us internal revenue service: irb01-34

8/14/2019 US Internal Revenue Service: irb01-34

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INCOME TAX

T.D. 8960, page 176.Temporary regulations under section 355(e) of the Codegenerally require corporations to recognize gain on certaindistributions of stock or securities of a subsidiary corpora-tion if the distribution is part of a plan that also involves oneor more persons acquiring a 50-percent or greater interest

in the distributing corporation or any controlled corporation.

Rev. Proc. 200143, page 191.Partnership profits interests. This procedure clarifiesRev. Proc. 9327 (19932 C.B. 343) by providing guidanceon the treatment of the grant of a partnership profits interestthat is substantially nonvested for the provision of servicesto or for the benefit of the partnership. Rev. Proc. 9327clarified.

EMPLOYMENT TAX

T.D. 8959, page 185.

Final regulations under section 6205 of the Code provideguidance on interest-free adjustments of certain underpay-ments of employment taxes.

ESTATE TAX

Notice 200150, page 189.This notice provides guidance regarding requests for anextension of time to make an allocation of generation-skip-ping transfer (GST) exemption under sections 2642(b)(1)and (2) of the Code. It also provides guidance regarding

requests for an extension of time to make GST electionunder sections 2632(b)(3) and 2632(c)(5).

GIFT TAX

Notice 200150, page 189.

This notice provides guidance regarding requests for aextension of time to make an allocation of generation-ski

ping transfer (GST) exemption under sections 2642(b)(and (2) of the Code. It also provides guidance regardinrequests for an extension of time to make GST electionunder sections 2632(b)(3) and 2632(c)(5).

ADMINISTRATIVE

T.D. 8958, page 183.

Final regulations under section 6103 of the Code authorizthe Service to disclose return information to the Departmeof Agriculture to structure, prepare, and conduct the Censuof Agriculture.

Notice 200149, page 188.This notice proposes a revenue procedure that sets forthsafe harbor under which an issue of tax or revenue anticiption bonds will not be treated as outstanding longer than reasonably necessary to accomplish the governmental puposes of the bonds under section 1.14810(a)(4) of the reulations. The proposed procedure will apply to bonds soafter the date the procedure is published in the InternRevenue Bulletin in final form. However, issuers may rely othe proposed procedure with respect to any issue of tax revenue anticipation bonds that is sold before the effectiv

Internal Revenue

bulletinBulletin No. 20013

August 20, 200

HIGHLIGHTS

OF THIS ISSUEThese synopses are intended only as aids to the reader inidentifying the subject matter covered. They may not berelied upon as authoritative interpretations.

Department of the TreasuryInternal Revenue Service

Actions Relating to Court Decisions is on the page following the Introduction.

Finding Lists begin on page ii.

(Continued on the next pag


2/26August 20 , 2001 200134 I.R.B.

date of the proposed revenue procedure and on or afterAugust 3, 2001.

Notice 200151, page 190.

Listed transactions. This notice updates a listing of certaintransactions that the Service has determined are tax avoid-

ance transactions and identifies them as listed transac-tions for purposes of sections 1.60114T(b)(2) and301.61112T(b)(2) of the temporary regulations. Notice200015 supplemented and superseded.


3/26200134 I.R.B. August 20 , 200

The Internal Revenue Bulletin is the authoritative instrumentof the Commissioner of Internal Revenue for announcing offi-cial rulings and procedures of the Internal Revenue Serviceand for publishing Treasury Decisions, Executive Orders, TaxConventions, legislation, court decisions, and other items ofgeneral interest. It is published weekly and may be obtainedfrom the Superintendent of Documents on a subscriptionbasis. Bulletin contents are consolidated semiannually intoCumulative Bulletins, which are sold on a single-copy basis.

It is the policy of the Service to publish in the Bulletin all sub-stantive rulings necessary to promote a uniform applicationof the tax laws, including all rulings that supersede, revoke,modify, or amend any of those previously published in theBulletin. All published rulings apply retroactively unless other-wise indicated. Procedures relating solely to matters of in-ternal management are not published; however, statementsof internal practices and procedures that affect the rightsand duties of taxpayers are published.

Revenue rulings represent the conclusions of the Service onthe application of the law to the pivotal facts stated in therevenue ruling. In those based on positions taken in rulingsto taxpayers or technical advice to Service field offices,identifying details and information of a confidential natureare deleted to prevent unwarranted invasions of privacy andto comply with statutory requirements.

Rulings and procedures reported in the Bulletin do not havethe force and effect of Treasury Department Regulations,but they may be used as precedents. Unpublished rulingswill not be relied on, used, or cited as precedents by Servicepersonnel in the disposition of other cases. In applying pub-lished rulings and procedures, the effect of subsequent leg-islation, regulations, court decisions, rulings, and proce-

dures must be considered, and Service personnel and oters concerned are cautioned against reaching the same coclusions in other cases unless the facts and circumstanceare substantially the same.

The Bulletin is divided into four parts as follows:

Part I.1986 Code.

This part includes rulings and decisions based on provisionof the Internal Revenue Code of 1986.

Part II.Treaties and Tax Legislation.This part is divided into two subparts as follows: Subpart ATax Conventions and Other Related Items, and Subpart BLegislation and Related Committee Reports.

Part III.Administrative, Procedural, and Miscellaneou

To the extent practicable, pertinent cross references these subjects are contained in the other Parts and Suparts. Also included in this part are Bank Secrecy Act Adm

istrative Rulings. Bank Secrecy Act Administrative Rulingare issued by the Department of the Treasurys Office of thAssistant Secretary (Enforcement).

Part IV.Items of General Interest.This part includes notices of proposed rulemakings, disbament and suspension lists, and announcements.

The first Bulletin for each month includes a cumulative indefor the matters published during the preceding monthThese monthly indexes are cumulated on a semiannual basiand are published in the first Bulletin of the succeeding semannual period, respectively.

The IRS Mission

Provide Americas taxpayers top quality service by help-ing them understand and meet their tax responsibilities

and by applying the tax law with integrity and fairness all.

Introduction

The contents of this publication are not copyrighted and may be reprinted freely. A citation of the Internal Revenue Bulletin as the source would be appropriate.

For sale by the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402.


4/26August 20 , 2001 200134 I.R.B.

It is the policy of the Internal Revenue

Service to announce at an early date

whether it will follow the holdings in cer-

tain cases. An Action on Decision is the

document making such an announcement.

An Action on Decision will be issued at

the discretion of the Service only on un-appealed issues decided adverse to the

government. Generally, an Action on De-

cision is issued where its guidance would

be helpful to Service personnel working

with the same or similar issues. Unlike a

Treasury Regulation or a Revenue Ruling,

an Action on Decision is not an affirma-

tive statement of Service position. It is not

intended to serve as public guidance and

may not be cited as precedent.

Actions on Decisions shall be relied

upon within the Service only as conclu-

sions applying the law to the facts in theparticular case at the time the Action on

Decision was issued. Caution should be

exercised in extending the recommenda-

tion of the Action on Decision to similar

cases where the facts are different. More-

over, the recommendation in the Action

on Decision may be superseded by new

legislation, regulations, rulings, cases, or

Actions on Decisions.

Prior to 1991, the Service published ac-

quiescence or nonacquiescence only in

certain regular Tax Court opinions. The

Service has expanded its acquiescence

program to include other civil tax cases

where guidance is determined to be help-

ful. Accordingly, the Service now may ac-quiesce or nonacquiesce in the holdings

of memorandum Tax Court opinions, as

well as those of the United States District

Courts, Claims Court, and Circuit Courts

of Appeal. Regardless of the court decid-

ing the case, the recommendation of any

Action on Decision will be published in

the Internal Revenue Bulletin.

The recommendation in every Action

on Decision will be summarized as ac-

quiescence, acquiescence in result only,

or nonacquiescence. Both acquies-

cence and acquiescence in result onlymean that the Service accepts the holding

of the court in a case and that the Service

will follow it in disposing of cases with

the same controlling facts. However, ac-

quiescence indicates neither approval

nor disapproval of the reasons assigned

by the court for its conclusions; whereas,

acquiescence in result only indicates

disagreement or concern with some or all

of those reasons. Nonacquiescence sig-

nifies that, although no further review

was sought, the Service does not agree

with the holding of the court and, gener-

ally, will not follow the decision in dis-

posing of cases involving other taxpay-

ers. In reference to an opinion of a circuitcourt of appeals, a nonacquiescence in-

dicates that the Service will not follow

the holding on a nationwide basis. How-

ever, the Service will recognize the

precedential impact of the opinion on

cases arising within the venue of the de-

ciding circuit.

