---
kind: "range"
citation: "26 C.F.R. §§ 1.355-1–1.355-8"
title: "26"
from: "1.355-1"
to: "1.355-8"
count: 8
url: "https://uscodex.org/cfr/26/1.355-1..1.355-8"
---

# §1.355-1. Distribution of stock and securities of a controlled corporation.

- (a) **Effective/applicability date of certain sections.** Except as otherwise provided, this section and [§§ 1.355-2 through 1.355-4](/cfr/26/1.355-2..1.355-4.md) apply to transactions occurring after February 6, 1989. For transactions occurring on or before that date, see [26 CFR 1.355-1 through 1.355-4](/cfr/26/1.355-1..1.355-4.md) (revised as of April 1, 1987). This section and [§§ 1.355-2 through 1.355-4](/cfr/26/1.355-2..1.355-4.md), other than § [1.355-2(g)](/cfr/26/1.355-2.md?p=g) and [(i)](/cfr/26/1.355-2.md?p=i), do not reflect the amendments to [section 355](/cfr/26/355.md) made by the Revenue Act of 1987, the Technical and Miscellaneous Revenue Act of 1988, and the Tax Technical Corrections Act of 2007. For the applicability date of §§ [1.355-2(g)](/cfr/26/1.355-2.md?p=g), [1.355-5](/cfr/26/1.355-5.md), [1.355-6](/cfr/26/1.355-6.md), and [1.355-7](/cfr/26/1.355-7.md), see §§ [1.355-2(i)](/cfr/26/1.355-2.md?p=i), [1.355-5(e)](/cfr/26/1.355-5.md?p=e), [1.355-6(g)](/cfr/26/1.355-6.md?p=g), and [1.355-7(k)](/cfr/26/1.355-7.md?p=k), respectively.
- (b) **Application of section.** [Section 355](/cfr/26/355.md) provides for the separation, without recognition of gain or loss to (or the inclusion in income of) the shareholders and security holders, of one or more existing businesses formerly operated, directly or indirectly, by a single corporation (the “distributing corporation”). It applies only to the separation of existing businesses that have been in active operation for at least five years (or a business that has been in active operation for at least five years into separate businesses), and which, in general, have been owned, directly or indirectly, for at least five years by the distributing corporation. A separation is achieved through the distribution by the distributing corporation of stock, or stock and securities, of one or more subsidiaries (the “controlled corporations”) to its shareholders with respect to its stock or to its security holders in exchange for its securities. The controlled corporations may be preexisting or newly created subsidiaries. Throughout the regulations under [section 355](/cfr/26/355.md), the term distribution refers to a distribution by the distributing corporation of stock, or stock and securities, of one or more controlled corporations, unless the context indicates otherwise. [Section 355](/cfr/26/355.md) contemplates the continued operation of the business or businesses existing prior to the separation. See [§ 1.355-4](/cfr/26/1.355-4.md) for types of distributions that may qualify under [section 355](/cfr/26/355.md), including pro rata distributions and non pro rata distributions.
- (c) **Stock rights.** Except as provided in [§ 1.356-6](/cfr/26/1.356-6.md), for purposes of [section 355](/cfr/26/355.md), the term securities includes rights issued by the distributing corporation or the controlled corporation to acquire the stock of that corporation. For purposes of this section and [section 356(d)(2)(B)](/cfr/26/356.md?p=d-2-B), a right to acquire stock has no principal amount. For this purpose, rights to acquire stock has the same meaning as it does under sections [305](/cfr/26/305.md) and [317(a)](/cfr/26/317.md?p=a). Other Internal Revenue Code provisions governing the treatment of rights to acquire stock may also apply to certain distributions occurring in connection with a transaction described in [section 355](/cfr/26/355.md). See, for example, sections [83](/cfr/26/83.md) and [421 through 424](/cfr/26/421..424.md) and the regulations thereunder. This [paragraph (c)](#c) applies to distributions occurring on or after March 9, 1998.
- (d) **Nonqualified preferred stock.** See § [1.356-7(a)](/cfr/26/1.356-7.md?p=a) and [(b)](/cfr/26/1.356-7.md?p=b) for the treatment of nonqualified preferred stock (as defined in [section 351(g)(2)](/cfr/26/351.md?p=g-2)) received in certain exchanges for (or in certain distributions with respect to) nonqualified preferred stock or preferred stock. See [§ 1.356-7(c)](/cfr/26/1.356-7.md?p=c) for the treatment of the receipt of preferred stock in certain exchanges for (or in certain distributions with respect to) common or preferred stock described in [section 351(g)(2)(C)(i)(II)](/cfr/26/351.md?p=g-2-C-i-II).

# §1.355-2. Limitations.

- (a) **Property distributed.** [Section 355](/cfr/26/355.md) applies to a distribution only if the property distributed consists solely of stock, or stock and securities, of a controlled corporation. If additional property (including an excess principal amount of securities received over securities surrendered) is received, see [section 356](/cfr/26/356.md).
- (b) **Independent business purpose—**
  - (1) **Independent business purpose requirement.** [Section 355](/cfr/26/355.md) applies to a transaction only if it is carried out for one or more corporate business purposes. A transaction is carried out for a corporate business purpose if it is motivated, in whole or substantial part, by one or more corporate business purposes. The potential for the avoidance of Federal taxes by the distributing or controlled corporations (or a corporation controlled by either) is relevant in determining the extent to which an existing corporate business purpose motivated the distribution. The principal reason for this business purpose requirement is to provide nonrecognition treatment only to distributions that are incident to readjustments of corporate structures required by business exigencies and that effect only readjustments of continuing interests in property under modified corporate forms. This business purpose requirement is independent of the other requirements under [section 355](/cfr/26/355.md).
  - (2) **Corporate business purpose.** A corporate business purpose is a real and substantial non Federal tax purpose germane to the business of the distributing corporation, the controlled corporation, or the affiliated group (as defined in [§ 1.355-3(b)(4)(iv)](/cfr/26/1.355-3.md?p=b-4-iv)) to which the distributing corporation belongs. A purpose of reducing non Federal taxes is not a corporate business purpose if (i) the transaction will effect a reduction in both Federal and non Federal taxes because of similarities between Federal tax law and the tax law of the other jurisdiction and (ii) the reduction of Federal taxes is greater than or substantially coextensive with the reduction of non Federal taxes. See Examples (7) and (8) of [paragraph (b)(5)](#b-5) of this section. A shareholder purpose (for example, the personal planning purposes of a shareholder) is not a corporate business purpose. Depending upon the facts of a particular case, however, a shareholder purpose for a transaction may be so nearly coextensive with a corporate business purpose as to preclude any distinction between them. In such a case, the transaction is carried out for one or more corporate business purposes. See Example (2) of [paragraph (b)(5)](#b-5) of this section.
  - (3) **Business purpose for distribution.** The distribution must be carried out for one or more corporate business purposes. See Example (3) of [paragraph (b)(5)](#b-5) of this section. If a corporate business purpose can be achieved through a nontaxable transaction that does not involve the distribution of stock of a controlled corporation and which is neither impractical nor unduly expensive, then, for purposes of [paragraph (b)(1)](#b-1) of this section, the separation is not carried out for that corporate business purpose. See Examples (3) and (4) of [paragraph (b)(5)](#b-5) of this section. For rules with respect to the requirement of a business purpose for a transfer of assets to a controlled corporation in connection with a reorganization described in [section 368(a)(1)(D)](/cfr/26/368.md?p=a-1-D), See [§ 1.368-1(b)](/cfr/26/1.368-1.md?p=b).
  - (4) **Business purpose as evidence of nondevice.** The corporate business purpose or purposes for a transaction are evidence that the transaction was not used principally as a device for the distribution of earnings and profits within the meaning of [section 355(a)(1)(B)](/cfr/26/355.md?p=a-1-B). See [paragraph (d)(3)(ii)](#d-3-ii) of this section.
  - (5) **Examples.** The provisions of this [paragraph (b)](#b) may be illustrated by the following examples:
- (c) **Continuity of interest requirement—**
  - (1) **Requirement.** [Section 355](/cfr/26/355.md) applies to a separation that effects only a readjustment of continuing interests in the property of the distributing and controlled corporations. In this regard [section 355](/cfr/26/355.md) requires that one or more persons who, directly or indirectly, were the owners of the enterprise prior to the distribution or exchange own, in the aggregate, an amount of stock establishing a continuity of interest in each of the modified corporate forms in which the enterprise is conducted after the separation. This continuity of interest requirement is independent of the other requirements under [section 355](/cfr/26/355.md).
  - (2) **Examples.**
- (d) **Device for distribution of earnings and profits—**
  - (1) **In general.** [Section 355](/cfr/26/355.md) does not apply to a transaction used principally as a device for the distribution of the earnings and profits of the distributing corporation, the controlled corporation, or both (a “device”). [Section 355](/cfr/26/355.md) recognizes that a tax-free distribution of the stock of a controlled corporation presents a potential for tax avoidance by facilitating the avoidance of the dividend provisions of the Code through the subsequent sale or exchange of stock of one corporation and the retention of the stock of another corporation. A device can include a transaction that effects a recovery of basis. In this [paragraph (d)](#d), “exchange” includes transactions, such as redemptions, treated as exchanges under the Code. Generally, the determination of whether a transaction was used principally as a device will be made from all of the facts and circumstances, including, but not limited to, the presence of the device factors specified in [paragraph (d)(2)](#d-2) of this section (“evidence of device”), and the presence of the nondevice factors specified in [paragraph (d)(3)](#d-3) of this section (“evidence of nondevice”). However, if a transaction is specified in [paragraph (d)(5)](#d-5) of this section, then it is ordinarily considered not to have been used principally as a device.
  - (2) **Device factors—**
    - (i) **In general.** The presence of any of the device factors specified in this [subparagraph (2)](#d-2) is evidence of device. The strength of this evidence depends on the facts and circumstances.
    - (ii) **Pro rata distribution.** A distribution that is pro rata or substantially pro rata among the shareholders of the distributing corporation presents the greatest potential for the avoidance of the dividend provisions of the Code and, in contrast to other types of distributions, is more likely to be used principally as a device. Accordingly, the fact that a distribution is pro rata or substantially pro rata is evidence of device.
    - (iii) **Subsequent sale or exchange of stock—**
      - (A) **In general.** A sale or exchange of stock of the distributing or the controlled corporation after the distribution (a “subsequent sale or exchange”) is evidence of device. Generally, the greater the percentage of the stock sold or exchanged after the distribution, the stronger the evidence of device. In addition, the shorter the period of time between the distribution and the sale or exchange, the stronger the evidence of device.
      - (B) **Sale or exchange negotiated or agreed upon before the distribution.** A subsequent sale or exchange pursuant to an arrangement negotiated or agreed upon before the distribution is substantial evidence of device.
      - (C) **Sale or exchange not negotiated or agreed upon before the distribution.** A subsequent sale or exchange not pursuant to an arrangement negotiated or agreed upon before the distribution is evidence of device.
      - (D) **Negotiated or agreed upon before the distribution.** For purposes of this [subparagraph (2)](#d-2), a sale or exchange is always pursuant to an arrangement negotiated or agreed upon before the distribution if enforceable rights to buy or sell existed before the distribution. If a sale or exchange was discussed by the buyer and the seller before the distribution and was reasonably to be anticipated by both parties, then the sale or exchange will ordinarily be considered to be pursuant to an arrangement negotiated or agreed upon before the distribution.
      - (E) **Exchange in pursuance of a plan of reorganization.** For purposes of this [subparagraph (2)](#d-2), if stock is exchanged for stock in pursuance of a plan of reorganization, and either no gain or loss or only an insubstantial amount of gain is recognized on the exchange, then the exchange is not treated as a subsequent sale or exchange, but the stock received in the exchange is treated as the stock surrendered in the exchange. For this purpose, gain treated as a dividend pursuant to sections [356(a)(2)](/cfr/26/356.md?p=a-2) and [316](/cfr/26/316.md) shall be disregarded.
    - (iv) **Nature and use of assets—**
      - (A) **In general.** The determination of whether a transaction was used principally as a device will take into account the nature, kind, amount, and use of the assets of the distributing and the controlled corporations (and corporations controlled by them) immediately after the transaction.
      - (B) **Assets not used in a trade or business meeting the requirement of section 355(b).** The existence of assets that are not used in a trade or business that satisfies the requirements of [section 355(b)](/cfr/26/355.md?p=b) is evidence of device. For this purpose, assets that are not used in a trade or business that satisfies the requirements of [section 355(b)](/cfr/26/355.md?p=b) include, but are not limited to, cash and other liquid assets that are not related to the reasonable needs of a business satisfying such section. The strength of the evidence of device depends on all the facts and circumstances, including, but not limited to, the ratio for each corporation of the value of assets not used in a trade or business that satisfies the requirements of [section 355(b)](/cfr/26/355.md?p=b) to the value of its business that satisfies such requirements. A difference in the ratio described in the preceding sentence for the distributing and controlled corporation is ordinarily not evidence of device if the distribution is not pro rata among the shareholders of the distributing corporation and such difference is attributable to a need to equalize the value of the stock distributed and the value of the stock or securities exchanged by the distributees.
      - (C) **Related function.** There is evidence of device if a business of either the distributing or controlled corporation (or a corporation controlled by it) is (1) a “secondary business” that continues as a secondary business for a significant period after the separation, and (2) can be sold without adversely affecting the business of the other corporation (or a corporation controlled by it). A secondary business is a business of either the distributing or controlled corporation, if its principal function is to serve the business of the other corporation (or a corporation controlled by it). A secondary business can include a business transferred to a newly-created subsidiary or a business which serves a business transferred to a newly-created subsidiary. The activities of the secondary business may consist of providing property or performing services. Thus, in Example (11) of [§ 1.355-3(c)](/cfr/26/1.355-3.md?p=c), evidence of device would be presented if the principal function of the coal mine (satisfying the requirements of the steel business) continued after the separation and the coal mine could be sold without adversely affecting the steel business. Similarly, in Example (10) of [§ 1.355-3(c)](/cfr/26/1.355-3.md?p=c), evidence of device would be presented if the principal function of the sales operation after the separation is to sell the output from the manufacturing operation and the sales operation could be sold without adversely affecting the manufacturing operation.
  - (3) **Nondevice factors—**
    - (i) **In general.** The presence of any of the nondevice factors specified in this [subparagraph (3)](#d-3) is evidence of nondevice. The strength of this evidence depends on all of the facts and circumstances.
    - (ii) **Corporate business purpose.** The corporate business purpose for the transaction is evidence of nondevice. The stronger the evidence of device (such as the presence of the device factors specified in [paragraph (d)(2)](#d-2) of this section), the stronger the corporate business purpose required to prevent the determination that the transaction was used principally as a device. Evidence of device presented by the transfer or retention of assets not used in a trade or business that satisfies the requirements of [section 355(b)](/cfr/26/355.md?p=b) can be outweighed by the existence of a corporate business purpose for those transfers or retentions. The assessment of the strength of a corporate business purpose will be based on all of the facts and circumstances, including, but not limited to, the following factors:
      - (A) The importance of achieving the purpose to the success of the business;
      - (B) The extent to which the transaction is prompted by a person not having a proprietary interest in either corporation, or by other outside factors beyond the control of the distributing corporation; and
      - (C) **The immediacy of the conditions prompting the transaction.**
    - (iii) **Distributing corporation publicly traded and widely held.** The fact that the distributing corporation is publicly traded and has no shareholder who is directly or indirectly the beneficial owner of more than five percent of any class of stock is evidence of nondevice.
    - (iv) **Distribution to domestic corporate shareholders.** The fact that the stock of the controlled corporation is distributed to one or more domestic corporations that, if [section 355](/cfr/26/355.md) did not apply, would be entitled to a deduction under [section 243(a)(1)](/cfr/26/243.md?p=a-1) available to corporations meeting the stock ownership requirements of [section 243(c)](/cfr/26/243.md?p=c), or a deduction under section [243(a)(2)](/cfr/26/243.md?p=a-2) or [(3)](/cfr/26/243.md?p=a-3) or [245(b)](/cfr/26/245.md?p=b) is evidence of nondevice.
  - (4) **Examples.** The provisions of [paragraph (d)(1) through (3)](#d-1..d-3) of this section may be illustrated by the following examples:
  - (5) **Transactions ordinarily not considered as a device—**
    - (i) **In general.** This [subparagraph (5)](#d-5) specifies three distributions that ordinarily do not present the potential for tax avoidance described in [paragraph (d)(1)](#d-1) of this section. Accordingly, such distributions are ordinarily considered not to have been used principally as a device, notwithstanding the presence of any of the device factors described in [paragraph (d)(2)](#d-2) of this section. A transaction described in paragraph [(d)(5)(iii)](#d-5-iii) or [(iv)](#d-5-iv) of this section is not protected by this [subparagraph (5)](#d-5) from a determination that it was used principally as a device if it involves the distribution of the stock of more than one controlled corporation and facilitates the avoidance of the dividend provisions of the Code through the subsequent sale or exchange of stock of one corporation and the retention of the stock of another corporation.
    - (ii) **Absence of earnings and profits.** A distribution is ordinarily considered not to have been used principally as a device if—
      - (A) The distributing and controlled corporations have no accumulated earnings and profits at the beginning of their respective taxable years,
      - (B) The distributing and controlled corporations have no current earnings and profits as of the date of the distribution, and
      - (C) No distribution of property by the distributing corporation immediately before the separation would require recognition of gain resulting in current earnings and profits for the taxable year of the distribution.
    - (iii) **Section 303(a) transactions.** A distribution is ordinarily considered not to have been used principally as a device if, in the absence of [section 355](/cfr/26/355.md), with respect to each shareholder distributee, the distribution would be a redemption to which [section 303(a)](/cfr/26/303.md?p=a) applied.
    - (iv) **Section 302(a) transactions.** A distribution is ordinarily considered not to have been used principally as a device if, in the absence of [section 355](/cfr/26/355.md), with respect to each shareholder distributee, the distribution would be a redemption to which [section 302(a)](/cfr/26/302.md?p=a) applied. For purposes of the preceding sentence, section [302(c)(2)(A)(ii)](/cfr/26/302.md?p=c-2-A-ii) and [(iii)](/cfr/26/302.md?p=c-2-A-iii) shall not apply.
    - (v) **Examples.** The provisions of this [subparagraph (5)](#d-5) may be illustrated by the following examples:
- (e) **Stock and securities distributed—**
  - (1) **In general.** [Section 355](/cfr/26/355.md) applies to a distribution only if the distributing corporation distributes—
    - (i) All of the stock and securities of the controlled corporation that it owns, or
    - (ii) At least an amount of the stock of the controlled corporation that constitutes control as defined in [section 368(c)](/cfr/26/368.md?p=c). In such a case, all, or any part, of the securities of the controlled corporation may be distributed, and [paragraph (e)(2)](#e-2) of this section shall apply.
  - (2) **Additional rules.** Where a part of either the stock or the securities of the controlled corporation is retained under [paragraph (e)(1)(ii)](#e-1-ii) of this section, it must be established to the satisfaction of the Commissioner that the retention by the distributing corporation was not in pursuance of a plan having as one of its principal purposes the avoidance of Federal income tax. Ordinarily, the corporate business purpose or purposes for the distribution will require the distribution of all of the stock and securities of the controlled corporation. If the distribution of all of the stock and securities of a controlled corporation would be treated to any extent as a distribution of “other property” under [section 356](/cfr/26/356.md), this fact tends to establish that the retention of stock or securities is in pursuance of a plan having as one of its principal purposes the avoidance of Federal income tax.
- (f) **Principal amount of securities—**
  - (1) **Securities received.** [Section 355](/cfr/26/355.md) does not apply to a distribution if, with respect to any shareholder or security holder, the principal amount of securities received exceeds the principal amount of securities surrendered, or securities are received but no securities are surrendered. In such cases, see [section 356](/cfr/26/356.md).
  - (2) **Only stock received.** If only stock is received in a distribution to which [section 355(a)(1)(A)](/cfr/26/355.md?p=a-1-A) applies, the principal amount of the securities surrendered, if any, and the par value or stated value of the stock surrendered, if any, are not relevant to the application of that section.
- (g) **Recently acquired controlled stock under section 355(a)(3)(B)—**
  - (1) **Other property.** Except as provided in [paragraph (g)(2)](#g-2) of this section, for purposes of [section 355(a)(1)(A)](/cfr/26/355.md?p=a-1-A), [section 355(c)](/cfr/26/355.md?p=c), and so much of [section 356](/cfr/26/356.md) as relates to [section 355](/cfr/26/355.md), stock of a controlled corporation acquired by the DSAG in a taxable transaction (as defined in [paragraph (g)(4)](#g-4) of this section) within the five-year period ending on the date of the distribution (pre-distribution period) shall not be treated as stock of the controlled corporation but shall be treated as “other property.” Transfers of controlled corporation stock that is owned by the DSAG immediately before and immediately after the transfer are disregarded and are not acquisitions for purposes of this [paragraph (g)(1)](#g-1).
  - (2) **Exceptions.** [Paragraph (g)(1)](#g-1) of this section does not apply to an acquisition of stock of the controlled corporation—
    - (i) If the controlled corporation is a DSAG member at any time after the acquisition (but prior to the distribution); or
    - (ii) Described in [§ 1.355-3(b)(4)(iii)](/cfr/26/1.355-3.md?p=b-4-iii).
  - (3) **DSAG.** For purposes of this [paragraph (g)](#g), a DSAG is the distributing corporation's separate affiliated group (the affiliated group which would be determined under [section 1504(a)](/cfr/26/1504.md?p=a) if such corporation were the common parent and [section 1504(b)](/cfr/26/1504.md?p=b) did not apply) that consists of the distributing corporation as the common parent and all corporations affiliated with the distributing corporation through stock ownership described in [section 1504(a)(1)(B)](/cfr/26/1504.md?p=a-1-B) (regardless of whether the corporations are includible corporations under [section 1504(b)](/cfr/26/1504.md?p=b)). For purposes of [paragraph (g)(1)](#g-1) of this section, any reference to the DSAG is a reference to the distributing corporation if it is not the common parent of a separate affiliated group.
  - (4) **Taxable transaction—**
    - (i) **Generally.** For purposes of this [paragraph (g)](#g), a taxable transaction is a transaction in which gain or loss was recognized in whole or in part.
    - (ii) **Dunn Trust and predecessor issues.** [Reserved]
  - (5) **Examples.** The following examples illustrate this [paragraph (g)](#g). Assume that C, D, P, and S are corporations, X is an unrelated individual, each of the transactions is unrelated to any other transaction and, but for the issue of whether C stock is treated as “other property” under [section 355(a)(3)(B)](/cfr/26/355.md?p=a-3-B), the distributions satisfy all of the requirements of [section 355](/cfr/26/355.md). No inference should be drawn from any of these examples as to whether any requirements of [section 355](/cfr/26/355.md) other than [section 355(a)(3)(B)](/cfr/26/355.md?p=a-3-B), as specified, are satisfied. Furthermore, the following definitions apply:
    - (i) **Purchase—** is an acquisition that is a taxable transaction.
    - (ii) **Section 368(c) stock—** is stock constituting control within the meaning of [section 368(c)](/cfr/26/368.md?p=c).
    - (iii) **Section 1504(a)(2) stock—** is stock meeting the requirements of [section 1504(a)(2)](/cfr/26/1504.md?p=a-2).
- (h) **Active conduct of a trade or business.** [Section 355](/cfr/26/355.md) applies to a distribution only if the requirements of [§ 1.355-3](/cfr/26/1.355-3.md) (relating to the active conduct of a trade or business) are satisfied.
- (i) **Effective/applicability date.** [Paragraphs (g)(1) through (g)(5)](#g-1..g-5) of this section apply to distributions occurring after October 20, 2011. For rules regarding distributions occurring on or before October 20, 2011, see [§ 1.355-2T(i)](/cfr/26/1.355-2T.md?p=i), as contained in [26 CFR part 1](/cfr/26/part1.md), revised as of April 1, 2011.

