26 U.S.C. § 368 — Definitions relating to corporate reorganizations

submitted 72 years ago by ch. 736 to r/title-26-INTERNAL-REVENUE-CODE · 2,366 words · no verdicts yet

in plain englishAI-generated · not legal advice

This law defines what counts as a tax-free corporate 'reorganization.' It lists seven types, like mergers, stock-for-stock deals, and asset transfers for stock. It also defines 'party to a reorganization' and what 'control' means for these rules.

(a) Reorganization — (1) In general: For the purposes of the reorganization rules, a "reorganization" means one of seven kinds of transactions: (A) a statutory merger or consolidation; (B) one corporation trading only its own voting stock (or the voting stock of a corporation controlling it) for stock of another corporation, ending up in control of that other corporation, even if it wasn't in control before; (C) one corporation trading only its own voting stock (or voting stock of its controlling corporation) for substantially all of another corporation's property — where taking on the other corporation's debts doesn't count against the "solely for stock" requirement; (D) a corporation transferring all or part of its assets to another corporation, if right after the transfer the transferring corporation (or its shareholders, or both) controls the receiving corporation — but only if the stock or securities received are distributed in a way that qualifies under section 354, 355, or 356; (E) a recapitalization; (F) simply changing one corporation's identity, form, or location, however that's done; or (G) a corporation transferring all or part of its assets to another corporation in a bankruptcy (title 11) or similar case — again, only if the stock or securities received are distributed in a way that qualifies under section 354, 355, or 356. (2) Special rules for these categories: (A) If a deal fits both type (C) and type (D), it's treated only as type (D) (except for certain purposes). (B) A type-(C) deal can still qualify even if the acquiring corporation pays some cash or other property besides voting stock — as long as it acquires at least 80% of the target's total property value using only that voting stock (counting assumed debts as if they were cash paid). (C) A type-(A), (B), or (C) deal doesn't get disqualified just because some or all of the acquired assets or stock get passed down to a corporation the acquirer controls. A similar rule applies to type-(G) deals meeting certain asset-acquisition requirements. (D) In type-(A) or type-(G) deals, the acquiring corporation can use stock of its own controlling corporation instead of its own stock, without being disqualified — as long as no stock of the acquiring corporation itself is used, and (for type-(A)) the deal would have qualified had the merger gone straight into the controlling corporation. (E) A type-(A) merger isn't disqualified just because it uses stock of the corporation that controlled the merged corporation before the merger, as long as the surviving corporation keeps substantially all its own and the merged corporation's property afterward, and former shareholders trade enough stock in the surviving corporation for the controlling corporation's voting stock to end up controlling it. (F) Special rules for deals involving two or more investment companies: if, right before the deal, two or more parties were investment companies, it generally isn't treated as a reorganization for a given investment company (and its shareholders) unless that company was a regulated investment company, a real estate investment trust, or met strict diversification limits — no more than 25% of its assets in one issuer, no more than 50% in five or fewer issuers. Related definitions and computation rules — for "investment company," how to count assets, treating a controlled group as one issuer, excluding cash and government securities, and how to treat the shareholders and security holders of a disqualified investment company — are spelled out to make this diversification test work; the rule doesn't apply if the same people own each investment company's stock in the same proportions. (G) A type-(C) deal must also meet a distribution requirement: the acquired corporation must distribute the stock, securities, and other property it received, plus its other property, as part of the reorganization plan (distributions to creditors during a liquidation under the plan count too) — though the Secretary can waive this, on whatever conditions the Secretary sets. (H) Special rules help decide whether a deal qualifies under type (D): where certain title-11 requirements are met, "control" for that purpose uses the (looser) definition in section 304(c); and where certain section 355 requirements are met, it doesn't matter if the distributing corporation's shareholders later dispose of the stock they received, or if the corporation later issues more stock. (3) Additional rules for bankruptcy and similar cases: (A) A "title 11 or similar case" means a case under the Bankruptcy Code, or a receivership, foreclosure, or similar court proceeding. (B) A transfer of assets counts as happening in a title 11 or similar case only if a party to the reorganization is under that court's jurisdiction, and the transfer follows a court-approved reorganization plan. (C) If a deal would qualify both as type (G) and under another provision (or under section 332 or 351), it's treated as qualifying only as type (G) (except for one specific purpose, section 357(c)(1)). (D) For receiverships or similar proceedings involving certain financial institutions before a federal or state agency instead of a court, that agency counts as "the court." (E) In a title 11 or similar case, the shareholder-control test in (2)(E)(ii) is satisfied if no former shareholder of the surviving corporation got anything for their stock, and former creditors traded debt worth at least 80% of the surviving corporation's total debt for voting stock of the controlling corporation. (b) "Party to a reorganization" includes: (1) the corporation that results from the reorganization, and (2) both corporations, when one acquires another's stock or property. If stock used in a type-(B) or type-(C) deal is stock of a corporation controlling the acquirer, that controlling corporation also counts as a party. The same is true for the controlling corporation in the type-(A), (B), (C), or (G) subsidiary-transfer rule in (a)(2)(C), the type-(A) or (G) controlling-stock rule in (a)(2)(D), and the type-(A) rule for using a controlling corporation's stock in a merger under (a)(2)(E). (c) "Control" — except where section 304 applies — means owning stock with at least 80% of the corporation's total voting power, and at least 80% of the total number of shares of every other class of its stock.

