94-31429. S Corporation Built-In Gain Tax  

  • [Federal Register Volume 59, Number 247 (Tuesday, December 27, 1994)]
    [Unknown Section]
    [Page 0]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 94-31429]
    
    
    [[Page Unknown]]
    
    [Federal Register: December 27, 1994]
    
    
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    DEPARTMENT OF THE TREASURY
    
    Internal Revenue Service
    
    26 CFR Part 1
    
    [TD 8579]
    RIN 1545-AK93
    
     
    
    S Corporation Built-In Gain Tax
    
    AGENCY: Internal Revenue Service (IRS), Treasury.
    
    ACTION: Final regulations.
    
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    SUMMARY: This document prescribes final regulations under section 1374 
    relating to the tax imposed on an S corporation's net recognized built-
    in gain. The final regulations reflect changes to the law in the Tax 
    Reform Act of 1986. The final regulations generally affect only 
    corporations that changed from C to S status.
    
    DATES: These regulations are effective December 27, 1994.
        These regulations apply to taxable years ending on or after 
    December 27, 1994, but only in cases where the return for the taxable 
    year is filed pursuant to an S election or a section 1374(d)(8) 
    transaction occurring on or after December 27, 1994.
    
    FOR FURTHER INFORMATION CONTACT: Mark S. Jennings or Lee D. Muchnikoff, 
    Office of Assistant Chief Counsel (Corporate), Internal Revenue 
    Service, 1111 Constitution Avenue NW, Washington, DC 20224 (Attention: 
    CC:DOM:CORP:T:R), or telephone (202) 622-7530 (not a toll free number).
    
    SUPPLEMENTARY INFORMATION:
    
    1. Background
    
        Section 1374 of the Internal Revenue Code of 1986 (Code) generally 
    imposes a corporate-level tax on an S corporation's recognition of 
    income or gain to the extent the income or gain reflects unrealized 
    appreciation (or its equivalent) in the corporation when it converted 
    from C to S status. Section 1374 was amended to provide this treatment 
    as part of the legislation repealing the General Utilities rule. See 
    H.R. Conf. Rep. No. 841, 99th Cong., 2d Sess., Vol. II, 198-207 (1986), 
    1986-3 C.B., Vol. 4, 198-207.
        Section 1374 generally applies to an S corporation for taxable 
    years beginning after December 31, 1986, but only if the corporation 
    elects S status after December 31, 1986. Sections 1374(e) and 337(d) 
    provide specific authority to promulgate regulations under section 
    1374.
        Proposed regulations under section 1374 were published in the 
    Federal Register on December 8, 1992 (57 FR 57971, or 1992-2 C.B. 594). 
    This document adds new Secs. 1.1374-0 through 1.1374-10 to 26 CFR Part 
    1.
    