# §1.355-3. Active conduct of a trade or business.

- (a) **General requirements—**
  - (1) **Application of section 355.** Under [section 355(b)(1)](/cfr/26/355.md?p=b-1), a distribution of stock, or stock and securities, of a controlled corporation qualifies under [section 355](/cfr/26/355.md) only if—
    - (i) The distributing and the controlled corporations are each engaged in the active conduct of a trade or business immediately after the distribution ([section 355(b)(1)(A)](/cfr/26/355.md?p=b-1-A)), or
    - (ii) Immediately before the distribution, the distributing corporation had no assets other than stock or securities of the controlled corporations, and each of the controlled corporations is engaged in the active conduct of a trade or business immediately after the distribution ([section 355(b)(1)(B)](/cfr/26/355.md?p=b-1-B)). A de minimis amount of assets held by the distributing corporation shall be disregarded for purposes of this [paragraph (a)(1)(ii)](#a-1-ii).
  - (2) **Examples.** [Paragraph (a)(1)](#a-1) of this section may be illustrated by the following examples:
- (b) **Active conduct of a trade or business defined—**
  - (1) **In general.** [Section 355(b)(2)](/cfr/26/355.md?p=b-2) provides rules for determining whether a corporation is treated as engaged in the active conduct of a trade or business for purposes of [section 355(b)(1)](/cfr/26/355.md?p=b-1). Under [section 355(b)(2)(A)](/cfr/26/355.md?p=b-2-A), a corporation is treated as engaged in the active conduct of a trade or business if it is itself engaged in the active conduct of a trade or business or if substantially all of its assets consist of the stock, or stock and securities, of a corporation or corporations controlled by it (immediately after the distribution) each of which is engaged in the active conduct of a trade or business.
  - (2) **Active conduct of a trade or business immediately after distribution—**
    - (i) **In general.** For purposes of [section 355(b)](/cfr/26/355.md?p=b), a corporation shall be treated as engaged in the “active conduct of a trade or business” immediately after the distribution if the assets and activities of the corporation satisfy the requirements and limitations described in paragraph [(b)(2)(ii)](#b-2-ii), [(iii)](#b-2-iii), and [(iv)](#b-2-iv) of this section.
    - (ii) **Trade or business.** A corporation shall be treated as engaged in a trade or business immediately after the distribution if a specific group of activities are being carried on by the corporation for the purpose of earning income or profit, and the activities included in such group include every operation that forms a part of, or a step in, the process of earning income or profit. Such group of activities ordinarily must include the collection of income and the payment of expenses.
    - (iii) **Active conduct.** For purposes of [section 355(b)](/cfr/26/355.md?p=b), the determination whether a trade or business is actively conducted will be made from all of the facts and circumstances. Generally, the corporation is required itself to perform active and substantial management and operational functions. Generally, activities performed by the corporation itself do not include activities performed by persons outside the corporation, including independent contractors. A corporation may satisfy the requirements of this subdivision (iii) through the activities that it performs itself, even though some of its activities are performed by others. Separations of real property all or substantially all of which is occupied prior to the distribution by the distributing or the controlled corporation (or by any corporation controlled directly or indirectly by either of those corporations) will be carefully scrutinized with respect to the requirements of [section 355(b)](/cfr/26/355.md?p=b) and this § 1.355-3.
    - (iv) **Limitations.** The active conduct of a trade or business does not include—
      - (A) The holding for investment purposes of stock, securities, land, or other property, or
      - (B) The ownership and operation (including leasing) of real or personal property used in a trade or business, unless the owner performs significant services with respect to the operation and management of the property.
  - (3) **Active conduct for five-year period preceding distribution.** Under [section 355(b)(2)(B)](/cfr/26/355.md?p=b-2-B), a trade or business that is relied upon to meet the requirements of [section 355(b)](/cfr/26/355.md?p=b) must have been actively conducted throughout the five-year period ending on the date of the distribution. For purposes of this [subparagraph (3)](#b-3)—
    - (i) Activities which constitute a trade or business under the tests described in [paragraph (b)(2)](#b-2) of this section shall be treated as meeting the requirement of the preceding sentence if such activities were actively conducted throughout the 5-year period ending on the date of distribution, and
    - (ii) The fact that a trade or business underwent change during the five-year period preceding the distribution (for example, by the addition of new or the dropping of old products, changes in production capacity, and the like) shall be disregarded, provided that the changes are not of such a character as to constitute the acquisition of a new or different business. In particular, if a corporation engaged in the active conduct of one trade or business during that five-year period purchased, created, or otherwise acquired another trade or business in the same line of business, then the acquisition of that other business is ordinarily treated as an expansion of the original business, all of which is treated as having been actively conducted during that five-year period, unless that purchase, creation, or other acquisition effects a change of such a character as to constitute the acquisition of a new or different business.
  - (4) **Special rules for acquisition of a trade or business (Prior to the Revenue Act of 1987 and Technical and Miscellaneous Revenue Act of 1988)—**
    - (i) **In general.** Under [section 355(b)(2)(C)](/cfr/26/355.md?p=b-2-C), a trade or business relied upon to meet the requirements of [section 355(b)](/cfr/26/355.md?p=b) must not have been acquired by the distributing corporation, the controlled corporation, or another member of the affiliated group during the five-year period ending on the date of the distribution unless it was acquired in a transaction in which no gain or loss was recognized. Similarly, under [section 355(b)(2)(D)](/cfr/26/355.md?p=b-2-D), the trade or business must not have been indirectly acquired by any of those corporations (or a predecessor in interest of any of those corporations) during that five-year period in a transaction in which gain or loss was recognized in whole or in part and which consisted of the acquisition of control of the corporation directly engaged in the trade or business, or the indirect acquisition of control of that corporation through the direct or indirect acquisition of control of one or more other corporations. A trade or business acquired, directly or indirectly, within the five-year period ending on the date of the distribution in a transaction in which the basis of the assets acquired was not determined in whole or in part by reference to the transferor's basis does not qualify under [section 355(b)(2)](/cfr/26/355.md?p=b-2), even though no gain or loss was recognized by the transferor.
    - (ii) **Example.** [Paragraph (b)(4)(i)](#b-4-i) of this section may be illustrated by the following example:
    - (iii) **Gain or loss recognized in certain transactions.** The requirements of section [355(b)(2)(C)](/cfr/26/355.md?p=b-2-C) and [(D)](/cfr/26/355.md?p=b-2-D) are intended to prevent the direct or indirect acquisition of a trade or business by a corporation in anticipation of a distribution by the corporation of that trade of business in a distribution to which [section 355](/cfr/26/355.md) would otherwise apply. A direct or indirect acquisition of a trade or business by one member of an affiliated group from another member of the group is not the type of transaction to which section [355(b)(2)(C)](/cfr/26/355.md?p=b-2-C) and [(D)](/cfr/26/355.md?p=b-2-D) is intended to apply. Therefore, in applying section [355(b)(2)(C)](/cfr/26/355.md?p=b-2-C) or [(D)](/cfr/26/355.md?p=b-2-D), such an acquisition, even though taxable, shall be disregarded.
    - (iv) **Affiliated group.** For purposes of this [subparagraph (4)](#b-4), the term affiliated group means an affiliated group as defined in [section 1504(a)](/cfr/26/1504.md?p=a) (without regard to [section 1504(b)](/cfr/26/1504.md?p=b)), except that the term stock includes nonvoting stock described in [section 1504(a)(4)](/cfr/26/1504.md?p=a-4).
  - (5) **Special rules for acquisition of a trade or business (After the Revenue Act of 1987 and Technical and Miscellaneous Revenue Act of 1988).** [Reserved]
- (c) **Examples.** The following examples illustrate section [355(b)(2)(A)](/cfr/26/355.md?p=b-2-A) and [(B)](/cfr/26/355.md?p=b-2-B) and paragraph [(b)(1)](#b-1), [(2)](#b-2), and [(3)](#b-3) of this section. However, a transaction that satisfies these active business requirements will qualify under [section 355](/cfr/26/355.md) only if it satisfies the other requirements of section [355 (a)](/cfr/26/355.md?p=a) and [(b)](/cfr/26/355.md?p=b).

# §1.355-4. Non pro rata distributions, etc.


[Section 355](/cfr/26/355.md) provides for nonrecognition of gain or loss with respect to a distribution whether or not (a) the distribution is pro rata with respect to all of the shareholders of the distributing corporation, (b) the distribution is pursuant to a plan of reorganization within the meaning of [section 368 (a)](/cfr/26/368.md?p=a) (1)(D), or (c) the shareholder surrenders stock in the distributing corporation. Under [section 355](/cfr/26/355.md), the stock of a controlled corporation may consist of common stock or preferred stock. (See, however, [section 306](/cfr/26/306.md) and the regulations thereunder.) [Section 355](/cfr/26/355.md) does not apply, however, if the substance of a transaction is merely an exchange between shareholders or security holders of stock or securities in one corporation for stock or securities in another corporation. For example, if two individuals, A and B, each own directly 50 percent of the stock of corporation X and 50 percent of the stock of corporation Y, [section 355](/cfr/26/355.md) would not apply to a transaction in which A and B transfer all of their stock of X and Y to a new corporation Z, for all of the stock of Z, and Z then distributes the stock of X to A and the stock of Y to B.


# §1.355-5. Records to be kept and information to be filed.

- (a) **Distributing corporation—**
  - (1) **In general.** Every corporation that makes a distribution (the distributing corporation) of stock or securities of a controlled corporation, as described in [section 355](/cfr/26/355.md) (or so much of [section 356](/cfr/26/356.md) as relates to [section 355](/cfr/26/355.md)), must include a statement entitled, “STATEMENT PURSUANT TO [§ 1.355-5(a)](#a) BY [INSERT NAME AND EMPLOYER IDENTIFICATION NUMBER (IF ANY) OF TAXPAYER], A DISTRIBUTING CORPORATION,” on or with its return for the year of the distribution. If the distributing corporation is a controlled foreign corporation (within the meaning of [section 957](/cfr/26/957.md)), each United States shareholder (within the meaning of [section 951(b)](/cfr/26/951.md?p=b)) with respect thereto must include this statement on or with its return. The statement must include—
    - (i) The name and employer identification number (if any) of the controlled corporation;
    - (ii) The name and taxpayer identification number (if any) of every significant distributee;
    - (iii) The date of the distribution of the stock or securities of the controlled corporation;
    - (iv) The aggregate fair market value and basis, determined immediately before the distribution or exchange, of the stock, securities, or other property (including money) distributed by the distributing corporation in the transaction; and
    - (v) The date and control number of any private letter ruling(s) issued by the Internal Revenue Service in connection with the transaction.
  - (2) **Special rule when an asset transfer precedes a stock distribution.** If the distributing corporation transferred property to the controlled corporation in a transaction described in section [351](/cfr/26/351.md) or [368](/cfr/26/368.md), as part of a plan to then distribute the stock or securities of the controlled corporation in a transaction described in [section 355](/cfr/26/355.md) (or so much of [section 356](/cfr/26/356.md) as relates to [section 355](/cfr/26/355.md)), then, unless [paragraph (a)(1)(v)](#a-1-v) of this section applies, the distributing corporation must also include on or with its return for the year of the distribution the statement required by § [1.351-3(a)](/cfr/26/1.351-3.md?p=a) or [1.368-3(a)](/cfr/26/1.368-3.md?p=a). If the distributing corporation is a controlled foreign corporation (within the meaning of [section 957](/cfr/26/957.md)), each United States shareholder (within the meaning of [section 951(b)](/cfr/26/951.md?p=b)) with respect thereto must include the statement required by § [1.351-3(a)](/cfr/26/1.351-3.md?p=a) or [1.368-3(a)](/cfr/26/1.368-3.md?p=a) on or with its return.
- (b) **Significant distributee.** Every significant distributee must include a statement entitled, “STATEMENT PURSUANT TO [§ 1.355-5(b)](#b) BY [INSERT NAME AND TAXPAYER IDENTIFICATION NUMBER (IF ANY) OF TAXPAYER], A SIGNIFICANT DISTRIBUTEE,” on or with such distributee's return for the year in which such distribution is received. If a significant distributee is a controlled foreign corporation (within the meaning of [section 957](/cfr/26/957.md)), each United States shareholder (within the meaning of [section 951(b)](/cfr/26/951.md?p=b)) with respect thereto must include this statement on or with its return. The statement must include—
  - (1) The names and employer identification numbers (if any) of the distributing and controlled corporations;
  - (2) The date of the distribution of the stock or securities of the controlled corporation; and
  - (3) The aggregate basis, determined immediately before the exchange, of any stock or securities transferred by the significant distributee in the exchange, and the aggregate fair market value, determined immediately before the distribution or exchange, of the stock, securities or other property (including money) received by the significant distributee in the distribution or exchange.
- (c) **Definitions.** For purposes of this section:
  - (1) **Significant distributee—** means—
    - (i) A holder of stock of a distributing corporation that receives, in a transaction described in [section 355](/cfr/26/355.md) (or so much of [section 356](/cfr/26/356.md) as relates to [section 355](/cfr/26/355.md)), stock of a corporation controlled by the distributing corporation if, immediately before the distribution or exchange, such holder—
      - (A) Owned at least five percent (by vote or value) of the total outstanding stock of the distributing corporation if the stock owned by such holder is publicly traded; or
      - (B) Owned at least one percent (by vote or value) of the stock of the distributing corporation if the stock owned by such holder is not publicly traded; or
    - (ii) A holder of securities of a distributing corporation that receives, in a transaction described in [section 355](/cfr/26/355.md) (or so much of [section 356](/cfr/26/356.md) as relates to [section 355](/cfr/26/355.md)), stock or securities of a corporation controlled by the distributing corporation if, immediately before the distribution or exchange, such holder owned securities in such distributing corporation with a basis of $1,000,000 or more.
  - (2) Publicly traded stock means stock that is listed on—
    - (i) A national securities exchange registered under section 6 of the Securities Exchange Act of 1934 ([15 U.S.C. 78f](/usc/15/78f.md)); or
    - (ii) An interdealer quotation system sponsored by a national securities association registered under section 15A of the Securities Exchange Act of 1934 ([15 U.S.C. 78o-3](/usc/15/78o-3.md)).
- (d) **Substantiation information.** Under [§ 1.6001-1(e)](/cfr/26/1.6001-1.md?p=e), taxpayers are required to retain their permanent records and make such records available to any authorized Internal Revenue Service officers and employees. In connection with the distribution or exchange described in this section, these records should specifically include information regarding the amount, basis, and fair market value of all property distributed or exchanged, and relevant facts regarding any liabilities assumed or extinguished as part of such distribution or exchange.
- (e) **Effective/applicability date.** This section applies to any taxable year beginning on or after May 30, 2006. However, taxpayers may apply this section to any original Federal income tax return (including any amended return filed on or before the due date (including extensions) of such original return) timely filed on or after May 30, 2006. For taxable years beginning before May 30, 2006, see § 1.355-5 as contained in [26 CFR part 1](/cfr/26/part1.md) in effect on April 1, 2006.

# §1.355-6. Recognition of gain on certain distributions of stock or securities in controlled corporation.

- (a) **Conventions—**
  - (1) **Examples.** For purposes of the examples in this section, unless otherwise stated, assume that P, S, T, X, Y, N, HC, D, D1, D2, D3, and C are corporations, A and B are individuals, shareholders are not treated as one person under [section 355(d)(7)](/cfr/26/355.md?p=d-7), stock has been owned for more than five years and [section 355(d)(6)](/cfr/26/355.md?p=d-6) and [paragraph (e)(4)](#e-4) of this section do not apply, no election under [section 338](/cfr/26/338.md) (if available) is made, and all transactions described are respected under general tax principles, including the step transaction doctrine. No inference should be drawn from any example as to whether any requirements of [section 355](/cfr/26/355.md) other than those of [section 355(d)](/cfr/26/355.md?p=d), as specified, are satisfied.
  - (2) **Five-year period.** For purposes of this section, the term five-year period means the five-year period (determined after applying [section 355(d)(6)](/cfr/26/355.md?p=d-6) and [paragraph (e)(4)](#e-4) of this section) ending on the date of the distribution, but in no event beginning earlier than October 10, 1990.
  - (3) **Distributing securities.** For purposes of determining if stock of any controlled corporation received in the distribution is disqualified stock described in [section 355(d)(3)(B)(ii)(II)](/cfr/26/355.md?p=d-3-B-ii-II) (relating to a distribution of controlled corporation stock on any securities in the distributing corporation acquired by purchase during the five-year period), references in this section to stock of a corporation that is or becomes a distributing corporation includes securities of the corporation. Similarly, a reference to stock in [paragraph (c)(4)](#c-4) of this section (relating to a plan or arrangement) includes securities.
  - (4) **Marketable securities.** Unless otherwise stated, any reference in this section to marketable stock includes marketable securities.
- (b) **General rules and purposes of section 355(d)—**
  - (1) **Disqualified distributions in general.** In the case of a disqualified distribution, any stock or securities in the controlled corporation shall not be treated as qualified property for purposes of section [355(c)(2)](/cfr/26/355.md?p=c-2) or [361(c)(2)](/cfr/26/361.md?p=c-2). In general, a disqualified distribution is any distribution to which [section 355](/cfr/26/355.md) (or so much of [section 356](/cfr/26/356.md) as relates thereto) applies if, immediately after the distribution—
    - (i) Any person holds disqualified stock in the distributing corporation that constitutes a 50 percent or greater interest in such corporation; or
    - (ii) Any person holds disqualified stock in the controlled corporation (or, if stock of more than one controlled corporation is distributed, in any controlled corporation) that constitutes a 50 percent or greater interest in such corporation.
  - (2) **Disqualified stock—**
    - (i) **In general. Disqualified stock—** is—
      - (A) Any stock in the distributing corporation acquired by purchase during the five-year period; and
      - (B) **Any stock in any controlled corporation—** (1) Acquired by purchase during the five-year period; or

        (2) Received in the distribution to the extent attributable to distributions on any stock in the distributing corporation acquired by purchase during the five-year period.

    - (ii) **Purchase.** For the definition of a purchase for purposes of [section 355(d)](/cfr/26/355.md?p=d) and this section, see [section 355(d)(5)](/cfr/26/355.md?p=d-5) and [paragraph (d)](#d) of this section.
    - (iii) **Exceptions—**
      - (A) **Purchase eliminated.** Stock (or an interest in another entity) that is acquired by purchase (including stock (or another interest) that is treated as acquired by purchase under paragraph [(e)(2)](#e-2), [(3)](#e-3), or [(4)](#e-4) of this section) ceases to be acquired by that purchase if (and when) the basis resulting from the purchase is eliminated. For purposes of this [paragraph (b)(2)(iii)](#b-2-iii), basis resulting from the purchase is basis in the stock (or in an interest in another entity) that is directly purchased during the five-year period or that is treated as acquired by purchase during such period under paragraph [(e)(2)](#e-2), [(3)](#e-3), or [(4)](#e-4) of this section.
      - (B) **Deemed purchase eliminated.** Stock (or an interest in another entity) that is deemed purchased under [section 355(d)(8)](/cfr/26/355.md?p=d-8) or [paragraph (e)(1)](#e-1) of this section shall cease to be treated as purchased if (and when) the basis resulting from the purchase that effects the deemed purchase is eliminated.
      - (C) **Elimination of basis—** (1) General rule. Basis in the stock of a corporation (or in an interest in another entity) is eliminated if (and when) it would no longer be taken into account by any person in determining gain or loss on a sale or exchange of any stock of such corporation (or an interest in the other entity). Basis is not eliminated, however, if it is allocated between stock of two corporations under [§ 1.358-2(a)](/cfr/26/1.358-2.md?p=a).

        (2) Special rule for transferred and exchanged basis property. Basis of stock (or an interest in another entity) resulting from a purchase (the first purchase) is eliminated if (and when) such stock (or other interest) is subsequently transferred to another person in an exchange or other transfer to which paragraph [(e)(2)](#e-2) or [(3)](#e-3) of this section applies (the second purchase). The elimination of basis in stock (or in another interest) resulting from the first purchase, however, does not eliminate the basis resulting from the second purchase in the stock (or other interest) that is treated as acquired by purchase by the acquirer in a transaction to which [paragraph (e)(2)](#e-2) of this section applies or by the person making the exchange in a transaction to which [paragraph (e)(3)](#e-3) of this section applies.

        (3) Special rule for Split-offs and Split-ups. Under [section 355(d)(3)(B)(ii)](/cfr/26/355.md?p=d-3-B-ii) and paragraph (b)(2)(i)(B)(2) of this section, disqualified stock includes controlled corporation stock received in exchange for distributing corporation stock acquired by purchase. Solely for purposes of determining whether controlled corporation stock received in a distribution in exchange for distributing corporation stock is disqualified stock described in that section and paragraph immediately after the distribution, paragraph (b)(2)(iii)(C)(2) of this section does not apply to the exchange to eliminate basis resulting from a purchase of that distributing corporation stock (notwithstanding that [paragraph (e)(3)](#e-3) of this section applies to the exchange).

      - (D) **Special rule if basis allocated between two corporations.** If the shareholder of a distributing corporation, pursuant to [§ 1.358-2](/cfr/26/1.358-2.md), allocates basis resulting from a purchase between the stock of two or more corporations then, following such allocation, the determination of whether such basis has been eliminated shall be made separately with respect to the stock of each such corporation.
  - (3) **Certain distributions not disqualified distributions because purposes of section 355(d) not violated—**
    - (i) **In general.** Notwithstanding the provisions of [section 355(d)(2)](/cfr/26/355.md?p=d-2) and this [paragraph (b)](#b), a distribution is not a disqualified distribution if the distribution does not violate the purposes of [section 355(d)](/cfr/26/355.md?p=d) as provided in this [paragraph (b)(3)](#b-3). A distribution does not violate the purposes of [section 355(d)](/cfr/26/355.md?p=d) if the effect of the distribution is neither—
      - (A) To increase ownership (combined direct and indirect) in the distributing corporation or any controlled corporation by a disqualified person; nor
      - (B) **To provide a disqualified person with a purchased basis in the stock of any controlled corporation.**
    - (ii) **Disqualified person.** A disqualified person is any person (taking into account [section 355(d)(7)](/cfr/26/355.md?p=d-7) and [paragraph (c)(4)](#c-4) of this section) that, immediately after a distribution, holds (directly or indirectly under [section 355(d)(8)](/cfr/26/355.md?p=d-8) and [paragraph (e)(1)](#e-1) of this section) disqualified stock in the distributing corporation or controlled corporation that—
      - (A) **The person—** (1) Acquired by purchase under section [355(d)(5)](/cfr/26/355.md?p=d-5) or [(8)](/cfr/26/355.md?p=d-8) and paragraphs [(d)](#d) and [(e)](#e) of this section during the five-year period, or

        (2) Received in the distribution to the extent attributable to distributions on any stock in the distributing corporation acquired by purchase under section [355(d)(5)](/cfr/26/355.md?p=d-5) or [(8)](/cfr/26/355.md?p=d-8) and paragraphs [(d)](#d) and [(e)](#e) of this section by that person during the five-year period; and

      - (B) Constitutes a 50 percent or greater interest in such corporation (under [section 355(d)(4)](/cfr/26/355.md?p=d-4) and [paragraph (c)](#c) of this section).
    - (iii) **Purchased basis.** In general, a purchased basis is basis in controlled corporation stock that is disqualified stock. However, basis in controlled corporation stock that is disqualified stock will not be treated as purchased basis if the controlled corporation stock and any distributing corporation stock with respect to which the controlled corporation stock is distributed are treated as acquired by purchase solely under the attribution rules of [section 355(d)(8)](/cfr/26/355.md?p=d-8) and [paragraph (e)(1)](#e-1) of this section. The prior sentence will not apply, however, if the distributing corporation stock is treated as acquired by purchase under the attribution rules as a result of the acquisition of an interest in a partnership (the purchased partnership), and following the distribution, the controlled corporation stock is directly held by the purchased partnership (or a chain of partnerships that includes the purchased partnership).
    - (iv) **Increase in interest because of payment of cash in lieu of fractional shares.** Any increase in direct or indirect ownership in the distributing corporation or any controlled corporation by a disqualified person because of a payment of cash in lieu of issuing fractional shares will be disregarded for purposes of [paragraph (b)(3)(i)(A)](#b-3-i-A) of this section if the payment of the cash is solely to avoid the expense and inconvenience of issuing fractional share interests, and does not represent separately bargained for consideration.
    - (v) **Other exceptions.** The Commissioner may provide by guidance published in the Internal Revenue Bulletin that other distributions are not disqualified distributions because they do not violate the purposes of [section 355(d)](/cfr/26/355.md?p=d).
    - (vi) **Examples.** The following examples illustrate this [paragraph (b)(3)](#b-3):
  - (4) **Anti-avoidance rule—**
    - (i) **In general.** Notwithstanding any provision of [section 355(d)](/cfr/26/355.md?p=d) or this section, the Commissioner may treat any distribution as a disqualified distribution under [section 355(d)(2)](/cfr/26/355.md?p=d-2) and [paragraph (b)(1)](#b-1) of this section if the distribution or another transaction or transactions are engaged in or structured with a principal purpose to avoid the purposes of [section 355(d)](/cfr/26/355.md?p=d) or this section with respect to the distribution. Without limiting the preceding sentence, the Commissioner may determine that the existence of a related person, intermediary, pass-through entity, or similar person (an intermediary) should be disregarded, in whole or in part, if the intermediary is formed or availed of with a principal purpose to avoid the purposes of [section 355(d)](/cfr/26/355.md?p=d) or this section.
    - (ii) **Example.** The following example illustrates this [paragraph (b)(4)](#b-4):
- (c) **Whether a person holds a 50 percent or greater interest—**
  - (1) **In general.** Under section [355(d)(4)](/cfr/26/355.md?p=d-4), [50](/cfr/26/50.md) percent or greater interest means stock possessing at least 50 percent of the total combined voting power of all classes of stock entitled to vote or at least 50 percent of the total value of shares of all classes of stock.
  - (2) **Valuation.** For purposes of [section 355(d)(4)](/cfr/26/355.md?p=d-4) and this section, all shares of stock within a single class are considered to have the same value. But see [paragraph (c)(3)(vii)(A)](#c-3-vii-A) of this section (determination of whether it is reasonably certain that an option will be exercised).
  - (3) **Effect of options, warrants, convertible obligations, and other similar interests—**
    - (i) **Application.** This [paragraph (c)(3)](#c-3) provides rules to determine when an option is treated as exercised for purposes of [section 355(d)](/cfr/26/355.md?p=d) (other than [section 355(d)(6)](/cfr/26/355.md?p=d-6)). Except as provided in this [paragraph (c)(3)](#c-3), an option is not treated as exercised for purposes of [section 355(d)](/cfr/26/355.md?p=d). This [paragraph (c)(3)](#c-3) does not affect the determination of whether an instrument is an option or stock under general principles of tax law (such as substance over form).
    - (ii) **General rule.** In determining whether a person has acquired by purchase a 50 percent or greater interest under [section 355(d)(4)](/cfr/26/355.md?p=d-4), an option to acquire stock (as described in paragraphs [(c)(3)(v)](#c-3-v) and [(vi)](#c-3-vi) of this section) that has not been exercised when a distribution occurs is treated as exercised on the date it was issued or most recently transferred if—
      - (A) Its exercise (whether by itself or in conjunction with the deemed exercise of one or more other options) would cause a person to become a disqualified person; and
      - (B) Immediately after the distribution, it is reasonably certain (as described in [paragraph (c)(3)(vii)](#c-3-vii) of this section) that the option will be exercised.
    - (iii) **Options deemed newly issued and substituted options—**
      - (A) **Exchange, adjustment, or alteration of existing option.** For purposes of this [paragraph (c)(3)](#c-3), each of the following is treated as a new issuance or transfer of an existing option only if it materially increases the likelihood that an option will be exercised—

        (1) An exchange of an option for another option or options;

        (2) An adjustment to the terms of an option (including an adjustment pursuant to the terms of the option);

        (3) An adjustment to the terms of the underlying stock (including an adjustment pursuant to the terms of the stock);

        (4) A change to the capital structure of the issuing corporation; and

        (5) An alteration to the fair market value of issuing corporation stock through an asset transfer (other than regular, ordinary dividends) or through any other means.

