Reg. § 1.367(e)-1 Distributions described in section 367(e)(1).
(a) Purpose and scope This section provides rules for recognition (and nonrecognition) of gain by a domestic corporation (distributing corporation) on a distribution of stock or securities of a corporation (controlled corporation) to foreign persons that is described in section . of this section contains the general rule that gain is recognized on the distribution to the extent stock or securities of controlled are distributed to foreign persons. of this section provides an exception to the gain recognition rule for distributions of stock or securities of a domestic corporation. of this section contains rules for determining whether distributees of stock or securities in a section distribution are qualified U.S. persons. of this section provides cross-references. Finally, of this section specifies the effective date of this section.
(b) Gain recognition
(1) General rule If a domestic corporation makes a distribution of stock or securities of a corporation that qualifies for nonrecognition under section to a person who is not a qualified U.S. person, then, except as provided in of this section, the distributing corporation shall recognize gain (but not loss) on the distribution under section . A distributing corporation shall not recognize gain under this section with respect to a section distribution to a qualified U.S. person. For purposes of this section, a qualified U.S. person is—
(A) A citizen or resident of the United States; or
(B) A domestic corporation.
(2) Stock owned through partnerships, disregarded entities, trusts, and estates For purposes of this section, distributing corporation stock or securities owned by or for a partnership (whether foreign or domestic) are owned proportionately by its partners. A partner's proportionate share of the stock or securities of the distributing corporation shall be equal to the partner's distributive share of the gain that would have been recognized had the partnership sold the stock or securities (at a taxable gain) immediately before the distribution. The partner's distributive share of gain shall be determined under the rules and principles of sections through and the regulations thereunder. For purposes of this section, stock or securities owned by or for an entity that is disregarded as an entity separate from its owner (disregarded entity) under are owned directly by the owner of such disregarded entity. For purposes of this section, stock or securities owned by or for a trust or estate (whether foreign or domestic) are owned proportionately by the persons who would be treated as owning such stock or securities under section and (B). In applying section , if a trust includes interests that are not actuarially ascertainable, all such interests shall be considered to be owned by foreign persons. In a case where an interest holder in a partnership, a disregarded entity, trust, or estate that (directly or indirectly) owns stock of the distributing corporation is itself a partnership, disregarded entity, trust, or estate, the rules of this apply to such interest holder.
(3) Gain computation Gain recognized under of this section shall be equal to the excess of the fair market value of the stock or securities distributed to persons who are not qualified U.S. persons (determined as of the time of the distribution) over the distributing corporation's adjusted basis in the stock or securities distributed to such distributees. For purposes of the preceding sentence, the distributing corporation's adjusted basis in each unit of each class of stock or securities distributed to a distributee shall be equal to the distributing corporation's total adjusted basis in all of the units of the respective class of stock or securities owned immediately before the distribution, divided by the total number of units of the class of stock or securities owned immediately before the distribution.
(4) Treatment of distributee If the distribution otherwise qualifies for nonrecognition under section , each distributee shall be considered to have received stock or securities in a distribution qualifying for nonrecognition under section , even though the distributing corporation may recognize gain on the distribution under this section. Thus, the distributee shall not be considered to have received a distribution described in section or a distribution in an exchange described in section upon the receipt of the stock or securities of the controlled corporation, and the domestic distributing corporation shall have no withholding responsibilities under section . Except where section and the regulations thereunder cause gain to be recognized by the distributee, the basis of the distributed domestic or foreign corporation stock in the hands of the foreign distributee shall be the basis of the distributed stock determined under section without any increase for any gain recognized by the domestic corporation on the distribution.
(c) Nonrecognition of gain A domestic distributing corporation shall not recognize gain under of this section on the distribution of stock or securities of a domestic corporation.
(d) Determining whether distributees are qualified U.S. persons
(1) General rule—presumption of foreign status Except as provided in and of this section, all distributions of stock or securities in a distribution described in section in which the distributing corporation is domestic and the controlled corporation is foreign are presumed to be to persons who are not qualified U.S. persons, as defined in of this section.
(2) Non-publicly traded distributing corporations If the class of stock or securities of the distributing corporation (in respect to which stock or securities of the controlled corporation are distributed) is not regularly traded on a qualified exchange or other market (as defined in of this section), then the distributing corporation may only rebut the presumption contained in of this section by identifying the qualified U.S. persons to which controlled corporation stock or securities were distributed and by certifying the amount of stock or securities that were distributed to the qualified U.S. persons.
(3) Publicly traded distributing corporations If the class of stock or securities of the distributing corporation (in respect to which stock or securities of the controlled corporation are distributed) is regularly traded on a qualified exchange or other market (as defined in of this section), then the distributing corporation may only rebut the presumption contained in of this section as described in this .
(i) Five percent shareholders A publicly traded distributing corporation may only rebut the presumption contained in of this section with respect to distributees that are five percent shareholders of the class of stock or securities of the distributing corporation (in respect to which stock or securities of the controlled corporation are distributed) by identifying the qualified U.S. persons to which controlled corporation stock or securities were distributed and by certifying the amount of stock or securities that were distributed to the qualified U.S. persons. A five percent shareholder is a distributee who is required under U.S. securities laws to file with the Securities and Exchange Commission (SEC) a Schedule 13D or 13G under 17 CFR 240.13d-1 or 17 CFR 240.13d-2, and provide a copy of same to the distributing corporation under 17 CFR 240.13d-7.
(ii) Other distributees A distributing corporation that has made a distribution described in of this section may rebut the presumption contained in of this section with respect to distributees that are not five percent shareholders (as defined in this ) by relying on and providing a reasonable analysis of shareholder records and other relevant information that demonstrates a number of distributees that are qualified U.S. persons. Taxpayers may rely on such analysis, unless it is subsequently determined that there are actually fewer distributees who are qualified U.S. persons than were demonstrated in the analysis.
(4) Qualified exchange or other market For purposes of of this section, the term qualified exchange or other market means, for any taxable year—
(i) A national securities exchange which is registered with the SEC or the national market system established pursuant to section 11A of the Securities Exchange Act of 1934 (15 U.S.C. 78f); or
(ii) A foreign securities exchange that is regulated or supervised by a governmental authority of the country in which the market is located and which has the following characteristics—
(A) The exchange has trading volume, listing, financial disclosure, and other requirements designed to prevent fraudulent and manipulative acts and practices, to remove impediments to and perfect the mechanism of a free and open market, and to protect investors; and the laws of the country in which the exchange is located and the rules of the exchange ensure that such requirements are actually enforced; and
(B) The rules of the exchange ensure active trading of listed stocks.
(e) Cross-references For additional rules relating to the distribution of the stock of a foreign corporation by a domestic corporation, see , , , and through . See the regulations under section for reporting requirements for distributions under this section.
(f) Effective/applicability date This section shall be applicable to distributions occurring in taxable years ending after August 8, 1999.
[T.D. 8834, 64 FR 43076, Aug. 9, 1999; 65 FR 14467, Mar. 3, 2000, as amended by T.D. 9614, 78 FR 17041, Mar. 19, 2013; T.D. 9760, 81 FR 15169, Mar. 22, 2016]