    2. Section 1374 and the Proposed Regulations
    
        Section 1374(a) imposes a tax on an S corporation's net recognized 
    built-in gain for any taxable year beginning in the 10-year recognition 
    period following the S corporation's conversion from a C corporation or 
    acquisition of C corporation assets in a carryover basis transaction. 
    The proposed regulations provide that an S corporation's net recognized 
    built-in gain for any taxable year is the least of (1) its taxable 
    income determined by using the rules applying to C corporations and 
    considering only recognized built-in gain and recognized built-in loss 
    (the pre-limitation amount), (2) its taxable income determined by using 
    the rules applying to C corporations and considering all items except 
    as provided under section 1375(b)(1)(B) (the taxable income 
    limitation), or (3) the excess of its net unrealized built-in gain over 
    net recognized built-in gain for all prior taxable years in the 
    recognition period (the net unrealized built-in gain limitation).
        Section 1374(d)(3) provides that any gain recognized on the 
    disposition of an asset during the recognition period is recognized 
    built-in gain except to the extent the S corporation establishes that 
    it did not hold the asset on the first day of the recognition period or 
    the asset appreciated after that day. Section 1374(d)(4) provides that 
    any loss recognized on a disposition of an asset during the recognition 
    period is recognized built-in loss to the extent the S corporation 
    establishes that it held the asset on the first day of the recognition 
    period and the asset depreciated before that day. The proposed 
    regulations provide that sections 1374(d) (3) and (4) apply only to 
    transactions treated as sales or exchanges under the Code.
        Section 1374(d)(5)(A) provides that any item of income properly 
    taken into account during the recognition period but attributable to 
    periods before the first day of the recognition period is recognized 
    built-in gain. Section 1374(d)(5)(B) provides that any item of 
    deduction properly taken into account during the recognition period but 
    attributable to periods before the first day of the recognition period 
    is recognized built-in loss. The proposed regulations provide that an S 
    corporation's items of income or deduction generally are recognized 
    built-in gain or loss if the item would have been included in gross 
    income or allowed as a deduction against gross income before the 
    recognition period by an accrual method taxpayer (accrual method rule). 
    The proposed regulations provide that all rules applying to accrual 
    method taxpayers (whether from the Code, regulations, administrative 
    pronouncements, or otherwise) also apply for purposes of the accrual 
    method rule with two exceptions: (1) Section 461(h)(2)(C), relating to 
    liabilities for tort and worker's compensation for which payment 
    constitutes economic performance, and (2) section 469, relating to 
    suspended passive activity losses. The proposed regulations also 
    provide special rules for certain items including an S corporation's 
    section 481(a) adjustments, income reported under the completed 
    contract method, income reported under the installment method, and 
    distributive share of partnership items.
        Section 1374(d)(1) provides that an S corporation's net unrealized 
    built-in gain is the amount by which the fair market value of all its 
    assets exceeds the aggregate adjusted bases of all its assets as of the 
    beginning of the recognition period. Section 1374(d)(5)(C) provides 
    that an S corporation's net unrealized built-in gain is properly 
    adjusted for items of income and deduction that would be recognized 
    built-in gain or loss if taken into account during the recognition 
    period. The proposed regulations provide that the S corporation's net 
    unrealized built-in gain is determined by reference to a hypothetical 
    sale of all the assets of the corporation immediately before the 
    beginning of the recognition period to a buyer that assumed all the 
    corporation's liabilities.
        Section 1374(b)(2) provides that an S corporation's net operating 
    loss carryforwards and capital loss carryforwards arising in years for 
    which the corporation was a C corporation are allowed as deductions 
    against net recognized built-in gain. The proposed regulations provide 
    that no other loss carryforwards may be used as a deduction against net 
    recognized built-in gain. Section 1374(b)(3) provides that an S 
    corporation's special fuels credit for the year, and business credit 
    carryforwards and minimum tax credit arising in years for which the 
    corporation was a C corporation, are allowed as credits against the 
    section 1374 tax. The proposed regulations provide that no other 
    credits or credit carryforwards may be used as a credit against the 
    section 1374 tax. The loss carryforwards, credits, and credit 
    carryforwards allowed to reduce the section 1374 tax are collectively 
    referred to as the section 1374 attributes in the final regulations.
    
    3. Public Comments and the Final Regulations
    
        The IRS received written and oral comments from the public on the 
    proposed regulations both in connection with the public hearing held on 
    April 28, 1993, and otherwise. The issues raised by these comments are 
    discussed below.
    
    A. Accounting Methods
    
        Commentators request guidance about the accounting methods an S 
    corporation should use in determining its pre-limitation amount and 
    taxable income limitation. The commentators suggest that an S 
    corporation should be allowed to use any accounting method it could use 
    if it were a C corporation. The final regulations do not adopt this 
    suggestion because section 1374 applies only to items an S corporation 
    actually takes into account during the recognition period. It does not 
    apply to items the corporation would have taken into account under a 
    hypothetical method of accounting. Accordingly, the final regulations 
    require the S corporation to use the accounting methods it actually 
    uses as an S corporation to make these taxable income determinations.
    
    B. Recognition Period
    
        Commentators request confirmation that the recognition period is 
    the 10 calendar year period (and not the 10 taxable year period) 
    beginning on the first day the corporation is an S corporation or the 
    day the S corporation acquires C corporation assets in a carryover 
    basis transaction. The final regulations confirm the commentators' 
    interpretation of the Code.
        Commentators also request guidance on determining an S 
    corporation's net recognized built-in gain where the recognition period 
    ends during a taxable year (for example, because a corporation 
    converting from C to S status was on a fiscal year as a C corporation 
    and changed to a calendar year as an S corporation or because an S 
    corporation acquired C corporation assets in a carryover basis 
    transaction during a taxable year). The final regulations provide that 
    the pre-limitation amount for the year is determined by a closing of 
    the books at the end of the recognition period.
    