      - (B) **Certain compensatory options.** An option described in paragraph (c)(3)(vi)(B)(2) of this section is treated as issued on the date it becomes transferable.
      - (C) **Substituted options.** If an option (existing option) is exchanged for another option or options (substituted option or options) and [paragraph (c)(3)(iii)(A)](#c-3-iii-A) of this section does not apply to treat such exchange as a new issuance or transfer of the existing option, the substituted option or options will be treated as issued or most recently transferred on the date that the existing option was issued or most recently transferred.
    - (iv) **Effect of treating an option as exercised—**
      - (A) **In general.** For purposes of [section 355(d)](/cfr/26/355.md?p=d), an option that is treated as exercised under this [paragraph (c)(3)](#c-3) is treated as exercised both for purposes of determining the percentage of the voting power of stock owned by the holder and for purposes of determining the percentage of the value of stock owned by the holder.
      - (B) **Stock purchase agreement or similar arrangement.** If a stock purchase agreement or similar arrangement is deemed exercised, the purchaser is treated as having purchased the stock under the terms of the agreement or arrangement as though all covenants had been satisfied and all contingencies met. The agreement or arrangement is deemed to have been exercised as of the date it is entered into or most recently assigned.
    - (v) **Instruments treated as options.** For purposes of this [paragraph (c)(3)](#c-3), except to the extent provided in [paragraph (c)(3)(vi)](#c-3-vi) of this section, the following are treated as options: A call option, warrant, convertible obligation, the conversion feature of convertible stock, put option, redemption agreement (including a right to cause the redemption of stock), notional principal contract (as defined in [§ 1.446-3(c)](/cfr/26/1.446-3.md?p=c)) that provides for the payment of amounts in stock, stock purchase agreement or similar arrangement, or any other instrument that provides for the right to purchase, issue, redeem, or transfer stock (including an option on an option).
    - (vi) **Instruments generally not treated as options.** For purposes of this [paragraph (c)(3)](#c-3), the following are not treated as options, unless issued, transferred, or listed with a principal purpose to avoid the application of [section 355(d)](/cfr/26/355.md?p=d) or this section:
      - (A) **Escrow, pledge, or other security agreements.** An option that is part of a security arrangement in a typical lending transaction (including a purchase money loan), if the arrangement is subject to customary 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 acquire stock contingent upon a default under a loan.
      - (B) **Compensatory options—**
        - (1) **General rule.** An option to acquire stock in a corporation with customary terms and conditions, provided to an employee, director, or independent contractor in connection with the performance of services for the corporation or a person related to it under [section 355(d)(7)(A)](/cfr/26/355.md?p=d-7-A) (and that is not excessive by reference to the services performed) and that—

          (i) Is nontransferable within the meaning of [§ 1.83-3(d)](/cfr/26/1.83-3.md?p=d); and

          (ii) Does not have a readily ascertainable fair market value as defined in [§ 1.83-7(b)](/cfr/26/1.83-7.md?p=b).

          (2) Exception. [Paragraph (c)(3)(vi)(B)(1)](#c-3-vi-B-1) of this section ceases to apply to an option that becomes transferable.

      - (C) **Certain stock conversion features.** The conversion feature of convertible stock, provided that—

        (1) The stock is not convertible for at least five years after issuance or transfer; and

        (2) The terms of the conversion feature do not require the tender of any consideration other than the stock being converted.

      - (D) **Options exercisable only upon death, disability, mental incompetency, or separation from service.** Any option entered into between stockholders of a corporation (or a stockholder and the corporation) with respect to the stock of either stockholder that is exercisable only upon the death, disability, mental incompetency of the stockholder, or, in the case of stock acquired in connection with the performance of services for the corporation or a person related to it under [section 355(d)(7)(A)](/cfr/26/355.md?p=d-7-A) (and that is not excessive by reference to the services performed), the stockholder's separation from service.
      - (E) **Rights of first refusal.** A bona fide right of first refusal regarding the corporation's stock with customary terms, entered into between stockholders of a corporation (or between the corporation and a stockholder).
      - (F) **Other enumerated instruments.** Any other instruments specified in regulations, a revenue ruling, or a revenue procedure. See [§ 601.601(d)(2)](/cfr/26/601.601.md?p=d-2) of this chapter.
    - (vii) **Reasonably certain that the option will be exercised—**
      - (A) **In general.** The determination of whether, immediately after the distribution, an option is reasonably certain to be exercised is based on all the facts and circumstances. In applying the previous sentence, the fair market value of stock underlying an option is determined by taking into account control premiums and minority and blockage discounts.
      - (B) **Stock purchase agreement or similar arrangement.** A stock purchase agreement or similar arrangement is treated as reasonably certain to be exercised if the parties' obligations to complete the transaction are subject only to reasonable closing conditions.
    - (viii) **Examples.** The following examples illustrate this [paragraph (c)(3)](#c-3):
  - (4) **Plan or arrangement—**
    - (i) **In general.** Under [section 355(d)(7)(B)](/cfr/26/355.md?p=d-7-B), if two or more persons act pursuant to a plan or arrangement with respect to acquisitions of stock in the distributing corporation or controlled corporation, those persons are treated as one person for purposes of [section 355(d)](/cfr/26/355.md?p=d).
    - (ii) **Understanding.** For purposes of [section 355(d)(7)(B)](/cfr/26/355.md?p=d-7-B), two or more persons who are (or will after an acquisition become) shareholders (or are treated as shareholders under [paragraph (c)(3)(ii)](#c-3-ii) of this section) act pursuant to a plan or arrangement with respect to an acquisition of stock only if they have a formal or informal understanding among themselves to make a coordinated acquisition of stock. A principal element in determining if such an understanding exists is whether the investment decision of each person is based on the investment decision of one or more other existing or prospective shareholders. However, the participation by creditors in formulating a plan for an insolvency workout or a reorganization in a [title 11](/cfr/11.md) or similar case (whether as members of a creditors' committee or otherwise) and the receipt of stock by creditors in satisfaction of indebtedness pursuant to the workout or reorganization do not cause the creditors to be considered as acting pursuant to a plan or arrangement.
    - (iii) **Examples.** The following examples illustrate [paragraph (c)(4)(ii)](#c-4-ii) of this section:
    - (iv) **Exception—**
      - (A) **Subsequent disposition.** If two or more persons do not act pursuant to a plan or arrangement within the meaning of this [paragraph (c)(4)](#c-4) with respect to an acquisition of stock in a corporation (the first corporation), a subsequent acquisition in which such persons exchange their stock in the first corporation for stock in another corporation (the second corporation) in a transaction in which the basis of the second corporation's stock in the hands of such persons is determined in whole or in part by reference to the basis of their stock in the first corporation, will not result in such persons being treated as one person, even if the acquisition of the second corporation's stock is pursuant to a plan or arrangement.
      - (B) **Example.** The following example illustrates this [paragraph (c)(4)(iv)](#c-4-iv):
- (d) **Purchase—**
  - (1) **In general—**
    - (i) **Definition of purchase under section 355(d)(5)(A).** Under [section 355(d)(5)(A)](/cfr/26/355.md?p=d-5-A), except as otherwise provided in section [355(d)(5)(B)](/cfr/26/355.md?p=d-5-B) and [(C)](/cfr/26/355.md?p=d-5-C), a purchase means any acquisition, but only if—
      - (A) **The basis of the property acquired in the hands of the acquirer is not determined—** (1) In whole or in part by reference to the adjusted basis of such property in the hands of the person from whom acquired; or

        (2) Under section [1014(a)](/cfr/26/1014.md?p=a) or [1022](/cfr/26/1022.md); and

      - (B) **The property is not acquired in an exchange to which section 351, 354, 355, or 356 applies.**
    - (ii) **Section 355 distributions.** [Paragraph (d)(1)(i)(B)](#d-1-i-B) of this section includes all [section 355](/cfr/26/355.md) distributions, whether in exchange (in whole or in part) for stock or pro rata.
    - (iii) **Example.** The following example illustrates this [paragraph (d)(1)](#d-1):
  - (2) **Exceptions to definition of purchase under section 355(d)(5)(A).** The following acquisitions are not treated as purchases under [section 355(d)(5)(A)](/cfr/26/355.md?p=d-5-A):
    - (i) **Acquisition of stock in a transaction which includes other property or money—**
      - (A) **Transferors and shareholders of transferor or distributing corporations—** (1) In general. An acquisition of stock permitted to be received by a transferor of property without the recognition of gain under [section 351(a)](/cfr/26/351.md?p=a), or permitted to be received without the recognition of gain under section [354](/cfr/26/354.md), [355](/cfr/26/355.md), or [356](/cfr/26/356.md) is not a purchase to the extent [section 358(a)(1)](/cfr/26/358.md?p=a-1) applies to determine the recipient's basis in the stock received, whether or not the recipient recognizes gain under section [351(b)](/cfr/26/351.md?p=b) or [356](/cfr/26/356.md). But see [paragraph (e)(3)](#e-3) of this section (interest received in exchange for purchased interest in exchanged basis transaction treated as purchased).

        (2) Exception. To the extent there is received in the exchange or distribution, in addition to stock described in paragraph (d)(2)(i)(A)(1) of this section, stock that is other property under section [351(b)](/cfr/26/351.md?p=b) or [356(a)(1)](/cfr/26/356.md?p=a-1), the stock is treated as purchased on the date of the exchange or distribution for purposes of [section 355(d)](/cfr/26/355.md?p=d).

      - (B) **Transferee corporations—** (1) In general. An acquisition of stock by a corporation is not a purchase to the extent section [334(b)](/cfr/26/334.md?p=b) or [362(a)](/cfr/26/362.md?p=a) or [(b)](/cfr/26/362.md?p=b) applies to determine the corporation's basis in the stock received. But see [section 355(d)(5)(C)](/cfr/26/355.md?p=d-5-C) and [paragraph (e)(2)](#e-2) of this section (purchased property transferred in transferred basis transaction is treated as purchased by transferee).

        (2) Exception. If a corporation acquires stock, the stock is treated as purchased on the date of the stock acquisition for purposes of [section 355(d)](/cfr/26/355.md?p=d)—

        (i) If the liquidating corporation recognizes gain or loss with respect to the transferred stock as described in [section 334(b)(1)](/cfr/26/334.md?p=b-1); or

        (ii) To the extent the basis of the transferred stock is increased through the recognition of gain by the transferor under section [362(a)](/cfr/26/362.md?p=a) or [(b)](/cfr/26/362.md?p=b).

      - (C) **Examples.** The following examples illustrate this [paragraph (d)(2)(i)](#d-2-i):
    - (ii) **Acquisition of stock in a distribution to which section 305(a) applies.** An acquisition of stock in a distribution qualifying under [section 305(a)](/cfr/26/305.md?p=a) is not a purchase to the extent [section 307(a)](/cfr/26/307.md?p=a) applies to determine the recipient's basis. However, to the extent the distribution is of rights to acquire stock, see [paragraph (c)(3)](#c-3) of this section for rules regarding options, warrants, convertible obligations, and other similar interests.
    - (iii) **Section 1036(a) exchange.** An exchange of stock qualifying under [section 1036(a)](/cfr/26/1036.md?p=a) is not a purchase by either party to the exchange to the extent the basis of the property acquired equals that of the property exchanged under [section 1031(d)](/cfr/26/1031.md?p=d).
    - (iv) **Section 338 elections—**
      - (A) **In general.** Stock acquired in a qualified stock purchase with respect to which a [section 338](/cfr/26/338.md) election (or a [section 338(h)(10)](/cfr/26/338.md?p=h-10) election) is made is not treated as a purchase for purposes of [section 355(d)(5)(A)](/cfr/26/355.md?p=d-5-A). However, any stock (or an interest in another entity) held by old target that is treated as purchased by new target is treated as acquired by purchase for purposes of [section 355(d)(5)(A)](/cfr/26/355.md?p=d-5-A) unless a [section 338](/cfr/26/338.md) election or [section 338(h)(10)](/cfr/26/338.md?p=h-10) election also is made for that stock. See [§ 1.338-2T(c)](/cfr/26/1.338-2T.md?p=c) for the definitions of [section 338](/cfr/26/338.md) election, [section 338(h)(10)](/cfr/26/338.md?p=h-10) election, old target, and new target.
      - (B) **Example.** The following example illustrates this [paragraph (d)(2)(iv)](#d-2-iv):
    - (v) **Partnership distributions—**
      - (A) **Section 732(b).** An acquisition of stock (or an interest in another entity) in a liquidation of a partner's interest in a partnership in which basis is determined pursuant to [section 732(b)](/cfr/26/732.md?p=b) is a purchase at the time of the liquidation.
      - (B) **Section 734(b).** If the adjusted basis of stock (or an interest in another entity) held by a partnership is increased under [section 734(b)](/cfr/26/734.md?p=b), a proportionate amount of the stock (or other interest) will be treated as purchased at the time of the basis adjustment, determined by reference to the amount of the basis adjustment (but not in excess of the fair market value of the stock (or other interest) at the time of the adjustment) over the fair market value of the stock (or other interest) at the time of the adjustment.
  - (3) **Certain section 351 exchanges treated as purchases—**
    - (i) **In general—**
      - (A) **Treatment of stock received by transferor.** Under [section 355(d)(5)(B)](/cfr/26/355.md?p=d-5-B), a purchase includes any acquisition of property in an exchange to which [section 351](/cfr/26/351.md) applies to the extent the property is acquired in exchange for any cash or cash item, any marketable stock, or any debt of the transferor. The property treated as acquired by purchase is the property received by the transferor in the exchange.
      - (B) **Multiple classes of stock.** If the transferor in a transaction described in [section 355(d)(5)(B)](/cfr/26/355.md?p=d-5-B) receives stock or securities of more than one class, or receives both stock and securities, then the amount of stock or securities purchased is determined in a manner that corresponds to the allocation of basis to the stock or securities under [section 358](/cfr/26/358.md). See [§ 1.358-2(b)](/cfr/26/1.358-2.md?p=b).
    - (ii) **Cash item, marketable stock.** For purposes of [section 355(d)(5)(B)](/cfr/26/355.md?p=d-5-B) and this [paragraph (d)(3)](#d-3), either or both of the terms cash item and marketable stock include personal property within the meaning of [section 1092(d)(1)](/cfr/26/1092.md?p=d-1) and [§ 1.1092(d)-1](/cfr/26/1.1092..1.md), without giving effect to [section 1092(d)(3)](/cfr/26/1092.md?p=d-3).
    - (iii) **Exception for certain acquisitions—**
      - (A) **In general.** Except to the extent provided in [paragraph (e)(3)](#e-3) of this section (interest received in exchange for purchased interest in exchanged basis transaction treated as purchased), an acquisition of stock in a corporation in a [section 351](/cfr/26/351.md) transaction by one or more persons in exchange for an amount of stock in another corporation (the transferred corporation) that meets the requirements of [section 1504(a)(2)](/cfr/26/1504.md?p=a-2) is not a purchase by the transferor or transferors, regardless of whether the stock of the transferred corporation is marketable stock under [section 355(d)(5)(B)(ii)](/cfr/26/355.md?p=d-5-B-ii) and [paragraph (d)(3)(ii)](#d-3-ii) of this section.
      - (B) **Example.** The following example illustrates this [paragraph (d)(3)(iii)](#d-3-iii):
    - (iv) **Exception for assets transferred as part of an active trade or business—**
      - (A) **In general.** Except to the extent provided in [paragraph (e)(3)](#e-3) of this section, an acquisition not described in [paragraph (d)(3)(iii)](#d-3-iii) of this section of stock in exchange for any cash or cash item, any marketable stock, or any debt of the transferor in a [section 351](/cfr/26/351.md) transaction is not a purchase if—

        (1) The transferor is engaged in the active conduct of a trade or business under [paragraph (d)(3)(iv)(B)](#d-3-iv-B) of this section and the transferred items (including debt incurred in the ordinary course of the trade or business) are used in the trade or business;

        (2) The transferred items do not exceed the reasonable needs of the trade or business under [paragraph (d)(3)(iv)(C)](#d-3-iv-C) of this section;

        (3) The transferor transfers the items as part of the trade or business; and

        (4) The transferee continues the active conduct of the trade or business.

      - (B) **Active conduct of a trade or business.** For purposes of this [paragraph (d)(3)(iv)](#d-3-iv), whether, with respect to the trade or business at issue, the transferor and transferee are engaged in the active conduct of a trade or business is determined under § [1.355-3(b)(2)](/cfr/26/1.355-3.md?p=b-2) and [(3)](/cfr/26/1.355-3.md?p=b-3), except that—

        (1) Conduct is tested before the transfer (with respect to the transferor) and after the transfer (with respect to the transferee) rather than immediately after a distribution; and

        (2) The trade or business need not have been conducted for five years before its transfer, but it must have been conducted for a sufficient period of time to establish that it is a viable and ongoing trade or business.

      - (C) **Reasonable needs of the trade or business.** For purposes of this [paragraph (d)(3)(iv)](#d-3-iv), the reasonable needs of the trade or business include only the amount of cash or cash items, marketable stock, or debt of the transferor that a prudent business person apprised of all relevant facts would consider necessary for the present and reasonably anticipated future needs of the business. Transferred items may be considered necessary for reasonably anticipated future needs only if the transferor and transferee have specific, definite, and feasible plans for their use. Those plans must require that items intended for anticipated future needs rather than present needs be used as expeditiously as possible consistent with the business purpose for retention of the items. Future needs are not reasonably anticipated if they are uncertain or vague or where the execution of the plan for their use is substantially postponed. The reasonable needs of a trade or business are generally its needs at the time of the transfer of the business including the items. However, for purposes of applying [section 355(d)](/cfr/26/355.md?p=d) to a distribution, events and conditions after the transfer and through the date immediately after the distribution (including whether plans for the use of transferred items have been consummated or substantially postponed) may be considered to determine whether at the time of the transfer the items were necessary for the present and reasonably anticipated future needs of the business.
      - (D) **Consideration of all facts and circumstances.** All facts and circumstances are considered in determining whether this [paragraph (d)(3)(iv)](#d-3-iv) applies.
      - (E) **Successive transfers.** A transfer of assets does not fail to meet the requirements of paragraph (d)(3)(iv)(A)(4) of this section solely because the transferee transfers the assets directly (or indirectly through other members) to another member of the transferee's affiliated group, as defined in [§ 1.355-3(b)(4)(iv)](/cfr/26/1.355-3.md?p=b-4-iv) (the final transferee), if the requirements of paragraphs (d)(3)(iv)(A)(1), (2), (3) and (4) of this section would be met if the transferor had transferred the assets directly to the final transferee.
    - (v) **Exception for transfer between members of the same affiliated group—**
      - (A) **In general.** Except to the extent provided in [paragraph (e)(3)](#e-3) of this section, an acquisition of stock (whether actual or constructive) not described in paragraphs [(d)(3)(iii)](#d-3-iii) and [(iv)](#d-3-iv) of this section in exchange for any cash or cash item, marketable stock, or debt of the transferor in a [section 351](/cfr/26/351.md) transaction is not a purchase if—

        (1) The transferor corporation or corporations and the transferee corporation (whether formed in the transaction or already existing) are members of the same affiliated group as defined in [section 1504(a)](/cfr/26/1504.md?p=a) before the [section 351](/cfr/26/351.md) transaction (if the transferee corporation is in existence before the transaction);

        (2) The cash or cash item, marketable stock or debt of the transferor are not included in assets that are acquired (or treated as acquired) by the transferor (or another member of the transferor's affiliated group) from a nonmember in a related transaction in which section [362(a)](/cfr/26/362.md?p=a) or [(b)](/cfr/26/362.md?p=b) applies to determine the basis in the acquired assets; and

        (3) The transferor corporation or corporations, the transferee corporation, and any distributed controlled corporation of the transferee corporation do not cease to be members of such affiliated group in any transaction pursuant to a plan that includes the [section 351](/cfr/26/351.md) transaction (including any distribution of a controlled corporation by the transferee corporation). But see [paragraph (b)(4)](#b-4) of this section where the transfer is made for a principal purpose to avoid the purposes of [section 355(d)](/cfr/26/355.md?p=d).