The Actions on Decisions published in

the weekly Internal Revenue Bulletin are

consolidated semiannually and appear in

the first Bulletin for July and the Cumu-

lative Bulletin for the first half of the

year. A semiannual consolidation also ap-pears in the first Bulletin for the follow-

ing January and in the Cumulative Bul-

letin for the last half of the year.

The Commissioner does NOT ACQUI-

ESCE in the following decision:

Mesa Oil, Inc. v. United States,1

86 A.F.T.R.2d (RIA) 7312

(D. Colo. 2000)

Actions Relating to Decisions of the Tax Court

1 Nonacquiescence relating to whether a verbatim recording of a Collection Due Process (CDP) hearing is required under I.R.C. sections 6320 and 6330 to create ajudicially reviewable administrative record.


5/26

Section 355.Distribution ofStock and Securities of aControlled Corporation

26 CFR 1.3557T: Recognition of gain on certaindistributions of stock or securities in connectionwith an acquisition.

T.D. 8960

DEPARTMENT OF THE TREASURYInternal Revenue Service26 CFR Part 1

Guidance Under Section 355(e);Recognition of Gain on CertainDistributions of Stock orSecurities in Connection With anAcquisition

AGENCY: Internal Revenue Service(IRS), Treasury.

ACTION: Temporary regulations.

SUMMARY: This document contains tem-

porary regulations relating to recognition of

gain on certain distributions of stock or se-

curities of a controlled corporation in con-

nection with an acquisition. Changes to the

applicable law were made by the Taxpayer

Relief Act of 1997. These temporary regu-

lations affect corporations and are neces-

sary to provide them with guidance needed

to comply with these changes.

EFFECTIVE DATES: These temporary

regulations are effective August 3, 2001.

FOR FURTHER INFORMATION CON-

TACT: Megan R. Fitzsimmons of the Of-

fice of Associate Chief Counsel (Corpo-

rate), (202) 622-7790 (not a toll-free

number).

SUPPLEMENTARY INFORMATION:

Background

On January 2, 2001, the IRS and Trea-sury published in the Federal Register

(66 FR 66) a notice of proposed rulemak-

ing (REG10756600, 20013 I.R.B.

346) (the Proposed Regulations) under

section 355(e) of the Internal Revenue

Code of 1986. Section 355(e) provides

that the stock of a controlled corporation

will not be qualified property under sec-

tion 355(c)(2) or 361(c)(2) if the stock is

distributed as part of a plan (or series of

related transactions) pursuant to which 1

or more persons acquire directly or indi-

rectly stock representing a 50-percent or

greater interest in the distributing corpo-

ration or any controlled corporation.

The Proposed Regulations provide

guidance concerning the interpretation ofthe phrase plan (or series of related

transactions). The Proposed Regulations

generally provide that whether a distribu-

tion and an acquisition are part of a plan is

determined based on all the facts and cir-

cumstances. They also set forth six safe

harbors, the satisfaction of which would

confirm that a distribution and an acquisi-

tion are not part of a plan.

A public hearing regarding the Pro-

posed Regulations was held on May 15,

2001. In addition, written comments

were received. A number of commenta-tors have indicated that the lack of guid-

ance under section 355(e) is hindering the

ability to undertake acquisitions and di-

vestitures. These commentators have re-

quested that the IRS and Treasury provide

immediate guidance pending the finaliza-

tion of those regulations. In response to

these requests, the IRS and Treasury are

promulgating the Proposed Regulations

as temporary regulations in this Treasury

Decision. The temporary regulations are

identical to the Proposed Regulations, ex-

cept that the temporary regulations re-

serve section 1.3557(e)(6) (suspending

the running of any time period prescribed

in the Proposed Regulations during which

there is a substantial diminution of risk of

loss under the principles of section

355(d)(6)(B)) and Example 7 of the Pro-

posed Regulations (interpreting the term

similar acquisition in the context of a

situation involving multiple acquisitions).

The IRS and Treasury continue to study

all of the comments received regarding

the Proposed Regulations. The IRS andTreasury will continue to devote signifi-

cant resources to analyzing the comments

and, in the near future, expect to issue ad-

ditional guidance regarding the interpreta-

tion of the phrase plan (or series of re-

lated transactions).

Special Analyses

It has been determined that these tem-

porary regulations are not a significant

regulatory action as defined in Executive

Order 12866. Therefore, a regulatory as-

sessment is not required. It has also been

determined that section 553(b) of the Ad-

ministrative Procedure Act (5 U.S.C.

chapter 5) does not apply to these tempo-

rary regulations, and, because the tempo-rary regulations do not impose a collec-

tion of information on small entities, the

Regulatory Flexibility Act (5 U.S.C.

chapter 6) does not apply. Pursuant to

section 7805(f) of the Internal Revenue

Code, these temporary regulations will be

submitted to the Chief Counsel for Advo-

cacy of the Small Business Administra-

tion for comment on its impact on small

business.

Drafting Information

The principal author of these temporary

regulations is Brendan P. OHara, Office

of the Associate Chief Counsel (Corpo-

rate). However, other personnel from the

Department of the Treasury and the IRS

participated in their development.

* * * * *

Adoption of Amendments to the

Regulations

Accordingly, 26 CFR part 1 is amended

as follows:

PART 1INCOME TAXES

Paragraph 1. The authority citation for

part 1 is amended by adding an entry in

numerical order to read in part as follows:

Authority: 26 U.S.C. 7805 * * *

Section 1.3557T also issued under 26

U.S.C. 355(e)(5). * * *

Par. 2. Section 1.3550 is amended by

revising the section heading and the intro-

ductory text and adding an entry for

1.3557T to read in part as follows:

1.3550 Outline of sections.

In order to facilitate the use of

1.3551 through 1.3557T, this section

lists the major paragraphs in those sec-

tions as follows:

* * * * *

1.3557T Recognition of gain on

certain distributions of stock or securities

in connection with an acquisition.

August 20 , 2001 176 200134 I.R.B.

Part I. Rulings and Decisions Under the Internal Revenue Code of 1986


6/26200134 I.R.B. 177 August 20 , 200

(a) In general.

(b) Plan.

(c) Multiple acquisitions.

(d) Facts and circumstances.

(e) Operating rules.

(1) Reasonable certainty evidence of

business purpose to facilitate an ac-

quisition.

(2) Internal discussion evidence of busi-

ness purpose.

(3) Hostile takeover defense.

(4) Effect of distribution on trading in

stock.

(5) Consequences of section 355(e) disre-

garded for certain purposes.

(6) Substantial diminution of risk. [Re-

served]

(f) Safe harbors.

(1) Safe Harbor I.

(2) Safe Harbor II.

(3) Safe Harbor III.

(4) Safe Harbor IV.(5) Safe Harbor V.

(i) In general.

(ii) Special rules.

(6) Safe Harbor VI.

(g) Stock acquired by exercise of options,

warrants, convertible obligations, and

other similar interests.

(1) Treatment of options.

(i) General rule.

(ii) Agreement, understanding, arrange-

ment, or substantial negotiations to

write an option.

(2) Instruments treated as options.(3) Instruments generally not treated as

options.

(i) Escrow, pledge, or other security

agreements.

(ii) Compensatory options.

(iii) Options exercisable only upon death,

disability, mental incompetency, or

separation from service.

(iv) Rights of first refusal.

(v) Other enumerated instruments.

(h) Multiple controlled corporations.

(i) [Reserved]

(j) Valuation.(k) Definitions.

(1) Agreement, understanding, arrange-

ment, or substantial negotiations.

(2) Controlled corporation.

(3) Controlling shareholder.

(4) Established market.

(5) Five-percent shareholder.

(l) [Reserved]

(m) Examples.

(n) Effective date.

Par. 3. Section 1.3557T is added to

read as follows:

1.3557T Recognition of gain on certain

distributions of stock or securities in

connection with an acquisition.

(a) In general. Except as provided in

section 355(e) and in this section, section

355(e) applies to any distribution

(1) To which section 355 (or so much

of section 356 as relates to section 355)

applies; and

(2) That is part of a plan (or series of

related transactions) (referred to else-

where in this section as plan) pursuant

to which 1 or more persons acquire di-

rectly or indirectly stock representing a

50-percent or greater interest in the dis-

tributing corporation (Distributing) or any

controlled corporation (Controlled).