    C. Accrual Method Rule and Section 267(a)(2) or 404(a)(5)
    
        One commentator argues that the proposed regulations should not use 
    the accrual method rule to determine if, and the extent to which, an 
    item of income or deduction is included in net recognized built-in 
    gain. Instead, this commentator argues that the approach the proposed 
    regulations use to determine if, and the extent to which, an item of 
    income or deduction is included in net unrealized built-in gain (that 
    is, by valuation using a hypothetical sale of all the S corporation's 
    assets to a buyer that assumes all the S corporation's liabilities) 
    should also be used to determine if, and the extent to which, an item 
    of income or deduction is included in net recognized built-in gain.
        The Treasury and the IRS believe that separately valuing each item 
    of income and deduction for net recognized built-in gain purposes would 
    be unduly burdensome both for taxpayers and for the IRS. Using a 
    valuation approach for determining net unrealized built-in gain is not 
    unduly burdensome because net unrealized built-in gain can be 
    determined by valuing the S corporation's business using an aggregate 
    approach where particular items of income and deduction are not valued 
    individually. In addition, many S corporations subject to section 1374 
    will not need to know their net unrealized built-in gain because they 
    will not approach their net unrealized built-in gain limitation in the 
    recognition period. However, most S corporations subject to section 
    1374 will have items of income and deduction taken into account in the 
    recognition period where a determination must be made if, and the 
    extent to which, the item is included in net recognized built-in gain. 
    Accordingly, the final regulations do not adopt the commentator's 
    suggestion and generally retain the accrual method rule in the proposed 
    regulations.
        Some commentators argue that the accrual method rule in the 
    proposed regulations wrongly applies sections 267(a)(2), relating to 
    accrued amounts payable to related persons, and 404(a)(5), relating to 
    accrued amounts payable as deferred compensation, to determine whether 
    an item of deduction should be treated as a recognized built-in loss. 
    In general, those sections defer a deduction for an accrual method 
    taxpayer that owes a payment to a cash method taxpayer until the 
    payment is made. The commentators cite the following statement in the 
    section 1374 legislative history in support of their position:
    
        As an example of these built-in gain and loss provisions, in the 
    case of a cash basis personal service corporation that converts to S 
    status and that has receivables at the time of the conversion, the 
    receivables, when received, are built-in gain items. At the same 
    time, built-in losses would include otherwise deductible 
    compensation paid after the conversion to the persons who performed 
    the services that produced the receivables, to the extent such 
    compensation is attributable to such pre-conversion services. To the 
    extent such built-in loss items offset the built-in gains from the 
    receivables, there would be no amount subject to the built-in gains 
    tax.
    
    H.R. Rep. No. 795, 100th Cong., 2d Sess. 63-64 (1988).
        The commentators suggest that the accrual method rule in the final 
    regulations should be applied without regard to sections 267(a)(2) and 
    404(a)(5). The Treasury and the IRS disagree with the commentators that 
    the legislative history quoted above precludes the adoption of the 
    accrual method rule of the proposed regulations. The accrual method 
    rule in the proposed regulations was adopted as an administrable method 
    for both taxpayers and the Service to determine the extent to which an 
    amount included in income or deducted in the recognition period is 
    attributable to the pre-recognition period. Nevertheless, in response 
    to the commentators' requests, the final regulations extend recognized 
    built-in loss treatment for certain amounts properly deducted under 
    section 267(a)(2) or 404(a)(5) in the recognition period.
        The final regulations provide that an amount properly deducted 
    under section 267(a)(2) is recognized built-in loss to the extent (i) 
    all events have occurred that establish the fact of the liability to 
    pay the amount, and the exact amount of the liability can be 
    determined, as of the beginning of the recognition period, and (ii) the 
    amount is paid in the first two and one-half months of the recognition 
    period, or is paid to an individual that owned less than 5 percent of 
    the corporation's stock. The final regulations provide that an amount 
    properly deducted under section 404(a)(5) is recognized built-in loss 
    to the extent (i) all events have occurred that establish the fact of 
    the liability to pay the amount, and the exact amount of the liability 
    can be determined, as of the beginning of the recognition period, and 
    (ii) the amount is not deductible under section 267(a)(2). The Treasury 
    and the IRS believe that these rules are relatively easy for taxpayers 
    and the IRS to apply and also provide relief from the deferral of 
    deductions under section 267(a)(2) or 404(a)(5). The additional 
    limitations for amounts deducted under section 267(a)(2) are needed 
    because of the particular difficulty in determining whether amounts 
    paid to related parties are attributable to services performed before 
    or after the beginning of the recognition period.
        The final regulations also modify the accrual method rule in the 
    proposed regulations as follows: (1) An exception from the accrual 
    method rule for items deducted under Sec. 1.461-4(g) is added (relating 
    to items in addition to those specified in section 461(h)(2)(C) for 
    which payment constitutes economic performance); and (2) the exception 
    from the accrual method rule in the proposed regulations for items 
    deducted under section 469 is eliminated. The Sec. 1.461-4(g) exception 
    is added to clarify the section 461(h)(2)(C) exception in the proposed 
    regulations. The section 469 exception is eliminated because losses 
    suspended before the recognition period under section 469 cannot be 
    used in the recognition period under section 1371(b)(1).
    