the actual law source: uscode.house.gov ↗public domain

(a) Reorganization

(1) In general

For purposes of parts I and II and this part, the term “reorganization” means—

(A)

a statutory merger or consolidation;

(B)

the acquisition by one corporation, in exchange solely for all or a part of its voting stock (or in exchange solely for all or a part of the voting stock of a corporation which is in control of the acquiring corporation), of stock of another corporation if, immediately after the acquisition, the acquiring corporation has control of such other corporation (whether or not such acquiring corporation had control immediately before the acquisition);

(C)

the acquisition by one corporation, in exchange solely for all or a part of its voting stock (or in exchange solely for all or a part of the voting stock of a corporation which is in control of the acquiring corporation), of substantially all of the properties of another corporation, but in determining whether the exchange is solely for stock the assumption by the acquiring corporation of a liability of the other shall be disregarded;

(D)

a transfer by a corporation of all or a part of its assets to another corporation if immediately after the transfer the transferor, or one or more of its shareholders (including persons who were shareholders immediately before the transfer), or any combination thereof, is in control of the corporation to which the assets are transferred; but only if, in pursuance of the plan, stock or securities of the corporation to which the assets are transferred are distributed in a transaction which qualifies under section 354, 355, or 356;

(E)

a recapitalization;

(F)

a mere change in identity, form, or place of organization of one corporation, however effected; or

(G)

a transfer by a corporation of all or part of its assets to another corporation in a title 11 or similar case; but only if, in pursuance of the plan, stock or securities of the corporation to which the assets are transferred are distributed in a transaction which qualifies under section 354, 355, or 356.

(2) Special rules relating to paragraph (1)

(A) Reorganizations described in both paragraph (1)(C) and paragraph (1)(D)

If a transaction is described in both paragraph (1)(C) and paragraph (1)(D), then, for purposes of this subchapter (other than for purposes of subparagraph (C)), such transaction shall be treated as described only in paragraph (1)(D).

(B) Additional consideration in certain paragraph (1)(C) cases

If—

(i)

one corporation acquires substantially all of the properties of another corporation,

(ii)

the acquisition would qualify under paragraph (1)(C) but for the fact that the acquiring corporation exchanges money or other property in addition to voting stock, and

(iii)

the acquiring corporation acquires, solely for voting stock described in paragraph (1)(C), property of the other corporation having a fair market value which is at least 80 percent of the fair market value of all of the property of the other corporation,

then such acquisition shall (subject to subparagraph (A) of this paragraph) be treated as qualifying under paragraph (1)(C). Solely for the purpose of determining whether clause (iii) of the preceding sentence applies, the amount of any liability assumed by the acquiring corporation shall be treated as money paid for the property.

A transaction otherwise qualifying under paragraph (1)(A), (1)(B), or (1)(C) shall not be disqualified by reason of the fact that part or all of the assets or stock which were acquired in the transaction are transferred to a corporation controlled by the corporation acquiring such assets or stock. A similar rule shall apply to a transaction otherwise qualifying under paragraph (1)(G) where the requirements of subparagraphs (A) and (B) of section 354(b)(1) are met with respect to the acquisition of the assets.