(b) Plan. (1) Whether a distribution

and an acquisition are part of a plan is de-termined based on all the facts and cir-

cumstances. In general, in the case of an

acquisition after a distribution, the distrib-

ution and the acquisition are considered

part of a plan if Distributing, Controlled,

or any of their respective controlling

shareholders intended, on the date of the

distribution, that the acquisition or a simi-

lar acquisition occur in connection with

the distribution. In general, in the case of

an acquisition before a distribution, the

acquisition and the distribution are con-

sidered part of a plan if Distributing, Con-trolled, or any of their respective control-

ling shareholders intended, on the date of

the acquisition, that a distribution occur in

connection with the acquisition.

(2) For purposes of paragraph (b)(1) of

this section, the actual acquisition and the

intended acquisition may be similar even

though the identity of the person acquir-

ing stock of Distributing or Controlled

(acquirer), the timing of the acquisition or

the terms of the actual acquisition are dif-

ferent from the intended acquisition. For

example, in the case of a public offeringor auction, the actual acquisition and the

intended acquisition may be similar even

though there are changes in the terms of

the stock, the class of stock being offered,

the size of the offering, the timing of the

offering, the price of the stock, or the par-

ticipants in the public offering or auction.

(c) Multiple acquisitions. All acquisi-

tions of stock of Distributing or Con-

trolled that are considered to be part of a

plan with a distribution pursuant to par

graph (b) of this section will be aggr

gated for purposes of the 50-percent te

of paragraph (a)(2) of this section.

(d) Facts and circumstances. (1) Th

facts and circumstances to be considere

in demonstrating whether a distributio

and an acquisition are part of a plan i

clude, but are not limited to, the facts an

circumstances specified in paragraph

(d)(2) and (3) of this section. The weig

to be given each of the facts and circum

stances depends on the particular cas

Therefore, whether a distribution and

acquisition are part of a plan does not d

pend on the relative number of facts an

circumstances present under paragrap

(d)(2) of this section as compared to par

graph (d)(3) of this section.

(2) Among the facts and circumstanc

tending to show that a distribution and a

acquisition are part of a plan are the folowing:

(i) In the case of an acquisition (oth

than involving a public offering or au

tion) after a distribution, Distributing

Controlled and the acquirer (or any

their respective controlling shareholder

discussed the acquisition or a similar a

quisition by the acquirer before the distr

bution. The weight to be accorded t

discussions depends on the nature, exten

and timing of the discussions. The exi

tence of an agreement, understandin

arrangement or substantial negotiations the time of the distribution is given su

stantial weight.

(ii) In the case of an acquisition (oth

than involving a public offering or au

tion) after a distribution, Distributing

Controlled and a potential acquirer (

any of their respective controlling shar

holders) discussed an acquisition befo

the distribution and a similar acquisitio

by a different person occurred after th

distribution. The weight to be accorde

the discussions depends on the nature, e

tent, and timing of the discussions and thsimilarity of the acquisition actually o

curring to the acquisition discussed befo

the distribution.

(iii) In the case of an acquisition i

volving a public offering or auction aft

a distribution, Distributing or Controlle

(or any of their respective controllin

shareholders) discussed the acquisitio

with an investment banker or other ou

side adviser before the distribution. Th


7/26August 20 , 2001 178 200134 I.R.B.

weight to be accorded the discussions de-

pends on the nature, extent, and timing of

the discussions.

(iv) In the case of an acquisition before

a distribution, Distributing or Controlled

and the acquirer (or any of their respec-

tive controlling shareholders) discussed a

distribution before the acquisition. The

weight to be accorded the discussions de-

pends on the nature, extent, and timing of

the discussions.

(v) In the case of an acquisition before

a distribution, Distributing or Controlled

and a potential acquirer (or any of their

respective controlling shareholders) dis-

cussed a distribution before the acquisi-

tion and a similar acquisition by a differ-

ent person occurred before the

distribution. The weight to be accorded

the discussions depends on the nature, ex-

tent, and timing of the discussions and the

similarity of the acquisition actually oc-curring to the potential acquisition that

was discussed.

(vi) In the case of an acquisition in-

volving a public offering or auction be-

fore a distribution, Distributing or Con-

trolled (or any of their respective

controlling shareholders) discussed a dis-

tribution with an investment banker or

other outside adviser before the acquisi-

tion. The weight to be accorded the dis-

cussions depends on the nature, extent,

and timing of the discussions.

(vii) In the case of an acquisition eitherbefore or after a distribution, the distribu-

tion was motivated by a business purpose

to facilitate the acquisition or a similar ac-

quisition of Distributing or Controlled.

(viii) In the case of an acquisition either

before or after a distribution, the acquisi-

tion and the distribution occurred within 6

months of each other or there was an

agreement, understanding, arrangement,

or substantial negotiations regarding the

second transaction within 6 months after

the first transaction. Also, in the case of

an acquisition occurring after a distribu-tion, there was an agreement, understand-

ing, arrangement, or substantial negotia-

tions regarding a similar acquisition at the

time of the distribution or within 6

months thereafter.

(ix) In the case of an acquisition either

before or after a distribution, the debt allo-

cation between Distributing and Controlled

made an acquisition of Distributing or Con-

trolled likely in order to service the debt.

(3) Among the facts and circumstances

tending to show that a distribution and an

acquisition are not part of a plan are the

following:

(i) In the case of an acquisition (other

than involving a public offering or auc-

tion) after a distribution, neither Distrib-

uting nor Controlled and the acquirer or

any potential acquirer (nor any of their re-

spective controlling shareholders) dis-

cussed the acquisition or a similar acqui-

sition before the distribution.

(ii) In the case of an acquisition involv-

ing a public offering or auction after a dis-

tribution, neither Distributing nor Con-

trolled (nor any of their respective

controlling shareholders) discussed the

acquisition with an investment banker or

other outside adviser before the distribu-

tion.

(iii) In the case of an acquisition after a

distribution, there was an identifiable, un-expected change in market or business

conditions occurring after the distribution

that resulted in the acquisition that was

otherwise unexpected at the time of the

distribution.

(iv) In the case of an acquisition (other

than involving a public offering or auc-

tion) before a distribution, neither Distrib-

uting nor Controlled and the acquirer (nor

any of their respective controlling share-

holders) discussed a distribution before

the acquisition. This paragraph (d)(3)(iv)

does not apply if the acquisition occurredafter the date of the public announcement

of the planned distribution.

(v) In the case of an acquisition before

a distribution, there was an identifiable,

unexpected change in market or business

conditions occurring after the acquisition

that resulted in a distribution that was oth-

erwise unexpected.

(vi) In the case of an acquisition either

before or after a distribution, the distribu-

tion was motivated in whole or substantial

part by a corporate business purpose

(within the meaning of 1.3552(b))other than a business purpose to facilitate

the acquisition or a similar acquisition of

Distributing or Controlled. The presence

of a business purpose to facilitate the ac-

quisition or a similar acquisition of Dis-

tributing or Controlled is relevant in de-

termining the extent to which the

distribution was motivated by a corporate

business purpose (within the meaning of

1.3552(b)) other than a business pur-

pose to facilitate the acquisition or a simi-

lar acquisition of Distributing or Con-

trolled.

(vii) In the case of an acquisition either

before or after a distribution, the distribu-

tion would have occurred at approxi-

mately the same time and in similar form

regardless of the acquisition or a similar

acquisition (including a previously pro-

posed similar acquisition that did not

occur).

(e) Operating rules. The operating

rules contained in this paragraph (e) apply

for all purposes of this section.

(1) Reasonable certainty evidence of

business purpose to facilitate an acquisi-

tion. (i) In the case of an acquisition after

a distribution, if, at the time of the distrib-

ution, it was reasonably certain that be-

fore a date that is 6 months after the distri-

bution an acquisition would occur, an

agreement, understanding, or arrange-ment would exist, or substantial negotia-

tions would occur regarding an acquisi-

tion of Distributing or Controlled, the

reasonable certainty is evidence of a busi-

ness purpose to facilitate an acquisition of

Distributing or Controlled.

(ii) In the case of an acquisition before

a distribution, if the acquisition occurred

after the date of the public announcement

of the planned distribution, or if, at the

time of the acquisition, it was reasonably

certain that before a date that is 6 months

after the acquisition the distributionwould occur, an agreement, understand-

ing, or arrangement would exist, or sub-

stantial negotiations would occur regard-

ing the distribution, the public

announcement or reasonable certainty is

evidence of a business purpose to facili-

tate an acquisition of Distributing or Con-

trolled.

(2) Internal discussions evidence of

business purpose. The fact that internal

discussions regarding an acquisition oc-

curred may be indicative of the business

purpose that motivated the distribution.(3) Hostile takeover defense. If Dis-

tributing distributes Controlled stock in-

tending, in whole or substantial part, to

decrease the likelihood of the acquisition

of Distributing or Controlled by separat-

ing it from another corporation that is

likely to be acquired, Distributing will be

treated as having a business purpose to fa-

cilitate the acquisition of the corporation

that was likely to be acquired.


