Basis Allocation to Nonshareholders in All-Cash D Reorganizations Prohibited

By Sally P. Schreiber, J.D.

Regulations

The IRS finalized temporary regulations regarding the determination of the basis of stock or securities in all-cash D reorganizations where no stock or securities of the issuing corporation are issued and distributed in the transaction (T.D. 9702). The regulations clarify that in these transactions, only a shareholder that owns actual shares of the issuing corporation will be able to designate the issuing corporation's share of stock to which the basis (if any) of the stock or securities surrendered will attach.

Under Sec. 368(a)(1)(D), a D reorganization generally occurs when one corporation transfers all or a part of its assets to another corporation if, immediately after the transfer, the target corporation or one or more of its shareholders, or any combination of those, is in control of the acquiring corporation.

The IRS issued the temporary regulations in 2011 after it became aware of what it considered to be an invalid interpretation of earlier regulations on all-cash D reorganizations involving transactions where the consideration received in a reorganization consists solely of cash and a nominal share. Some practitioners had claimed that those rules permitted basis to be allocated to parties that did not own actual shares of stock in the issuing corporation. In the preamble to T.D. 9702, the IRS said it received no comments on the 2011 regulations and that the regulations were being adopted without substantive changes. However, the final regulations contain a number of clarifying changes.

The final regulations apply to transactions occurring on or after Nov. 12, 2014.

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