      - (B) **Examples.** The following examples illustrate this [paragraph (d)(3)(v)](#d-3-v):
  - (4) **Triangular asset reorganizations—**
    - (i) **Definition. A triangular asset reorganization—** is a reorganization that qualifies under—
      - (A) Section [368(a)(1)(A)](/cfr/26/368.md?p=a-1-A) or [(G)](/cfr/26/368.md?p=a-1-G) by reason of [section 368(a)(2)(D)](/cfr/26/368.md?p=a-2-D);
      - (B) [Section 368(a)(1)(A)](/cfr/26/368.md?p=a-1-A) by reason of [section 368(a)(2)(E)](/cfr/26/368.md?p=a-2-E) (regardless of whether [section 368(a)(3)(E)](/cfr/26/368.md?p=a-3-E) applies), unless the transaction also qualifies as either a [section 351](/cfr/26/351.md) transfer or a reorganization under [section 368(a)(1)(B)](/cfr/26/368.md?p=a-1-B); or
      - (C) [Section 368(a)(1)(C)](/cfr/26/368.md?p=a-1-C), and stock of the controlling corporation rather than the acquiring corporation is exchanged for the acquired corporation's properties.
    - (ii) **Treatment.** Notwithstanding [section 355(d)(5)(A)](/cfr/26/355.md?p=d-5-A), for purposes of [section 355(d)](/cfr/26/355.md?p=d), the controlling corporation in a triangular asset reorganization is treated as having—
      - (A) Acquired the assets of the acquired corporation (and as having assumed any liabilities assumed by the controlling corporation's subsidiary corporation or to which the acquired corporation's assets were subject (the acquired liabilities)) in a transaction in which the controlling corporation's basis in the acquired corporation's assets was determined under [section 362(b)](/cfr/26/362.md?p=b); and
      - (B) Transferred the acquired assets and acquired liabilities to its subsidiary corporation in a [section 351](/cfr/26/351.md) transfer.
    - (iii) **Example.** The following example illustrates this [paragraph (d)(4)](#d-4):
  - (5) **Reverse triangular reorganizations other than triangular asset reorganizations—**
    - (i) **In general.** Except as provided in [paragraph (d)(5)(ii)](#d-5-ii) of this section, if a transaction qualifies as a reorganization under [section 368(a)(1)(A)](/cfr/26/368.md?p=a-1-A) by reason of [section 368(a)(2)(E)](/cfr/26/368.md?p=a-2-E) and also as either a reorganization under [section 368(a)(1)(B)](/cfr/26/368.md?p=a-1-B) or a [section 351](/cfr/26/351.md) transfer, then either [section 355(d)(5)(B)](/cfr/26/355.md?p=d-5-B) (and [paragraphs (d)(3)(i) through (iv)](#d-3-i..d-3-iv) of this section) or 355(d)(5)(C) (and [paragraph (e)(2)](#e-2) of this section) applies. Regardless of which method the controlling corporation employs to determine its basis in the surviving corporation stock under [§ 1.358-6(c)(2)(ii)](/cfr/26/1.358-6.md?p=c-2-ii) or [§ 1.1502-30(b)](/cfr/26/1.1502-30.md?p=b), the total amount of surviving corporation stock treated as purchased by the controlling corporation will equal the higher of—
      - (A) The amount of surviving corporation stock that would be treated as purchased (on the date of the deemed [section 351](/cfr/26/351.md) transfer) by the controlling corporation if the controlling corporation acquired the surviving corporation's assets and assumed its liabilities in a transaction in which the controlling corporation's basis in the surviving corporation assets was determined under [section 362(b)](/cfr/26/362.md?p=b), and then transferred the acquired assets and liabilities to the surviving corporation in a [section 351](/cfr/26/351.md) transfer (see §§ [1.358-6(c)(1)](/cfr/26/1.358-6.md?p=c-1) and [(2)(ii)(A)](/cfr/26/1.358-6.md?p=2-ii-A), and [1.1502-30(b)](/cfr/26/1.1502-30.md?p=b)); or
      - (B) The amount of surviving corporation stock that would be treated as purchased (on the date the surviving corporation shareholders purchased their surviving corporation stock) if the controlling corporation acquired the stock of the surviving corporation in a transaction in which the basis in the surviving corporation's stock was determined under [section 362(b)](/cfr/26/362.md?p=b) (see §§ [1.358-6(c)(2)(ii)(B)](/cfr/26/1.358-6.md?p=c-2-ii-B) and [1.1502-30(b)](/cfr/26/1.1502-30.md?p=b)).
    - (ii) **Letter ruling and closing agreement.** If a controlling corporation obtains a letter ruling and enters into a closing agreement under [section 7121](/cfr/26/7121.md) in which it agrees to determine its basis in surviving corporation stock under [§ 1.358-6(c)(2)(ii)(A)](/cfr/26/1.358-6.md?p=c-2-ii-A), or under [§ 1.1502-30(b)](/cfr/26/1.1502-30.md?p=b) by applying [§ 1.358-6(c)(2)(ii)(A)](/cfr/26/1.358-6.md?p=c-2-ii-A) (deemed asset acquisition and transfer by controlling corporation), then [section 355(d)(5)(B)](/cfr/26/355.md?p=d-5-B) and [paragraphs (d)(3)(i) through (iv)](#d-3-i..d-3-iv) of this section apply, and [section 355(d)(5)(C)](/cfr/26/355.md?p=d-5-C) and [paragraph (e)(2)](#e-2) of this section do not apply. If a controlling corporation obtains a letter ruling and enters into a closing agreement under [section 7121](/cfr/26/7121.md) under which it agrees to determine its basis in surviving corporation stock under [§ 1.358-6(c)(2)(ii)(B)](/cfr/26/1.358-6.md?p=c-2-ii-B), or under [§ 1.1502-30(b)](/cfr/26/1.1502-30.md?p=b) by applying [§ 1.358-6(c)(2)(ii)(B)](/cfr/26/1.358-6.md?p=c-2-ii-B) (deemed stock acquisition), then [section 355(d)(5)(C)](/cfr/26/355.md?p=d-5-C) and [paragraph (e)(2)](#e-2) of this section apply, and [section 355(d)(5)(B)](/cfr/26/355.md?p=d-5-B) and [paragraphs (d)(3)(i) through (iv)](#d-3-i..d-3-iv) of this section do not apply.
    - (iii) **Example.** The following example illustrates this [paragraph (d)(5)](#d-5):
  - (6) **Treatment of group structure changes—**
    - (i) **In general.** Notwithstanding [section 355(d)(5)(A)](/cfr/26/355.md?p=d-5-A), for purposes of [section 355(d)](/cfr/26/355.md?p=d), if a corporation succeeds another corporation as the common parent of a consolidated group in a group structure change to which [§ 1.1502-31](/cfr/26/1.1502-31.md) applies, the new common parent is treated as having acquired the assets and assumed the liabilities of the former common parent in a transaction in which the new common parent's basis in the former common parent's assets was determined under [section 362(b)](/cfr/26/362.md?p=b), and then transferred the acquired assets and liabilities to the former common parent (or, if the former common parent does not survive, to the new common parent's subsidiary) in a [section 351](/cfr/26/351.md) transfer, with the new common parent and former common parent being treated as not in the same affiliated group at the time of the transfer for purposes of applying [paragraph (d)(3)(v)](#d-3-v) of this section (notwithstanding [§ 1.1502-31(c)(2)](/cfr/26/1.1502-31.md?p=c-2)).
    - (ii) **Adjustments to basis of higher-tier members.** A higher-tier member that indirectly owns all or part of the former common parent's stock after a group structure change is treated as having purchased the stock of an immediate subsidiary to the extent that the higher-tier member's basis in the subsidiary is increased under [§ 1.1502-31(d)(4)](/cfr/26/1.1502-31.md?p=d-4).
    - (iii) **Example.** The following example illustrates this [paragraph (d)(6)](#d-6):
  - (7) **Special rules for triangular asset reorganizations, other reverse triangular reorganizations, and group structure changes.** The amount of acquiring subsidiary, surviving corporation, or former common parent stock that is treated as purchased under paragraph (c)(4), [(5)(i)(A)](#d-5-i-A), or (6) of this section (by operation of [section 355(d)(5)(B)](/cfr/26/355.md?p=d-5-B) and [paragraphs (d)(3)(i) through (iv)](#d-3-i..d-3-iv) of this section) is adjusted to reflect any basis adjustment under—
    - (i) Section [1.358-6(c)(2)(i)(B)](/cfr/26/1.358-6.md?p=c-2-i-B) and [(C)](/cfr/26/1.358-6.md?p=c-2-i-C) (reduction of basis adjustment in reverse triangular reorganization where controlling corporation acquires less than all of the surviving corporation stock), [§ 1.1502-30(b)](/cfr/26/1.1502-30.md?p=b) (applying § [1.358-6(c)(2)(i)(B)](/cfr/26/1.358-6.md?p=c-2-i-B) and [(C)](/cfr/26/1.358-6.md?p=c-2-i-C) to a consolidated group), and [§ 1.1502-31(d)(2)(ii)](/cfr/26/1.1502-31.md?p=d-2-ii) (reduction of basis adjustment in group structure change where new common parent acquires less than all of the former common parent stock); or
    - (ii) [Section 1.358-6(d)](/cfr/26/1.358-6.md?p=d) (reduction of basis adjustment in any triangular reorganization to the extent controlling corporation does not provide consideration), [§ 1.1502-30(b)](/cfr/26/1.1502-30.md?p=b) (applying [§ 1.358-6(d)](/cfr/26/1.358-6.md?p=d) (except [§ 1.358-6(d)(2)](/cfr/26/1.358-6.md?p=d-2)) to a consolidated group), and [§ 1.1502-31(d)(1)](/cfr/26/1.1502-31.md?p=d-1) (reduction of basis adjustment in group structure change to the extent new common parent does not provide consideration).
- (e) **Deemed purchase and timing rules—**
  - (1) **Attribution and aggregation—**
    - (i) **In general.** Under [section 355(d)(8)(B)](/cfr/26/355.md?p=d-8-B), if any person acquires by purchase an interest in any entity, and the person is treated under [section 355(d)(8)(A)](/cfr/26/355.md?p=d-8-A) as holding any stock by reason of holding the interest, the stock shall be treated as acquired by purchase on the later of the date of the purchase of the interest in the entity or the date the stock is acquired by purchase by such entity.
    - (ii) **Purchase of additional interest.** If a person and an entity are treated as a single person under [section 355(d)(7)](/cfr/26/355.md?p=d-7), and the person later purchases an additional interest in the entity, the person is treated as purchasing on the date of the later purchase the amount of stock attributed from the entity to the person under [section 355(d)(8)(A)](/cfr/26/355.md?p=d-8-A) as a result of the additional interest.
    - (iii) **Purchase between persons treated as one person.** If two persons are treated as one person under [section 355(d)(7)](/cfr/26/355.md?p=d-7), and one later purchases stock from the other, the date of the later purchase is used for purposes of determining when the five-year period commences.
    - (iv) **Purchase by a person already treated as holding stock under section 355(d)(8)(A).** If a person who is already treated as holding stock under [section 355(d)(8)(A)](/cfr/26/355.md?p=d-8-A) later directly purchases such stock, the date of the later direct purchase is used for purposes of determining when the five-year period commences.
    - (v) **Examples.** The following examples illustrate this [paragraph (e)(1)](#e-1):
  - (2) **Transferred basis rule.** If any person acquires property from another person who acquired the property by purchase (determined with regard to [section 355(d)(5)](/cfr/26/355.md?p=d-5) and paragraphs (d) and [(e)(2)](#e-2), [(3)](#e-3) and [(4)](#e-4) of this section, but without regard to [section 355(d)(8)](/cfr/26/355.md?p=d-8) and [paragraph (e)(1)](#e-1) of this section), and the adjusted basis of the property in the hands of the acquirer is determined in whole or in part by reference to the adjusted basis of the property in the hands of the other person, the acquirer is treated as having acquired the property by purchase on the date it was so acquired by the other person. The rule in this [paragraph (e)(2)](#e-2) applies, for example, where stock of a corporation acquired by purchase is subsequently acquired in a [section 351](/cfr/26/351.md) transfer or a reorganization qualifying under [section 368(a)(1)(B)](/cfr/26/368.md?p=a-1-B), but does not apply if the stock of a former common parent is acquired in a group structure change to which [§ 1.1502-31](/cfr/26/1.1502-31.md) applies. But see paragraph (d)(2)(i)(B)(2) of this section for situations where the stock is treated as purchased on the date of a transfer.
  - (3) **Exchanged basis rule—**
    - (i) **In general.** If any person acquires an interest in an entity (the first interest) by purchase (determined with regard to [section 355(d)(5)](/cfr/26/355.md?p=d-5) and paragraphs (d) and [(e)(2)](#e-2), [(3)](#e-3) and [(4)](#e-4) of this section, but without regard to [section 355(d)(8)](/cfr/26/355.md?p=d-8) and [paragraph (e)(1)](#e-1) of this section), and the first interest is exchanged for an interest in the same or another entity (the second interest) where the adjusted basis of the second interest is determined in whole or in part by reference to the adjusted basis of the first interest, then the second interest is treated as having been purchased on the date the first interest was purchased. The rule in this [paragraph (e)(3)](#e-3) applies only to exchanges that are not otherwise treated as purchases under [section 355(d)(5)](/cfr/26/355.md?p=d-5) and [paragraph (d)](#d) of this section. The rule in this [paragraph (e)(3)](#e-3) applies, for example, where stock of a corporation acquired by purchase is subsequently exchanged for other stock in a section [351](/cfr/26/351.md), [354](/cfr/26/354.md), or [1036(a)](/cfr/26/1036.md?p=a) exchange. But see paragraph (d)(2)(i)(A)(2) of this section for situations where the stock is treated as purchased on the date of an exchange or distribution.
    - (ii) **Example.** The following example illustrates this [paragraph (e)(3)](#e-3):
  - (4) **Certain section 355 or section 305 distributions—**
    - (i) **Section 355.** If a distributing corporation distributes any stock of a controlled corporation with respect to recently purchased distributing stock in a distribution that qualifies under [section 355](/cfr/26/355.md) (or so much of [section 356](/cfr/26/356.md) as relates to [section 355](/cfr/26/355.md)), such controlled corporation stock is deemed to be acquired by purchase by the distributee on the date the distributee acquired the recently purchased distributing stock. Recently purchased distributing stock is stock in the distributing corporation acquired by purchase (determined with regard to [section 355(d)(5)](/cfr/26/355.md?p=d-5) and paragraphs (d) and [(e)(2)](#e-2), [(3)](#e-3), and [(4)](#e-4) of this section, but without regard to [section 355(d)(8)](/cfr/26/355.md?p=d-8) and [paragraph (e)(1)](#e-1) of this section) by the distributee during the five-year period with respect to that distribution.
    - (ii) **Section 305.** If a corporation distributes its stock in a distribution that qualifies under [section 305(a)](/cfr/26/305.md?p=a), the stock received in the distribution (to the extent [section 307(a)](/cfr/26/307.md?p=a) applies to determine the recipient's basis) is deemed to be acquired by purchase by the recipient on the date (if any) that the recipient acquired by purchase (determined with regard to [section 355(d)(5)](/cfr/26/355.md?p=d-5) and paragraphs (d) and [(e)(2)](#e-2), [(3)](#e-3), and [(4)](#e-4) of this section), the stock with respect to which the distribution is made.
  - (5) **Substantial diminution of risk—**
    - (i) **In general.** If [section 355(d)(6)](/cfr/26/355.md?p=d-6) applies to any stock for any period, the running of any five-year period set forth in [section 355(d)(3)](/cfr/26/355.md?p=d-3) is suspended during such period.
    - (ii) **Property to which suspension applies.** [Section 355(d)(6)](/cfr/26/355.md?p=d-6) applies to any stock for any period during which the holder's risk of loss with respect to such stock, or with respect to any portion of the activities of the corporation, is (directly or indirectly) substantially diminished by an option, a short sale, any special class of stock, or any other device or transaction.
    - (iii) **Risk of loss substantially diminished.** Whether a holder's risk of loss is substantially diminished under [section 355(d)(6)](/cfr/26/355.md?p=d-6) and [paragraph (e)(5)(ii)](#e-5-ii) of this section will be determined based on all facts and circumstances relating to the stock, the corporate activities, and arrangements for holding the stock.
    - (iv) **Special class of stock.** For purposes of [section 355(d)(6)](/cfr/26/355.md?p=d-6) and [paragraph (e)(5)(ii)](#e-5-ii) of this section, the term special class of stock includes a class of stock that grants particular rights to, or bears particular risks for, the holder or the issuer with respect to the earnings, assets, or attributes of less than all the assets or activities of a corporation or any of its subsidiaries. The term includes, for example, tracking stock and stock (or any related instruments or arrangements) the terms of which provide for the distribution (whether or not at the option of any party or in the event of any contingency) of any controlled corporation or other specified assets to the holder or to one or more persons other than the holder.
- (f) **Duty to determine stockholders—**
  - (1) **In general.** In determining whether [section 355(d)](/cfr/26/355.md?p=d) applies to a distribution of controlled corporation stock, a distributing corporation must determine whether a disqualified person holds its stock or the stock of any distributed controlled corporation. This [paragraph (f)](#f) provides rules regarding this determination and the extent to which a distributing corporation must investigate whether a disqualified person holds stock.
  - (2) **Deemed knowledge of contents of securities filings.** A distributing corporation is deemed to have knowledge of the existence and contents of all schedules, forms, and other documents filed with or under the rules of the Securities and Exchange Commission, including without limitation any Schedule 13D or 13G (or any similar schedules) and amendments, with respect to any relevant corporation.
  - (3) **Presumption as to securities filings.** Absent actual knowledge to the contrary, in determining whether [section 355(d)](/cfr/26/355.md?p=d) applies to a distribution, a distributing corporation may presume, with respect to stock that is reporting stock (while such stock is reporting stock), that every shareholder or other person required to file a schedule, form, or other document with or under the rules of the Securities and Exchange Commission as of a given date has filed the schedule, form, or other document as of that date and that the contents of filed schedules, forms, or other documents are accurate and complete. Reporting stock is stock that is described in [Rule 13d-1(i)](/cfr/26/13d-1.md?p=i) of Regulation 13D ([17 CFR 240.13d-1(i)](/cfr/17/240.13d-1.md?p=i)) (or any rule or regulation to generally the same effect) promulgated by the Securities and Exchange Commission under the Securities Exchange Act of 1934 ([15 U.S.C. 78a](/usc/15/78a.md) et seq.).
  - (4) **Presumption as to less-than-five-percent shareholders.** Absent actual knowledge (or deemed knowledge under [paragraph (f)(2)](#f-2) of this section) immediately after the distribution to the contrary with regard to a particular shareholder, a distributing corporation may presume that no less-than-five-percent shareholder of a corporation acquired stock or securities by purchase under section [355(d)(5)](/cfr/26/355.md?p=d-5) or [(8)](/cfr/26/355.md?p=d-8) and paragraphs [(d)](#d) and [(e)](#e) of this section during the five-year period. For purposes of this [paragraph (f)](#f), a less-than-five-percent shareholder is a person that, at no time during the five-year period, holds directly (or by application of [paragraph (c)(3)(ii)](#c-3-ii) of this section, but not by application of section [355(d)(7)](/cfr/26/355.md?p=d-7) or [(8)](/cfr/26/355.md?p=d-8)) stock possessing five percent or more of the total combined voting power of all classes of stock entitled to vote or the total value of shares of all classes of stock of a corporation. However, this presumption does not apply to any less-than-five-percent shareholder that, at any time during the five-year period—
    - (i) Is related under [section 355(d)(7)(A)](/cfr/26/355.md?p=d-7-A) to a shareholder in the corporation that is, at any time during the five-year period, not a less-than-five-percent shareholder;
    - (ii) Acted pursuant to a plan or arrangement, with respect to acquisitions of the corporation's stock or securities under [section 355(d)(7)(B)](/cfr/26/355.md?p=d-7-B) and [paragraph (c)(4)](#c-4) of this section, with a shareholder in the corporation that is, at any time during the five-year period, not a less-than-five-percent shareholder; or
    - (iii) Holds stock or securities that is attributed under [section 355(d)(8)(A)](/cfr/26/355.md?p=d-8-A) to a shareholder in the corporation that is, at any time during the five-year period, not a less-than-five-percent shareholder.
  - (5) **Examples.** The following examples illustrate this [paragraph (f)](#f):
- (g) **Effective/applicability dates.** This section applies to distributions occurring after December 20, 2000, except that they do not apply to any distributions occurring pursuant to a written agreement that is (subject to customary conditions) binding on December 20, 2000, and at all later times. The provisions of paragraph (d)(1)(i)(A)(2) of this section relating to [section 1022](/cfr/26/1022.md) are effective on and after January 19, 2017.

