The IRS issued final regulations on the rules that apply when an election under Sec. 336(e) is made to treat the sale, exchange, or distribution of at least 80% of the voting power and value of a target corporation's stock as a sale of all its underlying assets, i.e., a qualified stock disposition (T.D. 9619). In response to comments, the IRS made a number of significant changes to the regulations that were proposed in 2008 (REG-143544-04).
Sec. 336(e) was enacted by the Tax Reform Act of 1986, P.L. 99-514, as part of the repeal of the General Utilities doctrine. The General Utilities doctrine grew out of General Utilities 6. Operating Co. v. Helvering, 296 U.S. 200 (1935), a Supreme Court case permitting tax-free liquidations to allow taxpayers to avoid potential multiple taxation of the same economic gain. The Sec. 336(e) election is intended to operate similarly to an election under Sec. 338(h)(10), except it does not require an acquirer of target stock to be a corporation or even necessarily a purchaser.
Also, unlike Sec. 338(h)(10), which generally requires that a single purchasing corporation acquire the stock of a target, Sec. 336(e) permits the aggregation of all stock of a target that is sold, exchanged, and distributed by a seller to different acquirers for purposes of determining whether there has been a qualified stock disposition of a target.
The final regulations, in perhaps the most major departure from the proposed rules, permit the Sec. 336(e) election to be made for S corporation targets, just as a Sec. 338(h)(10) election can be made for S corporation targets.
The other primary changes between the proposed regulations and the final rules are:
* The proposed regulations contained a rule that would disallow the recognition of losses resulting from the deemed asset disposition to the extent the qualified stock disposition consisted of one or more distributions of target stock (disallowed loss rule). In response to comments, the final rules have been modified to permit the target's realized losses in the deemed asset disposition to offset the amount of the target's realized gains.
* Under the proposed regulations, the first type of transaction for which a Sec. 336(e) election may be made is a qualified stock disposition that does not...