(D) Use of stock of controlling corporation in paragraph (1)(A) and (1)(G) cases

The acquisition by one corporation, in exchange for stock of a corporation (referred to in this subparagraph as “controlling corporation”) which is in control of the acquiring corporation, of substantially all of the properties of another corporation shall not disqualify a transaction under paragraph (1)(A) or (1)(G) if—

(i)

no stock of the acquiring corporation is used in the transaction, and

(ii)

in the case of a transaction under paragraph (1)(A), such transaction would have qualified under paragraph (1)(A) had the merger been into the controlling corporation.

(E) Statutory merger using voting stock of corporation controlling merged corporation

A transaction otherwise qualifying under paragraph (1)(A) shall not be disqualified by reason of the fact that stock of a corporation (referred to in this subparagraph as the “controlling corporation”) which before the merger was in control of the merged corporation is used in the transaction, if—

(i)

after the transaction, the corporation surviving the merger holds substantially all of its properties and of the properties of the merged corporation (other than stock of the controlling corporation distributed in the transaction); and

(ii)

in the transaction, former shareholders of the surviving corporation exchanged, for an amount of voting stock of the controlling corporation, an amount of stock in the surviving corporation which constitutes control of such corporation.

(F) Certain transactions involving 2 or more investment companies

(i)

If immediately before a transaction described in paragraph (1) (other than subparagraph (E) thereof), 2 or more parties to the transaction were investment companies, then the transaction shall not be considered to be a reorganization with respect to any such investment company (and its shareholders and security holders) unless it was a regulated investment company, a real estate investment trust, or a corporation which meets the requirements of clause (ii).

(ii)

A corporation meets the requirements of this clause if not more than 25 percent of the value of its total assets is invested in the stock and securities of any one issuer, and not more than 50 percent of the value of its total assets is invested in the stock and securities of 5 or fewer issuers. For purposes of this clause, all members of a controlled group of corporations (within the meaning of section 1563(a)) shall be treated as one issuer. For purposes of this clause, a person holding stock in a regulated investment company, a real estate investment trust, or an investment company which meets the requirements of this clause shall, except as provided in regulations, be treated as holding its proportionate share of the assets held by such company or trust.

(iii)

For purposes of this subparagraph the term “investment company” means a regulated investment company, a real estate investment trust, or a corporation 50 percent or more of the value of whose total assets are stock and securities and 80 percent or more of the value of whose total assets are assets held for investment. In making the 50-percent and 80-percent determinations under the preceding sentence, stock and securities in any subsidiary corporation shall be disregarded and the parent corporation shall be deemed to own its ratable share of the subsidiary’s assets, and a corporation shall be considered a subsidiary if the parent owns 50 percent or more of the combined voting power of all classes of stock entitled to vote, or 50 percent or more of the total value of shares of all classes of stock outstanding.

(iv)

For purposes of this subparagraph, in determining total assets there shall be excluded cash and cash items (including receivables). Government securities, and, under regulations prescribed by the Secretary, assets acquired (through incurring indebtedness or otherwise) for purposes of meeting the requirements of clause (ii) or ceasing to be an investment company.

(v)

This subparagraph shall not apply if the stock of each investment company is owned substantially by the same persons in the same proportions.

(vi)

If an investment company which does not meet the requirements of clause (ii) acquires assets of another corporation, clause (i) shall be applied to such investment company and its shareholders and security holders as though its assets had been acquired by such other corporation. If such investment company acquires stock of another corporation in a reorganization described in section 368(a)(1)(B), clause (i) shall be applied to the shareholders of such investment company as though they had exchanged with such other corporation all of their stock in such company for stock having a fair market value equal to the fair market value of their stock of such investment company immediately after the exchange. For purposes of section 1001, the deemed acquisition or exchange referred to in the two preceding sentences shall be treated as a sale or exchange of property by the corporation and by the shareholders and security holders to which clause (i) is applied.

(vii)

For purposes of clauses (ii) and (iii), the term “securities” includes obligations of State and local governments, commodity futures contracts, shares of regulated investment companies and real estate investment trusts, and other investments constituting a security within the meaning of the Investment Company Act of 1940 (15 U.S.C. 80a–2(a)(36)).

