- within Government and Public Sector topic(s)
- with readers working within the Technology industries
Originally published June 2003
By Mark J. Silverman and Lisa M. Zarlenga
TABLE OF CONTENTS
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I. BACKGROUND AND HISTORY OF LOSS DISALLOWANCE AND LOSS DUPLICATION RULES A. Investment Adjustment Rules B. Targeted Problems 1. Problems Relating to the Repeal of General Utilities a. Son of Mirrors Transaction b. Wasting Assets Problem 2. Loss Duplication Problem C. Prior Loss Disallowance Rules – History of Treasury Regulation Section 1502-20 1. Regulatory Authority 2. Notice 87-14 3. Original Set of Loss Disallowance Regulations 4. Amended Set of Regulations 5. Final Regulations 6. Summary D. Rite Aid Case 1. Background 2. Facts of Rite Aid 3. Court of Federal Claims Decision 4. The Federal Circuit Decision 5. Notice 2002-11 6. Legislative Proposal E. New Loss Disallowance Regulations - Temporary Treasury Regulation Section 1.337(d)-2T F. New Loss Duplication Regulations - Temporary Treasury Regulation Section 1.1502-35 1. Notice 2002-18 2. Proposed Treasury Regulation Section 1.1502-35 3. Temporary Treasury Regulation Section 1.1502-35 |
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II. LOSS DISALLOWANCE RULES - ADDRESSING CONCERNS RELATING TO THE REPEAL OF GENERAL UTILITIES A. General Rule B. Deconsolidations C. Allowable Loss 1. General Rules 2. Disposition of an Asset 3. Tracking Built-In Gains 4. Allowable Loss Under Prior Rules D. Netting Rule E. Coordination with Loss Deferral and Other Loss Disallowance Rules F. Successor Rule G. Anti-Avoidance Rules 1. Prior Rules Apply 2. General Anti-Avoidance Rule 3. Anti-Stuffing Rule H. No Tiering Up of Certain Adjustments I. Treas. Reg. § 1.1502-20T(i) – Transition Rules 1. General Rule 2. Election 3. Cascading Losses 4. Reattribution Rule 5. Waiver of Loss Carryovers 6. Determining Whether and Which Election to Make |
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III. TEMPORARY TREASURY REGULATION § 1.1502-35 - ADDRESSING LOSS DUPLICATION CONCERNS A. Background B. Basis Redetermination Rule 1. Effect of Investment Adjustment Rules 2. Basis Redetermination Where Subsidiary Remains Member of the Group 3. Basis Redetermination Where Subsidiary Is Deconsolidated 4. Lower Tier Subsidiaries 5. Basis Adjustments for Higher Tier Stock 6. Ordering Rules 7. Basis Redetermination Examples C. Loss Suspension Rule 1. General Rule 2. Duplicated Loss 3. Lower Tier Subsidiaries 4. Treatment of Suspended Loss 5. Reduction of Suspended Loss 6. Allowance of Loss 7. Special Rule for Successor Assets 8. Coordination With Other Deferral or Disallowance Rules 9. Ordering Rules 10. Loss Suspension Examples D. Worthlessness and Dispositions Not Followed by Separate Return Years 1. General Rule 2. Proposed Regulations. 3. Special Transition Election E. Anti-Avoidance Rules 1. Transfer of Share Without Loss in Avoidance 2. Transfer of Loss Property in Avoidance 3. Anti-Loss Reimportation 4. Avoidance of Gain Recognition 5. Other Anti-Abuse |
TABLE OF EXAMPLES
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Example 1 – Basic Investment Adjustment Rules Example 2 – Basic Son of Mirrors Transaction Example 3 – Son of Mirrors Transaction – "Bust Up" Example 4 – Wasting Assets Example 5 – Loss Duplication: Unrelated Taxpayers Example 6 – Loss Duplication: Stuffing/Outside Loss Recognized Before Inside Loss Example 7 – Loss Duplication: Stuffing/Inside Loss Recognized Before Outside Loss Example 8 – Deconsolidation Rule Example 9 – Definition of Deconsolidation Example 10 – Using the Deconsolidation Rule to Avoid Gain Recognition Example 11 – Loss Attributable to Disposition of Built-In Gain Asset Example 12 – Loss Attributable to Post-Acquisition Loss Example 13 – Section 1031 Exchange of Built-In Gain Asset Example 14 – Gain Recognized by Prior Consolidated Group Example 15 – Carryover Basis in Stock Example 16 – Intragroup Acquisition Example 17 – Built-In Loss Offsets Built-In Gain Example 18 – Post-Acquisition Depreciation Offsets Post-Acquisition Appreciation Example 19 – Post-Acquisition Appreciation Removes Taint of Built-In Gain Example 20 – Post-Acquisition Appreciation Removes Taint of Built-In Gain – Lower Tier Subsidiary Example 21 – Netting Gains and Losses Example 22 – Netting Under the Deconsolidation Rule Example 23 – Coordination With Loss Deferral Rules Example 24 – Successor Rule Example 25 – Shifting of Value Example 26 – Basic Stuffing Case Example 27 – Deconsolidation of Parent in Same Transaction as Subsidiary Example 28 – Reattribution Rule Example 29 – No Deconsolidation Example 30 – Deconsolidation Example 31 – Deconsolidation to Avoid Basis Redetermination Example 32 – Basis Redetermination to Eliminate an ELA Example 33 – Loss Suspension Rule Example 34 – Basis Redetermination and Loss Suspension Example 35 – Basis Redetermination and Loss Suspension No Stuffing Example 36 – Basis Redetermination and Loss Suspension With Asset Appreciation Example 37 – Basis Redetermination and Loss Suspension Where Lower Tier Subsidiary Remains Member of Group Example 38 – Basis Redetermination and Loss Suspension with Carryover Basis Asset Example 39 – Transfer of Property to Avoid Basic Redetermination Rule Example 40 – Loss Reimportation |
I. BACKGROUND AND HISTORY OF LOSS DISALLOWANCE AND LOSS DUPLICATION RULES
A. Investment Adjustment Rules
- The investment adjustment rules under Treas. Reg. § 1.1502-32 require that annual positive or negative adjustments be made to the basis of the stock of each subsidiary of a consolidated group to reflect gain or loss recognized by the subsidiary.
a. Specifically, basis is increased by S’s taxable income and tax-exempt income. Basis is decreased by S’s tax loss, nondeductible expenses, and distributions with respect to S’s stock. Treas. Reg. § 1.1502-32(b)(2).
b. If S has more than one class of stock outstanding, the adjustments must be allocated between the classes. An adjustment attributable to a distribution is allocated to the shares of S’s stock entitled to the distribution. If the remainder of the adjustments are positive, the adjustments are allocated first to preferred stock (and only to the extent of dividend arrearages and distributions to which the preferred stock becomes entitled), and second to S’s common stock. If the remainder of the adjustments not attributable to distributions are negative, they are allocated solely to the common stock. Treas. Reg. § 1.1502-32(c)(1).
c. The adjustments are designed to ensure that consolidated group members pay a single corporate tax on the group’s income and use losses only once.
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