Rulings Illustrate Transactions That Qualify as D Reorganizations

On Tuesday, the IRS issued two corporate reorganization rulings, one of which involved a domestic corporation and a number of foreign subsidiaries and the second of which involved a reorganization of domestic entities with a limited liability company (LLC) that elected to be a disregarded entity after the reorganization.

Rev. Rul. 2015-9 involved the following transaction: (1) A domestic corporation transfers all of the stock of its foreign operating subsidiary to its foreign holding company subsidiary in exchange for additional stock; (2) the foreign operating subsidiary and the foreign holding company’s three foreign subsidiaries transfer substantially all of their assets to the foreign holding company’s newly formed foreign subsidiary in exchange for the new subsidiary’s stock; and (3) the subsidiaries that transferred their assets are liquidated.

The ruling concerned whether the transactions were properly treated as a transfer of the foreign operating subsidiary’s stock in an exchange governed by Sec. 351 followed by reorganizations under Sec. 368(a)(1)(D) (D reorganizations). In the ruling, the domestic corporation also entered into a gain recognition agreement under Regs. Sec. 1.367(a)-8 so that it would not have to recognize gain on the transfers. The IRS ruled that the transaction qualified as a transfer of stock in an exchange governed by Sec. 351 followed by a D reorganization.

In addition, the ruling revoked Rev. Rul. 78-130, which held that the same transaction qualified as a triangular reorganization under Sec. 368(a)(1)(C), but, under a transition rule, taxpayers will be permitted to rely on Rev. Rul. 78-130 for transactions entered into before May 5, 2015 (the date the ruling was issued), and transactions that were the subject of written agreements that are binding as of that date and at all times thereafter until the date the transaction is completed, provided that none of the purported acquiring corporation, issuing corporation, and transferor corporation (and each of their shareholders) treated the transaction inconsistently for federal income tax purposes.

The second ruling, Rev. Rul. 2015-10, involves a “triple drop and check” transaction in which (1) a parent corporation transfers all of its interests in an LLC that is taxable as a corporation to its subsidiary (first subsidiary) in exchange for additional stock, (2) the first subsidiary transfers all of the interests in the LLC to its subsidiary (second subsidiary) in exchange for additional stock, (3) the second subsidiary transfers all of the interests in the LLC to its subsidiary (third subsidiary) in exchange for additional stock, and (4) the LLC elects to be disregarded as an entity separate from its owner for federal income tax purposes effective after it is owned by the third subsidiary. The IRS ruled that this sequence of transactions qualified as two transfers of stock in exchanges under Sec. 351, followed by a Sec. 368(a)(1)(D) reorganization.