8/26200134 I.R.B. 179 August 20 , 200

(4) Effect of distribution on trading in

stock. The fact that the distribution made

all or a part of the stock of Controlled

available for trading or made Distributing

or Controlleds stock trade more actively

is not taken into account in determining

whether the distribution and an acquisi-

tion of Distributing or Controlled stock

were part of a plan.

(5) Consequences of section 355(e) dis-

regarded for certain purposes. For pur-

poses of determining the intentions of the

relevant parties under this section, the

consequences of the application of section

355(e), and the existence of any contrac-

tual indemnity by Controlled for tax re-

sulting from the application of section

355(e) caused by an acquisition of Con-

trolled, are disregarded.

(6) Substantial diminution of risk. [Re-

served]

(f) Safe harbors(1) Safe Harbor I.(i) A distribution and an acquisition oc-

curring after the distribution will not be

considered part of a plan if

(A) The acquisition occurred more than

6 months after the distribution and there

was no agreement, understanding,

arrangement, or substantial negotiations

concerning the acquisition before a date

that is 6 months after the distribution; and

(B) The distribution was motivated in

whole or substantial part by a corporate


1.3552(b)) other than a business pur-pose to facilitate an acquisition of Distrib-

uting or Controlled.

(ii) For purposes of paragraph

(f)(1)(i)(B) of this section, the presence of

a business purpose to facilitate an acquisi-

tion of Distributing or Controlled is rele-

vant in determining the extent to which

the distribution was motivated by a corpo-

rate business purpose (within the meaning

of 1.3552(b)) other than a business pur-

pose to facilitate an acquisition of Distrib-

uting or Controlled.

(2) Safe Harbor II. A distribution andan acquisition occurring after the distribu-

tion will not be considered part of a plan

if

(i) The acquisition occurred more than

6 months after the distribution and there

was no agreement, understanding,

arrangement, or substantial negotiations

concerning the acquisition before a date

that is 6 months after the distribution;

and

(ii) The distribution was motivated in

whole or substantial part by a corporate


1.3552(b)) to facilitate an acquisition

or acquisitions of no more than 33 percent

of the stock of Distributing or Controlled,

and no more than 20 percent of the stock

of the corporation (whose stock was ac-

quired in the acquisition or acquisitions

that motivated the distribution) was either

acquired or the subject of an agreement,

understanding, arrangement, or substan-

tial negotiations before a date that is 6

months after the distribution.

(3) Safe Harbor III. If an acquisition

occurs more than 2 years after a distribu-

tion and there was no agreement, under-

standing, arrangement, or substantial ne-

gotiations concerning the acquisition at

the time of the distribution or within 6

months thereafter, the acquisition and the

distribution are not part of a plan.(4) Safe Harbor IV. If an acquisition

occurs more than 2 years before a distrib-

ution, and there was no agreement, under-


gotiations concerning the distribution at

the time of the acquisition or within 6

months thereafter, the acquisition and the

distribution are not part of a plan.

(5) Safe Harbor V(i)In general. An

acquisition of Distributing or Controlled

stock that is listed on an established mar-

ket is not part of a plan if the acquisition

is pursuant to a transfer between share-holders of Distributing or Controlled, nei-

ther of whom is a 5-percent shareholder.

For purposes of the preceding sentence,

the term 5-percent shareholder is defined

in paragraph (k)(5) of this section, except

that the corporation can rely on Schedules

13D and 13G (or any similar schedules)

filed with the Securities and Exchange

Commission to identify its 5-percent

shareholders.

(ii) Special rules. (A) This paragraph

(f)(5) does not apply to public offerings or

redemptions.(B) This paragraph (f)(5) does not

apply to a transfer of stock by or to a per-

son who, pursuant to a formal or informal

understanding with other persons (the co-

ordinating group), has joined in coordi-

nated transfers of stock if, at any time

during the period the understanding ex-

ists, the coordinating group owns, in the

aggregate, 5 percent or more of the stock

of the corporation whose stock is trans-

ferred (determined by vote or value) im

mediately before or after each transfer

at the time of the distribution. A princip

element in determining if such an unde

standing exists is whether the investme

decision of each person is based on the i

vestment decision of 1 or more other e

isting or prospective shareholders.

(C) This paragraph (f)(5) does n

apply to a transfer of stock by or to a pe

son if the corporation the stock of whic

is being transferred knows, or has reaso

to know, that the person (or a coordina

ing group, treating it as a single perso

intends to become a 5-percent sharehold

at any time during the 4-year period b

ginning 2 years before the distribution.

(6) Safe Harbor VI. If stock of Distri

uting or Controlled is acquired by an em

ployee or director of Distributing, Co

trolled, or a person related to Distributin

or Controlled under section 355(d)(7)(Ain connection with the performance

services as an employee or director for th

corporation or a person related to it und

section 355(d)(7)(A) (and that is not e

cessive by reference to the services pe

formed) in a transaction to which sectio

83 applies, the acquisition is not an acqu

sition that is part of a plan as described

paragraph (b)(1) of this section.

(g) Stock acquired by exercise of o

tions, warrants, convertible obligation

and other similar interests(1) Treatme

of options(i) General rule. For purposof this section, if stock of Distributing

Controlled is acquired pursuant to an o

tion, the option will be treated as an agre

ment to acquire the stock on the date th

option is written unless Distributing esta

lishes that on the later of the date of th

stock distribution or the writing of the o

tion, the option was not more likely tha

not to be exercised. The determination

whether an option was more likely than n

to be exercised is based on all the facts an

circumstances, taking control premium

and minority and blockage discounts inaccount in determining the fair mark

value of stock underlying an option.

(ii) Agreement, understandi

arrangement, or substantial negotiatio

to write an option. If there is an agre

ment, understanding, or arrangement

write an option, the option will be treate

as written on the date of the agreemen

understanding, or arrangement. If a

agreement, understanding, or arrang


9/26August 20 , 2001 180 200134 I.R.B.

ment to write an option is reached, or an

option is written, more than 6 months but

not more than 2 years after the distribu-

tion, and there were substantial negotia-

tions regarding the writing of the option

or the acquisition of the stock underlying

the option before the end of the 6-month

period beginning on the date of the distri-

bution, the option will be treated as writ-

ten within 6 months after the distribution.

(2)Instruments treated as options. For

purposes of this paragraph (g), except to

the extent provided in paragraph (g)(3) of

this section, call options, warrants, con-

vertible obligations, the conversion fea-

ture of convertible stock, put options, re-

demption agreements (including rights to

cause the redemption of stock), any other

instruments that provide for the right or

possibility to issue, redeem, or transfer

stock (including an option on an option),

or any other similar interests are treated asoptions.

(3)Instruments generally not treated as

options. For purposes of this paragraph

(g), the following are not treated as op-

tions unless (in the case of paragraphs

(g)(3)(i), (iii), and (iv) of this section)

written, transferred (directly or indi-

rectly), or listed with a principal purpose

of avoiding the application of section

355(e) or this section.

(i) Escrow, pledge, or other security

agreements. An option that is part of a se-

curity arrangement in a typical lendingtransaction (including a purchase money

loan), if the arrangement is subject to cus-

tomary commercial conditions. For this

purpose, a security arrangement includes,

for example, an agreement for holding

stock in escrow or under a pledge or other

security agreement, or an option to ac-

quire stock contingent upon a default

under a loan.

(ii) Compensatory options. An option

to acquire stock in Distributing or Con-

trolled with customary terms and condi-

tions provided to an employee or directorof Distributing, Controlled, or a person

related to Distributing or Controlled

under section 355(d)(7)(A), in connection

with the performance of services as an

employee or director for the corporation

or a person related to it under section

355(d)(7)(A) (and that is not excessive by

reference to the services performed) and

that immediately after the distribution and

within 6 months thereafter

(A) Is nontransferable within the mean-

ing of 1.833(d); and

(B) Does not have a readily ascertain-

able fair market value as defined in

1.837(b).

(iii) Options exercisable only upon

death, disability, mental incompetency,

or separation from service. Any option

entered into between shareholders of a

corporation (or a shareholder and the

corporation) that is exercisable only

upon the death, disability, or mental in-

competency of the shareholder, or, in the

case of stock acquired in connection with

the performance of services for the cor-

poration or a person related to it under

section 355(d)(7)(A) (and that is not ex-

cessive by reference to the services per-

formed), the shareholders separation

from service.

