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Section 367 - Exceptions Upon Exceptions


The U.S. tax rules dealing with cross-border corporate nonrecognition transactions are some of the most complicated tax rules in existence.  It is remarkable how many exceptions can exist.  The following example of an outbound asset reorganization demonstrates six levels of rules and exceptions to those rules.

Outbound Asset Reorganization

GAIN:  In general, gain is recognized upon an exchange of one asset for another asset.  Code § 1001.

NO GAIN:  An exception to gain recognition exists where corporations transfer their assets to another corporation in exchange for stock in the other corporation under Code § 361(a) in certain Code § 368 corporate reorganizations.

GAIN:  If the transferor corporation is a domestic corporation and the transferee corporation is a foreign corporation, then Code § 367(a)(1) provides an exception - gain is recognized on the transfer.

NO GAIN:  However, if the asset being transferred from the domestic corporation to the foreign corporation is stock in a foreign corporation, then it may be possible (under certain circumstances) for the domestic transferor corporation not to recognize gain.  Code § 367(a)(2) and Treas. Reg. § 1.367(a)-3(b).

GAIN:  In this example, the exchange was non-taxable under Code §§ 361(a) and 367(a)(2).  The first sentence of Code § 367(a)(5) provides that the exception under Code § 367(a)(2) does not apply to Code § 361(a) exchanges.  Thus, gain would be recognized.

NO GAIN:  The second sentence of Code § 367(a)(5), however, provides that the first sentence in Code § 367(a)(5) does not apply if the transferor corporation is controlled by 5 or fewer domestic corporations and certain other requirements are met.  Thus, it may be possible not to recognize gain.

In a simple asset reorganization under Code § 368(a), the target corporation will exchange its assets for stock in the acquiring corporation, and then the target corporation will distribute to its shareholders the acquiring corporation stock it received.  The above analysis only discusses the first of these two steps (exchange of assets for stock).  The second step in a simple asset reorganization (the distribution of the acquiring corporation stock) requires an entirely separate analysis to determine whether the distribution is taxable.  Further, when dealing with cross-border reorganizations, certain transfers can be deemed to occur.

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