# §1.355-7. 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)](/cfr/26/355.md?p=e) and in this section, [section 355(e)](/cfr/26/355.md?p=e) applies to any distribution—
  - (1) To which [section 355](/cfr/26/355.md) (or so much of [section 356](/cfr/26/356.md) as relates to [section 355](/cfr/26/355.md)) applies; and
  - (2) That is part of a plan (or series of related transactions) (hereinafter, plan) pursuant to which 1 or more persons acquire directly or indirectly stock representing a 50-percent or greater interest in the distributing corporation (Distributing) or any controlled corporation (Controlled).
- (b) **Plan—**
  - (1) **In general.** Whether a distribution and an acquisition are part of a plan is determined based on all the facts and circumstances. The facts and circumstances to be considered in demonstrating whether a distribution and an acquisition are part of a plan include, but are not limited to, the facts and circumstances set forth in paragraphs [(b)(3)](#b-3) and [(4)](#b-4) of this section. In general, the weight to be given each of the facts and circumstances depends on the particular case. Whether a distribution and an acquisition are part of a plan does not depend on the relative number of facts and circumstances set forth in [paragraph (b)(3)](#b-3) that evidence that a distribution and an acquisition are part of a plan as compared to the relative number of facts and circumstances set forth in [paragraph (b)(4)](#b-4) that evidence that a distribution and an acquisition are not part of a plan.
  - (2) **Certain post-distribution acquisitions.** In the case of an acquisition (other than involving a public offering) after a distribution, the distribution and the acquisition can be part of a plan only if there was an agreement, understanding, arrangement, or substantial negotiations regarding the acquisition or a similar acquisition at some time during the two-year period ending on the date of the distribution. In the case of an acquisition (other than involving a public offering) after a distribution, the existence of an agreement, understanding, arrangement, or substantial negotiations regarding the acquisition or a similar acquisition at some time during the two-year period ending on the date of the distribution tends to show that the distribution and the acquisition are part of a plan. See [paragraph (b)(3)(i)](#b-3-i) of this section. However, all facts and circumstances must be considered to determine whether the distribution and the acquisition are part of a plan. For example, in the case of an acquisition (other than involving a public offering) after a distribution, if the distribution was motivated in whole or substantial part by a corporate business purpose (within the meaning of [§ 1.355-2(b)](/cfr/26/1.355-2.md?p=b)) other than a business purpose to facilitate the acquisition or a similar acquisition of Distributing or Controlled (see [paragraph (b)(4)(v)](#b-4-v) of this section) and would have occurred at approximately the same time and in similar form regardless of whether the acquisition or a similar acquisition was effected (see [paragraph (b)(4)(vi)](#b-4-vi) of this section), the taxpayer may be able to establish that the distribution and the acquisition are not part of a plan.
  - (3) **Plan factors.** Among the facts and circumstances tending to show that a distribution and an acquisition are part of a plan are the following:
    - (i) In the case of an acquisition (other than involving a public offering) after a distribution, at some time during the two-year period ending on the date of the distribution, there was an agreement, understanding, arrangement, or substantial negotiations regarding the acquisition or a similar acquisition. The weight to be accorded this fact depends on the nature, extent, and timing of the agreement, understanding, arrangement, or substantial negotiations. The existence of an agreement, understanding, or arrangement at the time of the distribution is given substantial weight.
    - (ii) In the case of an acquisition involving a public offering after a distribution, at some time during the two-year period ending on the date of the distribution, there were discussions by Distributing or Controlled with an investment banker regarding the acquisition or a similar acquisition. The weight to be accorded this fact depends on the nature, extent, and timing of the discussions.
    - (iii) In the case of an acquisition (other than involving a public offering) before a distribution, at some time during the two-year period ending on the date of the acquisition, there were discussions by Distributing or Controlled with the acquirer regarding a distribution. The weight to be accorded this fact depends on the nature, extent, and timing of the discussions. In addition, in the case of an acquisition (other than involving a public offering) before a distribution, the acquirer intends to cause a distribution and, immediately after the acquisition, can meaningfully participate in the decision regarding whether to make a distribution.
    - (iv) In the case of an acquisition involving a public offering before a distribution, at some time during the two-year period ending on the date of the acquisition, there were discussions by Distributing or Controlled with an investment banker regarding a distribution. The weight to be accorded this fact depends on the nature, extent, and timing of the discussions.
    - (v) In the case of an acquisition either before or after a distribution, the distribution was motivated by a business purpose to facilitate the acquisition or a similar acquisition.
  - (4) **Non-plan factors.** 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 involving a public offering after a distribution, during the two-year period ending on the date of the distribution, there were no discussions by Distributing or Controlled with an investment banker regarding the acquisition or a similar acquisition.
    - (ii) In the case of an acquisition after a distribution, there was an identifiable, unexpected 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.
    - (iii) In the case of an acquisition (other than involving a public offering) before a distribution, during the two-year period ending on the date of the earlier to occur of the acquisition or the first public announcement regarding the distribution, there were no discussions by Distributing or Controlled with the acquirer regarding a distribution. [Paragraph (b)(4)(iii)](#b-4-iii) of this section does not apply to an acquisition where the acquirer intends to cause a distribution and, immediately after the acquisition, can meaningfully participate in the decision regarding whether to make a distribution.
    - (iv) 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 otherwise unexpected.
    - (v) In the case of an acquisition either before or after a distribution, the distribution was motivated in whole or substantial part by a corporate business purpose (within the meaning of [§ 1.355-2(b)](/cfr/26/1.355-2.md?p=b)) other than a business purpose to facilitate the acquisition or a similar acquisition.
    - (vi) In the case of an acquisition either before or after a distribution, the distribution would have occurred at approximately the same time and in similar form regardless of the acquisition or a similar acquisition.
- (c) **Operating rules.** The operating rules contained in this [paragraph (c)](#c) apply for all purposes of this section.
  - (1) **Internal discussions and discussions with outside advisors evidence of business purpose.** Discussions by Distributing or Controlled with outside advisors and internal discussions may be indicative of one or more business purposes for the distribution and the relative importance of such purposes.
  - (2) **Takeover defense.** If Distributing engages in discussions with a potential acquirer regarding an acquisition of Distributing or Controlled and distributes Controlled stock intending, in whole or substantial part, to decrease the likelihood of the acquisition of Distributing or Controlled by separating it from another corporation that is likely to be acquired, Distributing will be treated as having a business purpose to facilitate the acquisition of the corporation that was likely to be acquired.
  - (3) **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's or Controlled's stock trade more actively is not taken into account in determining whether the distribution and an acquisition of Distributing or Controlled stock were part of a plan.
  - (4) **Consequences of section 355(e) disregarded for certain purposes.** For purposes of determining the intentions of the relevant parties under this section, the consequences of the application of [section 355(e)](/cfr/26/355.md?p=e), and the existence of any contractual indemnity by Controlled for tax resulting from the application of [section 355(e)](/cfr/26/355.md?p=e) caused by an acquisition of Controlled, are disregarded.
  - (5) **Multiple acquisitions.** All acquisitions of stock of Distributing or Controlled that are considered to be part of a plan with a distribution pursuant to [paragraph (b)](#b) of this section will be aggregated for purposes of the 50-percent test of [paragraph (a)(2)](#a-2) of this section.
- (d) **Safe harbors—**
  - (1) **Safe Harbor I.** A distribution and an acquisition occurring after the distribution will not be considered part of a plan if—
    - (i) The distribution was motivated in whole or substantial part by a corporate business purpose (within the meaning of [§ 1.355-2(b)](/cfr/26/1.355-2.md?p=b)), other than a business purpose to facilitate an acquisition of the acquired corporation (Distributing or Controlled); and
    - (ii) The acquisition occurred more than six months after the distribution and there was no agreement, understanding, arrangement, or substantial negotiations concerning the acquisition or a similar acquisition during the period that begins one year before the distribution and ends six months thereafter.
  - (2) **Safe Harbor II—**
    - (i) **In general.** A distribution and an acquisition occurring after the distribution will not be considered part of a plan if—
      - (A) The distribution was not motivated by a business purpose to facilitate the acquisition or a similar acquisition;
      - (B) The acquisition occurred more than six months after the distribution and there was no agreement, understanding, arrangement, or substantial negotiations concerning the acquisition or a similar acquisition during the period that begins one year before the distribution and ends six months thereafter; and
      - (C) No more than 25 percent of the stock of the acquired corporation (Distributing or Controlled) was either acquired or the subject of an agreement, understanding, arrangement, or substantial negotiations during the period that begins one year before the distribution and ends six months thereafter.
    - (ii) **Special rule.** For purposes of [paragraph (d)(2)(i)(C)](#d-2-i-C) of this section, acquisitions of stock that are treated as not part of a plan pursuant to Safe Harbor VII, Safe Harbor VIII, or Safe Harbor IX are disregarded.
  - (3) **Safe Harbor III.** If an acquisition occurs after a distribution, there was no agreement, understanding, or arrangement concerning the acquisition or a similar acquisition at the time of the distribution, and there was no agreement, understanding, arrangement, or substantial negotiations concerning the acquisition or a similar acquisition within one year after the distribution, the acquisition and the distribution will not be considered part of a plan.
  - (4) **Safe Harbor IV—**
    - (i) **In general.** A distribution and an acquisition (other than involving a public offering) occurring before the distribution will not be considered part of a plan if the acquisition occurs before the date of the first disclosure event regarding the distribution.
    - (ii) **Special rules.**
      - (A) [Paragraph (d)(4)(i)](#d-4-i) of this section does not apply to a stock acquisition if the acquirer or a coordinating group of which the acquirer is a member is a controlling shareholder or a ten-percent shareholder of the acquired corporation (Distributing or Controlled) at any time during the period beginning immediately after the acquisition and ending on the date of the distribution.
      - (B) [Paragraph (d)(4)(i)](#d-4-i) of this section does not apply to an acquisition that occurs in connection with a transaction in which the aggregate acquisitions are of stock possessing 20 percent or more of the total voting power of the stock of the acquired corporation (Distributing or Controlled) or stock having a value of 20 percent or more of the total value of the stock of the acquired corporation (Distributing or Controlled).
  - (5) **Safe Harbor V—**
    - (i) **In general.** A distribution that is pro rata among the Distributing shareholders and an acquisition (other than involving a public offering) of Distributing stock occurring before the distribution will not be considered part of a plan if—
      - (A) The acquisition occurs after the date of a public announcement regarding the distribution; and
      - (B) There were no discussions by Distributing or Controlled with the acquirer regarding a distribution on or before the date of the first public announcement regarding the distribution.
    - (ii) **Special rules.**
      - (A) [Paragraph (d)(5)(i)](#d-5-i) of this section does not apply to a stock acquisition if the acquirer or a coordinating group of which the acquirer is a member is a controlling shareholder or a ten-percent shareholder of Distributing at any time during the period beginning immediately after the acquisition and ending on the date of the distribution.
      - (B) [Paragraph (d)(5)(i)](#d-5-i) of this section does not apply to an acquisition that occurs in connection with a transaction in which the aggregate acquisitions are of stock possessing 20 percent or more of the total voting power of the stock of Distributing or stock having a value of 20 percent or more of the total value of the stock of Distributing.
  - (6) **Safe Harbor VI.** A distribution and an acquisition involving a public offering occurring before the distribution will not be considered part of a plan if the acquisition occurs before the date of the first disclosure event regarding the distribution in the case of an acquisition of stock that is not listed on an established market immediately after the acquisition, or before the date of the first public announcement regarding the distribution in the case of an acquisition of stock that is listed on an established market immediately after the acquisition.
  - (7) **Safe Harbor VII—**
    - (i) **In general.** An acquisition (other than involving a public offering) of Distributing or Controlled stock that is listed on an established market is not part of a plan if, immediately before or immediately after the transfer, none of the transferor, the transferee, and any coordinating group of which either the transferor or the transferee is a member is—
      - (A) The acquired corporation (Distributing or Controlled);
      - (B) A corporation that the acquired corporation (Distributing or Controlled) controls within the meaning of [section 368(c)](/cfr/26/368.md?p=c);
      - (C) A member of a controlled group of corporations within the meaning of [section 1563](/cfr/26/1563.md) of which the acquired corporation (Distributing or Controlled) is a member;
      - (D) A controlling shareholder of the acquired corporation (Distributing or Controlled); or
      - (E) **A ten-percent shareholder of the acquired corporation (Distributing or Controlled).**
    - (ii) **Special rules.**
      - (A) [Paragraph (d)(7)(i)](#d-7-i) of this section does not apply to a transfer of stock by or to a person if the corporation the stock of which is being transferred knows, or has reason to know, that the person or a coordinating group of which such person is a member intends to become a controlling shareholder or a ten-percent shareholder of the acquired corporation (Distributing or Controlled) at any time after the acquisition and before the date that is two years after the distribution.
      - (B) If a transfer of stock to which [paragraph (d)(7)(i)](#d-7-i) of this section applies results immediately, or upon a subsequent event or the passage of time, in an indirect acquisition of voting power by a person other than the transferee, [paragraph (d)(7)(i)](#d-7-i) of this section does not prevent an acquisition of stock (with the voting power such stock represents after the transfer to which [paragraph (d)(7)(i)](#d-7-i) of this section applies) by such other person from being treated as part of a plan.
  - (8) **Safe Harbor VIII—**
    - (i) **In general.** If, in a transaction to which [section 83](/cfr/26/83.md) or section [421(a)](/cfr/26/421.md?p=a) or [(b)](/cfr/26/421.md?p=b) applies, stock of Distributing or Controlled is acquired by a person in connection with such person's performance of services as an employee, director, or independent contractor for Distributing, Controlled, a related person, a corporation the assets of which Distributing, Controlled, or a related person acquires in a reorganization under [section 368(a)](/cfr/26/368.md?p=a), or a corporation that acquires the assets of Distributing or Controlled in such a reorganization (and the stock acquired is not excessive by reference to the services performed), the acquisition and the distribution will not be considered part of a plan. For purposes of this [paragraph (d)(8)(i)](#d-8-i), a related person is a person related to Distributing or Controlled under [section 355(d)(7)(A)](/cfr/26/355.md?p=d-7-A).
    - (ii) **Special rule.** [Paragraph (d)(8)(i)](#d-8-i) of this section does not apply to a stock acquisition if the acquirer or a coordinating group of which the acquirer is a member is a controlling shareholder or a ten-percent shareholder of the acquired corporation (Distributing or Controlled) immediately after the acquisition.
  - (9) **Safe Harbor IX—**
    - (i) **In general.** If stock of Distributing or Controlled is acquired by a retirement plan of Distributing or Controlled (or a retirement plan of any other person that is treated as the same employer as Distributing or Controlled under section [414(b)](/cfr/26/414.md?p=b), [(c)](/cfr/26/414.md?p=c), [(m)](/cfr/26/414.md?p=m), or [(o)](/cfr/26/414.md?p=o)) that qualifies under section [401(a)](/cfr/26/401.md?p=a) or [403(a)](/cfr/26/403.md?p=a), the acquisition and the distribution will not be considered part of a plan.
    - (ii) **Special rule.** [Paragraph (d)(9)(i)](#d-9-i) of this section does not apply to the extent that the stock acquired pursuant to acquisitions by all of the qualified plans of the persons described in [paragraph (d)(9)(i)](#d-9-i) of this section during the four-year period beginning two years before the distribution, in the aggregate, represents more than ten percent of the total combined voting power of all classes of stock entitled to vote, or more than ten percent of the total value of shares of all classes of stock, of the acquired corporation (Distributing or Controlled).
- (e) **Options, warrants, convertible obligations, and other similar interests—**
  - (1) **Treatment of options—**
    - (i) **General rule.** For purposes of this section, if stock of Distributing or Controlled is acquired pursuant to an option that is written by Distributing, Controlled, or a person that is a controlling shareholder of Distributing or Controlled at the time the option is written, or that is acquired by a person that is a controlling shareholder of Distributing or Controlled immediately after the option is written, the option will be treated as an agreement, understanding, or arrangement to acquire the stock on the earliest of the following dates: the date that the option is written, if the option was more likely than not to be exercised as of such date; the date that the option is transferred if, immediately before or immediately after the transfer, the transferor or transferee was Distributing, Controlled, a corporation that Distributing or Controlled controls within the meaning of [section 368(c)](/cfr/26/368.md?p=c), a member of a controlled group of corporations within the meaning of [section 1563](/cfr/26/1563.md) of which Distributing or Controlled is a member, or a controlling shareholder or a ten-percent shareholder of Distributing or Controlled and the option was more likely than not to be exercised as of such date; and the date that the option is modified in a manner that materially increases the likelihood of exercise, if the option was more likely than not to be exercised as of such date; provided, however, if the writing, transfer, or modification had a principal purpose of avoiding [section 355(e)](/cfr/26/355.md?p=e), the option will be treated as an agreement, understanding, arrangement, or substantial negotiations to acquire the stock on the date of the distribution. The determination of whether an option was more likely than not to be exercised is based on all the facts and circumstances, taking control premiums and minority and blockage discounts into account in determining the fair market value of stock underlying an option.
    - (ii) **Agreement, understanding, or arrangement to write, transfer, or modify an option.** If there is an agreement, understanding, or arrangement to write an option, the option will be treated as written on the date of the agreement, understanding, or arrangement. If there is an agreement, understanding, or arrangement to transfer an option, the option will be treated as transferred on the date of the agreement, understanding, or arrangement. If there is an agreement, understanding, or arrangement to modify an option in a manner that materially increases the likelihood of exercise, the option will be treated as so modified on the date of the agreement, understanding, or arrangement.
    - (iii) **Substantial negotiations related to options.** If an option is treated as an agreement, understanding, or arrangement to acquire the stock on the date that the option is written, substantial negotiations to acquire the option will be treated as substantial negotiations to acquire the stock subject to such option. If an option is treated as an agreement, understanding, or arrangement to acquire the stock on the date that the option is transferred, substantial negotiations regarding the transfer of the option will be treated as substantial negotiations to acquire the stock subject to such option. If an option is treated as an agreement, understanding, or arrangement to acquire the stock on the date that the option is modified in a manner that materially increases the likelihood of exercise, substantial negotiations regarding such modifications to the option will be treated as substantial negotiations to acquire the stock subject to such option.
  - (2) **Stock acquired pursuant to options.** For purposes of this section, if an option is issued for cash, the terms of the acquisition of the option and the terms of the option are established by the corporation the stock of which is subject to the option (Distributing or Controlled) or the writer with the involvement of one or more investment bankers, and the potential acquirers of the option have no opportunity to negotiate the terms of the acquisition of the option or the terms of the option, then an acquisition pursuant to such option shall be treated as an acquisition involving a public offering occurring after the distribution if the option is exercised after the distribution or an acquisition involving a public offering before a distribution if the option is exercised before the distribution. Otherwise, an acquisition pursuant to an option shall be treated as an acquisition not involving a public offering.
  - (3) **Instruments treated as options.** For purposes of this section, except to the extent provided in [paragraph (e)(4)](#e-4) of this section, call options, warrants, convertible obligations, the conversion feature of convertible stock, put options, redemption 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 as options.
  - (4) **Instruments generally not treated as options.** For purposes of this section, the following are not treated as options unless (in the case of paragraphs [(e)(4)(i)](#e-4-i), [(ii)](#e-4-ii), and [(iii)](#e-4-iii) of this section) written, transferred (directly or indirectly), modified, or listed with a principal purpose of avoiding the application of [section 355(e)](/cfr/26/355.md?p=e) or this section.
    - (i) **Escrow, pledge, or other security agreements.** An option that is part of a security arrangement in a typical lending transaction (including a purchase money loan), if the arrangement is subject to customary 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 acquire stock contingent upon a default under a loan.
    - (ii) **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 incompetency of the shareholder, or, in the case of stock acquired in connection with the performance of services for the corporation or a person related to it under [section 355(d)(7)(A)](/cfr/26/355.md?p=d-7-A) (and that is not excessive by reference to the services performed), the shareholder's separation from service.
    - (iii) **Rights of first refusal.** A bona fide right of first refusal regarding the corporation's stock with customary terms, entered into between shareholders of a corporation (or between the corporation and a shareholder).
    - (iv) **Other enumerated instruments.** Any other instrument the Commissioner may designate in revenue procedures, notices, or other guidance published in the Internal Revenue Bulletin (see [§ 601.601(d)(2)](/cfr/26/601.601.md?p=d-2) of this chapter).
- (f) **Multiple controlled corporations.** Only the stock or securities of a controlled corporation in which one or more persons acquire directly or indirectly stock representing a 50-percent or greater interest as part of a plan involving the distribution of that corporation will be treated as not qualified property under [section 355(e)(1)](/cfr/26/355.md?p=e-1) if—
  - (1) The stock or securities of more than one controlled corporation are distributed in distributions to which [section 355](/cfr/26/355.md) (or so much of [section 356](/cfr/26/356.md) as relates to [section 355](/cfr/26/355.md)) applies; and
  - (2) One or more persons do not acquire, directly or indirectly, stock representing a 50-percent or greater interest in Distributing pursuant to a plan involving any of those distributions.
- (g) **Valuation.** Except as provided in [paragraph (e)(1)(i)](#e-1-i) of this section, for purposes of [section 355(e)](/cfr/26/355.md?p=e) and this section, all shares of stock within a single class are considered to have the same value. Thus, control premiums and minority and blockage discounts within a single class are not taken into account.
- (h) **Definitions.** For purposes of this section, the following definitions shall apply:
  - (1) **Agreement, understanding, arrangement, or substantial negotiations.**
    - (i) **An agreement, understanding, or arrangement generally requires either—**
      - (A) An agreement, understanding, or arrangement by one or more officers or directors acting on behalf of Distributing or Controlled, by controlling shareholders of Distributing or Controlled, or by another person or persons with the implicit or explicit permission of one or more of such officers, directors, or controlling shareholders, with the acquirer or with a person or persons with the implicit or explicit permission of the acquirer; or
      - (B) An agreement, understanding, or arrangement by an acquirer that is a controlling shareholder of Distributing or Controlled immediately after the acquisition that is the subject of the agreement, understanding, or arrangement, or by a person or persons with the implicit or explicit permission of such acquirer, with the transferor or with a person or persons with the implicit or explicit permission of the transferor.
    - (ii) In the case of an acquisition by a corporation, an agreement, understanding, or arrangement with the acquiring corporation generally requires an agreement, understanding, or arrangement with one or more officers or directors acting on behalf of the acquiring corporation, with controlling shareholders of the acquiring corporation, or with another person or persons with the implicit or explicit permission of one or more of such officers, directors, or controlling shareholders.
    - (iii) **Whether an agreement, understanding, or arrangement exists depends on the facts and circumstances.** The parties do not necessarily have to have entered into a binding contract or have reached agreement on all significant economic terms to have an agreement, understanding, or arrangement. However, an agreement, understanding, or arrangement clearly exists if a binding contract to acquire stock exists.
    - (iv) Substantial negotiations in the case of an acquisition (other than involving a public offering) generally require discussions of significant economic terms, e.g., the exchange ratio in a reorganization, either—
      - (A) By one or more officers or directors acting on behalf of Distributing or Controlled, by controlling shareholders of Distributing or Controlled, or by another person or persons with the implicit or explicit permission of one or more of such officers, directors, or controlling shareholders, with the acquirer or with a person or persons with the implicit or explicit permission of the acquirer; or
      - (B) If the acquirer is a controlling shareholder of Distributing or Controlled immediately after the acquisition that is the subject of substantial negotiations, by the acquirer or by a person or persons with the implicit or explicit permission of the acquirer, with the transferor or with a person or persons with the implicit or explicit permission of the transferor.
    - (v) In the case of an acquisition (other than involving a public offering) by a corporation, substantial negotiations generally require discussions of significant economic terms with one or more officers or directors acting on behalf of the acquiring corporation, with controlling shareholders of the acquiring corporation, or with another person or persons with the implicit or explicit permission of one or more of such officers, directors, or controlling shareholders.
    - (vi) In the case of an acquisition involving a public offering, the existence of an agreement, understanding, arrangement, or substantial negotiations will be based on discussions by one or more officers or directors acting on behalf of Distributing or Controlled, by controlling shareholders of Distributing or Controlled, or by another person or persons with the implicit or explicit permission of one or more of such officers, directors, or controlling shareholders, with an investment banker.
  - (2) **Controlled corporation.** A controlled corporation is a corporation the stock of which is distributed in a distribution to which [section 355](/cfr/26/355.md) (or so much of [section 356](/cfr/26/356.md) as relates to [section 355](/cfr/26/355.md)) applies.
  - (3) **Controlling shareholder.**
    - (i) A controlling shareholder of a corporation the stock of which is listed on an established market is a five-percent shareholder who actively participates in the management or operation of the corporation. For purposes of this [paragraph (h)(3)(i)](#h-3-i), a corporate director will be treated as actively participating in the management of the corporation.
    - (ii) A controlling shareholder of a corporation the stock of which is not listed on an established market is any person that owns stock possessing voting power representing a meaningful voice in the governance of the corporation. For purposes of determining whether a person owns stock possessing voting power representing a meaningful voice in the governance of the corporation, the person shall be treated as owning the stock that such person owns actually and constructively under the rules of [section 318](/cfr/26/318.md) (without regard to [section 318(a)(4)](/cfr/26/318.md?p=a-4)). In addition, if the exercise of an option (whether by itself or in conjunction with the deemed exercise of one or more other options) would cause the holder to own stock possessing voting power representing a meaningful voice in the governance of the corporation, then the option will be treated as exercised.
    - (iii) If a distribution precedes an acquisition, Controlled's controlling shareholders immediately after the distribution and Distributing are included among Controlled's controlling shareholders at the time of the distribution.
  - (4) **Coordinating group.** A coordinating group includes two or more persons that, pursuant to a formal or informal understanding, join in one or more coordinated acquisitions or dispositions of stock of Distributing or Controlled. A principal element in determining if such an understanding exists is whether the investment decision of each person is based on the investment decision of one or more other existing or prospective shareholders. A coordinating group is treated as a single shareholder for purposes of determining whether the coordinating group is treated as a controlling shareholder, a five-percent shareholder, or a ten-percent shareholder.
  - (5) **Disclosure event.** A disclosure event regarding the distribution means any communication by an officer, director, controlling shareholder, or employee of Distributing, Controlled, or a corporation related to Distributing or Controlled, or an outside advisor of any of those persons (where such advisor makes the communication on behalf of such person), regarding the distribution, or the possibility thereof, to the acquirer or any other person (other than an officer, director, controlling shareholder, or employee of Distributing, Controlled, or a corporation related to Distributing or Controlled, or an outside advisor of any of those persons). For purposes of this [paragraph (h)(5)](#h-5), a corporation is related to Distributing or Controlled if it is a member of an affiliated group (as defined in [section 1504(a)](/cfr/26/1504.md?p=a) without regard to [section 1504(b)](/cfr/26/1504.md?p=b)) that includes either Distributing or Controlled or it is a member of a qualified group (as defined in [§ 1.368-1(d)(4)(ii)](/cfr/26/1.368-1.md?p=d-4-ii)) that includes either Distributing or Controlled.
  - (6) **Discussions.** Discussions by Distributing or Controlled generally require discussions by one or more officers or directors acting on behalf of Distributing or Controlled, by controlling shareholders of Distributing or Controlled, or by another person or persons with the implicit or explicit permission of one or more of such officers, directors, or controlling shareholders. Discussions with the acquirer generally require discussions with the acquirer or with a person or persons with the implicit or explicit permission of the acquirer. In the case of an acquisition by a corporation, discussions with the acquiring corporation generally require discussions with one or more officers or directors acting on behalf of the acquiring corporation, with controlling shareholders of the acquiring corporation, or with another person or persons with the implicit or explicit permission of one or more of such officers, directors, or controlling shareholders.
  - (7) **Established market.** An established market is—
    - (i) A national securities exchange registered under section 6 of the Securities Exchange Act of 1934 ([15 U.S.C. 78f](/usc/15/78f.md));
    - (ii) An interdealer quotation system sponsored by a national securities association registered under section 15A of the Securities Act of 1934 ([15 U.S.C. 78o-3](/usc/15/78o-3.md)); or
    - (iii) Any additional market that the Commissioner may designate in revenue procedures, notices, or other guidance published in the Internal Revenue Bulletin (see [§ 601.601(d)(2)](/cfr/26/601.601.md?p=d-2) of this chapter).
  - (8) **Five-percent shareholder.** A person will be considered a five-percent shareholder of a corporation the stock of which is listed on an established market if the person owns five percent or more of any class of stock of the corporation whose stock is transferred. For purposes of determining whether a person owns five percent or more of any class of stock of the corporation whose stock is transferred, the person shall be treated as owning the stock that such person owns actually and constructively under the rules of [section 318](/cfr/26/318.md) (without regard to [section 318(a)(4)](/cfr/26/318.md?p=a-4)). In addition, if the exercise of an option (whether by itself or in conjunction with the deemed exercise of one or more other options) would cause the holder to become a five-percent shareholder, then the option will be treated as exercised. Absent actual knowledge that a person is a five-percent shareholder, a corporation can rely on Schedules 13D and 13G (or any similar schedules) filed with the Securities and Exchange Commission to identify its five-percent shareholders.
  - (9) **Implicit permission.** A corporation is treated as having the implicit permission of its shareholders when it engages in discussions or negotiations, or enters into an agreement, understanding, or arrangement.
  - (10) **Public announcement.** A public announcement regarding the distribution means any communication by Distributing or Controlled regarding Distributing's intention to effect the distribution where the communication is generally available to the public.
  - (11) **Public offering.** An acquisition involving a public offering means an acquisition of stock for cash where the terms of the acquisition are established by the acquired corporation (Distributing or Controlled) or the seller with the involvement of one or more investment bankers and the potential acquirers have no opportunity to negotiate the terms of the acquisition. For example, a public offering includes an underwritten offering of registered stock for cash.
  - (12) **Similar acquisition (not involving a public offering).** In general, an actual acquisition (other than involving a public offering) is similar to another potential acquisition if the actual acquisition effects a direct or indirect combination of all or a significant portion of the same business operations as the combination that would have been effected by such other potential acquisition. Thus, an actual acquisition may be similar to another acquisition even if the timing or terms of the actual acquisition are different from the timing or terms of the other acquisition. For example, an actual acquisition of Distributing by shareholders of another corporation in connection with a merger of such other corporation with and into Distributing is similar to another acquisition of Distributing by merger into such other corporation or into a subsidiary of such other corporation. However, in general, an actual acquisition (other than involving a public offering) is not similar to another acquisition if the ultimate owners of the business operations with which Distributing or Controlled is combined in the actual acquisition are substantially different from the ultimate owners of the business operations with which Distributing or Controlled was to be combined in such other acquisition.
  - (13) **Similar acquisition involving a public offering—**
    - (i) **One public offering.** In general, an actual acquisition involving a public offering may be similar to a potential acquisition involving a public offering, 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 participants in the offering.
    - (ii) **More than one public offering.** More than one actual acquisition involving a public offering may be similar to a potential acquisition involving a public offering. If there is an actual acquisition involving a public offering (the first public offering) that is the same as, or similar to, a potential acquisition involving a public offering, then another actual acquisition involving a public offering (the second public offering) cannot be similar to the potential acquisition unless the purpose of the second public offering is similar to that of the potential acquisition and occurs close in time to the first public offering.
    - (iii) **Potential acquisition involving a public offering.** For purposes of paragraph [(h)(13)(i)](#h-13-i) and [(ii)](#h-13-ii) of this section, as the context may require, a potential acquisition involving a public offering means a potential acquisition involving a public offering that was discussed by Distributing or Controlled with an investment banker, that motivated the distribution, or that was the subject of an agreement, understanding, arrangement, or substantial negotiations.
  - (14) **Ten-percent shareholder.** A person will be considered a ten-percent shareholder of a corporation the stock of which is listed on an established market if the person owns, actually or constructively under the rules of [section 318](/cfr/26/318.md) (without regard to [section 318(a)(4)](/cfr/26/318.md?p=a-4)), ten percent or more of any class of stock of the corporation whose stock is transferred. A person will be considered a ten-percent shareholder of a corporation the stock of which is not listed on an established market if the person owns stock possessing ten percent or more of the total voting power of the stock of the corporation whose stock is transferred or stock having a value equal to ten percent or more of the total value of the stock of the corporation whose stock is transferred. For purposes of determining whether a person owns ten percent or more of the total voting power or value of the stock of the corporation whose stock is transferred, the person shall be treated as owning the stock that such person owns actually and constructively under the rules of [section 318](/cfr/26/318.md) (without regard to [section 318(a)(4)](/cfr/26/318.md?p=a-4)). In addition, if the exercise of an option (whether by itself or in conjunction with the deemed exercise of one or more other options) would cause the holder to become a ten-percent shareholder, then the option will be treated as exercised. Absent actual knowledge that a person is a ten-percent shareholder, a corporation the stock of which is listed on an established market can rely on Schedules 13D and 13G (or any similar schedules) filed with the Securities and Exchange Commission to identify its ten-percent shareholders.
- (i) [Reserved]
- (j) **Examples.** The following examples illustrate [paragraphs (a) through (h)](#a..h) of this section. Throughout these examples, assume that Distributing (D) owns all of the stock of Controlled (C). Assume further that D distributes the stock of C in a distribution to which [section 355](/cfr/26/355.md) applies and to which [section 355(d)](/cfr/26/355.md?p=d) does not apply. Unless otherwise stated, assume the corporations do not have controlling shareholders. No inference should be drawn from any example concerning whether any requirements of [section 355](/cfr/26/355.md) other than those of [section 355(e)](/cfr/26/355.md?p=e) are satisfied. The examples are as follows:
- (k) **Effective dates.** This section applies to distributions occurring after April 19, 2005. For distributions occurring on or before April 19, 2005, and after April 26, 2002, see [§ 1.355-7T](/cfr/26/1.355-7T.md) as contained in [26 CFR part 1](/cfr/26/part1.md) revised as of April 1, 2003; however, taxpayers may apply these regulations, in whole, but not in part, to such distributions. For distributions occurring on or before April 26, 2002, and after August 3, 2001, see [§ 1.355-7T](/cfr/26/1.355-7T.md) as contained in [26 CFR part 1](/cfr/26/part1.md) revised as of April 1, 2002; however, taxpayers may apply, in whole, but not in part, either these regulations or [§ 1.355-7T](/cfr/26/1.355-7T.md) as contained in [26 CFR part 1](/cfr/26/part1.md) revised as of April 1, 2003, to such distributions. For distributions occurring on or before August 3, 2001, and after April 16, 1997, taxpayers may apply, in whole, but not in part, either these regulations or [§ 1.355-7T](/cfr/26/1.355-7T.md) as contained in [26 CFR part 1](/cfr/26/part1.md) revised as of April 1, 2003, to such distributions.

# §1.355-8. Definition of predecessor and successor and limitations on gain recognition under section 355(e) and section 355(f).