[(viii)

Repealed. Pub. L. 98–369, div. A, title I, § 174(b)(5)(D), July 18, 1984, 98 Stat. 707]

(G) Distribution requirement for paragraph (1)(C)

(i) In general

A transaction shall fail to meet the requirements of paragraph (1)(C) unless the acquired corporation distributes the stock, securities, and other properties it receives, as well as its other properties, in pursuance of the plan of reorganization. For purposes of the preceding sentence, if the acquired corporation is liquidated pursuant to the plan of reorganization, any distribution to its creditors in connection with such liquidation shall be treated as pursuant to the plan of reorganization.

(ii) Exception

The Secretary may waive the application of clause (i) to any transaction subject to any conditions the Secretary may prescribe.

(H) Special rules for determining whether certain transactions are qualified under paragraph (1)(D)

For purposes of determining whether a transaction qualifies under paragraph (1)(D)—

(i)

in the case of a transaction with respect to which the requirements of subparagraphs (A) and (B) of section 354(b)(1) are met, the term “control” has the meaning given such term by section 304(c), and

(ii)

in the case of a transaction with respect to which the requirements of section 355 (or so much of section 356 as relates to section 355) are met, the fact that the shareholders of the distributing corporation dispose of part or all of the distributed stock, or the fact that the corporation whose stock was distributed issues additional stock, shall not be taken into account.

(3) Additional rules relating to title 11 and similar cases

(A) Title 11 or similar case defined

For purposes of this part, the term “title 11 or similar case” means—

(i)

a case under title 11 of the United States Code, or

(ii)

a receivership, foreclosure, or similar proceeding in a Federal or State court.

(B) Transfer of assets in a title 11 or similar case

In applying paragraph (1)(G), a transfer of the assets of a corporation shall be treated as made in a title 11 or similar case if and only if—

(i)

any party to the reorganization is under the jurisdiction of the court in such case, and

(ii)

the transfer is pursuant to a plan of reorganization approved by the court.

If a transaction would (but for this subparagraph) qualify both—

(i)

under subparagraph (G) of paragraph (1), and

(ii)

under any other subparagraph of paragraph (1) or under section 332 or 351,

then, for purposes of this subchapter (other than section 357(c)(1)), such transaction shall be treated as qualifying only under subparagraph (G) of paragraph (1).

(D) Agency receivership proceedings which involve financial institutions

For purposes of subparagraphs (A) and (B), in the case of a receivership, foreclosure, or similar proceeding before a Federal or State agency involving a financial institution referred to in section 581 or 591, the agency shall be treated as a court.

(E) Application of paragraph (2)(E)(ii)

In the case of a title 11 or similar case, the requirement of clause (ii) of paragraph (2)(E) shall be treated as met if—

(i)

no former shareholder of the surviving corporation received any consideration for his stock, and

(ii)

the former creditors of the surviving corporation exchanged, for an amount of voting stock of the controlling corporation, debt of the surviving corporation which had a fair market value equal to 80 percent or more of the total fair market value of the debt of the surviving corporation.

(b) Party to a reorganization

For purposes of this part, the term “a party to a reorganization” includes—

(1)

a corporation resulting from a reorganization, and

(2)

both corporations, in the case of a reorganization resulting from the acquisition by one corporation of stock or properties of another.

In the case of a reorganization qualifying under paragraph (1)(B) or (1)(C) of subsection (a), if the stock exchanged for the stock or properties is stock of a corporation which is in control of the acquiring corporation, the term “a party to a reorganization” includes the corporation so controlling the acquiring corporation. In the case of a reorganization qualifying under paragraph (1)(A), (1)(B), (1)(C), or (1)(G) of subsection (a) by reason of paragraph (2)(C) of subsection (a), the term “a party to a reorganization” includes the corporation controlling the corporation to which the acquired assets or stock are transferred. In the case of a reorganization qualifying under paragraph (1)(A) or (1)(G) of subsection (a) by reason of paragraph (2)(D) of that subsection, the term “a party to a reorganization” includes the controlling corporation referred to in such paragraph (2)(D). In the case of a reorganization qualifying under subsection (a)(1)(A) by reason of subsection (a)(2)(E), the term “party to a reorganization” includes the controlling corporation referred to in subsection (a)(2)(E).

