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					                                      CHAPTER 18


                                   LECTURE NOTES


1.   In General. Under § 351, neither gain nor loss is recognized on the transfer by one or
     more persons of property to a corporation solely in exchange for stock in that corporation
     if, immediately after the exchange, such person or persons are in control of the
     corporation to which the property was transferred.

     a.     The justification for this nonrecognition provision is similar to the justification
            supporting other tax-deferral sections (e.g., § 1031 like-kind exchange).

            (1)    There has been a lack of substantive change in the taxpayer’s investment.

            (2)    The property transferor lacks the wherewithal to pay a tax on gain realized.

            (3)    The notion that tax rules should not impede the exercise of sound business

     b.     If cash or property, other than the corporation’s stock, is received from the
            corporation, gain will be recognized to the extent of the lesser of the gain realized
            or “boot” received (i.e., the fair market value of any other property and money

     c.     Loss is never recognized by a property transferor who receives stock in a § 351

     d.     The nonrecognition of gain or loss is accompanied by a substituted basis in the
            property transferor’s stock. Section 358 provides that the basis of stock received
            in a § 351 transfer is the same as the basis the taxpayer had in the property
            transferred, increased by any gain recognized on the exchange and decreased by
            boot received.

     e.     Section 362 provides that the basis of property received by a corporation is equal
            to the basis in the hands of the transferor increased by the amount of any gain
            recognized by the transferor-shareholder.

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       f.      Securities in the form of long-term debt constitute boot under § 351 (see 3.d.
               below); thus, securities received in exchange for the transfer of appreciated
               property to a controlled corporation will cause recognition of gain.

       g.      Section 351 is mandatory if all of the requirements of the provision are met.

 2.    Property Defined.

       a.      “Property” is broadly construed and includes items one would normally think to
               include in the definition, such as plant and equipment. But in addition, the term
               also includes:

               (1)     Unrealized receivables.

               (2)     Installment obligations.

               (3)     Secret processes and formulas.
               (4)     Patents.

       b.      Services rendered are not considered to be a transfer of property under § 351.
               Therefore, the value of any stock the shareholder receives in exchange for services
               rendered must be reported as income (i.e., compensation for services rendered).

3.     Stock Transferred. “Stock” under § 351 includes common and most preferred stock. It
       does not include:

       a.      Nonqualified preferred stock. This type of preferred stock possesses many of the
               attributes of debt (e.g., redeemable within 20 years of issuance, dividend rate
               based on other than corporate performance). Note that loss may be recognized
               when the transferor receives only nonqualified preferred stock (or nonqualified
               preferred stock and other boot) in exchange for property. See § 351(g).

       b.      Stock rights. See Reg. § 1.351-1(a)(1)(ii).

       c.      Stock warrants. See Reg. § 1.351-1(a)(1)(ii).

       d.      Securities (i.e., long-term debt).

                           ADDITIONAL LECTURE RESOURCE

“Nonqualified preferred stock,” defined in § 351(g), is treated as boot for purposes of recog-
nizing gain when it is received from a controlled corporation in exchange for property. In
general, nonqualified preferred stock resembles debt and will cause gain to be recognized up to
the value of the nonqualified preferred stock received. However, nonqualified preferred stock
continues to be treated as stock for purposes of determining whether the 80% control test is met
(see 4. below).

Congress apparently felt that gain should be recognized on the receipt of “nonqualified preferred
stock” because it is often a more secure form of investment than other stock. Nonqualified
preferred stock, which is stock that is limited and preferred as to dividends, does not participate
                    Corporations: Organization and Capital Structure                          18-3

in corporate growth to any significant extent. In addition, such stock’s redemption must be more
likely than not to occur within a 20-year period. Further, preferred stock is nonqualified if the
dividend rate varies, in whole or in part, with reference to interest rates, commodity prices, or
other indices.

                           ADDITIONAL LECTURE RESOURCE

Tracking stock, a relatively new and increasingly popular means of raising funds from investors,
is a vehicle that tracks the economic performance of less than all of the assets of the issuing
corporation. It can be used to track the performance of a branch, a division, or even a subsidiary
corporation. This means of monetizing a position within a larger corporation allows corporations
to fund the rapid expansion of hot business lines.

