§336 — Gain or loss recognized on property distributed in complete liquidation
35 cases·6 followed·2 distinguished·27 cited—17% support
Statute Text — 26 U.S.C. §336
Except as otherwise provided in this section or section 337, gain or loss shall be recognized to a liquidating corporation on the distribution of property in complete liquidation as if such property were sold to the distributee at its fair market value.
If any property distributed in the liquidation is subject to a liability or the shareholder assumes a liability of the liquidating corporation in connection with the distribution, for purposes of subsection (a) and section 337, the fair market value of such property shall be treated as not less than the amount of such liability.
For provision providing that this subpart does not apply to distributions in pursuance of a plan of reorganization, see section 361(c)(4).
No loss shall be recognized to a liquidating corporation on the distribution of any property to a related person (within the meaning of section 267) if—
such distribution is not pro rata, or
such property is disqualified property.
For purposes of subparagraph (A), the term “disqualified property” means any property which is acquired by the liquidating corporation in a transaction to which section 351 applied, or as a contribution to capital, during the 5-year period ending on the date of the distribution. Such term includes any property if the adjusted basis of such property is determined (in whole or in part) by reference to the adjusted basis of property described in the preceding sentence.
For purposes of determining the amount of loss recognized by any liquidating corporation on any sale, exchange, or distribution of property described in subparagraph (B), the adjusted basis of such property shall be reduced (but not below zero) by the excess (if any) of—
the adjusted basis of such property immediately after its acquisition by such corporation, over
the fair market value of such property as of such time.
For purposes of subparagraph (A), property is described in this subparagraph if—
such property is acquired by the liquidating corporation in a transaction to which section 351 applied or as a contribution to capital, and
the acquisition of such property by the liquidating corporation was part of a plan a principal purpose of which was to recognize loss by the liquidating corporation with respect to such property in connection with the liquidation.
For purposes of clause (i), any property described in clause (i)(I) acquired by the liquidated corporation after the date 2 years before the date of the adoption of the plan of complete liquidation shall, except as provided in regulations, be treated as acquired as part of a plan described in clause (i)(II).
Other property shall be treated as so described if the adjusted basis of such other property is determined (in whole or in part) by reference to the adjusted basis of property described in the preceding sentence.
The Secretary may prescribe regulations under which, in lieu of disallowing a loss under subparagraph (A) for a prior taxable year, the gross income of the liquidating corporation for the taxable year in which the plan of complete liquidation is adopted shall be increased by the amount of the disallowed loss.
In the case of any liquidation to which section 332 applies, no loss shall be recognized to the liquidating corporation on any distribution in such liquidation. The preceding sentence shall apply to any distribution to the 80-percent distributee only if subsection (a) or (b)(1) of section 337 applies to such distribution.
Under regulations prescribed by the Secretary, if—
a corporation owns stock in another corporation meeting the requirements of section 1504(a)(2), and
such corporation sells, exchanges, or distributes all of such stock,
an election may be made to treat such sale, exchange, or distribution as a disposition of all of the assets of such other corporation, and no gain or loss shall be recognized on the sale, exchange, or distribution of such stock.
Treasury Regulations
- Treas. Reg. §Treas. Reg. §1.336-0 Table of contents
- Treas. Reg. §Treas. Reg. §1.336-0(a) Scope.
- Treas. Reg. §Treas. Reg. §1.336-0(b) Modifications to the principles in § 1.
- Treas. Reg. §Treas. Reg. §1.336-0(c) Gain recognition election.
- Treas. Reg. §Treas. Reg. §1.336-0(d) Examples.
- Treas. Reg. §Treas. Reg. §1.336-0(e) Deemed disposition tax consequences.
- Treas. Reg. §Treas. Reg. §1.336-0(f) Other rules apply in determining ADADP.
- Treas. Reg. §Treas. Reg. §1.336-0(g) Examples.
- Treas. Reg. §Treas. Reg. §1.336-0(h) Making the section 336(e) election.
- Treas. Reg. §Treas. Reg. §1.336-0(i) Original determination.
- Treas. Reg. §Treas. Reg. §1.336-0(j) Protective section 336(e) election.
- Treas. Reg. §Treas. Reg. §1.336-0(k) Examples.
- Treas. Reg. §Treas. Reg. §1.336-0(v) Qualification under section 355.
- Treas. Reg. §Treas. Reg. §1.336-1 General principles, nomenclature, and definitions for a section 336(e) election
- Treas. Reg. §Treas. Reg. §1.336-1(a) Overview—(1) In general.
- Treas. Reg. §Treas. Reg. §1.336-1(b) Definitions.
- Treas. Reg. §Treas. Reg. §1.336-1(c) Nomenclature.
- Treas. Reg. §Treas. Reg. §1.336-1(v) Disposed of stock reacquired by certain persons.
- Treas. Reg. §Treas. Reg. §1.336-2 Availability, mechanics, and consequences of section 336(e) election
- Treas. Reg. §Treas. Reg. §1.336-2(a) Availability of election.
- Treas. Reg. §Treas. Reg. §1.336-2(b) Deemed transaction—(1) Dispositions not described in section 355(d)(2) or (e)(2)—(i) Old target—deemed asset disposition—(A) In general.
- Treas. Reg. §Treas. Reg. §1.336-2(c) Purchaser.
- Treas. Reg. §Treas. Reg. §1.336-2(d) Minority shareholders—(1) In general.
- Treas. Reg. §Treas. Reg. §1.336-2(e) Treatment consistent with an actual asset disposition.
- Treas. Reg. §Treas. Reg. §1.336-2(f) Treatment of target under other provisions of the Internal Revenue Code.
35 Citing Cases
In ruling on the lower court's decision in Bliss Dairy, the Supreme Court reviewed the nonrecognition ofcorporate distributions on liquidation under section 336 as then in effect and concluded that such nonrecognition is not - 23 - absolute since it is overridden by sections 1245 and 1250 for example.
returned to the taxpayer through exhaustion deductions or as ordinary and necessary expense 3(...continued) not deductible as a current expense. - 6 - deductions, may be deducted in the year the taxpayer's business ceases to operate); see generally sec. 336 (corporate taxpayer entitled to recognize loss in the year of liquidation); sec. 195 (allowing a taxpayer to deduct the unamortized portion of deferred startup expenditures for the year in which the trade or business is completely disposed of
g that the cost of a business asset no part of which has been returned to the taxpayer through exhaustion deductions or as ordinary and necessary expense deductions may be deducted in the year the taxpayer’s business ceases to operate. See generally sec. 336 (corporate taxpayer entitled to recognize loss in the year of liquidation); sec. 195 (allowing a taxpayer to deduct the unamortized portion of deferred startup expenditures for the year in which the trade or business is completely disposed o
§§ 336 and 337 allowed the tax-free liquidation of a corporation; the corporation could thereby completely avoid capital gains taxes upon a subsequent sale of all its assets. Courts reasoned that the corporation's ability to avoid taxes upon liquidation rendered the projected liability so speculative as to be irrelevant. Estate of Piper, 72 T.C. at
Luton v. Commissioner, T.C. Memo. 1994-539, 68 T.C.M. (CCH) 1044, 1052 (1994); Estate of Bennett v. Commissioner, T.C. Memo. 1993-34, 65 T.C.M. (CCH) 1816, 1825 (1993). These cases reach that conclusion for two reasons. First, prior to 1986, former I.R.C. §§ 336 and 337 allowed the tax-free liquidation of a corporation; the corporation could thereby completely avoid capital gains taxes upon a subsequent sale of all its assets. Courts reasoned that the corporation’s ability to avoid taxes upon l