- (a) **In general—**
  - (1) **Scope.** For purposes of [section 355(e)](/cfr/26/355.md?p=e), this section provides rules under [section 355(e)(4)(D)](/cfr/26/355.md?p=e-4-D) to determine whether a corporation is treated as a predecessor or successor of a distributing corporation (Distributing) or a controlled corporation (Controlled) with respect to a distribution by Distributing of stock (or stock and securities) of Controlled that qualifies under [section 355(a)](/cfr/26/355.md?p=a) (or so much of [section 356](/cfr/26/356.md) as relates to [section 355](/cfr/26/355.md)) (Distribution). This section also provides rules limiting the amount of Distributing's gain recognized under [section 355(e)](/cfr/26/355.md?p=e) on a Distribution if [section 355(e)](/cfr/26/355.md?p=e) applies to an acquisition by one or more persons, as part of a Plan, of stock that in the aggregate represents a 50-percent or greater interest (Planned 50-percent Acquisition) of a Predecessor of Distributing, or a Planned 50-percent Acquisition of Distributing. In addition, this section provides rules regarding the application of [section 336(e)](/cfr/26/336.md?p=e) to a Distribution to which this section applies. This section also provides rules regarding the application of [section 355(f)](/cfr/26/355.md?p=f) to a Distribution in certain cases.
  - (2) **Overview—**
    - (i) **Purposes and conceptual overview.** [Paragraph (a)(3)](#a-3) of this section summarizes the two principal purposes of this section and sets forth a brief conceptual overview of the scenarios in which a corporation may be a Predecessor of Distributing.
    - (ii) **References to and definitions of terms used in this section.** [Paragraph (a)(4)](#a-4) of this section provides rules regarding references to the terms Distributing, Controlled, Distribution, Plan, and Plan Period for purposes of [section 355(e)](/cfr/26/355.md?p=e), [§ 1.355-7](/cfr/26/1.355-7.md), and this section. [Paragraph (a)(5)](#a-5) of this section lists the terms used in this section and indicates where each term is defined. [Paragraph (b)](#b) of this section defines the term Predecessor of Distributing and several related terms. [Paragraph (c)](#c) of this section defines the terms Predecessor of Controlled, Successor (of Distributing or Controlled), and [Section 381](/cfr/26/381.md) Transaction.
    - (iii) **Special rules and examples.** [Paragraph (d)](#d) of this section provides guidance with regard to acquisitions and deemed acquisitions of stock if there is a Predecessor of Distributing or a Successor of either Distributing or Controlled. [Paragraph (e)](#e) of this section provides two rules that may limit the amount of Distributing's gain on a Distribution if there is a Predecessor of Distributing, as well as an overall gain limitation. [Paragraph (e)](#e) of this section also provides guidance with respect to the application of [section 336(e)](/cfr/26/336.md?p=e). Regardless of whether there is a Predecessor of Distributing, Predecessor of Controlled, or Successor of either Distributing or Controlled, [paragraph (f)](#f) of this section provides a special rule relating to [section 355(e)(2)(C)](/cfr/26/355.md?p=e-2-C), which provides that [section 355(e)](/cfr/26/355.md?p=e) does not apply to certain transactions within an Expanded Affiliated Group. [Paragraph (g)](#g) of this section provides rules coordinating the application of [section 355(f)](/cfr/26/355.md?p=f) with the rules of this section. [Paragraph (h)](#h) of this section contains examples that illustrate the rules of this section.
  - (3) **Purposes of section; Predecessor of Distributing overview—**
    - (i) **Purposes.** The rules in this section have two principal purposes. The first is to ensure that [section 355(e)](/cfr/26/355.md?p=e) applies to a Distribution if, as part of a Plan, some of the assets of a Predecessor of Distributing are transferred directly or indirectly to Controlled without full recognition of gain, and the Distribution accomplishes a division of the assets of the Predecessor of Distributing. The second is to ensure that [section 355(e)](/cfr/26/355.md?p=e) applies when there is a Planned 50-percent Acquisition of a Successor of Distributing or Successor of Controlled. The rules of this section must be interpreted and applied in a manner that is consistent with and reasonably carries out the purposes of this section.
    - (ii) **Predecessor of Distributing overview.** The term Predecessor of Distributing is defined in [paragraph (b)](#b) of this section. Only a Potential Predecessor can be a Predecessor of Distributing. See [paragraph (b)(1)(i)](#b-1-i) of this section. A Potential Predecessor can be a Predecessor of Distributing only if, as part of a Plan, the Distribution accomplishes a division of the assets of the Potential Predecessor. See [paragraph (b)(1)(iii)](#b-1-iii) of this section. Accordingly, in the absence of that Plan, a Predecessor of Distributing cannot exist for purposes of [section 355(e)](/cfr/26/355.md?p=e). The detailed rules set forth in [paragraph (b)](#b) of this section provide that a Potential Predecessor the assets of which are divided as part of a Plan may be a Predecessor of Distributing in either of the following two scenarios:
      - (A) **Relevant Property transferred to Controlled.** As part of the Plan, one or more of the Potential Predecessor's assets were transferred to Controlled in one or more tax-deferred transactions prior to the Distribution.
      - (B) **Relevant Property includes Controlled Stock.** The Potential Predecessor's assets included Controlled stock that, as part of the Plan, was transferred to Distributing in one or more tax-deferred transactions prior to the Distribution.
  - (4) **References—**
    - (i) **References to Distributing or Controlled.** For purposes of [section 355(e)](/cfr/26/355.md?p=e), except as otherwise provided in this section, any reference to Distributing or Controlled includes, as the context may require, a reference to any Predecessor of Distributing or any Predecessor of Controlled, respectively, or any Successor of Distributing or Controlled, respectively. However, except as otherwise provided in this section, a reference to a Predecessor of Distributing or to a Successor of Distributing does not include a reference to Distributing, and a reference to a Predecessor of Controlled or to a Successor of Controlled does not include a reference to Controlled.
    - (ii) **References to Plan or Distribution.** Except as otherwise provided in this section, references to a Plan in this section are references to a plan within the meaning of [§ 1.355-7](/cfr/26/1.355-7.md). References to a distribution in [§ 1.355-7](/cfr/26/1.355-7.md) include a reference to a Distribution and other related pre-Distribution transactions that together effect a division of the assets of a Predecessor of Distributing. In determining whether a Distribution and a Planned 50-percent Acquisition of a Predecessor of Distributing, Distributing (including any Successor thereof), or Controlled (including any Successor thereof) are part of a Plan, the rules of [§ 1.355-7](/cfr/26/1.355-7.md) apply. In applying those rules, references to Distributing or Controlled in [§ 1.355-7](/cfr/26/1.355-7.md) generally include references to any Predecessor of Distributing and any Successor of Distributing, or any Successor of Controlled, as appropriate. However, with regard to any possible Planned 50-percent Acquisition of a Predecessor of Distributing, any agreement, understanding, arrangement, or substantial negotiations with regard to the acquisition of the stock of the Predecessor of Distributing is analyzed under [§ 1.355-7](/cfr/26/1.355-7.md) with regard to the actions of officers or directors of Distributing or Controlled, controlling shareholders (as defined in [§ 1.355-7(h)(3)](/cfr/26/1.355-7.md?p=h-3)) of Distributing or Controlled, or a person acting with permission of one of those parties. For purposes of the preceding sentence, references in [§ 1.355-7](/cfr/26/1.355-7.md) to Distributing do not include references to a Predecessor of Distributing. Therefore, the actions of officers, directors, or controlling shareholders of a Predecessor of Distributing, or of a person acting with the implicit or explicit permission of one of those parties, are not considered unless those parties otherwise would be treated as acting on behalf of Distributing or Controlled under [§ 1.355-7](/cfr/26/1.355-7.md) (for example, if a Predecessor of Distributing is a controlling shareholder of Distributing).
    - (iii) **Plan Period.** For purposes of this section, the term Plan Period means the period that ends immediately after the Distribution and begins on the earliest date on which any pre-Distribution step that is part of the Plan is agreed to or understood, arranged, or substantially negotiated by one or more officers or directors acting on behalf of Distributing or Controlled, by controlling shareholders of Distributing or Controlled, or by another person or persons with the implicit or explicit permission of one or more of such officers, directors, or controlling shareholders. For purposes of the preceding sentence, references to Distributing and Controlled do not include references to any Predecessor of Distributing, Predecessor of Controlled, or Successor of Distributing or Controlled.
  - (5) **List of definitions.** This section uses the following terms, which are defined where indicated—
    - (i) **Acquiring Owner.** [Paragraph (d)(1)(i)](#d-1-i) of this section.
    - (ii) **Controlled.** [Paragraph (a)(1)](#a-1) of this section.
    - (iii) **Distributing.** [Paragraph (a)(1)](#a-1) of this section.
    - (iv) **Distributing Gain Limitation Rule.** [Paragraph (e)(1)(ii)](#e-1-ii) of this section.
    - (v) **Distribution.** [Paragraph (a)(1)](#a-1) of this section.
    - (vi) **Division of Relevant Property Requirement.** [Paragraph (b)(1)(iii)](#b-1-iii) of this section.
    - (vii) **Expanded Affiliated Group.** [Paragraph (b)(2)(ii)(B)](#b-2-ii-B) of this section.
    - (viii) **Hypothetical Controlled.** [Paragraph (e)(2)(i)](#e-2-i) of this section.
    - (ix) **Hypothetical D/355(e) Reorganization.** [Paragraph (e)(2)(i)](#e-2-i) of this section.
    - (x) **Plan.** [Paragraph (a)(4)(ii)](#a-4-ii) of this section.
    - (xi) **Plan Period.** [Paragraph (a)(4)(iii)](#a-4-iii) of this section.
    - (xii) **Planned 50-percent Acquisition.** [Paragraph (a)(1)](#a-1) of this section.
    - (xiii) **POD Gain Limitation Rule.** [Paragraph (e)(1)(ii)](#e-1-ii) of this section.
    - (xiv) **Potential Predecessor.** [Paragraph (b)(2)(ii)(A)](#b-2-ii-A) of this section.
    - (xv) **Predecessor of Controlled.** [Paragraph (c)(1)](#c-1) of this section.
    - (xvi) **Predecessor of Distributing.** [Paragraph (b)(1)](#b-1) of this section.
    - (xvii) **Reflection of Basis Requirement.** [Paragraph (b)(1)(ii)(B)](#b-1-ii-B) of this section.
    - (xviii) **Relevant Equity.** [Paragraph (b)(2)(iv)(A)](#b-2-iv-A) of this section.
    - (xix) **Relevant Property.** [Paragraph (b)(2)(iv)(A)](#b-2-iv-A) of this section.
    - (xx) **Relevant Property Requirement.** [Paragraph (b)(1)(ii)(A)](#b-1-ii-A) of this section.
- (xxi) **Section 381 Transaction.** [Paragraph (c)(3)](#c-3) of this section.
- (xxii) **Separated Property.** [Paragraph (b)(2)(vii)](#b-2-vii) of this section.
- (xxiii) **Statutory Recognition Amount.** [Paragraph (e)(1)(i)](#e-1-i) of this section.
- (xxiv) **Substitute Asset.** [Paragraph (b)(2)(vi)(A)](#b-2-vi-A) of this section.
- (xxv) **Successor.** [Paragraph (c)(2)(i)](#c-2-i) of this section.
- (xxvi) **Successor Transaction.** [Paragraph (c)(2)(i)](#c-2-i) of this section.
- (xxvii) **Underlying Property.** [Paragraph (b)(2)(viii)](#b-2-viii) of this section.
- (b) **Predecessor of Distributing—**
  - (1) **Definition—**
    - (i) **In general.** For purposes of [section 355(e)](/cfr/26/355.md?p=e), a Potential Predecessor is a predecessor of Distributing (Predecessor of Distributing) if, taking into account the special rules of [paragraph (b)(2)](#b-2) of this section—
      - (A) Both pre-Distribution requirements of [paragraph (b)(1)(ii)](#b-1-ii) of this section are satisfied; and
      - (B) **The post-Distribution requirement of paragraph (b)(1)(iii) of this section is satisfied.**
    - (ii) **Pre-Distribution requirements—**
      - (A) **Relevant Property requirement.** The requirement set forth in this [paragraph (b)(1)(ii)(A)](#b-1-ii-A) (Relevant Property Requirement) is satisfied if, before the Distribution, and as part of a Plan, either—

        (1) Any Controlled stock distributed in the Distribution was directly or indirectly acquired (or deemed acquired under the rules set forth in [paragraph (b)(2)(x)](#b-2-x) of this section) by Distributing in exchange for any direct or indirect interest in Relevant Property—

        (i) That is held directly or indirectly by Controlled immediately before the Distribution; and

        (ii) The gain on which (if any) was not recognized in full at any point during the Plan Period; or

        (2) Any Controlled stock that is distributed in the Distribution is Relevant Property of the Potential Predecessor.

      - (B) **Reflection of basis requirement.** The requirement set forth in this [paragraph (b)(1)(ii)(B)](#b-1-ii-B) (Reflection of Basis Requirement) is satisfied if any Controlled stock that satisfies the Relevant Property Requirement—

        (1) Either—

        (i) Had a basis prior to the Distribution that was determined in whole or in part by reference to the basis of any Separated Property; or

        (ii) Is Relevant Property of the Potential Predecessor; and

        (2) During the Plan Period prior to the Distribution, was neither distributed in a distribution to which [section 355(e)](/cfr/26/355.md?p=e) applied nor transferred in a transaction in which the gain (if any) on that Controlled stock was recognized in full.

    - (iii) **Post-Distribution requirement.** The requirement set forth in this [paragraph (b)(1)(iii)](#b-1-iii) (Division of Relevant Property Requirement) is satisfied if, immediately after the Distribution, and as part of a Plan, direct or indirect ownership of the Potential Predecessor's Relevant Property has been divided between Controlled on the one hand, and Distributing or the Potential Predecessor (or a successor to the Potential Predecessor) on the other hand. For purposes of this [paragraph (b)(1)(iii)](#b-1-iii), if Controlled stock that is distributed in the Distribution is Relevant Property of a Potential Predecessor, then Controlled is deemed to have received Relevant Property of the Potential Predecessor.
  - (2) **Additional definitions and rules related to paragraph (b)(1) of this section—**
    - (i) **References to Distributing and Controlled.** For purposes of the Relevant Property Requirement, the Reflection of Basis Requirement, and the Division of Relevant Property Requirement, references to Distributing and Controlled do not include references to any Predecessor of Distributing, Predecessor of Controlled, or Successor of Distributing or Controlled.
    - (ii) **Potential Predecessor—**
      - (A) **Potential Predecessor definition.** The term Potential Predecessor means a corporation, other than Distributing or Controlled, if—

        (1) As part of a Plan, the corporation transfers property to a Potential Predecessor, Distributing, or a member of the same Expanded Affiliated Group as Distributing in a [Section 381](/cfr/26/381.md) Transaction; or

        (2) Immediately after completion of the Plan, the corporation is a member of the same Expanded Affiliated Group as Distributing.

      - (B) **Expanded Affiliated Group definition.** The term Expanded Affiliated Group means an affiliated group (as defined in [section 1504](/cfr/26/1504.md) without regard to [section 1504(b)](/cfr/26/1504.md?p=b)).
    - (iii) **Successors of Potential Predecessors.** For purposes of the Division of Relevant Property Requirement, if a Potential Predecessor transfers property in a [Section 381](/cfr/26/381.md) Transaction to a corporation (other than Distributing or Controlled) during the Plan Period, the corporation is a successor to the Potential Predecessor.
    - (iv) **Relevant Property; Relevant Equity—**
      - (A) **In general.** Except as otherwise provided in this [paragraph (b)(2)(iv)](#b-2-iv) or in [paragraph (b)(2)(v)](#b-2-v) of this section, the term Relevant Property means any property that was held, directly or indirectly, by the Potential Predecessor during the Plan Period. The term Relevant Equity means Relevant Property that is an equity interest in a corporation or a partnership.
      - (B) **Property held by Distributing.** Except as provided in [paragraph (b)(2)(iv)(C)](#b-2-iv-C) of this section, property held directly or indirectly by Distributing (including Controlled stock) is Relevant Property of a Potential Predecessor only to the extent that the property was transferred directly or indirectly to Distributing during the Plan Period, and it was Relevant Property of the Potential Predecessor before the direct or indirect transfer(s). For example, if during the Plan Period a subsidiary corporation of a Potential Predecessor merges into Controlled in a reorganization under section [368(a)(1)(A)](/cfr/26/368.md?p=a-1-A) and [(2)(D)](/cfr/26/368.md?p=a-2-D), and, as a result, the Potential Predecessor directly or indirectly owns Distributing stock received in the merger, the subsidiary's assets held by Controlled are Relevant Property of that Potential Predecessor.
      - (C) **F reorganizations.** For purposes of [paragraph (b)(2)(iv)(B)](#b-2-iv-B) of this section, the transferor and transferee in any reorganization described in [section 368(a)(1)(F)](/cfr/26/368.md?p=a-1-F) (F reorganization) are treated as a single corporation. Therefore, for example, Relevant Property acquired during the Plan Period by a corporation that is a transferor (as to a later F reorganization) is treated as having been acquired directly (and from the same source) by the transferee (as to the later F reorganization) during the Plan Period. In addition, any transfer (or deemed transfer) of assets to Distributing in an F reorganization will not cause the transferred assets to be treated as Relevant Property.
    - (v) **Stock of Distributing as Relevant Property—**
      - (A) **In general.** For purposes of the Division of Relevant Property Requirement, except as provided in [paragraph (b)(2)(v)(B)](#b-2-v-B) of this section, stock of Distributing is not Relevant Property (and thus is not Relevant Equity) to the extent that the Potential Predecessor becomes, as part of a Plan, the direct or indirect owner of that stock as the result of the transfer to Distributing of direct or indirect interests in the Potential Predecessor's Relevant Property. For example, stock of Distributing is not Relevant Property if it is acquired by a Potential Predecessor as part of a Plan in an exchange to which [section 351(a)](/cfr/26/351.md?p=a) applies.
      - (B) **Certain reorganizations.** For purposes of the Division of Relevant Property Requirement, stock of Distributing is Relevant Property (and thus Relevant Equity) to the extent that the Potential Predecessor becomes, as part of the Plan, the direct or indirect owner of that stock as the result of a transaction described in [section 368(a)(1)(E)](/cfr/26/368.md?p=a-1-E).
    - (vi) **Substitute Asset—**
      - (A) **In general.** Subject to [paragraph (b)(2)(vi)(B)](#b-2-vi-B) of this section, the term Substitute Asset means any property that is held directly or indirectly by Distributing during the Plan Period and was received, during the Plan Period, in exchange for Relevant Property that was acquired directly or indirectly by Distributing if all gain on the transferred Relevant Property is not recognized on the exchange. For example, property received by Controlled in exchange for Relevant Property in a transaction qualifying under [section 1031](/cfr/26/1031.md) is a Substitute Asset. In addition, stock received by Distributing in a distribution qualifying under [section 305(a)](/cfr/26/305.md?p=a) or [section 355(a)](/cfr/26/355.md?p=a) on Relevant Equity is a Substitute Asset.
      - (B) **Controlled stock received by Distributing—** (1) In general. Except as provided in paragraph (b)(2)(vi)(B)(2) of this section, stock of Controlled received in exchange for a direct or indirect transfer of Relevant Property by Distributing is not a Substitute Asset.

        (2) Exception. If the basis in Controlled stock received or deemed received in an exchange described in paragraph (b)(2)(vi)(B)(1) of this section is determined in whole or in part by reference to the basis of Relevant Equity the issuer of which ceases to exist for Federal income tax purposes under the Plan, that Controlled stock constitutes a Substitute Asset. See [paragraph (b)(2)(x)](#b-2-x) of this section.

