Reg. § 1.367(b)-1 Other transfers.
(a) Scope The regulations promulgated under section (the section regulations) set forth rules regarding the proper inclusions and adjustments that must be made as a result of an exchange described in section (a section exchange). A section exchange is any exchange described in section , , , , or , with respect to which the status of a foreign corporation as a corporation is relevant for determining the extent to which income shall be recognized or for determining the effect of the transaction on earnings and profits, basis of stock or securities, basis of assets, or other relevant tax attributes. For rules coordinating the concurrent application of sections and (b), see .
(b) General rules
(1) Rules The following general rules apply under the section regulations—
(i) A foreign corporation in a section exchange is considered to be a corporation and, as a result, all of the related provisions (e.g., section ) shall apply, except to the extent provided in the section regulations; and
(ii) Nothing in the section regulations shall permit—
(A) The nonrecognition of income that would otherwise be required to be recognized under another provision of the Internal Revenue Code or the regulations thereunder; or
(B) The recognition of a loss or deduction that would otherwise not be recognized under another provision of the Internal Revenue Code or the regulations thereunder.
(2) Example The following example illustrates the rules of this :
Example.
(i) Facts. DC, a domestic corporation, owns 90 percent of P, a partnership. The remaining 10 percent of P is owned by a person unrelated to DC. P owns all of the outstanding stock of FC, a controlled foreign corporation. FC liquidates into P.
(ii) Result. FC's liquidation is not a transaction described in section . Nothing in the section regulations, including , permits FC's liquidation to qualify as a liquidation described in section .
(c) Notice Required
(1) In general A notice under this (section notice) must be filed with regard to any person described in of this section. A section notice must be filed in the time and manner described in of this section and must include the information described in of this section.
(2) Persons subject to section 367(b) notice The following persons are described in this —
(i) A shareholder described in that realizes income in a transaction described in ;
(ii) A shareholder that makes the election described in ;
(iii) A shareholder described in or that realizes income in a transaction described in ;
(iv) A shareholder that realizes income in a transaction described in or and that is either—
(A) A section shareholder of the distributing or controlled corporation; or
(B) A foreign corporation with one or more shareholders that are described in of this section;
(v) A foreign surviving corporation described in ; and
(vi) A domestic or foreign corporation (S) that acquires stock or securities of another corporation (P) in a transaction described in , without regard to the exceptions in .
(3) Time and manner for filing notice
(i) United States persons described in § 1.367(b)-1(c)(2) A United States person described in of this section must file a section notice attached to a timely filed Federal tax return (including extensions) for the person's taxable year in which income is realized in the section exchange. In the case of a shareholder that makes the election described in , notification of such election must be sent to the foreign acquired corporation (or its successor in interest) on or before the date the section notice is filed, so that appropriate corresponding adjustments can be made in accordance with the rules of .
(ii) Foreign corporations described in § 1.367(b)-1(c)(2) Each United States person listed in this must file a section notice with regard to a foreign corporation described in of this section. Such notice must be attached to a timely filed Federal tax return (including extensions) for the United States person's taxable year in which income is realized in the section exchange and, if the United States person is required to file a Form 5471 (Information Return of U.S. Persons With Respect to Certain Foreign Corporations), the section notice must be attached to the Form 5471. The following persons are listed in this —
(A) United States shareholders (as defined in ) of foreign corporations described in , , or of this section; and
(B) Section shareholders of foreign corporations described in or of this section.
(4) Information required Except as provided in of this section, a section notice shall include the following information—
(i) A statement that the exchange is a section exchange;
(ii) A complete description of the exchange;
(iii) A description of any stock, securities or other consideration transferred or received in the exchange;
(iv) A statement that describes any amount (or amounts) required, under the section regulations, to be taken into account as income or loss or as an adjustment (including an adjustment under or ) to basis, earnings and profits, or other tax attributes as a result of the exchange;
(v) Any information that is or would be required to be furnished with a Federal income tax return pursuant to regulations or other guidance under section , , , , , , , or (whether or not a Federal income tax return is required to be filed), if such information has not otherwise been provided by the person filing the section notice;
(vi) Any information required to be furnished with respect to the exchange under sections , , , or , or the regulations under those sections, if such information has not otherwise been provided by the person filing the section notice;
(vii) If applicable, a statement that the shareholder is making the election described in . This statement must include—
(A) A copy of the information the shareholder received from the foreign acquired corporation (or its successor in interest) establishing and substantiating the shareholder's all earnings and profits amount with respect to the shareholder's stock in the foreign acquired corporation; and
(B) A representation that the shareholder has notified the foreign acquired corporation (or its successor in interest) that the shareholder is making the election described in ;
(viii) In the case of a corporation (S) described in of this section, the rules of this apply by treating the acquisition of the stock or securities of P in exchange for property as the section exchange referred to in of this section. The section notice must also include a complete description of the acquisition of the stock or securities of P in exchange for property, including a description of the property provided in exchange for the stock or securities and any related transactions involving the acquisition of the stock or securities. The section notice must describe any adjustments made pursuant to or, if no adjustments are made, explain why no such adjustments were made; and
(ix) In the case of an exchange to which applies, a statement describing how any excess asset basis (as defined in ) arose, the amount of excess asset basis, and a description of the computation of the amount of excess asset basis.
(5) Abbreviated notice provision for shareholders that make the election described in § 1.367(b)-3(c)(3) In the case of a foreign acquired corporation that has never had earnings and profits that would result in any shareholder having an all earnings and profits amount, a shareholder making the election described in may satisfy the information requirements of of this section by filing a section notice that includes—
(i) A statement from the foreign acquired corporation (or its successor in interest) that the foreign acquired corporation has never had any earnings and profits that would result in any shareholder having an all earnings and profits amount; and
(ii) The information described in through of this section.
(6) Supplemental published guidance The section notice requirements may be updated or amended by revenue procedure or other published guidance.
[T.D. 8862, 65 FR 3597, Jan. 24, 2000; 65 FR 66501, Nov. 6, 2000, as amended by T.D. 9243, 71 FR 4288, Jan. 26, 2006; T.D. 9273, 71 FR 44894, Aug. 8, 2006; T.D. 10004, 89 FR 58278, July 18, 2024]