For purposes of part I (other than section 304), part II, this part, and part V, the term “control” means the ownership of stock possessing at least 80 percent of the total combined voting power of all classes of stock entitled to vote and at least 80 percent of the total number of shares of all other classes of stock of the corporation.

Source credit: (Aug. 16, 1954, ch. 736, 68A Stat. 120; Pub. L. 88–272, title II, § 218(a), (b), Feb. 26, 1964, 78 Stat. 57; Pub. L. 90–621, § 1(a), (b), Oct. 22, 1968, 82 Stat. 1310, 1311; Pub. L. 91–693, § 1(a), (b), Jan. 12, 1971, 84 Stat. 2077; Pub. L. 94–455, title VIII, § 806(f)(1), title XXI, § 2131(a), Oct. 4, 1976, 90 Stat. 1605, 1922; Pub. L. 95–600, title VII, § 701(j)(1), Nov. 6, 1978, 92 Stat. 2905; Pub. L. 96–589, § 4(a)–(d), (h)(3), (4), Dec. 24, 1980, 94 Stat. 3401–3403, 3405; Pub. L. 97–34, title II, § 241, Aug. 13, 1981, 95 Stat. 254; Pub. L. 97–248, title II, § 225(a), Sept. 3, 1982, 96 Stat. 490; Pub. L. 97–448, title III, § 304(b), (c), Jan. 12, 1983, 96 Stat. 2398; Pub. L. 98–369, div. A, title I, §§ 63(a), 64(a), 174(b)(5)(D), July 18, 1984, 98 Stat. 583, 584, 707; Pub. L. 99–514, title VI, § 621(e)(1), title IX, § 904(a), title XVIII, §§ 1804(g)(2), (h), 1879(l)(1), Oct. 22, 1986, 100 Stat. 2266, 2385, 2806, 2909; Pub. L. 100–647, title I, § 1018(q)(5), title IV, § 4012(b)(1)(A), Nov. 10, 1988, 102 Stat. 3586, 3656; Pub. L. 101–73, title XIV, § 1401(a)(1), (b)(1), Aug. 9, 1989, 103 Stat. 548, 549; Pub. L. 105–34, title X, § 1012(c)(2), Aug. 5, 1997, 111 Stat. 917; Pub. L. 105–206, title VI, § 6010(c)(3)(B), July 22, 1998, 112 Stat. 813; Pub. L. 105–277, div. J, title IV, § 4003(f)(2), Oct. 21, 1998, 112 Stat. 2681–910; Pub. L. 106–36, title III, § 3001(a)(3), June 25, 1999, 113 Stat. 182; Pub. L. 115–141, div. U, title IV, § 401(a)(68), Mar. 23, 2018, 132 Stat. 1187.)

history & why it existsrecord from the source credit

1954Enacted · Act of Aug. 16, 1954, ch. 736
1964Amended · Pub. L. 88-272 · 78 Stat. 57
1968Amended · Pub. L. 90-621 · 82 Stat. 1310, 1311
1971Amended · Pub. L. 91-693 · 84 Stat. 2077
1976Amended · Pub. L. 94-455 · 90 Stat. 1605, 1922
1978Amended · Pub. L. 95-600 · 92 Stat. 2905
1980Amended · Pub. L. 96-589 · 94 Stat. 3401
1981Amended · Pub. L. 97-34 · 95 Stat. 254
1982Amended · Pub. L. 97-248 · 96 Stat. 490
1983Amended · Pub. L. 97-448 · 96 Stat. 2398
1984Amended · Pub. L. 98-369 · 98 Stat. 583, 584, 707
1986Amended · Pub. L. 99-514 · 100 Stat. 2266, 2385, 2806, 2909
1988Amended · Pub. L. 100-647 · 102 Stat. 3586, 3656
1989Amended · Pub. L. 101-73 · 103 Stat. 548, 549
1997Amended · Pub. L. 105-34 · 111 Stat. 917
1998Amended · Pub. L. 105-206 · 112 Stat. 813
1998Amended · Pub. L. 105-277 · 112 Stat. 2681
1999Amended · Pub. L. 106-36 · 113 Stat. 182
2018Amended · Pub. L. 115-141 · 132 Stat. 1187

A history note hasn’t been published yet. The record shows enactment by ch. 736 on 1954-08-16.

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