Because tracking stock is both new and unique, the tax ramifications of its ownership are unclear.
In fact, the Code does not contain any provision that specifically covers this type of financial
instrument. Furthermore, in Rev. Proc. 2000-3 (2000-1 C.B. 103), the IRS has indicated that it
will not rule on whether tracking stock is considered stock of the issuer. Congress is considering
proposals that would provide some clarity, but until legislation is enacted, taxpayers will not
know how this popular tool will be treated for tax purposes.

 4.    Control of the Corporation. “Control” means at least 80% of the total combined voting
       power of all classes of stock entitled to vote and at least 80% of the total number of
       shares of all other classes of stock. Nonqualified preferred stock is treated as stock, and
       not boot, for purposes of this control test.

       a.      Control may apply to a single person or to several taxpayers if they are all parties
               to an integrated transaction.

       b.      The exchange does not necessarily require simultaneous exchanges by two or
               more persons but it does require that the rights of the parties have been previously
               defined and that the execution of the agreement proceeds “with an expedition
               consistent with orderly procedure.”
       c.      Stock need not be issued to the property transferors in the same proportion as the
               relative value of the property transferred by each.

 5.    Section 351 treatment will be lost if stock is transferred to persons who did not contribute
       property, causing those who did to lack control immediately after the exchange.

       a.      If a person performs services for the corporation in exchange for stock and also
               transfers some property, the taxpayer is treated as a member of the group of
               property transferors although such person is taxed on the value of the stock issued
               for services.

       b.      The party contributing services must transfer property having more than a
               relatively small value in relation to the services performed. For advance ruling
               purposes, the value of the property transferred must be at least 10 percent of the
               value of the services provided.
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 6.    Section 351 applies to later transfers to an existing corporation by either new or existing

       a.      Either a new shareholder or an existing shareholder must have the requisite 80%
               control immediately after the transfer or the transaction will be a taxable

       b.      Because of this rule, it is difficult for a transfer by a new shareholder to qualify for
               nonrecognition of gain under § 351.

                           ADDITIONAL LECTURE RESOURCE

A Change in Stockholders’ Rights Difficult to Implement Without Controversy.

When forming a corporation, it is important to assess carefully the rights that the various classes
of the corporation’s stock will carry. Factors such as who possesses voting rights may have a
significant impact on a corporation’s ability to respond to new challenges in the market. For
example, should all classes of stock be entitled to vote or should some shares be nonvoting?
Should some shares of voting stock carry more weight than others in making certain corporate
decisions? If such differences are not identified when the corporation is formed, making changes
later may be difficult.

Several years ago, for example, the Marriott family desired to change the voting power of the
block of shares they own in Marriott Corporation. Essentially, they wanted to control a new class
of supervoting stock where each share would possess 10 votes as opposed to 1 vote per share for
all other classes of stock. Generally, family members would own the supervoting class, while the
general public would own the class possessing the standard voting privilege. The Marriott family
claimed that the new arrangement would allow greater flexibility in the use of stock as
consideration in future acquisitions. Critics, however, claimed the plan was a move to strengthen
the family’s control over the company for generations to come.

                           ADDITIONAL LECTURE RESOURCE

The stock attribution rules of § 318 (see Chapter 19) do not apply to § 351 transfers for purposes
of the control test. Thus, stock of a family member is not counted in determining whether a
transferor of property to a corporation has control of the corporation after the transfer.

       Example. The 200 shares of stock in Blue Corporation are held by Paul and Vicki (father
       and daughter), 100 shares each. Paul transfers real estate (basis of $50,000 and fair
       market value of $250,000) to Blue Corporation for 20 additional shares in Blue
       Corporation. Paul will have a taxable gain of $200,000 on the transfer. The stock
       attribution rules of § 318 do not apply in determining stock ownership in § 351 transfers.
       Thus, Paul is not deemed to own the stock of his daughter in this case. As the sole
       property transferor in this exchange, he would not have the required 80% ownership after
       the transfer (i.e., he owns 120 of 220 shares, or 54.5%).
                     Corporations: Organization and Capital Structure                           18-5

       Example. Assume Paul, in the preceding example, transfers the real estate to Blue
       Corporation but does not receive any additional stock in Blue Corporation. (Paul has
       made a capital contribution which is tax-free. Section 351 is of no consequence because
       he has not received stock.) However, Paul should increase his basis in his 100 shares of
       Blue Corporation stock. Other tax consequences can occur. For example, Paul may have
       made a gift to Vicki with respect to one-half the value of the transferred property.