(iv)Rights of first refusal. A bona fide

right of first refusal regarding the corpo-rations stock with customary terms, en-

tered into between shareholders of a cor-

poration (or between the corporation and

a shareholder).

(v) Other enumerated instruments.

Any other instrument the Commissioner

may designate in revenue procedures, no-

tices, or other guidance published

in the Internal Revenue Bulletin. See

601.601(d)(2) of this chapter.

(h) Multiple controlled corporations.

Only the stock or securities of a con-

trolled corporation in which 1 or morepersons acquire directly or indirectly

stock representing a 50-percent or greater

interest as part of a plan involving the dis-

tribution of that corporation will be

treated as not qualified property under

section 355(e)(1) if

(1) The stock or securities of more than

1 controlled corporation are distributed in

distributions to which section 355 (or so

much of section 356 as relates to section

355) applies; and

(2) One or more persons do not ac-

quire, directly or indirectly, stock repre-senting a 50-percent or greater interest in

Distributing pursuant to a plan involving

any of those distributions.

(i) [Reserved]

(j) Valuation. Except as provided in

paragraph (g)(1)(i) of this section, for

purposes of section 355(e) and this sec-

tion, all shares of stock within a single

class are considered to have the same

value. Thus, control premiums and mi-

nority and blockage discounts within a

single class are not taken into account.

(k)Definitions(1)Agreement, under-


gotiations. Whether an agreement, under-

standing, or arrangement exists depends

on the facts and circumstances. The par-

ties do not necessarily have to have en-

tered into a binding contract or have

reached agreement on all terms to have an

agreement, understanding, or arrange-

ment. However, an agreement, under-

standing, or arrangement clearly exists if

enforceable rights to acquire stock exist.

In public offerings or auctions by Distrib-

uting or Controlled of Distributing or

Controlleds stock, an agreement, under-


gotiations can exist even if the acquirer

has not been specifically identified. The

existence of such an agreement, under-

standing, arrangement, or substantial ne-gotiations will be based on discussions

with an investment banker or other out-

side adviser.

(2) Controlled corporation. For pur-

poses of this section, a controlled corpo-

ration is a corporation the stock of which

is distributed in a distribution to which

section 355 (or so much of section 356 as

relates to section 355) applies.

(3) Controlling shareholder. (i) A con-

trolling shareholder of a corporation the

stock of which is not listed on an estab-

lished market is any person who, directlyor indirectly, or together with related per-

sons (as described in sections 267(b) and

707(b)), possesses voting power in Dis-

tributing or Controlled representing a

meaningful voice in the governance of the

corporation.

(ii) A controlling shareholder of a cor-

poration the stock of which is listed on an

established market is a 5-percent share-

holder who actively participates in the

management or operation of the corpora-

tion.

(iii) For purposes of this section, a per-son is a controlling shareholder if that

person meets the definition of controlling

shareholder in this paragraph (k)(3) im-

mediately before or immediately after the

acquisition being tested.

(iv) If a distribution precedes an acqui-

sition, Controlleds controlling sharehold-

ers immediately after the distribution are

considered Controlleds controlling share-

holders at the time of the distribution.


10/26

(4)Established market. An established

market is

(i) Anational securities exchange regis-

tered under section 6 of the Securities Ex-

change Act of 1934 (15 U.S.C. 78f);

(ii) An interdealer quotation system

sponsored by a national securities associ-

ation registered under section 15A of the

Securities Act of 1934 (15 U.S.C. 78o3);

or

(iii) Any additional market that the

Commissioner may designate in revenue

procedures, notices, or other guidance

published in the Internal Revenue Bul-

letin (see 601.601(d)(2) of this chapter).

(5) Five-percent shareholder. A person

will be considered a 5-percent share-

holder of a corporation the stock of which

is listed on an established market if the

person owns, directly or indirectly, or to-

gether with related persons (as described

in sections 267(b) and 707(b)) 5 percentor more of any class of stock of the corpo-

ration whose stock is transferred. A per-

son is a 5-percent shareholder if the per-

son meets the requirements of the

preceding sentence immediately before or

after each transfer. All options are treated

as exercised for the purpose of determin-

ing whether the shareholder is a 5-percent

shareholder.

(l) [Reserved]

(m) Examples. The following exam-

ples illustrate paragraphs (a) through (k)

of this section. Throughout these exam-ples, assume that Distributing (D) owns

all of the stock of Controlled (C). As-

sume further that D distributes the stock

of C in a distribution to which section 355

applies and to which section 355(d) does

not apply. Unless otherwise stated, as-

sume the corporations do not have con-

trolling shareholders. No inference

should be drawn from any example con-

cerning whether any requirements of sec-

tion 355 other than those of section 355(e)

are satisfied. The examples are as fol-

lows: Example 1. Unwanted assets. (i) D is in business

1. C is in business 2. D is relatively small in its in-

dustry. D wants to combine with X, a larger corpora-

tion also engaged in business 1. X and D begin nego-

tiating for X to acquire D, but X does not want to

acquire C. To facilitate the acquisition of D by X, D

agrees to distribute all the stock of C pro rata before

the acquisition. D and X enter into a binding contract

for D to merge into X subject to several conditions. D

distributes C and D merges into X one month later.

As a result of the merger, Ds former shareholders

own less than 50 percent of the stock of X.

(ii) No Safe Harbor applies to this acquisition.

(iii) The issue is whether the distribution of C and

the merger of D into X are part of a plan. To deter-

mine whether the distribution of C and the merger of

D into X are part of a plan, D must consider all the

facts and circumstances, including those described

in paragraph (d) of this section.

(iv) The following tends to show that the distrib-

ution of C and the merger of D into X are part of a

plan: X and D discussed the acquisition before the

distribution (paragraph (d)(2)(i) of this section), D

was motivated by a business purpose to facilitate the

merger (paragraph (d)(2)(vii) of this section), and

the distribution and the merger occurred within 6

months of each other (paragraph (d)(2)(viii) of this

section). Because the merger was not only dis-

cussed, but was agreed to, before the distribution,

the fact described in paragraph (d)(2)(i) of this sec-

tion is given substantial weight.

(v) None of the facts and circumstances listed in

paragraph (d)(3) of this section, tending to show that

a distribution and an acquisition are not part of a

plan, exist in this case.

(vi) The distribution of C and the merger of D

into X are part of a plan under paragraph (b)(1) of

this section.

Example 2. Substituted acquirer. (i) The facts are

the same as inExample 1, except that after D distrib-

utes C, X is unable to fulfill one of the conditions of

the merger agreement and the merger of D into X does

not occur. Y, one of Xs competitors, perceives this as

an opportunity and begins discussing with D a merger

into Y. Five months after D distributes C, D merges

into Y. As a result of the merger, the D shareholders

own less than 50 percent of the outstanding Ystock.



the merger of D into Y are part of a plan. To deter-

mine whether the distribution of C and the merger of

D into Y are part of a plan, D must consider all the

facts and circumstances, including those described

in paragraph (d) of this section.(iv) The following tends to show that the distrib-

ution of C and the merger of D into Y are part of a

plan: X, a potential acquirer, and D discussed an ac-

quisition before the distribution and a similar acqui-

sition by Y occurred (paragraph (d)(2)(ii) of this sec-

tion), D was motivated by a business purpose to

facilitate an acquisition similar to the merger with Y

(paragraph (d)(2)(vii) of this section), and the distri-

bution and the merger occurred within 6 months of

each other (paragraph (d)(2)(viii) of this section).

(v) As in Example 1, none of the facts and cir-

cumstances listed in paragraph (d)(3) of this section

exist in this case. Although a substituted acquirer

acquired D, the merger of D into Y was similar to

the negotiated merger of D into X.(vi) The distribution of C and the merger of D

into Y are part of a plan under paragraph (b)(1) of

this section.

Example 3. Public offering. (i) Ds managers,

directors, and investment banker discuss the possi-

bility of offering D stock to the public. They decide

a public offering of 50 percent of Ds stock with D

as a stand alone corporation would be in Ds best in-

terest. To facilitate a stock offering by D of 50 per-

cent of its stock, D distributes all the stock of Cpro

rata to Ds shareholders. D issues new shares

amounting to 50 percent of its stock to the public in

a public offering 7 months after the distribution.

(ii) No Safe Harbor applies to this acquisitio

Safe Harbor V, relating to public trading, does n

apply to public offerings (paragraph (f)(5)(ii)(A)

this section).

(iii) The issue is whether the distribution of C a

the public offering by D are part of a plan. To det

mine whether the distribution of C and the public o

fering by D are part of a plan, D must consider

the facts and circumstances, including those d

scribed in paragraph (d) of this section.