    D. Section 481 Adjustments
    
        The proposed regulations provide that any item of income or 
    deduction properly taken into account during the recognition period 
    under section 481 is recognized built-in gain or loss if the item is 
    taken into account because of a change of accounting method effective 
    before the beginning of the second year of the recognition period 
    (``one-year rule''). In certain cases, this one-year rule has the 
    effect of (1) omitting income attributable to the corporation's C 
    period altogether at the corporate level, (2) including income 
    attributable to the corporation's C period twice at the corporate 
    level, (3) omitting a deduction attributable to the corporation's C 
    period altogether at the corporate level, or (4) allowing a deduction 
    attributable to the corporation's C period twice at the corporate 
    level, because the section 481 adjustment on the change in accounting 
    method is not treated as recognized built-in gain or loss. In addition, 
    the Treasury and the Service believe that in most cases the portion of 
    a section 481(a) adjustment attributable to the pre-recognition period 
    and the portion attributable to the recognition period can be 
    determined without undue administrative difficulty.
        The final regulations, therefore, provide that any section 481(a) 
    adjustment taken into account in the recognition period that prevents 
    an omission or duplication of income or deduction is recognized built-
    in gain or loss to the extent the adjustment relates to items 
    attributable to periods before the beginning of the recognition period 
    under the principles for determining recognized built-in gain or loss 
    in the regulations.
    
    E. Installment Method
    
        The proposed regulations impose a section 1374 tax on income 
    reported under the installment method either during or after the 
    recognition period in accordance with Notice 90-27, 1990-1 C.B. 336. 
    The tax is imposed only to the extent the income would have been 
    included in net recognized built-in gain if it had been reported in the 
    year of the sale and all provisions of section 1374 applied including 
    the taxable income limitation.
        Several commentators argue that the proposed regulations wrongly 
    impose a section 1374 tax on income reported under the installment 
    method after the recognition period. In addition, they contend that the 
    proposed regulations wrongly apply the taxable income limitation by 
    reference to the S corporation's cumulative taxable income from the 
    year of the installment sale to the year that income is reported under 
    the installment method (assuming the income had been reported in the 
    year of the sale) instead of the S corporation's taxable income in the 
    year that income was reported under the installment method. Further, 
    they believe that, where income is reported under the installment 
    method after the recognition period, the proposed regulations are 
    unclear regarding the proper use of section 1374 attributes and loss 
    recognized after the recognition period that would have been recognized 
    built-in loss if it had been recognized during the recognition period.
        The final regulations retain the installment method rules in the 
    proposed regulations because the Treasury and the IRS believe those 
    rules are necessary to prevent an abuse of section 1374. The final 
    regulations clarify the use of an S corporation's section 1374 
    attributes and loss recognized after the recognition period where 
    income is reported under the installment method for a year after the 
    recognition period. Section 1374 attributes may be used to the extent 
    their use is allowed under all applicable provisions of the Code. 
    However, the S corporation's loss recognized in a year after the 
    recognition period may not be used to reduce the section 1374 tax.
    
