Paragraph 1. The authority citation for part 1 is amended by adding
entries in numerical order to read, in part, as follows:
Authority: 26 U.S.C. 7805 * * *
Section 1.382-10 also issued under 26 U.S.C 382(m). * * *
Par. 2. Section 1.382-1 is amended by removing the entry for §1.382-10T
and revising the entry for §1.382-10 to read as follows:
§1.382-10 Special rules for determining time and manner
of acquisition of an interest in a loss corporation.
(a) Distributions from qualified trusts—(1) In
general. For purposes of §1.382-2T, if a qualified trust
described in section 401(a) (qualified trust) distributes an ownership interest
in an entity (as defined in §1.382-3(a)(1)), then for testing dates on
or after the date of the distribution, the distributed ownership interest
is treated as having been acquired by the distributee on the date and in the
manner acquired by the trust and not as having been acquired or disposed of
by the trust. The distribution does not cause the day of the distribution
to be a testing date.
(2) Accounting for dispositions—(i) General
rule. For purposes of this paragraph (a), in order to determine
which ownership interest in an entity is distributed from a qualified trust,
a loss corporation must either specifically identify the ownership interests
that are the subject of all dispositions by the qualified trust of ownership
interests in an entity, or apply the first-in, first-out (FIFO) method to
all such dispositions.
(ii) Special rules. For purposes of this paragraph
(a)(2):
(A) The FIFO method must be applied on a class-by-class basis; and
(B) The term dispositions includes distributions,
sales, and other transfers.
(3) Examples. The following examples illustrate
the principles of this paragraph (a). For purposes of these examples, unless
otherwise stated, the nomenclature and assumptions of the examples in §1.382-2T(b)
apply, all corporations file separate income tax returns on a calendar year
basis, the only 5-percent shareholder of a loss corporation is a public group,
and the facts set forth the only acquisitions of stock by any participants
in a qualified plan and the only owner shifts with respect to the loss corporation
during the testing period. The examples are as follows:
Example 1—(i) Facts.
In 1994, E, a qualified trust established under Plan F, acquires 10 percent
of L stock. A is a participant in Plan F. On January 1, 2002, A acquires
4 percent of L stock, and B, who is not a participant or a beneficiary of
a participant in Plan F, acquires 5 percent of L stock. On January 1, 2004,
E distributes 2 percent of L stock to A. On July 1, 2004, A acquires 1 percent
of L stock.
(ii) Analysis. January 1, 2002, is a testing date
because B’s acquisition of 5 percent of L stock causes an increase in
the percentage ownership of B, a 5-percent shareholder. As of the close of
that testing date, A is treated as owning only 4 percent of L stock. Therefore,
A is treated as a member of the public group of L. In addition, E is treated
as owning 10 percent of L stock that it acquired in 1994.
(iii) As a result of the application of paragraph (a)(1) of this section
to E’s distribution of 2 percent of L stock to A on January 1, 2004,
for testing dates on and after January 1, 2004, A is treated as having acquired
that 2 percent interest in L in 1994, and E is treated as having acquired
only 8 percent of L stock in 1994. Because there are no owner shifts on January
1, 2004, that date is not a testing date.
(iv) July 1, 2004, is a testing date because on that date A, a 5-percent
shareholder, acquires 1 percent of L stock. As of the close of that testing
date, A’s percentage of ownership of L stock is 7 percent, and A’s
lowest percentage of ownership of L stock at any time within the testing period
is 2 percent (deemed acquired in 1994), representing an increase of 5 percentage
points. In addition, as of the close of July 1, 2004, B’s percentage
of ownership of L stock is 5 percent, and B’s lowest percentage of ownership
of L stock at any time within the testing period is 0 percent, representing
an increase of 5 percentage points. Thus, on July 1, 2004, L must take into
account an increase of 10 (5 + 5) percentage points in determining whether
it has an ownership change.
Example 2— (i) Facts.
E is a qualified trust established under Plan F. L, a publicly traded corporation,
has 100x shares of stock outstanding. As of January 1, 2006, C owns 5x shares
of L stock and is not a participant or beneficiary of a participant in Plan
F. At all times prior to January 1, 2006, E owns no L stock. On January
1, 2006, E acquires 10x shares of L stock from members of the public group
of L. On December 1, 2007, E distributes 5x shares of L stock to some of
the participants in Plan F. No one participant acquires all 5x shares as
a result of the distribution. On February 1, 2008, C purchases 1x shares
of L stock from the public group of L.
(ii) Analysis. Because E’s acquisition of
10x shares of L stock on January 1, 2006, is an owner shift, that date is
a testing date. As of the close of that date, E’s percentage of stock
ownership in L has increased by 10 percentage points.
(iii) As a result of the application of paragraph (a)(1) of this section
to E’s distribution of 5x shares of L stock to some Plan F participants
on December 1, 2007, for testing dates on and after December 1, 2007, those
distributees are treated as having acquired those shares of stock on January
1, 2006, from members of the public group of L, and E is not treated as having
acquired those shares on that date. E’s distribution of the 5x shares
is not an owner shift. Therefore, December 1, 2007, is not a testing date.
(iv) February 1, 2008, is a testing date because on that date an owner
shift results from C’s purchase of 1x shares of L stock. As of the
close of that testing date, the distributees of 5x shares of L stock are treated
as members of the public group of L having acquired 5x shares of L stock from
other members of the public group of L on January 1, 2006. Because those
acquisitions are not by 5-percent shareholders, L does not take them into
account. In addition, as of the close of February 1, 2008, E’s percentage
of stock ownership in L is 5 percent, and E’s lowest percentage of stock
ownership in L at any time within the testing period is 0 percent, representing
an increase of 5 percentage points. In addition, as of the close of February
1, 2008, C’s percentage of stock ownership in L is 6 percent, and C’s
lowest percentage of stock ownership in L at any time within the testing period
is 5 percent, representing an increase of 1 percentage point. Therefore,
on February 1, 2008, L must take into account an increase of 6 (5 + 1) percentage
points in determining whether it has an ownership change.
(4) Effective dates. This section applies to all
distributions after June 23, 2006. For distributions on or before June 23,
2006, see §1.382-10T as contained in 26 CFR part 1, revised April 1,
2006.
(b) [Reserved]