(iv) The following tends to show that the distr

ution of C and the public offering by D are part o

plan: D discussed the public offering with its inve

ment banker before the distribution (paragra

(d)(2)(iii) of this section), D was motivated by

business purpose to facilitate the public offeri

(paragraph (d)(2)(vii) of this section), and the

were substantial negotiations regarding the pub

offering within 6 months after the distribution (pa

graph (d)(2)(viii) of this section).

(v) None of the facts and circumstances listed

paragraph (d)(3) of this section, tending to show th

a distribution and an acquisition are not part of


(vi) The distribution of C and the public offeri

by D are part of a plan under paragraph (b)(1) of th

section.

Example 4. Public offering followed by un

pected opportunity. (i) Facts. Ds managers,

rectors, and investment banker discuss the possib

ity of offering C stock to the public. D decides

distribute C pro rata to Ds shareholders solely

facilitate a 20 percent stock offering by C. To ta

advantage of favorable market conditions, C issu

new shares amounting to 20 percent of its stock

a public offering 1 month before D distributes

remaining 80 percent of the C stock. The pub

offering documents disclose the intended distrib

tion of C, which is expected to occur shortly aft

the public offering. At the time of the distributio

it is not reasonably certain that an acquisition w

occur, an agreement, understanding, or arrangment concerning an acquisition will exist, or su

stantial negotiations concerning an acquisition w

occur within 6 months. Two months after the d

tribution, C is approached unexpectedly regardi

an opportunity to acquire X. Five months after t

distribution, C acquires X in exchange for 40 p

cent of the C stock.

(ii) Public offering. (A) No Safe Harbor appl

to the public offering. Safe Harbor V, related to pu

lic trading, does not apply to public offerings (pa

graph (f)(5)(ii)(A) of this section).

(B) The issue is whether the 20 percent public

fering by C and the distribution by D of the rema

ing C stock are part of a plan. To determine wheth

the distribution and the public offering are part oplan, D must consider all the facts and circu

stances, including those described in paragraph (

of this section.

(C) Under paragraph (d)(2) of this section, t

following tends to show that the distribution of

and the public offering are part of a plan: D d

cussed the distribution with its investment bank

before the public offering (paragraph (d)(2)(vi)

this section), D was motivated by a business purpo

to facilitate the public offering (paragra

(d)(2)(vii) of this section), and the public offeri

and the distribution occurred within 6 months

each other (paragraph (d)(2)(viii) of this section).

200134 I.R.B. 181 August 20 , 200


11/26

(D) None of the facts and circumstances listed in

paragraph (d)(3) of this section, tending to show that

a distribution and an acquisition are not part of a


(E) The public offering of C and the distribution

of C are part of a plan under paragraph (b)(1) of this

section.

(iii)X acquisition. (A) No Safe Harbor applies to

the X acquisition.

(B) The issue is whether the distribution of C and

the acquisition by C of X are part of a plan. To de-

termine whether the distribution of C and the acqui-

sition by C of X are part of a plan, D must consider

all the facts and circumstances, including those de-


(C) Under paragraph (d)(2) of this section, the

following tends to show that the distribution of C

and acquisition by C of X are part of a plan: The dis-

tribution and the acquisition occurred within 6


section). The fact described in paragraph (d)(2)(vii)

of this section does not exist in this case because Ds

business purpose was to facilitate the public offering

and Cs acquisition of X is not similar to that acqui-

sition.

(D) Under paragraph (d)(3) of this section, the


and the acquisition by C of X are not part of a plan:

Neither D, C, nor their respective controlling share-

holders discussed the acquisition of X or a similar

acquisition with potential acquirers before the distri-

bution (paragraph (d)(3)(i) of this section), D had a

substantial business purpose for the distribution

other than a business purpose to facilitate the acqui-

sition of X or a similar acquisition (paragraph

(d)(3)(vi) of this section), and the distribution would

have occurred at approximately the same time and in

similar form regardless of the acquisition of X (para-

graph (d)(3)(vii) of this section). The distribution

was announced and accomplished to facilitate the 20

percent public offering by C. D and C were unaware

of the opportunity to acquire X at the time of the dis-tribution.

(E) Weighing the facts and circumstances, the ac-

quisition by C of X and the distribution of C by D

are not part of a plan under paragraph (b)(1) of this

section.

(F) If Cs acquisition of X had occurred more

than 6 months after the distribution and had not been

the subject of an agreement, understanding, arrange-

ment, or substantial negotiations before the date that

is 6 months after the distribution, Safe Harbor II

would have applied to Cs acquisition of X.

Example 5. Hot market. (i) D is a widely held

corporation the stock of which is listed on an estab-

lished market. D announces a distribution of C and

distributes Cpro rata to Ds shareholders. By con-tract, C agrees to indemnify D for any imposition of

tax under section 355(e) caused by the acts of C.

The distribution is motivated by a desire to improve

Ds access to financing at preferred customer inter-

est rates, which will be more readily available if D

separates from C. At the time of the distribution, al-

though D has not been approached by any potential

acquirer of C, it is reasonably certain that within 6

months after the distribution either an acquisition of

C will occur or there will be an agreement, under-

standing, arrangement, or substantial negotiations

regarding an acquisition of C. Corporation Y ac-

quires C in a merger described in section

368(a)(2)(E) within 6 months after the distribution.

The C shareholders receive less than 50 percent of

the stock of Y in the exchange.



the acquisition of C by Y are part of a plan. To de-


sition of C by Y are part of a plan, D must consider



(iv) Under paragraph (d)(2) of this section, the


and the acquisition of C by Y are part of a plan: The

acquisition and the distribution occurred within 6


section). In addition, the distribution may be moti-

vated by a business purpose to facilitate the acquisi-

tion or a similar acquisition because there is evi-

dence of a business purpose to facilitate an

acquisition by reason of the fact that at the time of

the distribution it was reasonably certain that an ac-

quisition of C would occur or there would be an

agreement, understanding, arrangement, or substan-

tial negotiations regarding an acquisition of C within

6 months after the distribution (paragraphs

(d)(2)(vii) and (e)(1)(i) of this section).

(v) Under paragraph (d)(3) of this section, the


and the acquisition of C by Y are not part of a plan:

Neither D, C, nor their respective controlling share-

holders discussed the acquisition or a similar acqui-

sition with Y or any other potential acquirers before

the distribution (paragraph (d)(3)(i) of this section).

Furthermore, D may be able to demonstrate that the

distribution was motivated in whole or substantial

part by a corporate business purpose other than a

business purpose to facilitate the acquisition or a

similar acquisition (paragraph (d)(3)(vi) of this sec-

tion). Ds stated purpose for the distribution (facili-

tating Ds access to favorable financing) must be

evaluated in light of the evidence of a business pur-

pose to facilitate an acquisition. D also may be ableto demonstrate that the distribution would have oc-

curred at approximately the same time and in similar

form regardless of the acquisition (paragraph

(d)(3)(vii) of this section).

(vi) Under paragraph (e)(5) of this section, the

existence of the indemnity is irrelevant in analyzing

whether the distribution and acquisition of C are part

of a plan.

(vii) In determining whether the distribution of C

and the acquisition of C by Y are part of a plan, one

should consider the importance of Ds stated business

purpose for the distribution in light of the reasonable

certainty that C would be acquired or there would be

an agreement, understanding, arrangement, or sub-

stantial negotiations regarding an acquisition of Cwithin 6 months after the distribution. If Ds stated

business purpose for the distribution is substantial

even though the reasonable certainty that C would be

acquired is evidence of a business purpose to facili-

tate an acquisition, and if D would have distributed C

regardless of Ys acquisition of C, Ys acquisition of

C and Ds distribution of C are not part of a plan.

Example 6. Unexpected opportunity. (i) D, the

stock of which is listed on an established market, an-

nounces that it will distribute all the stock of C pro

rata to Ds shareholders. At the time of the an-

nouncement, the distribution is motivated wholly by

a corporate business purpose (within the meaning of

1.3552(b)) other than a business purpose to facili-

tate an acquisition. After the announcement but be-

fore the distribution, widely held X becomes avail-

able as an acquisition target. There were no

discussions between D and X before the announce-

ment. D negotiates with and acquires X before the

distribution. After the acquisition, Xs former share-

holders own 55 percent of Ds stock. D distributes

the stock of Cpro rata within 6 months after the ac-

quisition of X.