    F. Partnership Items
    
        The proposed regulations generally provide that an S corporation 
    owning an interest in a partnership must treat its distributive share 
    of the partnership's items as recognized built-in gain or loss to the 
    extent the S corporation's distributive share would have been treated 
    as recognized built-in gain or loss if the items originated in, and 
    were taken into account directly by, the S corporation (the look-
    through rules). The look-through rules generally apply only to the 
    extent the S corporation had built-in gain or built-in loss in its 
    partnership interest at the beginning of the recognition period. The 
    proposed regulations contain a small interest exception from the look-
    through rules for any taxable year where the S corporation's 
    partnership interest has a value less than $100,000 and represents less 
    than a 10 percent interest in the partnership's capital and profits at 
    all times during the year. The small interest exception does not apply 
    if the partnership was formed or availed of with a principal purpose to 
    avoid the section 1374 tax. The proposed regulations provide that if an 
    S corporation disposes of its partnership interest during the 
    recognition period, the amount treated as recognized built-in gain or 
    loss on the disposition is adjusted to take into account amounts 
    treated as recognized built-in gain or loss under the look-through 
    rules. The proposed regulations also provide special rules for section 
    704(c) gain and loss, and where an S corporation disposes of 
    distributed partnership assets.
        Commentators argue that the look-through rules should apply only 
    where an S corporation controls the partnership or the primary use of 
    the partnership by the S corporation is to avoid section 1374 because, 
    except where the S corporation is the controlling partner, the S 
    corporation is not likely to have access to information and records 
    necessary to identify and value partnership section 1374 items. In 
    addition, the commentators suggest modifying the small interest 
    exception to the look-through rules so that the small interest test is 
    generally applied only on the first day of the recognition period. The 
    commentators believe that subsequent increases or decreases in the fair 
    market value of the partnership interest should be disregarded.
        The final regulations retain the look-through rules. Access to 
    information and records necessary to identify and value partnership 
    section 1374 items is not dependent on whether the S corporation is a 
    controlling partner. Moreover, section 1374 should generally apply to 
    an S corporation's partnership section 1374 items even where a 
    principal purpose for using the partnership was not to avoid the 
    section 1374 tax.
        The final regulations, however, modify the small interest exception 
    to the look-through rules to accommodate the commentators' request for 
    a rule requiring a valuation of the partnership interest only on the 
    first day of the recognition period. Under the rule as modified, the 
    small interest exception generally applies for a taxable year if the S 
    corporation's interest in the partnership represents less than 10 
    percent of the partnership's profits and capital at all times during 
    the taxable year and prior taxable years in the recognition period and 
    has a value less than $100,000 as of the beginning of the recognition 
    period. However, if the S corporation contributes an asset to the 
    partnership in the recognition period and the S corporation held the 
    asset as of the beginning of the recognition period, the fair market 
    value of the S corporation's partnership interest as of the beginning 
    of the recognition period is determined as if the asset was contributed 
    to the partnership before the beginning of the recognition period 
    (using the fair market value of the asset as of the beginning of the 
    recognition period).
    
    G. Valuing Inventory
    
        The proposed regulations provide that the value of an S 
    corporation's inventory on the first day of the recognition period 
    equals the amount that a willing buyer would pay a willing seller for 
    the inventory in a purchase of all the S corporation's assets on that 
    day. Commentators argue that the rules for valuing inventory in the 
    proposed regulations are unclear and should be clarified to provide a 
    non-liquidation, non-distress, bulk sale approach, which generally will 
    result in a value for the inventory less than retail value.
        The final regulations provide that the value of an S corporation's 
    inventory on the first day of the recognition period generally is 
    determined by reference to a sale of the entire business of the S 
    corporation to a buyer that expects to continue to operate that 
    business. The buyer and seller are presumed not to be under any 
    compulsion to buy or sell and to have reasonable knowledge of all 
    relevant facts. Relevant facts include (1) the replacement cost of the 
    inventory; (2) the expected retail selling price of the inventory; (3) 
    the seller's incentive to demand a price for the inventory that would 
    compensate for and provide a fair return for expenditures the seller 
    incurred to obtain, prepare, carry, and dispose of the inventory before 
    the sale of the business; and (4) the buyer's incentive to pay a price 
    for the inventory that would compensate for and provide a fair return 
    for similar expenditures the buyer expects to incur after the sale of 
    the business. It is expected that the value of an S corporation's 
    inventory as determined under the final regulations will generally be 
    less than its anticipated retail price, but greater than its 
    replacement cost.
        The preamble to the proposed regulations describes a safe harbor 
    rule that was being considered for publication as a revenue procedure 
    under which the value of inventory for purposes of section 1374 would 
    be determined using a formula. One commentator endorsed the general 
    idea of adopting a safe harbor rule, but objected to the rule described 
    in the preamble and did not suggest an alternative rule. No 
    commentators supported the rule described in the preamble of the 
    proposed regulations or suggested an alternative rule.
        At this time, the IRS is not planning to issue a revenue procedure 
    setting forth a safe harbor rule for valuing inventory. However, 
    consideration will be given to any safe harbor rule taxpayers may 
    suggest in the future.
    