                                 ETHICAL CONSIDERATIONS

Proper Timing of a Gift of Shares (page 18-7). There is nothing improper in what Naomi’s
attorney has done. As finally structured, the requirements of § 351 are satisfied.

A problem can arise with momentary control where the original shareholder is legally bound to
later transfer shares so as to lose control. This is not the case here. Naomi has no obligation to
make the gift to her son.

7.     Assumption of Liabilities—Section 357. This provision provides that the assumption of a
       liability by the acquiring corporation will not produce boot to the transferor-shareholder
       in a § 351 transaction.

       a.      However, liabilities assumed by the corporation are treated as “other property or
               money” for purposes of calculating the basis of stock received in the exchange.

       b.      The basis of stock received must be reduced by the amount of the liabilities
               assumed by the corporation.

8.     Exceptions to § 357(a).

       a.      Tax Avoidance or No Bona Fide Business Purpose Exception. Under § 357(b), if
               the principal purpose of the assumption of the liabilities is to avoid tax or if there
               is no bona fide business purpose behind the exchange, the liabilities, in total, will
               be treated as money received and taxed as boot.
       b.      Liabilities in Excess of Basis Exception. Section 357(c) provides that if the sum
               of the liabilities exceeds the adjusted bases of the properties transferred, the
               excess is taxable gain.

               (1)    The effect of § 357(c) is to generate recognized gain. This gain
                      recognition is necessary in order to avoid a negative basis in the
                      shareholder’s stock. As to whether such gain is capital or ordinary, look to
                      the nature of the asset transferred.

               (2)    Accounts payable that give rise to a deduction when paid are not
                      considered liabilities for purposes of § 357(c) (i.e., in the case of a cash
                      basis taxpayer). In addition, they are not considered in the computation of
                      stock basis.
       c.      Contrast §§ 357(b) and (c).
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              (1)    Section 357(b) merely produces boot (not gain) while § 357(c) produces
                     recognized gain.

              (2)    If both §§ 357(b) and (c) apply, § 357(b) prevails.

9.     Basis Determination and Related Issues.

       a.     Basis of Stock to Shareholder. Section 358(a) determines the basis of the stock to
              the transferor-shareholder.

              (1)    See Figure 18-1 in the text. A substituted basis results.

              (2)    Note that liabilities are treated as boot received for basis calculation

       b.     Basis of Property to Corporation. Section 362(a) determines the basis to the
              corporation of property received from the shareholder under § 351.
              (1)    See Figure 18-2 in the text. A carryover basis results.

              (2)    Note that the corporation’s basis in the property could be different than the
                     transferor-shareholder’s basis in the stock received.

       c.     Stock Issued for Services Rendered. The corporation can deduct the value of the
              stock it issues for services rendered unless the payment is characterized as a
              capital expenditure (e.g., an organizational expense).

       d.     Holding Period for Shareholders and Transferee Corporation.

              (1)    The shareholder’s holding period for stock received in exchange for a
                     capital asset or § 1231 property includes the holding period of the property
                     transferred to the corporation.

              (2)    The transferee corporation’s holding period for property acquired in a § 351
                     exchange is the holding period of the transferor-shareholder regardless of
                     the character of the property in the transferor’s hands.

       e.     Recapture Considerations. Depreciation recapture potential carries over to the
              corporation and does not trigger gain to the property transferor.


10.    Capital Contributions.

       a.     The receipt of money or other property in exchange for capital stock (including
              treasury stock) produces neither gain nor loss to the recipient corporation. § 1032

       b.     Contribution to capital of a corporation by a shareholder (not in exchange for

              (1)    No gain is recognized by the corporation. § 118(a)
                     Corporations: Organization and Capital Structure                          18-7

               (2)    The corporation takes a basis in the property equal to the transferor-
                      shareholder’s basis. § 362(a)(2)

               (3)    The shareholder recognizes no gain or loss on the transfer.

