corporation ($500 × 182/365) | 249.32 |
| Subpart F income as limited by section 951 (a)(2)(A) | 250.68 |
| P's pro rata share of subpart F income as determined under section 951(a)(2)(A) (60% × 250.68) | 150.41 |
Example 5. Coordination with section 936.
(a) T is a corporation for which a section election has been made. P makes a qualified stock purchase of T and makes a section election for T.
(b) T's deemed sale of assets under section constitutes a sale for purposes of subtitle A of the Internal Revenue Code, including section . To the extent that the assets deemed sold are used in the conduct of an active trade or business in a possession for purposes of section , and assuming all the other conditions of section are satisfied, the income from the deemed sale qualifies for the credit granted by section . The source of income from the deemed sale is determined as if the assets had actually been sold and is not affected for purposes of section by section .
(c) Because new T is treated a new corporation for purposes of subtitle A of the Internal Revenue Code, the three year testing period in section begins again for new T on the day following T's acquisition date. Thus, if the character or source of old T's gross income disqualified it for the credit under section , a fresh start is allowed by a section election.
[T.D. 8515, 59 FR 2978, Jan. 20, 1994. Redesignated by T.D. 8858, 65 FR 1246, Jan. 7, 2000, as amended by T.D. 8940, 66 FR 9929, Feb. 13, 2001; 66 FR 17466, Mar. 30, 2001; T.D. 9959, 87 FR 324, Jan. 4, 2022; 87 FR 45019, July 27, 2022]