    H. Section 1374(d)(8) Transactions
    
        Section 1374(d)(8) imposes a section 1374 tax if an S corporation 
    acquires assets in a transaction where the S corporation's basis in the 
    assets is determined by reference to their basis in the hands of a C 
    corporation (a section 1374(d)(8) transaction) and, thereafter, the S 
    corporation disposes of the assets. The proposed regulations provide 
    that a separate determination of tax under section 1374 must be made 
    for the assets acquired in each section 1374(d)(8) transaction. Thus, 
    an S corporation's section 1374 attributes held on the day it became an 
    S corporation may only be used to reduce a section 1374 tax imposed on 
    dispositions of assets the S corporation held on that day. Similarly, 
    section 1374 attributes acquired by an S corporation in a section 
    1374(d)(8) transaction may only be used to reduce a section 1374 tax 
    imposed on dispositions of assets the S corporation acquired in the 
    same transaction.
        Commentators argue that restrictions on the use of section 1374 
    attributes acquired by an S corporation in a section 1374(d)(8) 
    transaction should not be greater than the restrictions that would 
    apply if the attributes were acquired by a C corporation in a similar 
    transaction. For example, commentators contend that an S corporation's 
    net operating loss carryforwards when it changed from C to S status 
    should be allowed to reduce a section 1374 tax imposed on assets the S 
    corporation acquires in a section 1374(d)(8) transaction, subject to 
    all statutory limits on their use including the anti-trafficking rules 
    of sections 382, 383, and 384.
        The final regulations retain the rules in the proposed regulations. 
    Section 1374(d)(8) imposes a section 1374 tax on the ``net recognized 
    built-in gain attributable to'' the assets acquired in a particular 
    transaction. The legislative history under section 1374 states that 
    ``each acquisition of assets from a C corporation is subject to a 
    separate determination of the amount of net built-in gain * * *.'' H.R. 
    Rep. No. 795, 100th Cong., 2d Sess. 63 (1988).
    
    I. Effective Date and Additional Rules
    
        The proposed regulations provide that the section 1374 final 
    regulations will generally apply for taxable years ending on or after 
    the date the final regulations are published in the Federal Register, 
    but only where the return is filed pursuant to an S election or a 
    section 1374(d)(8) transaction occurring on or after that date. The 
    final regulations retain the effective date in the proposed 
    regulations.
        The proposed regulations provide that if a taxpayer subject to 
    section 1374, but not generally subject to the regulations, contributes 
    an asset to a partnership under section 721(a) in contemplation of 
    making an S election or during the recognition period, section 1374 
    applies on a disposition of the asset by the partnership as if the S 
    corporation still owned the asset. This provision applies as of the 
    effective date of section 1374. Commentators argue that the rule should 
    apply only for contributions to partnerships after the proposed 
    regulations were issued. The final regulations retain the rule in the 
    proposed regulations to prevent an abuse of section 1374.
        The proposed regulations provide that the rules in Announcement 86-
    128, 1986-51 I.R.B. 22, and Notice 90-27, 1990-1 C.B. 336, apply to 
    taxpayers subject to section 1374, but not generally subject to the 
    regulations. Instead of referring to the rules in the Notice and the 
    Announcement, the final regulations set forth some of the rules 
    contained in those documents.
        Commentators suggest that the regulations allow taxpayers subject 
    to section 1374, but not generally subject to the regulations, to elect 
    to be subject to the regulations. The final regulations do not adopt 
    this suggestion because of the burden of administering elections and 
    because taxpayers not generally subject to the regulations nonetheless 
    may take positions consistent with the regulations.
    
    Special Analysis
    
        It has been determined that this Treasury decision is not a 
    significant regulatory action as defined in EO 12866. Therefore, a 
    regulatory assessment is not required. It has also been determined that 
    section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) 
    and the Regulatory Flexibility Act (5 U.S.C. chapter 6) do not apply to 
    these regulations. Therefore, a Regulatory Flexibility Analysis is not 
    required. Pursuant to section 7805(f) of the Internal Revenue Code, the 
    notice of proposed rulemaking for these regulations was submitted to 
    the Small Business Administration for comment on its impact on small 
    business.
    
    Drafting Information
    
        The principal author of these regulations is Mark S. Jennings of 
    the Office of Assistant Chief Counsel (Corporate), IRS. However, other 
    personnel from the IRS and Treasury Department participated in their 
    development.
    
    List of Subjects in 26 CFR Part 1
    
        Income taxes, Reporting and recordkeeping requirements.
    
    Adoption of Amendments to the Regulations
    
        Accordingly, 26 CFR part 1 is amended as follows:
    
    PART 1--INCOME TAXES
    
        Paragraph 1. The authority citation for part 1 is amended by adding 
    the following entries in numerical order to read as follows:
    
        Authority: 26 U.S.C. 7805 * * *
    
        Section 1.1374-1 also issued under 26 U.S.C. 1374(e) and 337(d).
        Section 1.1374-2 also issued under 26 U.S.C. 1374(e) and 337(d).
        Section 1.1374-3 also issued under 26 U.S.C. 1374(e) and 337(d).
        Section 1.1374-4 also issued under 26 U.S.C. 1374(e) and 337(d).
        Section 1.1374-5 also issued under 26 U.S.C. 1374(e) and 337(d).
        Section 1.1374-6 also issued under 26 U.S.C. 1374(e) and 337(d).
        Section 1.1374-7 also issued under 26 U.S.C. 1374(e) and 337(d).
        Section 1.1374-8 also issued under 26 U.S.C. 1374(e) and 337(d).
        Section 1.1374-9 also issued under 26 U.S.C. 1374(e) and 337(d).
        Section 1.1374-10 also issued under 26 U.S.C. 1374(e) and 
    337(d).
    