(iii) The issue is whether the acquisition of X by

D and the distribution of C are part of a plan. To de-


sition of X by D are part of a plan, D must consider



(iv) Under paragraph (d)(2) of this section, the

following tends to show that the acquisition of X by

D and the distribution of C are part of a plan: The

acquisition and the distribution occurred within 6


section). Also, the distribution may be motivated by

a business purpose to facilitate the acquisition or a

similar acquisition because there is evidence of a

business purpose to facilitate an acquisition by rea-

son of the fact that the acquisition occurred after thepublic announcement of the planned distribution

(paragraphs (d)(2)(vii) and (e)(1)(ii) of this section).

(v) Under paragraph (d)(3) of this section, D

would assert that the following tends to show that

the distribution of C and the acquisition of X by D

are not part of a plan: The distribution was moti-

vated by a corporate business purpose other than a

business purpose to facilitate the acquisition or a

similar acquisition (paragraph (d)(3)(vi) of this sec-

tion), and the distribution would have occurred at

approximately the same time and in similar form re-

gardless of the acquisition (paragraph (d)(3)(vii) of

this section). That D decided to distribute C and an-

nounced that decision before it became aware of the

opportunity to acquire X suggests that the distribu-tion would have occurred at approximately the same

time and in similar form regardless of Ds acquisi-

tion of X. Xs lack of participation in the decision

also helps establish that fact.

(vi) In determining whether the distribution of C

and acquisition of X by D are part of a plan, one

should consider the importance of Ds business pur-

pose for the distribution in light of Ds opportunity

to acquire X. If D can establish that the distribution

continued to be motivated by the stated business

purpose, and if D would have distributed C regard-

less of Ds acquisition of X, then Ds acquisition of

X and Ds distribution of C are not part of a plan.

Example 7. Multiple acquisitions. [Reserved]

(n) Effective date. This section applies

to distributions occurring after August 3,

2001.

Robert E. Wenzel,

Deputy Commissioner

of Internal Revenue.

Approved July 26, 2001.

Mark A. Weinberger,

Assistant Secretary

of the Treasury.

August 20 , 2001 182 200134 I.R.B.


12/26

(Filed by the Office of the Federal Register on Au-gust 2, 2001, 8:45 a.m., and published in the issue ofthe Federal Register for August 3, 2001, 66 F.R.40590)

Section 2632.Special Rulesfor Allocation of GST Exemption

26 CFR 26.26321: Allocation of GST exemption.

If a taxpayer does not elect on a timely filed gift

tax return under section 2632(b) to have the auto-

matic allocation of GST exemption rules not apply

to direct skips, what procedure must the taxpayer

follow to request an extension of time to make an

election that the automatic allocation rules not

apply? See Notice 200150, page 189.

26 CFR 26.26321: Allocation of GST exemption.

If a taxpayer does not elect on a timely filed gift

tax return under section 2632(c) to have the auto-

matic allocation of GST exemption rules not apply

to indirect skips made after December 31, 2000,what procedure must the taxpayer follow to request

an extension of time to make an election that the au-

tomatic allocation rules not apply? If a taxpayer

does not elect on a timely filed gift tax return under

section 2632(c)(5)(A)(ii) to treat a trust as a GST

trust described in section 2632(c)(3)(B), what proce-

dure must the taxpayer follow to request an exten-

sion of time to treat the trust as a GST trust? See No-

tice 200150, page 189.

Section 2642.Inclusion Ratio

26 CFR 26.26422: Valuation.

If a taxpayer does not allocate generation-skip-

ping transfer exemption on a timely filed gift tax re-

turn with respect to a lifetime transfer under

2642(b)(1) or on a timely filed estate tax return

with respect to transfers at death under 2642(b)(2),

what procedure must the taxpayer follow to request

an extension of time to make an allocation of the

generation-skipping transfer exemption? See Notice

200150, page 189.

Section 6103.Confidentialityand Disclosure of Returns and

Return Information

26 CFR 301.6103(j)(5)1: Disclosures of return

information to officers and employees of the

Department of Agriculture for certain statistical

purposes and related activities.

T.D. 8958


Disclosures of ReturnInformation to Officers andEmployees of the Department ofAgriculture for CertainStatistical Purposes and RelatedActivities

AGENCY: Internal Revenue Service

(IRS), Treasury.

ACTION: Final regulation.

SUMMARY: This document provides a

final regulation relating to the disclosure

of return information to officers and em-

ployees of the Department of Agriculture

for certain statistical purposes and related

activities. This regulation permits the IRS

to disclose return information to the De-

partment of Agriculture to structure, pre-

pare, and conduct the Census of Agricul-

ture.

DATES: Effective Date: This regulation

is effective July 31, 2001.

Applicability Date: For dates of applic-

ability of this regulation, see 301.6103

(j)(5)1(d).


TACT: Stuart Murray, (202) 622-4580

(not a toll-free number).


Background

On January 4, 2000, a temporary regu-lation (T.D. 8854, 20003 I.R.B. 306) re-

lating to disclosure of return information

to the Department of Agriculture was

published in the Federal Register (65 FR

215). A notice of proposed rulemaking

(REG11670499, 20003 I.R.B. 325)

cross-referencing the temporary regula-

tion was published in the Federal Regis-

ter for the same day (65 FR 215). No

public hearing was requested or held. No

written or electronic comments respond-

ing to the notice of proposed rulemaking

were received. Accordingly, the regula-

tion proposed by REG11670499 is

adopted by this Treasury decision without

revision, and the corresponding tempo-

rary regulation is removed.

Explanation of Provisions

This regulation allows the IRS to dis-

close return information to the Depart-

ment of Agriculture for purposes of the

Census of Agriculture.

The disclosure of the specific items

return information identified in this reg

lation is necessary in order for the Depar

ment of Agriculture to accurately identif

locate, and classify, as well as proper

process, information from agricultur

businesses to be surveyed for the statut

rily mandated Census of Agriculture.

Special Analyses

It has been determined that this Treasu

decision is not a significant regulatory a

tion as defined in Executive Order 1286

Therefore, a regulatory assessment is n

required. It has also been determined th

section 553(b) of the Administrative Pr

cedure Act (5 U.S.C. chapter 5) does n

apply to this regulation.

It is hereby certified that this regulatio

will not have a significant impact on a su

stantial number of small entities. This ce

tification is based upon the fact that thregulation concerns the disclosure of retu

information by the IRS to the Departme

of Agriculture for purposes of the Cens

of Agriculture and does not require any a

tion by or otherwise affect small entitie

Therefore, a Regulatory Flexibility Anal

sis under the Regulatory Flexibility Act

U.S.C. chapter 6) is not required.

Pursuant to section 7805(f) of th

Code, the temporary regulation and th

notice of proposed rulemaking precedin

this regulation were submitted to th

Chief Counsel for Advocacy of the SmaBusiness Administration for comment o

its impact on small businesses.

Drafting Information

The principal author of this regulation

Jennifer S. McGinty, formerly of the O

fice of the Associate Chief Counsel (Proc

dure & Administration), Disclosure & Pr

vacy Law Division, IRS. However, oth

personnel from the IRS and Treasury D

partment participated in its development.

* * * * *

Adoption of Amendments to the

Regulations

Accordingly, 26 CFR part 301

amended as follows:

PART 301PROCEDURE AND

ADMINISTRATION

Paragraph 1. The authority citation f

part 301 is amended by removing th

200134 I.R.B. 183 August 20 , 200


13/26

entry for 301.6103(j)(5)1T and adding

an entry in numerical order to read in part

as follows:

Authority: 26 U.S.C. 7805 * * *

Section 301.6103(j)(5)1 also issued

under 26 U.S.C. 6103(j)(5);* * *

Par. 2. Section 301.6103(j)(5)1 is

added to read as follows:

301.6103(j)(5)1 Disclosures of returninformation to officers and employees of

the Department of Agriculture for

certain statistical purposes and related

activities.

(a) General rule. Pursuant to the provi-

sions of section 6103(j)(5) of the Internal

Revenue Code and subject to the require-

ments of paragraph (c) of this section, of-

ficers or employees of the Internal Rev-

enue Service (IRS) will disclose return

information to officers and employees of

the Department of Agriculture to the ex-tent, and for such purposes as may be,

provided by paragraph (b) of this section.

(b)Disclosure of return information to

officers and employees of the Department

of Agriculture. (1) Officers or employees

of the IRS will disclose the following re-

turn information for individuals, partner-

ships, and corporations with agricultural

activity, as determined generally by in-

dustry code classification or the filing of

returns for such activity, to officers and

employees of the Department of Agricul-

ture for purposes of, but only to the extent

necessary in, structuring, preparing, and

conducting, as authorized by chapter 55

of title 7, United States Code, the Census

of Agriculture.