               (4)    The basis in the original shares must be adjusted accordingly. § 358(a)

       c.      Contribution by nonshareholders.

               (1)    No gain is recognized by the corporation. § 118

               (2)    The basis of the property transferred to the corporation by a non-
                      shareholder is zero.

               (3)    The basis of property acquired with money contributed by a non-
                      shareholder is reduced by the amount of money contributed. Special rules
                      apply if the amount of money contributed exceeds the cost of the property

11.    Debt in the capital structure. Advantages of receiving long-term debt by a transferor
       shareholder include the following.

       a.      Interest is deductible by the corporation, whereas dividend payments are not.

       b.      Shareholders are not taxed on loan payments unless they exceed basis, whereas
               withdrawing a stock investment can only rarely be tax-free.

       c.      Beginning in 2003, the general advantages of debt over equity from the investor’s
               perspective have been softened. This is the case because dividend income on
               equity holdings is taxed to individual investors using the low capital gains rates
               while interest income on debt is taxed at the higher ordinary income rates.

                           ADDITIONAL LECTURE RESOURCE

The tax advantages of financing a corporation with some debt are clear and beyond question. In
fact, debt is so advantageous from a tax perspective that some corporations “overdo it.”
Nonetheless, some well-known, successful corporations choose to operate without long-term
debt. Microsoft, Walgreen, and Cisco Systems apparently have decided that the nontax
advantages of avoiding debt (e.g., not having to contend with debt service costs) outweigh the tax
advantages of using debt. Such debt-free companies may be the envy of corporations that have
relied on debt, perhaps excessively, as a means of growth. In some cases, corporate debt does
little to enhance a shareholder’s investment and may even destroy it.

12.    In certain instances, the IRS will contend that debt is really an equity interest and will
       deny the shareholders the tax advantages of debt financing.

       a.      If the debt instrument has too many features of stock it may be treated as a form of
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       b.     In such as a case, principal and interest payments on debt reclassified as stock are
              treated as dividends.

       c.     In the current environment (i.e., where dividend income is taxed at capital gains
              rates and interest income is taxed at ordinary income rates), the IRS may be less
              inclined to raise the thin capitalization issue because the conversion of interest
              income to dividend income would produce a tax benefit to individual investors.

13.    Section 385 authorizes the Treasury Department to issue Regulations that would clarify
       when debt should be reclassified as equity.

       a.     The Regulations issued under § 385 may provide for the treatment of an interest in
              a corporation as part stock and part indebtedness.

       b.     This flexible approach is important because some instruments cannot readily be
              classified either wholly as stock or wholly as debt.
       c.     The authority of the IRS to reclassify some debt as equity may be appropriate in
              circumstances where a debt instrument provides for payments that are dependent
              on corporate performance.

              (1)     This objective may be accomplished through provisions allowing
                      contingent interest, significant deferral of payment, or subordination of

              (2)     It enables the IRS to reclassify debt instruments as part equity where the
                      interest rate is sufficiently high to suggest a significant risk of default.

14.    The IRS can more easily classify debt as equity if:

       a.     The debt is an open account advance.

       b.     The debt instrument does not bear a reasonable rate of interest.

       c.     The debt is not paid on a timely basis.

       d.     Payment on the debt is contingent on earnings.
       e.     The debt is subordinated to other liabilities.

       f.     Holdings of debt and stock are proportionate.

       g.     Funds were loaned to the corporation to finance initial operations or capital asset

       h.     The corporation has a high ratio of shareholder debt to shareholder equity.
                     Corporations: Organization and Capital Structure                          18-9


15.    Stock and Security Losses.

       a.      Barring certain exceptions (see 15.b. below), losses from stock and security
               investments will fall under § 165(g)(1). Generally, this is not an advantageous
               result for the investor.

               (1)     Section 165(g)(1) usually leads to a long-term capital loss.