        Par. 2. An undesignated center heading is added immediately 
    following Sec. 1.1375-1 to read as follows:
    
    Section 1374  Before the Tax Reform Act of 1986
    
    
    Sec. 1.1374-1  [Redesignated as Sec. 1.1374-1A]
    
        Par. 3. Section 1.1374-1 is redesignated as Sec. 1.1374-1A and 
    transferred under the new undesignated centerheading.
        Par. 4. Sections 1.1374-0 through 1.1374-10 are added to read as 
    follows:
    
    
    Sec. 1.1374-0  Table of contents.
    
        This section lists the major paragraph headings for Secs. 1.1374-1 
    through 1.1374-10.
    
    Sec. 1.1374-1  General rules and definitions
    
    (a) Computation of tax.
    (b) Anti-trafficking rules.
    (c) Section 1374 attributes.
    (d) Recognition period.
    (e) Predecessor corporation.
    
    Sec. 1.1374-2  Net recognized built-in gain
    
    (a) In general.
    (b) Allocation rule.
    (c) Recognized built-in gain carryover.
    (d) Accounting methods.
    (e) Example.
    
    Sec. 1.1374-3  Net unrealized built-in gain
    
    (a) In general.
    (b) Example.
    
    Sec. 1.1374-4  Recognized built-in gain or loss
    
    (a) Sales and exchanges.
        (1) In general.
        (2) Oil and gas property.
        (3) Examples.
    (b) Accrual method rule.
        (1) Income items.
        (2) Deduction items.
        (3) Examples.
    (c) Section 267(a)(2) and 404(a)(5) deductions.
        (1) Section 267(a)(2).
        (2) Section 404(a)(5).
        (3) Examples.
    (d) Section 481(a) adjustments.
        (1) In general.
        (2) Examples.
    (e) Section 995(b)(2) deemed distributions.
    (f) Discharge of indebtedness and bad debts.
    (g) Completion of contract.
    (h) Installment method.
        (1) In general.
        (2) Limitation on amount subject to tax.
        (3) Rollover rule.
        (4) Use of losses and section 1374 attributes.
        (5) Examples.
        (i) Partnership interests.
        (1) In general.
        (2) Limitations.
        (i) Partnership RBIG.
        (ii) Partnership RBIL.
        (3) Disposition of partnership interest.
        (4) RBIG and RBIL limitations.
        (i)-Sale of partnership interest.
        (ii) Amounts of limitations.
        (5) Small interest exception.
        (i) In general.
        (ii) Contributed assets.
        (iii) Anti-abuse rule.
        (6) Section 704(c) gain or loss.
        (7) Disposition of distributed partnership asset.
        (8) Examples.
    
    Sec. 1.1374-5  Loss carryforwards
    
    (a) In general.
    (b) Example.--
    
    Sec. 1.1374-6  Credits and credit carryforwards
    
    (a) In general.
    (b) Limitations.
    (c) Examples.
    
    Sec. 1.1374-7  Inventory
    
    (a) Valuation.
    (b) Identity of dispositions.
    
    Sec. 1.1374-8  Section 1374(d)(8) transactions
    
    (a) In general.
    (b) Separate determination of tax.
    (c) Taxable income limitation.
    (d) Examples.
    
    Sec. 1.1374-9  Anti-stuffing rule
    
    Sec. 1.1374-10  Effective date and additional rules
    
    (a) In general.
    (b) Additional rules.
        (1) Certain transfers to partnerships.
        (2) Certain inventory dispositions.
        (3) Certain contributions of built-in loss assets.
        (4) Certain installment sales.
        (i) In general.
        (ii) Examples.
    
    
    Sec. 1.1374-1  General rules and definitions.
    