(2) From Form 1040/Schedule F

(i) Taxpayer Identity Information (as

defined in section 6103(b)(6) of the

Internal Revenue Code);

(ii) Spouses SSN;

(iii) Annual Accounting Period;

(iv) Principal Business Activity (PBA)

Code;(v) Sales of livestock and produce

raised;

(vi) Taxable cooperative distributions;

(vii) Income from custom hire and ma-

chine work;

(viii) Gross income;

(ix) Master File Tax (MFT) Code;

(x) Document Locator Number (DLN);

(xi) Cycle Posted;

(xii) Final return indicator; and

(xiii) Part year return indicator.

(3) From Form 943

(i) Taxpayer Identity Information;

(ii) Annual Accounting Period;

(iii) Total wages subject to Medicare

taxes;

(iv) Master File Tax (MFT) Code;

(v) Document Locator Number (DLN);

(vi) Cycle Posted;

(vii) Final return indicator; and

(viii) Part year return indicator.

(4) From Form 1120 series



(iii) Gross receipts less returns and al-

lowances;

(iv) PBA Code;

(v) Parent corporation Employer Iden-

tification Number, and related

Name and PBA Code for entities

with agricultural activity;

(vi) Master File Tax (MFT) Code;

(vii) Docu ment Loca tor Numbe r(DLN);

(viii) Cycle posted;

(ix) Final return indicator;

(x) Part year return indicator; and

(xi) Consolidated return indicator.

(5) From Form 851

(i) Subsidiary Taxpayer Identity Infor-

mation;


(iii) Subsidiary PBA Code;

(iv) Parent Taxpayer Identity Informa-

tion;(v) Parent PBA Code;

(vi) Master File Tax (MFT) Code;

(vii) Docu ment Loca tor Numbe r

(DLN); and

(viii) Cycle Posted.

(6) From Form 1065 series



(iii) PBA Code;

(iv) Gross receipts less returns and al-

lowances;

(v) Net farm profit (loss);(vi) Master File Tax (MFT) Code;

(vii) Docu ment Loca tor Numbe r

(DLN);

(viii) Cycle Posted;

(ix) Final return indicator; and

(x) Part year return indicator.

(c) Procedures and restrictions. (1)

Disclosure of return information by offi-

cers or employees of the IRS as provided

by paragraph (b) of this section shall be

made only upon written request desig-

nating, by name and title, the officers

and employees of the Department of

Agriculture to whom such disclosure is

authorized, to the Commissioner of In-

ternal Revenue by the Secretary of the

Department of Agriculture and describ-

ing

(i) The particular return information to

be disclosed;

(ii) The taxable period or date to which

such return information relates; and

(iii) The particular purpose for which

the return information is to be

used.

(2) No such officer or employee to

whom return information is disclosed

pursuant to the provisions of paragraph

(b) of this section shall disclose such re-

turn information to any person, other

than the taxpayer to whom such return

information relates or other officers or

employees of the Department of Agri-culture whose duties or responsibilities

require such disclosure for a purpose de-

scribed in paragraph (b) of this section,

except in a form that cannot be associ-

ated with, or otherwise identify, directly

or indirectly, a particular taxpayer. If

the IRS determines that the Department

of Agriculture, or any officer or em-

ployee thereof, has failed to, or does not,

satisfy the requirements of section

6103(p)(4) of the Internal Revenue Code

or regulations or published procedures

thereunder, the IRS may take such ac-tions as are deemed necessary to ensure

that such requirements are or shall be

satisfied, including suspension of dis-

closures of return information otherwise

authorized by section 6103(j)(5) and

paragraph (b) of this section, until the

IRS determines that such requirements

have been or will be satisfied.

(d) Effective date. This section is ap-

plicable on July 31, 2001.

301.6103(j)(5)1T [Removed]

Par. 3. Section 301.6103(j)(5)1T is

removed.

Robert E. Wenzel,

Deputy Commissioner

of Internal Revenue.

Approved July 20, 2001.

Mark Weinberger,

Assistant Secretary

of the Treasury (Tax Policy).

August 20 , 2001 184 200134 I.R.B.


14/26

(Filed by the Office of the Federal Register on July30, 2001, 8:45 a.m., and published in the issue of theFederal Register for July 31, 2001, 66 F.R. 39437)

Section 6112.Organizers andSellers of Potentially AbusiveTax Shelters Must Keep Lists ofInvestors

26 CFR 301.61121T: Requirements to maintain list

of investors in potentially abusive tax shelters.

Which transactions have been determined by the

Internal Revenue Service to be tax avoidance trans-

actions for purposes of 6111(d)(1)(A) and are

transactions for which promoters must maintain lists

of investors pursuant to 301.61121T? See Notice

200151, page 190.

Section 6205.Special RulesApplicable to Certain

Employment Taxes26 CFR 31.62051: Adjustments of underpayments.

T.D. 8959


Interest-Free Adjustments WithRespect to Underpayments ofEmployment Taxes

AGENCY: Internal Revenue Service

(IRS), Treasury.

ACTION: Final regulations.

SUMMARY: This document contains

final regulations relating to interest-free

adjustments with respect to underpay-

ments of employment taxes. These final

regulations reflect changes to the law

made by the Taxpayer Relief Act of 1997.

The final regulations affect employers

that are the subject of IRS examinations

involving determinations by the IRS thatworkers are employees for purposes of

subtitle C or that the employers are not

entitled to relief from employment taxes

under section 530 of the Revenue Act of

1978.

DATES: Effective Date: These regula-

tions are effective August 1, 2001.

Applicability Date: These regulations

are applicable with respect to notices of

determination issued on or after March

19, 2001. Interest will be computed under

the rule in this regulation on any claims

for refund of interest pending on January

17, 2001. No inference is intended that

the rule set forth in these final regulations

is not current law.


TACT: Lynne Camillo (202) 622-6040

(not a toll-free number).


Background

This document contains an amendment

to the Employment Tax Regulations (26

CFR part 31) under section 6205. On

January 17, 2001, the IRS published in

the Federal Register (66 FR 3956) a no-

tice of proposed rulemaking (REG

11037400, 200112 I.R.B. 915) under

section 6205 of the Internal Revenue

Code relating to interest-free adjustmentsof employment tax underpayments. The

notice proposed to amend 31.62051 of

the employment tax regulations.

No written comments responding to the

notice of proposed rulemaking were re-

ceived. No public hearing was requested

or held. Accordingly, the proposed regu-

lations are adopted as final regulations.

Section 6205 allows employers that

have paid less than the correct amount of

employment taxes to make adjustments

without interest, provided the error is re-

ported and the taxes are paid by the last

day for filing the return for the quarter in

which the error was ascertained. How-

ever, no interest-free adjustments are per-

mitted pursuant to section 6205 after re-

ceipt of notice and demand for payment

thereof based upon an assessment.

31.62051(a)(6).

The Taxpayer Relief Act of 1997, Pub-

lic Law 10534 (111 Stat. 788), effective

August 5, 1997, created new section 7436

of the Internal Revenue Code (Code),

which provides the Tax Court with juris-diction to review determinations by the

IRS that workers are employees for pur-

poses of subtitle C, or that the employer is

not entitled to relief from employment

taxes under section 530. Section 7436 re-

sulted in a change in the way employment

tax examinations involving worker classi-

fication and section 530 issues are con-

ducted insofar as notice and demand for

payment of an employment tax underpay-

ment based upon an assessment cannot be

made until after the taxpayer under exam

ination receives notice of the IRSs dete

mination and has been given an opport

nity to file a petition in the Tax Cou

contesting such determination.

Explanation of Provisions

This document contains an amendme

to the regulations under section 620The amendment clarifies the period f

adjustments of employment tax underpa

ments without interest under section 620

following the expansion of Tax Court r

view to certain employment tax determ

nations.

As a general rule, under section 660

all taxpayers who fail to pay the fu

amount of a tax due under the Code mu

pay interest at the applicable rate on th

unpaid amount from the last date pr

scribed for payment of the tax until th

date the tax is paid. However, sectio6205 allows employers that have paid le

than the correct amount of certain em

ployment taxes1 with respect to any pa

ment of wages or compensation to mak

adjustments to returns without intere

pursuant to the regulations. The emplo

ment tax regulations under section 620

generally allow employers to make a

justments to returns without interest un

the last day for filing the return for th

quarter in which the error was asce

tained. An error is ascertained when th

employer has sufficient knowledge of therror to be able to correct i

31.62051(a)(4). Section 31.6205

1(a)(6) provides that no interest-free a

justments can be made after receipt of

statement of notice and d