               (2)     No deduction for the loss will be allowed unless the investor can prove
                       that the stock is entirely worthless.

       b.      Ordinary (rather than capital) loss treatment on stocks and securities will be
               permitted under the following circumstances:

               (1)     When the shareholder is a dealer in securities.
               (2)     When the affiliated corporation rules of § 165(g)(3) apply.

               (3)     When § 1244 applies as to stock in a small business corporation (see 17.

16.    Business versus Nonbusiness Bad Debts.

       a.      Business bad debts are deducted as ordinary losses while nonbusiness bad debts
               are treated as short-term capital losses.

       b.      A deduction is allowed for the partial worthlessness of a business debt while
               nonbusiness debts can be written off only when they become entirely worthless.

       c.      Nonbusiness bad debt treatment is limited to noncorporate taxpayers; however, all
               of the bad debts of a corporation qualify as business bad debts.

17.    Section 1244. Section 1244 permits ordinary loss treatment up to a maximum of $50,000
       per year ($100,000 if a joint return is filed) for losses on the sale or worthlessness of
       stock of so-called “small business corporations.”
18.    The total amount of stock which can be offered under the plan to issue § 1244 stock plus
       any other stock offered by the corporation cannot exceed $1,000,000.

       a.      For these purposes, property received in exchange for stock is valued at its
               adjusted basis, reduced by any liabilities assumed by the corporation or to which
               the property is subject.

       b.      The $1,000,000 limitation is determined on the date the stock is issued.

                           ADDITIONAL LECTURE RESOURCE

For purposes of § 1244, a corporation must derive more than 50% of its aggregate gross receipts
from sources other than royalties, rents, dividends, interest, annuities, and sales and exchanges of
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stock or securities (only the gains are considered) to qualify as a “small business corporation”
under § 1244.

     The test is applied for the corporation’s most recent five years.

     The gross receipts requirement applies only if the corporation’s receipts equal or exceed its
      deductions other than a net operating loss deduction or the dividend received deduction.

19.      Losses above the $50,000 (or $100,000 for a joint return) limitation are capital, rather
         than ordinary, losses.

                              ADDITIONAL LECTURE RESOURCE

Only the original holder of § 1244 stock, whether an individual or a partnership, qualifies for
ordinary loss treatment.

             If stock is sold or donated, it loses its § 1244 status as to the new owner.

             If a partnership is involved, the individual must have been a partner at the time the
              partnership acquired the stock.

                    The partnership must not distribute stock to its partners.

                    Each partner’s share of partnership tax attributes includes the share of the loss
                     the partnership sustains on the stock.

         Example. Rita and Quinn are partners in the RQ Partnership. RQ Partnership acquires
         100 shares of § 1244 stock in White Corporation at a cost of $100,000. A few months
         later RQ Partnership distributes 25 shares to Rita and 25 shares to Quinn. White
         Corporation suffers financial difficulties and files for bankruptcy two years later. White
         Corporation stock is worthless. RQ Partnership can claim an ordinary loss of $50,000
         (the cost of the remaining 50 shares in White Corporation), which is then passed to Rita
         and Quinn as ordinary loss. However, Rita and Quinn have a capital loss of $25,000 each
         on the shares distributed to them by RQ Partnership. The 50 shares RQ Partnership
         distributed to Rita and Quinn lose their § 1244 status. Rita and Quinn were not the
         original holders of the stock (see Reg. § 1.1244(a)-1(b)(2) and Jerome Prizant, 30 TCM
         817, T.C. Memo. 1971-196). If RQ Partnership had not distributed the stock to Rita and
         Quinn, it would have claimed an ordinary loss of $100,000, which would have passed to
         Rita and Quinn as ordinary loss. Thus, Rita and Quinn could each have claimed ordinary
         loss of $50,000 on their individual returns.

20.      If § 1244 stock is issued for property that has a basis in excess of its fair market value on
         the date of the exchange, the basis for purposes of § 1244 is reduced to the fair market
         value of the property on the date of the exchange.

         a.      Only the decrease in the value of the property after the date of the exchange is
                 ordinary loss.
                      Corporations: Organization and Capital Structure                        18-11

         b.      The difference between the basis and the fair market value on the date of the
                 exchange is capital loss.