      - (C) **Treatment as Relevant Property.** For purposes of this section, a Substitute Asset is treated as Relevant Property with the same ownership and transfer history as the Relevant Property for which (or with respect to which) it was received.
    - (vii) **Separated Property.** The term Separated Property means each item of Relevant Property that is described in the Relevant Property Requirement (regardless of whether the fair market value of the Relevant Property exceeds its adjusted basis). However, if Relevant Equity is Separated Property, Underlying Property associated with that Relevant Equity is not treated as Separated Property. In addition, if Distributing directly or indirectly acquires Relevant Equity in a transaction in which gain is recognized in full, Underlying Property associated with that Relevant Equity is not treated as Separated Property.
    - (viii) **Underlying Property.** The term Underlying Property means property directly or indirectly held by a corporation or partnership any equity interest in which is Relevant Equity.
    - (ix) **Multiple Predecessors of Distributing.** If there are multiple Potential Predecessors that satisfy the pre-Distribution requirements and post-Distribution requirement of [paragraph (b)(1)](#b-1) of this section, each of those Potential Predecessors is a Predecessor of Distributing. For example, a Potential Predecessor that transfers property to a Predecessor of Distributing without full recognition of gain (and that otherwise meets the requirements of [paragraph (b)(1)](#b-1) of this section) is also a Predecessor of Distributing if the applicable transfer occurred as part of a Plan that existed at the time of such transfer.
    - (x) **Deemed exchanges.** For purposes of [paragraph (b)(1)(ii)](#b-1-ii) of this section (regarding the Relevant Property Requirement and the Reflection of Basis Requirement) and [paragraph (b)(2)(vi)](#b-2-vi) of this section (regarding Substitute Assets), Distributing is treated as acquiring Controlled stock in exchange for a direct or indirect interest in Relevant Property if the basis of Distributing in that Controlled stock, immediately after a transfer of the Relevant Property, is determined in whole or in part by reference to the basis of that Relevant Property immediately before the transfer. For example, if a corporation transfers Relevant Property to Controlled in exchange for Distributing stock in a transaction that qualifies as a reorganization under [section 368(a)(1)(C)](/cfr/26/368.md?p=a-1-C), then, for purposes of paragraphs [(b)(1)(ii)](#b-1-ii) and [(b)(2)(vi)](#b-2-vi) of this section, Distributing is treated as acquiring Controlled stock in exchange for a direct or indirect interest in Relevant Property. See [§ 1.358-6(c)(1)](/cfr/26/1.358-6.md?p=c-1).
- (c) **Additional definitions—**
  - (1) **Predecessor of Controlled.** Solely for purposes of applying [paragraph (f)](#f) of this section, a corporation is a predecessor of Controlled (Predecessor of Controlled) if, before the Distribution, it transfers property to Controlled in a [Section 381](/cfr/26/381.md) Transaction as part of a Plan. Other than for the purpose described in the preceding sentence, no corporation can be a Predecessor of Controlled. If multiple corporations satisfy the requirements of this [paragraph (c)(1)](#c-1), each of those corporations is a Predecessor of Controlled. For example, a corporation that transfers property to a Predecessor of Controlled in a [Section 381](/cfr/26/381.md) Transaction is also a Predecessor of Controlled if the [Section 381](/cfr/26/381.md) Transaction occurred as part of a Plan that existed at the time of such transaction.
  - (2) **Successors—**
    - (i) **In general.** For purposes of [section 355(e)](/cfr/26/355.md?p=e), a successor (Successor) of Distributing or of Controlled is a corporation to which Distributing or Controlled, respectively, transfers property in a [Section 381](/cfr/26/381.md) Transaction after the Distribution (Successor Transaction).
    - (ii) **Determination of Successor status.** More than one corporation may be a Successor of Distributing or Controlled. For example, if Distributing transfers property to another corporation (X) in a [Section 381](/cfr/26/381.md) Transaction, and X transfers property to another corporation (Y) in a [Section 381](/cfr/26/381.md) Transaction, then each of X and Y is a Successor of Distributing. In this case, the determination of whether Y is a Successor of Distributing is made after the determination of whether X is a Successor of Distributing.
  - (3) **Section 381 Transaction.** The term [Section 381](/cfr/26/381.md) Transaction means a transaction to which [section 381](/cfr/26/381.md) applies.
- (d) **Special acquisition rules—**
  - (1) **Deemed acquisitions of stock in Section 381 Transactions—**
    - (i) **Rule.** This [paragraph (d)(1)(i)](#d-1-i) applies to each shareholder of the acquiring corporation immediately before a [Section 381](/cfr/26/381.md) Transaction (Acquiring Owner). Each Acquiring Owner is treated for purposes of this section as acquiring, in the [Section 381](/cfr/26/381.md) Transaction, stock representing an interest in the distributor or transferor corporation, to the extent that the Acquiring Owner's interest in the acquiring corporation immediately after the [Section 381](/cfr/26/381.md) Transaction exceeds the Acquiring Owner's direct or indirect interest in the distributor or transferor corporation immediately before the [Section 381](/cfr/26/381.md) Transaction.
    - (ii) **Example.** The example set forth in this [paragraph (d)(1)(ii)](#d-1-ii) illustrates the application of the deemed acquisition rule in [paragraph (d)(1)(i)](#d-1-i) of this section. Assume that A held all of the stock of Distributing, Distributing held a 25-percent interest in a Predecessor of Distributing, and A held no direct interest, or other indirect interest, in the Predecessor of Distributing immediately before a [Section 381](/cfr/26/381.md) Transaction in which the Predecessor of Distributing transfers its assets to Distributing. In the [Section 381](/cfr/26/381.md) Transaction, the Predecessor of Distributing's shareholders (other than Distributing) collectively receive a 10-percent interest in Distributing (reducing A's interest in Distributing to 90 percent). Under [paragraph (d)(1)(i)](#d-1-i) of this section, A is treated as acquiring in the [Section 381](/cfr/26/381.md) Transaction stock representing a 65-percent interest in the Predecessor of Distributing. This is because A's 90-percent interest in Distributing (the acquiring corporation in the [Section 381](/cfr/26/381.md) Transaction) immediately after the [Section 381](/cfr/26/381.md) Transaction exceeds A's 25-percent interest (held indirectly through Distributing) in the Predecessor of Distributing (the transferor corporation in the [Section 381](/cfr/26/381.md) Transaction) immediately before the [Section 381](/cfr/26/381.md) Transaction by 65 percent. Similarly, each Acquiring Owner of a Successor of Distributing is treated as acquiring, in the Successor Transaction, stock of Distributing, to the extent that the Acquiring Owner's interest in the Successor of Distributing immediately after the Successor Transaction exceeds the Acquiring Owner's direct or indirect interest in Distributing immediately before the Successor Transaction.
  - (2) **Deemed acquisitions of stock after Section 381 Transactions.** For purposes of this section, after a [Section 381](/cfr/26/381.md) Transaction (including a Successor Transaction), an acquisition of stock of an acquiring corporation (including a deemed stock acquisition under [paragraph (d)(1)(i)](#d-1-i) of this section) is treated also as an acquisition of an interest in the stock of the distributor or transferor corporation. For example, an acquisition of the stock of Distributing that occurs after a [Section 381](/cfr/26/381.md) Transaction is treated not only as an acquisition of the stock of Distributing, but also as an acquisition of the stock of any Predecessor of Distributing whose assets were acquired by Distributing in the prior [Section 381](/cfr/26/381.md) Transaction. Similarly, an acquisition of the stock of a Successor of Distributing that occurs after the Successor Transaction is treated not only as an acquisition of the stock of the Successor of Distributing, but also as an acquisition of the stock of Distributing.
  - (3) **Separate counting for Distributing and each Predecessor of Distributing.** The measurement of whether one or more persons have acquired stock of any specific corporation in a Planned 50-percent Acquisition is made separately from the measurement of any potential Planned 50-percent Acquisition of any other corporation. Therefore, there may be a Planned 50-percent Acquisition of a Predecessor of Distributing even if there is no Planned 50-percent Acquisition of Distributing. Similarly, there may be a Planned 50-percent Acquisition of Distributing even if there is no Planned 50-percent Acquisition of a Predecessor of Distributing.
- (e) **Special rules for limiting gain recognition—**
  - (1) **Overview—**
    - (i) **Gain limitation.** This [paragraph (e)](#e) provides rules that limit the amount of gain that must be recognized by Distributing by reason of [section 355(e)](/cfr/26/355.md?p=e) to an amount that is less than the amount that Distributing otherwise would be required to recognize under [section 355(c)(2)](/cfr/26/355.md?p=c-2) or [section 361(c)(2)](/cfr/26/361.md?p=c-2) (Statutory Recognition Amount) in certain cases involving one or more Predecessors of Distributing.
    - (ii) **Multiple Planned 50-percent Acquisitions.** If there are Planned 50-percent Acquisitions of multiple corporations (for example, two Predecessors of Distributing), Distributing must recognize the Statutory Recognition Amount with respect to each such corporation, subject to the limitations in [paragraph (e)(2)](#e-2) of this section relating to a Planned 50-percent Acquisition of a Predecessor of Distributing (POD Gain Limitation Rule) and [paragraph (e)(3)](#e-3) of this section relating to a Planned 50-percent Acquisition of Distributing (Distributing Gain Limitation Rule), if applicable. The POD Gain Limitation Rule and the Distributing Gain Limitation Rule are applied separately to the Planned 50-percent Acquisition of each such corporation to determine the amount of gain required to be recognized.
    - (iii) **Statutory Recognition Amount limit; Section 336(e).** [Paragraph (e)(4)](#e-4) of this section sets forth an overall gain limitation based on the Statutory Recognition Amount. [Paragraph (e)(5)](#e-5) of this section clarifies the availability of an election under [section 336(e)](/cfr/26/336.md?p=e) with regard to certain Distributions.
  - (2) **Planned 50-percent Acquisition of a Predecessor of Distributing—**
    - (i) **In general.** If there is a Planned 50-percent Acquisition of a Predecessor of Distributing, the amount of gain recognized by Distributing by reason of [section 355(e)](/cfr/26/355.md?p=e) as a result of the Planned 50-percent Acquisition is limited to the amount of gain, if any, that Distributing would have recognized if, immediately before the Distribution, Distributing had engaged in the following transaction: Distributing transferred all Separated Property received from the Predecessor of Distributing to a newly formed corporation (Hypothetical Controlled) in exchange solely for stock of Hypothetical Controlled in a reorganization under [section 368(a)(1)(D)](/cfr/26/368.md?p=a-1-D) and then distributed the stock of Hypothetical Controlled to the shareholders of Distributing in a transaction to which [section 355(e)](/cfr/26/355.md?p=e) applied (Hypothetical D/355(e) Reorganization). The computation in this [paragraph (e)(2)(i)](#e-2-i) is applied regardless of whether Distributing actually directly held the Separated Property.
    - (ii) **Operating rules.** For purposes of applying [paragraph (e)(2)(i)](#e-2-i) of this section, the following rules apply:
      - (A) **Separated Property other than Controlled stock.** Each of the basis and the fair market value of Separated Property other than stock of Controlled treated as transferred by Distributing to a Hypothetical Controlled in a Hypothetical D/355(e) Reorganization equals the basis and the fair market value, respectively, of such property in the hands of Controlled immediately before the Distribution.
      - (B) **Controlled stock that is Separated Property.** Each of the basis and the fair market value of the stock of Controlled that is Separated Property treated as transferred by Distributing to a Hypothetical Controlled in a Hypothetical D/355(e) Reorganization equals the basis and the fair market value, respectively, of such stock in the hands of Distributing immediately before the Distribution.
      - (C) **Anti-duplication rule.** A Predecessor of Distributing's Separated Property is taken into account for purposes of applying this [paragraph (e)(2)](#e-2) only to the extent such property was not taken into account by Distributing in a Hypothetical D/355(e) Reorganization with respect to another Predecessor of Distributing. Further, appropriate adjustments must be made to prevent other duplicative inclusions of [section 355(e)](/cfr/26/355.md?p=e) gain under this [paragraph (e)](#e) reflecting the same economic gain.
  - (3) **Planned 50-percent Acquisition of Distributing.** This [paragraph (e)(3)](#e-3) applies if there is a Planned 50-percent Acquisition of Distributing. In that case, the amount of gain recognized by Distributing by reason of [section 355(e)](/cfr/26/355.md?p=e) as a result of the Planned 50-percent Acquisition is limited to the excess, if any, of the Statutory Recognition Amount over the amount of gain, if any, that Distributing would have been required to recognize under paragraphs [(e)(1)(ii)](#e-1-ii) and (e)(2) of this section if there had been a Planned 50-percent Acquisition of every Predecessor of Distributing, but not of Distributing or Controlled. For purposes of this [paragraph (e)(3)](#e-3), references to Distributing are not references to a Predecessor of Distributing.
  - (4) **Gain recognition limited to Statutory Recognition Amount.** The sum of the amounts required to be recognized by Distributing under [section 355(e)](/cfr/26/355.md?p=e) (taking into account the POD Gain Limitation Rule and the Distributing Gain Limitation Rule) with regard to a single Distribution cannot exceed the Statutory Recognition Amount. In addition, Distributing may choose not to apply the POD Gain Limitation Rule or the Distributing Gain Limitation Rule to a Distribution, and instead may recognize the Statutory Recognition Amount. Distributing indicates its choice to apply the preceding sentence by reporting the Statutory Recognition Amount on its original or amended Federal income tax return for the year of the Distribution.
  - (5) **Section 336(e) election.** Distributing is not eligible to make a [section 336(e)](/cfr/26/336.md?p=e) election (as defined in [§ 1.336-1(b)(11)](/cfr/26/1.336-1.md?p=b-11)) with respect to a Distribution to which this section applies unless Distributing would, absent the making of a [section 336(e)](/cfr/26/336.md?p=e) election, recognize the Statutory Recognition Amount with respect to the Distribution (taking into account the POD Gain Limitation Rule and the Distributing Gain Limitation Rule) without regard to the final two sentences of [paragraph (e)(4)](#e-4) of this section. See [§§ 1.336-1 through 1.336-5](/cfr/26/1.336-1..1.336-5.md) for additional requirements with regard to a [section 336(e)](/cfr/26/336.md?p=e) election.
- (f) **Predecessor or Successor as a member of the affiliated group.** For purposes of [section 355(e)(2)(C)](/cfr/26/355.md?p=e-2-C), if a corporation transfers its assets to a member of the same Expanded Affiliated Group in a [Section 381](/cfr/26/381.md) Transaction, the transferor will be treated as continuing in existence within the same Expanded Affiliated Group.
- (g) **Inapplicability of section 355(f) to certain intra-group Distributions—**
  - (1) **In general.** [Section 355(f)](/cfr/26/355.md?p=f) does not apply to a Distribution if there is a Planned 50-percent Acquisition of a Predecessor of Distributing (but not of Distributing, Controlled, or their Successors), except as provided in [paragraph (g)(2)](#g-2) of this section. Therefore, except as provided in [paragraph (g)(2)](#g-2) of this section, [section 355](/cfr/26/355.md) (or so much of [section 356](/cfr/26/356.md) as relates to [section 355](/cfr/26/355.md)) and the regulations under sections [355](/cfr/26/355.md) and [356](/cfr/26/356.md), including the POD Gain Limitation Rule, apply, without regard to [section 355(f)](/cfr/26/355.md?p=f), to a Distribution within an affiliated group (as defined in [section 1504(a)](/cfr/26/1504.md?p=a)) if the Distribution and the Planned 50-percent Acquisition of the Predecessor of Distributing are part of a Plan. For purposes of this [paragraph (g)(1)](#g-1), references to a Distribution (and Distributing and Controlled) include references to a distribution (and Distributing and Controlled) to which [section 355](/cfr/26/355.md) would apply but for the application of [section 355(f)](/cfr/26/355.md?p=f).
  - (2) **Alternative application of section 355(f).** Distributing may choose not to apply [paragraph (g)(1)](#g-1) of this section to each Distribution (that occurs under a Plan) to which [section 355(f)](/cfr/26/355.md?p=f) would otherwise apply absent [paragraph (g)(1)](#g-1) of this section. Instead, Distributing may apply [section 355(f)](/cfr/26/355.md?p=f) to all such Distributions according to its terms, but only if all members of the same Expanded Affiliated Group report consistently the Federal income tax consequences of the Distributions that are part of the Plan (determined without regard to [section 355(f)](/cfr/26/355.md?p=f)). In such a case, neither the POD Gain Limitation Rule nor the Distributing Gain Limitation Rule is available with regard to any applicable Distribution. Distributing indicates its choice to apply [section 355(f)](/cfr/26/355.md?p=f) consistently to all applicable Distributions by reporting the Federal income tax consequences of each Distribution in accordance with [section 355(f)](/cfr/26/355.md?p=f) on its Federal income tax return for the year of the Distribution.
- (h) **Examples.** The following examples illustrate the principles of this section. Unless the facts indicate otherwise, assume throughout these examples that: Distributing (D) owns all the stock of Controlled (C), and none of the shares of C held by D has a built-in loss; D distributes the stock of C in a Distribution to which [section 355(d)](/cfr/26/355.md?p=d) does not apply; X, Y, and Z are individuals; each of D, D1, C, P, P1, P2, and R is a corporation having one class of stock outstanding, and none is a member of a consolidated group; and each transaction that is part of a Plan defined in this section is respected as a separate transaction under general Federal income tax principles. No inference should be drawn from any example concerning whether any requirements of [section 355](/cfr/26/355.md) are satisfied other than those of [section 355(e)](/cfr/26/355.md?p=e) or whether any general Federal income tax principles (including the step transaction doctrine) are implicated by the example:
  - (1) **Example 1: Predecessor of D and Planned 50-Percent Acquisition of P—**
    - (i) **Facts.** X owns 100% of the stock of P, which holds multiple assets. Y owns 100% of the stock of D. The following steps occur as part of a Plan: P merges into D in a reorganization under [section 368(a)(1)(A)](/cfr/26/368.md?p=a-1-A). Immediately after the merger, X and Y own 10% and 90%, respectively, of the stock of D. D then contributes to C one of the assets (Asset 1) acquired from P in the merger. At the time of the contribution, Asset 1 has a basis of $40x and a fair market value of $110x. In exchange for Asset 1, D receives additional C stock and $10x. D distributes the stock of C (but not the cash) to X and Y, pro rata. The contribution and Distribution constitute a reorganization under [section 368(a)(1)(D)](/cfr/26/368.md?p=a-1-D), and D recognizes $10x of gain under [section 361(b)](/cfr/26/361.md?p=b) on the contribution. Immediately before the Distribution, taking into account the $10x of gain recognized by D on the contribution, Asset 1 has an adjusted basis of $50x under [section 362(b)](/cfr/26/362.md?p=b) and a fair market value of $110x, and the stock of C held by D has a basis of $100x and a fair market value of $200x.
    - (ii) **Analysis—**
      - (A) **P is a Predecessor of D.** Under [paragraph (b)(1)](#b-1) of this section, P is a Predecessor of D. First, P is a Potential Predecessor because, as part of a Plan, P transferred property to D in a [Section 381](/cfr/26/381.md) Transaction. See paragraph (b)(2)(ii)(A)(1) of this section. Second, both of the pre-Distribution requirements and the post-Distribution requirement are satisfied. The Relevant Property Requirement is satisfied because, immediately before the Distribution and as part of a Plan, C holds P Relevant Property (Asset 1) the gain on which was not recognized in full at any point during the Plan Period, and some of the C stock distributed in the Distribution was acquired by D in exchange for Asset 1. See paragraph (b)(1)(ii)(A)(1) of this section. The Reflection of Basis Requirement is satisfied because that C stock had a basis prior to the Distribution that was determined in whole or in part by reference to the basis of Separated Property (Asset 1), and was neither distributed in a distribution to which [section 355(e)](/cfr/26/355.md?p=e) applied nor transferred in a transaction in which the gain on that C stock was recognized in full during the Plan Period prior to the Distribution. See [paragraph (b)(1)(ii)(B)](#b-1-ii-B) of this section. The Division of Relevant Property Requirement is satisfied because immediately after the Distribution, D continues to hold Relevant Property of P, and therefore, as part of a Plan, P's Relevant Property has been divided between C and D. See [paragraph (b)(1)(iii)](#b-1-iii) of this section.
      - (B) **Planned 50-percent Acquisition of P.** Under [paragraph (d)(1)(i)](#d-1-i) of this section, Y is treated as acquiring stock representing 90% of the voting power and value of P as a result of the merger of P into D. Accordingly, there has been a Planned 50-percent Acquisition of P.
      - (C) **Gain limited.** Without regard to the limitations in [paragraph (e)](#e) of this section, D would be required to recognize $100x of gain ($200x of aggregate fair market value minus $100x of aggregate basis of the C stock held by D), the Statutory Recognition Amount described in [section 361(c)(2)](/cfr/26/361.md?p=c-2). However, under the POD Gain Limitation Rule, D's gain recognized by reason of the Planned 50-percent Acquisition of P will not exceed $60x, an amount equal to the amount of gain D would have recognized had D transferred Asset 1 (Separated Property) to a newly formed corporation (C1) solely for C1 stock and distributed the C1 stock to D's shareholders in a Hypothetical D/355(e) Reorganization. See [paragraph (e)(2)(i)](#e-2-i) of this section. For purposes of the computation in this [paragraph (h)(1)(ii)(C)](#h-1-ii-C), the basis and fair market value of Asset 1 equal the basis and fair market value of Asset 1 in the hands of C immediately before the Distribution. See [paragraph (e)(2)(ii)(A)](#e-2-ii-A) of this section. Under [section 361(c)(2)](/cfr/26/361.md?p=c-2), D would recognize $60x of gain, an amount equal to the gain in the hypothetical C1 stock (excess of the $110x fair market value over the $50x basis). Therefore, D recognizes $60x of gain (in addition to the $10x of gain recognized under [section 361(b)](/cfr/26/361.md?p=b)).
    - (iii) **Plan not in existence at time of acquisition of Potential Predecessor's property.** The facts are the same as in [paragraph (h)(1)(i)](#h-1-i) of this section (Example 1) except that the merger of P into D occurred before the existence of a Plan. Even though D transferred P property (Asset 1) to C, Asset 1 was not Relevant Property of P because P did not hold Asset 1 during the Plan Period. See paragraphs [(b)(2)(iv)](#b-2-iv) and [(a)(4)(iii)](#a-4-iii) of this section. Because Asset 1 is not Relevant Property, D did not receive C stock distributed in the Distribution in exchange for Relevant Property when it contributed Asset 1 to C, none of the distributed C stock had a basis prior to the Distribution that was determined in whole or in part by reference to the basis of Separated Property, and C did not hold Relevant Property immediately before the Distribution. Further, Relevant Property of P has not been divided. Therefore, P is not a Predecessor of D.
  - (2) **Example 2: Planned 50-percent Acquisition of D, but not Predecessor of D—**
    - (i) **Facts.** X owns 100% of the stock of P, which holds multiple assets. Y owns 100% of the stock of D. The following steps occur as part of a Plan: P merges into D in a reorganization under [section 368(a)(1)(A)](/cfr/26/368.md?p=a-1-A). Immediately after the merger, X and Y own 90% and 10%, respectively, of the stock of D. D then contributes to C one of the assets (Asset 1) acquired from P in the merger. In exchange for Asset 1, D receives additional C stock. D distributes the stock of C to X and Y, pro rata. The contribution and Distribution constitute a reorganization under [section 368(a)(1)(D)](/cfr/26/368.md?p=a-1-D). Immediately before the Distribution, Asset 1 has a basis of $50x and a fair market value of $110x, and the stock of C held by D has a basis of $120x and a fair market value of $200x.
    - (ii) **Analysis—**
      - (A) **P is a Predecessor of D.** Under [paragraph (b)(1)](#b-1) of this section, P is a Predecessor of D. First, P is a Potential Predecessor because, as part of a Plan, P transferred property to D in a [Section 381](/cfr/26/381.md) Transaction. See paragraph (b)(2)(ii)(A)(1) of this section. Second, both of the pre-Distribution requirements and the post-Distribution requirement are satisfied. The Relevant Property Requirement is satisfied because, immediately before the Distribution and as part of a Plan, C holds P Relevant Property (Asset 1) the gain on which was not recognized in full at any point during the Plan Period, and some of the C stock distributed in the Distribution was acquired by D in exchange for Asset 1. See paragraph (b)(1)(ii)(A)(1) of this section. The Reflection of Basis Requirement is satisfied because that C stock had a basis prior to the Distribution that was determined in whole or in part by reference to the basis of Separated Property (Asset 1), and was neither distributed in a distribution to which [section 355(e)](/cfr/26/355.md?p=e) applied nor transferred in a transaction in which the gain on that C stock was recognized in full during the Plan Period prior to the Distribution. See [paragraph (b)(1)(ii)(B)](#b-1-ii-B) of this section. The Division of Relevant Property Requirement is satisfied because immediately after the Distribution, D continues to hold Relevant Property of P, and therefore, as part of a Plan, P's Relevant Property has been divided between C and D. See [paragraph (b)(1)(iii)](#b-1-iii) of this section.
      - (B) **Planned 50-percent Acquisition of D.** Under [paragraph (d)(1)(i)](#d-1-i) of this section, Y is treated as acquiring stock representing 10% of the voting power and value of P as a result of the merger of P into D. The 10% acquisition of P stock does not cause [section 355(e)](/cfr/26/355.md?p=e) gain recognition or cause application of the POD Gain Limitation Rule because there has not been a Planned 50-percent Acquisition of P. X acquires 90% of the voting power and value of D as a result of the merger of P into D. Accordingly, there has been a Planned 50-percent Acquisition of D. This Planned 50-percent Acquisition implicates [section 355(e)](/cfr/26/355.md?p=e) and results in gain recognition, subject to the rules of [paragraph (e)](#e) of this section.
      - (C) **Gain limited.** Without regard to the limitations in [paragraph (e)](#e) of this section, D would be required to recognize $80x of gain ($200x of fair market value minus $120x of basis of the C stock held by D), the Statutory Recognition Amount described in [section 361(c)(2)](/cfr/26/361.md?p=c-2). However, under the Distributing Gain Limitation Rule, D's gain recognized by reason of the Planned 50-percent Acquisition of D will not exceed $20x, the excess of the Statutory Recognition Amount ($80x) over the amount of gain that D would have been required to recognize under the POD Gain Limitation Rule if there had been a Planned 50-percent Acquisition of P but not D or C ($60x). See [paragraph (e)(3)](#e-3) of this section. The hypothetical gain limitation under the POD Gain Limitation Rule equals the amount D would have recognized had it transferred Asset 1 (Separated Property) to a newly formed corporation (C1) solely for stock and distributed the C1 stock in a Hypothetical D/355(e) Reorganization. See [paragraph (e)(2)(i)](#e-2-i) of this section. Under [section 361(c)(2)](/cfr/26/361.md?p=c-2), D would recognize $60x of gain, an amount equal to the gain in the hypothetical C1 stock (excess of the $110x fair market value over the $50x basis). Therefore, D recognizes $20x of gain ($80x−$60x).
  - (3) **Example 3: Predecessor of D owns C stock—**
    - (i) **Facts.** X owns 100% of the stock of P, which holds multiple assets, including Asset 2. Y owns 100% of the stock of D. P owns 35% of the stock of C (Block 1), and D owns the remaining 65% of the C stock (Block 2). The following steps occur as part of a Plan: P merges into D in a reorganization under [section 368(a)(1)(A)](/cfr/26/368.md?p=a-1-A), and D immediately thereafter distributes all of the C stock to X and Y pro rata. Immediately after the merger, X and Y own 10% and 90%, respectively, of the D stock, and, prior to the Distribution, D owns Block 1 with a basis of $30x and a fair market value of $35x, and Block 2 with a basis of $10x and a fair market value of $65x. D continues to hold Asset 2.
    - (ii) **Analysis—**
      - (A) **P is a Predecessor of D.** Under [paragraph (b)(1)](#b-1) of this section, P is a Predecessor of D. First, P is a Potential Predecessor because, as part of a Plan, P transferred property to D in a [Section 381](/cfr/26/381.md) Transaction. See paragraph (b)(2)(ii)(A)(1) of this section. Second, both of the pre-Distribution requirements and the post-Distribution requirement are satisfied. The Relevant Property Requirement is satisfied because some of the C stock distributed in the Distribution (Block 1) was Relevant Property of P. See paragraph (b)(1)(ii)(A)(2) of this section. The Reflection of Basis Requirement is satisfied because Block 1 of the C stock is Relevant Property of P, and was neither distributed in a distribution to which [section 355(e)](/cfr/26/355.md?p=e) applied nor transferred in a transaction in which the gain on that C stock was recognized in full during the Plan Period prior to the Distribution. See [paragraph (b)(1)(ii)(B)](#b-1-ii-B) of this section. The Division of Relevant Property Requirement is satisfied because some of the C stock distributed in the Distribution was Relevant Property of P, and therefore C is deemed to have received Relevant Property of P, and D continues to hold Relevant Property of P immediately after the Distribution. See [paragraph (b)(1)(iii)](#b-1-iii) of this section. Therefore, as part of a Plan, P's Relevant Property has been divided between C and D.
      - (B) **Planned 50-percent Acquisition of P.** Under [paragraph (d)(1)(i)](#d-1-i) of this section, Y is treated as acquiring stock representing 90% of the voting power and value of P as a result of the merger of P into D. Accordingly, there has been a Planned 50-percent Acquisition of P.
      - (C) **Gain limited.** Without regard to the limitations in [paragraph (e)](#e) of this section, D would be required to recognize $60x of gain ($100x of fair market value minus $40x of basis of the C stock held by D), the Statutory Recognition Amount under [section 355(c)(2)](/cfr/26/355.md?p=c-2). However, under the POD Gain Limitation Rule, D's gain recognized by reason of the Planned 50-percent Acquisition of P will not exceed $5x, an amount equal to the amount D would have recognized had it transferred Block 1 of the C stock (Separated Property) to a newly formed corporation (C1) solely for stock and distributed the C1 stock to D shareholders in a Hypothetical D/355(e) Reorganization. See [paragraph (e)(2)(i)](#e-2-i) of this section. Because Relevant Equity (Block 1 of the C stock) is Separated Property, Underlying Property associated with that Relevant Equity is not treated as Separated Property. See [paragraph (b)(2)(vii)](#b-2-vii) of this section. For purposes of the computation in this [paragraph (h)(3)(ii)(C)](#h-3-ii-C), the basis and fair market value of the Block 1 C stock equal its basis and fair market value in the hands of D immediately before the Distribution. See [paragraph (e)(2)(ii)(A)](#e-2-ii-A) of this section. Under [section 361(c)(2)](/cfr/26/361.md?p=c-2), D would recognize $5x of gain, an amount equal to the gain in the hypothetical C1 stock ($35x fair market value−$30x basis). Therefore, D recognizes $5x of gain.
  - (4) **Example 4: C stock as Substitute Asset—**
    - (i) **Facts.** X owns 100% of the stock of P, which owns multiple assets, including 100% of the stock of R and Asset 2. Y owns 100% of the stock of D. The following steps occur as part of a Plan: P merges into D in a reorganization under [section 368(a)(1)(A)](/cfr/26/368.md?p=a-1-A) (P-D reorganization). Immediately after the merger, X and Y own 10% and 90%, respectively, of the stock of D. D then causes R to transfer all of its assets to C and liquidate in a reorganization under [section 368(a)(1)](/cfr/26/368.md?p=a-1) (R-C reorganization). At the time of the P-D reorganization, the R stock has a basis of $40x and a fair market value of $110x. D distributes the stock of C to X and Y, pro rata. D continues to directly hold Asset 2. Immediately before the Distribution, the C stock held by D that was deemed received in the R-C reorganization (Block 1) has a basis of $40x and a fair market value of $110x, and all of the stock of C held by D has a basis of $100x and a fair market value of $200x.
    - (ii) **Analysis—**
      - (A) **P is a Predecessor of D.** Under [paragraph (b)(1)](#b-1) of this section, P is a Predecessor of D. First, P is a Potential Predecessor because, as part of a Plan, P transferred property to D in a [Section 381](/cfr/26/381.md) Transaction. See paragraph (b)(2)(ii)(A)(1) of this section. Second, both pre-Distribution requirements and the post-Distribution requirement are satisfied. The Relevant Property Requirement is satisfied because, for the following two reasons, some of the C stock distributed in the Distribution (Block 1) was Relevant Property of P. D is treated as acquiring Block 1 of the C stock in exchange for a direct or indirect interest in R stock (that is, Relevant Property) in the R-C reorganization because the basis of D in that C stock immediately after a transfer of the R stock (in the liquidation of R) is determined in whole or in part by reference to the basis of the R stock immediately before the transfer. See [paragraph (b)(2)(x)](#b-2-x) of this section. Further, because the basis in Block 1 of the C stock is determined in whole or in part by reference to the basis of Relevant Equity (the R stock) the issuer of which ceases to exist for Federal income tax purposes under the Plan, Block 1 of the C stock is a Substitute Asset, and is therefore treated as Relevant Property with the same ownership and transfer history as the R stock. See paragraph (b)(2)(vi)(B)(2) of this section. The Reflection of Basis Requirement is satisfied because Block 1 of the C stock is Relevant Property of P, and was neither distributed in a distribution to which [section 355(e)](/cfr/26/355.md?p=e) applied nor transferred in a transaction in which the gain on that C stock was recognized in full during the Plan Period prior to the Distribution. See [paragraph (b)(1)(ii)(B)](#b-1-ii-B) of this section. The Division of Relevant Property Requirement is satisfied because some of the C stock distributed in the Distribution was Relevant Property of P, and therefore C is deemed to have received Relevant Property of P, and immediately after the Distribution, D continues to hold Asset 2, which is Relevant Property of P. See [paragraph (b)(1)(iii)](#b-1-iii) of this section. Therefore, as part of a Plan, P's Relevant Property has been divided between C and D.
      - (B) **Planned 50-percent Acquisition of P.** Under [paragraph (d)(1)(i)](#d-1-i) of this section, Y is treated as acquiring stock representing 90% of the voting power and value of P as a result of the P-D reorganization. Accordingly, there has been a Planned 50-percent Acquisition of P.
      - (C) **Gain limited.** Without regard to the limitations in [paragraph (e)](#e) of this section, D would be required to recognize $100x of gain ($200x of fair market value minus $100x of basis of all C stock held by D), the Statutory Recognition Amount described in [section 355(c)(2)](/cfr/26/355.md?p=c-2). However, under the POD Gain Limitation Rule, D's gain recognized by reason of the Planned 50-percent Acquisition of P will not exceed $70x, an amount equal to the amount D would have recognized had it transferred Block 1 of the C stock (Separated Property) to a newly formed corporation (C1) solely for stock and distributed the C1 stock to D shareholders in a Hypothetical D/355(e) Reorganization. See [paragraph (e)(2)(i)](#e-2-i) of this section. Because Relevant Equity (Block 1 of the C stock) is Separated Property, Underlying Property associated with that Relevant Equity is not treated as Separated Property. See [paragraph (b)(2)(vii)](#b-2-vii) of this section. Under [section 361(c)(2)](/cfr/26/361.md?p=c-2), D would recognize $70x of gain, an amount equal to the gain in the hypothetical C1 stock (excess of the $110x fair market value over the $40x basis). Therefore, D recognizes $70x of gain.
  - (5) **Example 5: Section 351 transaction—**
    - (i) **Facts.** X owns 100% of the stock of P, which holds multiple assets, including Asset 1, Asset 2, and Asset 3. Y owns 100% of the stock of D. The following steps occur as part of a Plan: P transfers Asset 1 and Asset 2 to D and Y transfers property to D in an exchange qualifying under [section 351](/cfr/26/351.md). Immediately after the exchange, P and Y own 10% and 90%, respectively, of the stock of D. D then contributes Asset 1 to C in exchange for additional C stock. D distributes all of the stock of C to P and Y, pro rata. D continues to directly hold Asset 2, and P continues to directly hold Asset 3. The contribution and Distribution constitute a reorganization under [section 368(a)(1)(D)](/cfr/26/368.md?p=a-1-D). Immediately before the Distribution, Asset 1 has a basis of $40x and a fair market value of $110x, and the stock of C held by D has a basis of $100x and a fair market value of $200x. Following the Distribution, and as part of the same Plan, Z acquires 51% of the P stock.
    - (ii) **Analysis—** P is not a Predecessor of D. Under [paragraph (b)(1)](#b-1) of this section, P is not a Predecessor of D. P is not a Potential Predecessor because P did not transfer property to a Potential Predecessor, D, or a member of the same Expanded Affiliated Group as D in a [Section 381](/cfr/26/381.md) Transaction and P is not a member of the same Expanded Affiliated Group as D immediately after completion of the Plan. See [paragraph (b)(2)(ii)](#b-2-ii) of this section. Thus, P cannot be a Predecessor of D. See [paragraph (b)(1)(i)](#b-1-i) of this section.
  - (6) **Example 6: Section 351 transaction after an acquisition of P—**
    - (i) **Facts.** X owns 100% of the stock of P, which holds multiple assets, including Asset 1 and Asset 2. Y owns 100% of the stock of D, D owns 100% of the stock of D1, and D1 owns 100% of the stock of C. D files a consolidated return for the affiliated group of which it is the common parent. The following steps occur as part of a Plan: D acquires 100% of the stock of P from X. P transfers Asset 1 and Asset 2 to D1 for D1 stock in an exchange qualifying under [section 351](/cfr/26/351.md). See [§ 1.1502-34](/cfr/26/1.1502-34.md). D1 contributes Asset 1 to C in exchange for additional C stock. D1 distributes all of the stock of C to D in exchange for D1 stock (First Distribution). D then distributes all of the stock of C to Y (Second Distribution). D1 continues to directly hold Asset 2. Immediately before the First Distribution, Asset 1 has a basis of $10x and a fair market value of $60x, and the stock of C held by D1 has a basis of $100x and a fair market value of $200x.
    - (ii) **Analysis—**
      - (A) **P is a Predecessor of D1.** Under [paragraph (b)(1)](#b-1) of this section, P is a Predecessor of D1. First, P is a Potential Predecessor of D1 because P is a member of the same Expanded Affiliated Group as D1 immediately after completion of the Plan. See paragraph (b)(2)(ii)(A)(2) of this section. The Relevant Property Requirement is satisfied because, immediately before the First Distribution and as part of a Plan, C holds P Relevant Property (Asset 1) the gain on which was not recognized in full at any point during the Plan Period, and some of the C stock distributed in the First Distribution was acquired by D1 in exchange for Asset 1. See paragraph (b)(1)(ii)(A)(1) of this section. The Reflection of Basis Requirement is satisfied because that C stock had a basis prior to the First Distribution that was determined in whole or in part by reference to the basis of Separated Property (Asset 1), and was neither distributed in a distribution to which [section 355(e)](/cfr/26/355.md?p=e) applied nor transferred in a transaction in which the gain on that C stock was recognized in full prior to the First Distribution. See [paragraph (b)(1)(ii)(B)](#b-1-ii-B) of this section. The Division of Relevant Property Requirement is satisfied because immediately after the First Distribution, each of C, on the one hand, and P or D1, on the other hand, continues to hold Relevant Property of P, and therefore, as part of a Plan, P's Relevant Property has been divided between C and D1. See [paragraph (b)(1)(iii)](#b-1-iii) of this section.
      - (B) **Planned 50-percent Acquisition of P.** D has acquired stock representing 100% of the voting power and value of P. Accordingly, there has been a Planned 50-percent Acquisition of P.
      - (C) **Gain on First Distribution.** Because there is a Planned 50-percent Acquisition of a Predecessor of Distributing (but not of Distributing, Controlled, or their Successors), [section 355(f)](/cfr/26/355.md?p=f) will not apply to the First Distribution unless D and D1 choose to have [section 355(f)](/cfr/26/355.md?p=f) apply. See [paragraph (g)](#g) of this section. As a result, [section 355](/cfr/26/355.md), including the POD Gain Limitation Rule, will apply to the First Distribution. Under the POD Gain Limitation Rule, D1's gain recognized by reason of the Planned 50-percent Acquisition of P will not exceed $50x, an amount equal to the amount D1 would have recognized had it transferred Asset 1 (Separated Property) to a newly formed corporation (C1) solely for stock and distributed the C1 stock to D1 shareholders in a Hypothetical D/355(e) Reorganization. See [paragraph (e)(2)(i)](#e-2-i) of this section. Under [section 361(c)(2)](/cfr/26/361.md?p=c-2), D1 would recognize $50x of gain, an amount equal to the gain in the hypothetical C1 stock (excess of the $60x fair market value over the $10x basis). Therefore, D1 recognizes $50x of gain. Under [paragraph (g)(2)](#g-2) of this section, however, D and D1 may choose to apply [section 355(f)](/cfr/26/355.md?p=f) to the First Distribution as an exception to the general application of [paragraph (g)(1)](#g-1) of this section. By application of [section 355(f)](/cfr/26/355.md?p=f), [section 355](/cfr/26/355.md) (including the POD Gain Limitation Rule) would not apply to the First Distribution. Therefore, D1 would be required to recognize $100x of gain (excess of the $200x fair market value over the $100x basis of C stock held by D1) under [section 311(b)](/cfr/26/311.md?p=b), and D would be treated under [section 302(d)](/cfr/26/302.md?p=d) as receiving a distribution of $200x to which [section 301](/cfr/26/301.md) applies.
      - (D) **P is not a Predecessor of D.** Under [paragraph (b)(1)](#b-1) of this section, P is not a Predecessor of D. First, P is a Potential Predecessor of D because P is a member of the same Expanded Affiliated Group as D immediately after completion of the Plan. See paragraph (b)(2)(ii)(A)(2) of this section. However, although the Relevant Property Requirement is satisfied, the Reflection of Basis Requirement is not satisfied. The Relevant Property Requirement is satisfied because, immediately before the Second Distribution and as part of a Plan, C holds P Relevant Property (Asset 1) the gain on which was not recognized in full at any point during the Plan Period, and some of the C stock distributed in the Second Distribution was indirectly acquired by D in exchange for Asset 1. See paragraph (b)(1)(ii)(A)(1) of this section. However, regardless of whether D and D1 choose under [paragraph (g)(2)](#g-2) of this section to have [section 355(f)](/cfr/26/355.md?p=f) apply to the First Distribution, the Reflection of Basis Requirement cannot be satisfied. If [section 355(f)](/cfr/26/355.md?p=f) applies to the First Distribution, then all of the C stock will have been transferred in a transaction in which the gain on the C stock was recognized in full during the Plan Period prior to the Second Distribution. If [section 355(f)](/cfr/26/355.md?p=f) does not apply to the First Distribution, then all of the C stock will have been transferred in a distribution to which [section 355(e)](/cfr/26/355.md?p=e) applied during the Plan Period prior to the Second Distribution. Because not all of the pre-Distribution and post-Distribution requirements are satisfied, P cannot be a Predecessor of D.
  - (7) **Example 7: Sequential Predecessors—**
    - (i) **Facts.** X owns 100% of P1, which holds multiple assets, including Asset 1 and Asset 2. Y owns 100% of P2, which holds Asset 3, and Z owns 100% of D. The following steps occur as part of a Plan: P1 merges into P2 in a reorganization under 368(a)(1)(A) (P1-P2 reorganization). Immediately after the merger, X and Y own 10% and 90%, respectively, of the stock of P2. P2 then merges into D in a reorganization under 368(a)(1)(A) (P2-D reorganization). Immediately after the merger, X, Y, and Z own 1%, 9%, and 90%, respectively, of the stock of D. D then contributes Asset 1 to C in exchange for additional C stock, and retains Asset 2 and Asset 3. D distributes all of the stock of C to X, Y, and Z, pro rata. Immediately before the Distribution, Asset 1 has a basis of $40x and a fair market value of $100x, and the stock of C held by D has a basis of $100x and a fair market value of $200x.
    - (ii) **Analysis—**
      - (A) **P2 is a Predecessor of D.** Under [paragraph (b)(1)](#b-1) of this section, P2 is a Predecessor of D. First, P2 is a Potential Predecessor because, as part of a Plan, P2 transferred property to D in a [Section 381](/cfr/26/381.md) Transaction. See paragraph (b)(2)(ii)(A)(1) of this section. Second, both pre-Distribution requirements and the post-Distribution requirement are satisfied. The Relevant Property Requirement is satisfied because, immediately before the Distribution and as part of a Plan, C holds P2 Relevant Property (Asset 1) the gain on which was not recognized in full at any point during the Plan Period, and some of the C stock distributed in the Distribution was acquired by D in exchange for Asset 1. See paragraph (b)(1)(ii)(A)(1) of this section. The Reflection of Basis Requirement is satisfied because that C stock had a basis prior to the Distribution that was determined in whole or in part by reference to the basis of Separated Property (Asset 1), and was neither distributed in a distribution to which [section 355(e)](/cfr/26/355.md?p=e) applied nor transferred in a transaction in which the gain on that C stock was recognized in full during the Plan Period prior to the Distribution. See [paragraph (b)(1)(ii)(B)](#b-1-ii-B) of this section. The Division of Relevant Property Requirement is satisfied because immediately after the Distribution, D continues to hold P2 Relevant Property (Asset 2 and Asset 3), and therefore, as part of a Plan, P2's Relevant Property has been divided between C and D. See [paragraph (b)(1)(iii)](#b-1-iii) of this section.
      - (B) **P1 is a Predecessor of D.** Under [paragraph (b)(1)](#b-1) of this section, P1 is a Predecessor of D. First, P1 is a Potential Predecessor because, as part of a Plan, P1 transferred property to a Potential Predecessor (P2) in a [Section 381](/cfr/26/381.md) Transaction. See paragraph (b)(2)(ii)(A)(1) of this section. Second, both pre-Distribution requirements and the post-Distribution requirement are satisfied. The Relevant Property Requirement is satisfied because, immediately before the Distribution and as part of a Plan, C holds P1 Relevant Property (Asset 1) the gain on which was not recognized in full at any point during the Plan Period, and some of the C stock distributed in the Distribution was acquired by D in exchange for Asset 1. See paragraph (b)(1)(ii)(A)(1) of this section. The Reflection of Basis Requirement is satisfied because that C stock had a basis prior to the Distribution that was determined in whole or in part by reference to the basis of Separated Property (Asset 1), and was neither distributed in a distribution to which [section 355(e)](/cfr/26/355.md?p=e) applied nor transferred in a transaction in which the gain on that C stock was recognized in full during the Plan Period prior to the Distribution. See [paragraph (b)(1)(ii)(B)](#b-1-ii-B) of this section. The Division of Relevant Property Requirement is satisfied because immediately after the Distribution, D continues to hold Relevant Property of P1 (Asset 2), and therefore, as part of a Plan, P1's Relevant Property has been divided between C and D. See [paragraph (b)(1)(iii)](#b-1-iii) of this section.
      - (C) **Planned 50-percent Acquisitions of P1 and P2.** Under [paragraph (d)(1)(i)](#d-1-i) of this section, Y is treated as acquiring stock representing 90% of the voting power and value of P1 as a result of the P1-P2 merger. In addition, under [paragraph (d)(1)(i)](#d-1-i) of this section, Z is treated as acquiring stock representing 90% of the voting power and value of P2 in the P2-D merger. Accordingly, there have been Planned 50-percent Acquisitions of P1 and P2.
      - (D) **Gain limited.** Without regard to the limitations in [paragraph (e)](#e) of this section, D would be required to recognize $100x of gain ($200x of aggregate fair market value minus $100x of aggregate basis of the C stock held by D), the Statutory Recognition Amount described in [section 361(c)(2)](/cfr/26/361.md?p=c-2), because there have been Planned 50-percent Acquisitions of P1 and P2, both Predecessors of D. However, under [paragraph (e)](#e) of this section, D's gain recognized by reason of the Planned 50-percent Acquisitions of P1 and P2 will not exceed $60x, an amount equal to the amount D would have recognized had it transferred Asset 1 (Separated Property) to a newly formed corporation (C1) solely for stock and distributed the C1 stock to D shareholders in a Hypothetical D/355(e) Reorganization. Under [section 361(c)(2)](/cfr/26/361.md?p=c-2), D would recognize $60x, an amount equal to the gain in the hypothetical C1 stock (excess of the $100x fair market value over the $40x basis). [Paragraph (e)(1)(ii)](#e-1-ii) of this section provides that if there are Planned 50-percent Acquisitions of multiple corporations, Distributing must recognize the Statutory Recognition Amount with respect to each such corporation, subject to the POD Gain Limitation Rule and the Distributing Gain Limitation Rule, if applicable. In this case, the POD Gain Limitation Rule limits the amount of gain required to be recognized by D with respect to each of the Planned 50-percent Acquisitions of P1 and P2 to $60x. See [paragraph (e)(2)(i)](#e-2-i) of this section. Ordinarily, each $60x limitation would be added together, and the total gain limitation provided by [paragraph (e)](#e) of this section would be $120x. However, the anti-duplication rule set forth in [paragraph (e)(2)(ii)(C)](#e-2-ii-C) of this section provides that, for purposes of applying the POD Gain Limitation Rule, a Predecessor of Distributing's Separated Property is taken into account only to the extent such property was not taken into account with respect to another Predecessor of Distributing. Thus, Asset 1 may not be taken into account more than once in determining the total gain limitation. Therefore, D recognizes $60x of gain.
  - (8) **Example 8: Multiple Predecessors of D—**
    - (i) **Facts.** X owns 100% of the stock of P1, which holds multiple assets, including Asset 1 and Asset 3. Y owns 100% of the stock of P2, which holds multiple assets, including Asset 2 and Asset 4. Z owns 100% of the stock of D. The following steps occur as part of a Plan: Each of P1 and P2 merges into D in a reorganization under [section 368(a)(1)(A)](/cfr/26/368.md?p=a-1-A). Immediately after the mergers, each of X and Y owns 10%, and Z owns 80%, of the stock of D. D then contributes to C Asset 1 (acquired from P1), and Asset 2 (acquired from P2). In exchange for Asset 1 and Asset 2, D receives additional C stock. D distributes the stock of C to X, Y, and Z, pro rata. D's contribution of Asset 1 and Asset 2 and the Distribution constitute a reorganization under [section 368(a)(1)(D)](/cfr/26/368.md?p=a-1-D). D continues to hold Asset 3 and Asset 4. Immediately before the Distribution, Asset 1 has a basis of $50x and a fair market value of $110x, Asset 2 has a basis of $70x and a fair market value of $90x, and the stock of C held by D has a basis of $130x and a fair market value of $220x.
    - (ii) **Analysis—**
      - (A) **P1 and P2 are Predecessors of D.** Under [paragraph (b)(1)](#b-1) of this section, each of P1 and P2 is a Predecessor of D. First, each of P1 and P2 is a Potential Predecessor because, as part of a Plan, each of P1 and P2 transferred property to D in a [Section 381](/cfr/26/381.md) Transaction. See paragraph (b)(2)(ii)(A)(1) of this section. Second, both pre-Distribution requirements and the post-Distribution requirement are satisfied. The Relevant Property Requirement is satisfied because, immediately before the Distribution and as part of a Plan, C holds P1 Relevant Property (Asset 1) and P2 Relevant Property (Asset 2), the gain on each of which was not recognized in full at any point during the Plan Period, and some of the C stock distributed in the Distribution was acquired by D in exchange for each of Asset 1 and Asset 2. See paragraph (b)(1)(ii)(A)(1) of this section. The Reflection of Basis Requirement is satisfied because that C stock had a basis prior to the Distribution that was determined in whole or in part by reference to the basis of Separated Property (Asset 1 and Asset 2, respectively), and was neither distributed in a distribution to which [section 355(e)](/cfr/26/355.md?p=e) applied nor transferred in a transaction in which the gain on that C stock was recognized in full during the Plan Period prior to the Distribution. See [paragraph (b)(1)(ii)(B)](#b-1-ii-B) of this section. The Division of Relevant Property Requirement is satisfied because immediately after the Distribution, D continues to hold Relevant Property of P1 and P2, and therefore, as part of a Plan, each of P1's and P2's Relevant Property has been divided between C and D. See [paragraph (b)(1)(iii)](#b-1-iii) of this section.
      - (B) **Planned 50-percent Acquisitions of P1 and P2.** Under [paragraph (d)(1)(i)](#d-1-i) of this section, Z is treated as acquiring stock representing 80% of the voting power and value of each of P1 and P2 as a result of the mergers of P1 and P2 into D. Accordingly, there have been Planned 50-percent Acquisitions of P1 and P2.
      - (C) **Gain limited.** Without regard to the limitations in [paragraph (e)](#e) of this section, D would be required to recognize $90x of gain ($220x of fair market value minus $130x of basis of the C stock held by D), the Statutory Recognition Amount under [section 361(c)(2)](/cfr/26/361.md?p=c-2). However, under the POD Gain Limitation Rule, D's gain recognized by reason of the Planned 50-percent Acquisition of P1 will not exceed $60x ($110x fair market value minus $50x basis), an amount equal to the amount D would have recognized had it transferred Asset 1 (Separated Property) to a newly formed corporation (C1) solely for stock and distributed the C1 stock to D shareholders in a Hypothetical D/355(e) Reorganization. See [paragraph (e)(2)(i)](#e-2-i) of this section. In addition, under the POD Gain Limitation Rule, D's gain recognized by reason of the deemed acquisition of P2 stock will not exceed $20x ($90x fair market value minus $70x basis), an amount equal to the amount D would have recognized had it transferred Asset 2 (Separated Property) to a second newly formed corporation (C2) solely for stock and distributed the C2 stock to D shareholders in a Hypothetical D/355(e) Reorganization. See [paragraph (e)(2)(i)](#e-2-i) of this section. Therefore, D recognizes $80x of gain ($60x + $20x). See [paragraph (e)(1)(ii)](#e-1-ii) of this section.
  - (9) **Example 9: Successor of C—**
    - (i) **Facts.** X owns 100% of the stock of each of D and R. The following steps occur as part of a Plan: D distributes all of its C stock to X. Immediately before the Distribution, D's C stock has a basis of $10x and a fair market value of $30x. C then merges into R in a reorganization under [section 368(a)(1)(D)](/cfr/26/368.md?p=a-1-D). Immediately after the merger, X owns all of the R stock. As part of the same Plan, Z acquires 51% of the stock of R from X.
    - (ii) **Analysis—**
      - (A) **R is a Successor of C.** Under [paragraph (c)(2)(i)](#c-2-i) of this section, R is a Successor of C because, after the Distribution, C transfers property to R in a [Section 381](/cfr/26/381.md) Transaction.
      - (B) **Planned 50-percent Acquisition of C.** Under [paragraph (d)(2)](#d-2) of this section, Z's acquisition of stock of R is treated as an acquisition of stock of C. Therefore, Z is treated as acquiring 51% of the stock of C. Accordingly, there has been a Planned 50-percent Acquisition of C.
      - (C) **Gain not limited.** [Section 355(e)](/cfr/26/355.md?p=e) applies to the Distribution because there has been a Planned 50-percent Acquisition of C. Neither the POD Gain Limitation Rule nor the Distributing Gain Limitation Rule applies because there has been no Planned 50-percent Acquisition of a Predecessor of D, and no Planned 50-percent Acquisition of D. Therefore, D recognizes $20x of gain ($30x fair market value minus $10x basis of the C stock held by D) under [section 355(c)(2)](/cfr/26/355.md?p=c-2).
  - (10) **Example 10: Multiple Successors—**
    - (i) **Facts.** X owns 100% of the stock of both D and R. Y owns 100% of the stock of S. The following steps occur as part of a Plan: D distributes all of the C stock to X. Immediately after the Distribution, D merges into R in a reorganization under [section 368(a)(1)(A)](/cfr/26/368.md?p=a-1-A) (D-R merger). Following the D-R merger, R merges into S in a reorganization under [section 368(a)(1)(A)](/cfr/26/368.md?p=a-1-A) (R-S merger). Immediately after the R-S merger, X and Y own 10% and 90%, respectively, of the S stock. Immediately before the Distribution, D's C stock has a basis of $10x and a fair market value of $30x.
    - (ii) **Analysis—**
      - (A) **R and S are Successors of D.** Under [paragraph (c)(2)(i)](#c-2-i) of this section, R is a Successor of D because, after the Distribution, D transfers property to R in a [Section 381](/cfr/26/381.md) Transaction. Under [paragraph (c)(2)(ii)](#c-2-ii) of this section, S is also a Successor of D because R (a Successor of D) transfers property to S in a [Section 381](/cfr/26/381.md) Transaction.
      - (B) **Planned 50-percent Acquisition of D.** Under [paragraph (d)(1)(i)](#d-1-i) of this section, there is no deemed acquisition of D stock as a result of the D-R merger because X wholly owns the stock of D before the merger and wholly owns the stock of R after the merger. Under [paragraph (d)(1)(i)](#d-1-i) of this section, Y is treated as acquiring stock representing 90% of the voting power and value of R (a Successor of D) as a result of the R-S merger. Under [paragraph (d)(2)](#d-2) of this section, an acquisition of R stock is also treated as an acquisition of D stock. Accordingly, there has been a Planned 50-percent Acquisition of D.
      - (C) **Gain not limited.** [Section 355(e)](/cfr/26/355.md?p=e) applies to the Distribution because there has been a Planned 50-percent Acquisition of D. The POD Gain Limitation Rule does not apply because there has been no Planned 50-percent Acquisition of a Predecessor of D. The Distributing Gain Limitation Rule applies because there has been a Planned 50-percent Acquisition of D. However, the gain limitation under the Distributing Gain Limitation Rule equals the Statutory Recognition Amount, because there is no Predecessor of D (and thus no Separated Property). Therefore, D recognizes $20x of gain ($30x fair market value minus $10x basis of the C stock held by D) under [section 355(c)(2)](/cfr/26/355.md?p=c-2).
- (i) **Applicability date.** This section applies to Distributions occurring after December 15, 2019. For Distributions occurring on or before December 15, 2019, see [§ 1.355-8T](/cfr/26/1.355-8T.md) as contained in [26 CFR part 1](/cfr/26/part1.md) revised as of April 1, 2019.