                            ADDITIONAL LECTURE RESOURCE

To qualify as a “small business corporation” so that stock of original investors qualifies as
§ 1244 stock, a corporation must derive more than 50% of its aggregate gross receipts from
sources other than royalties, rents, dividends, interest, annuities, and sales and exchanges of stock
or securities. What if the corporation has never emerged from a startup phase when its stock
becomes worthless? Is the corporation an “operating” corporation for purposes of § 1244 so that
its shareholders can take ordinary losses for all or a portion of their investment?

In Robert Schwartz, 70 TCM 526, T.C. Memo. 1995-415, the IRS contended that stock in a
corporation, which was organized to acquire another corporation and which had never begun
operations, would not qualify as a “small business corporation.” It disallowed the shareholder an
ordinary loss deduction for the shareholder’s investment in the corporation. However, the Tax
Court looked to the intent of the corporate directors to have the corporation sell and operate
video-lottery machines. It concluded that the corporation would have been an “operating”
corporation had it emerged from the startup phase. Thus, it ruled that the shareholder’s stock
qualified as § 1244 stock.


21.      a.      Fifty percent of gain recognized on the sale or exchange of stock acquired in a
                 qualified small business corporation may be excluded.

         b.      Because the 5% and 15% capital gains rates do not apply, the maximum effective
                 tax rate on the sale of qualified small business stock will be 14% (28% X 50%).

         c.      To qualify, the taxpayer must have held the stock for more than 5 years. Only
                 noncorporate shareholders qualify for the exclusion.

         d.      A qualified small business corporation is a C corporation whose aggregate gross
                 assets did not exceed $50 million on the date the stock was issued.

                                 ETHICAL CONSIDERATIONS

A Professional-Free Incorporation (page 18-22). Allen learns after the incorporation of Jay
Corporation that he has made a terrible blunder that could cost him a significant amount of
income taxes. By failing to own at least 80% of the stock immediately after the transfer, he is
required to recognize the gain on the exchange. To overcome the mistake, he proposes a
bartering transaction to the other shareholder, Beth, that would enable him to qualify for § 351.
Allen’s “solution” to this quandary is questionable for several reasons:

     Allen did not discover the problem until after Jay Corporation had been formed. In order for
      Allen’s plan to work, the actual exchanges by Allen and Beth would have to be disregarded.
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    Based on the facts, the transactions resulting in the incorporation are “old and cold” and
    cannot be “wished away.”

   Allen is providing tax advice to Beth that is incorrect. The proper treatment is for Beth to
    report the fair market value of 25% of Jay’s stock as compensation income. Allen is
    suggesting that she report income of only 20% of the stock and to ignore the value of the

   Allen is exerting pressure on Beth to accept a plan that she otherwise would not consider if
    she fully understood the tax consequences.

                           ADDITIONAL LECTURE RESOURCE

Finding Bargains in the Stock Market: Warren Buffett has amassed a fortune of many billions of
dollars from an initial investment of $10,000 in 1956. Buffett has learned to figure a
corporation’s “intrinsic value”—what the company is worth independent of its market price—
and to comb financial statements for firms selling at a huge discount to this value. Buffett likens
the value of stock to bonds. A bond’s value is the cash flow from future interest payments,
discounted back to the present. A stock’s worth can be determined in the same manner: it is the
discounted value of expected cash flow per share. However, the investor must calculate a stock’s
“coupon.” Buffett tries to find stock whose value is greater than its price. His rules are
summarized as follows: pay no attention to the macroeconomic trends or forecasts nor to
people’s predictions about the future course of stock prices. Focus on long-term business value—
on the size of the “coupons” down the road. Stick to stocks within your “circle of competence.”
Look for managers who treat shareholders’ capital with ownerlike care. Study prospects—and
their competitors—in great detail. Look at raw data, not analysts’ summaries. Trust your own
eyes. If you know what a stock is worth—what a corporation is worth—then a falling price
quote is no cause for alarm. If you have a conviction about a stock, show courage and buy
several shares.
Corporations: Organization and Capital Structure   18-13

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