        (a) Computation of tax. The tax imposed on the income of an S 
    corporation by section 1374(a) for any taxable year during the 
    recognition period is computed as follows--
        (1) Step One: Determine the net recognized built-in gain of the 
    corporation for the taxable year under section 1374(d)(2) and 
    Sec. 1.1374-2;
        (2) Step Two: Reduce the net recognized built-in gain (but not 
    below zero) by any net operating loss and capital loss carryforward 
    allowed under section 1374(b)(2) and Sec. 1.1374-5;
        (3) Step Three: Compute a tentative tax by applying the rate of tax 
    determined under section 1374(b)(1) for the taxable year to the amount 
    determined under paragraph (a)(2) of this section;
        (4) Step Four: Compute the final tax by reducing the tentative tax 
    (but not below zero) by any credit allowed under section 1374(b)(3) and 
    Sec. 1.1374-6.
        (b) Anti-trafficking rules. If section 382, 383, or 384 would have 
    applied to limit the use of a corporation's recognized built-in loss or 
    section 1374 attributes at the beginning of the first day of the 
    recognition period if the corporation had remained a C corporation, 
    these sections apply to limit their use in determining the S 
    corporation's pre-limitation amount, taxable income limitation, net 
    unrealized built-in gain limitation, deductions against net recognized 
    built-in gain, and credits against the section 1374 tax.
        (c) Section 1374 attributes. Section 1374 attributes are the loss 
    carryforwards allowed under section 1374(b)(2) as a deduction against 
    net recognized built-in gain and the credit and credit carryforwards 
    allowed under section 1374(b)(3) as a credit against the section 1374 
    tax.
        (d) Recognition period. The recognition period is the 10-year (120-
    month) period beginning on the first day the corporation is an S 
    corporation or the day an S corporation acquires assets in a section 
    1374(d)(8) transaction. For example, if the first day of the 
    recognition period is July 14, 1996, the last day of the recognition 
    period is July 13, 2006. If the recognition period for certain assets 
    ends during an S corporation's taxable year (for example, because the 
    corporation was on a fiscal year as a C corporation and changed to a 
    calendar year as an S corporation or because an S corporation acquired 
    assets in a section 1374(d)(8) transaction during a taxable year), the 
    S corporation must determine its pre-limitation amount (as defined in 
    Sec. 1.1374-2(a)(1)) for the year as if the corporation's books were 
    closed at the end of the recognition period.
        (e) Predecessor corporation. For purposes of section 1374(c)(1), if 
    the basis of an asset of the S corporation is determined (in whole or 
    in part) by reference to the basis of the asset (or any other property) 
    in the hands of another corporation, the other corporation is a 
    predecessor corporation of the S corporation.
    
    
    Sec. 1.1374-2  Net recognized built-in gain.-
    
        (a) In general. An S corporation's net recognized built-in gain for 
    any taxable year is the least of--
        (1) Its taxable income determined by using all rules applying to C 
    corporations and considering only its recognized built-in gain, 
    recognized built-in loss, and recognized built-in gain carryover (pre-
    limitation amount);
        (2) Its taxable income determined by using all rules applying to C 
    corporations as modified by section 1375(b)(1)(B) (taxable income 
    limitation); and
        (3) The amount by which its net unrealized built-in gain exceeds 
    its net recognized built-in gain for all prior taxable years (net 
    unrealized built-in gain limitation).
        (b) Allocation rule. If an S corporation's pre-limitation amount 
    for any taxable year exceeds its net recognized built-in gain for that 
    year, the S corporation's net recognized built-in gain consists of a 
    ratable portion of each item of income, gain, loss, and deduction 
    included in the pre-limitation amount.
        (c) Recognized built-in gain carryover. If an S corporation's net 
    recognized built-in gain for any taxable year is equal to its taxable 
    income limitation, the amount by which its pre-limitation amount 
    exceeds its taxable income limitation is a recognized built-in gain 
    carryover included in its pre-limitation amount for the succeeding 
    taxable year. The recognized built-in gain carryover consists of that 
    portion of each item of income, gain, loss, and deduction not included 
    in the S corporation's net recognized built-in gain for the year the 
    carryover arose, as determined under paragraph (b) of this section.
        (d) Accounting methods. In determining its taxable income for pre-
    limitation amount and taxable income limitation purposes, a corporation 
    must use the accounting method(s) it uses for tax purposes as an S 
    corporation.
        (e) Example. The rules of this section are illustrated by the 
    following example.
    
        Example. Net recognized built-in gain. X is a calendar year C 
    corporation that elects to become an S corporation on January 1, 
    1996. X has a net unrealized built-in gain of $50,000 and no net 
    operating loss or capital loss carryforwards. In 1996, X has a pre-
    limitation amount of $20,000, consisting of ordinary income of 
    $15,000 and capital gain of $5,000, a taxable income limitation of 
    $9,600, and a net unrealized built-in gain limitation of $50,000. 
    Therefore, X's net recognized built-in gain for 1996 is $9,600, 
    because that is the least of the three amounts described in 
    paragraph (a) of this section. Under paragraph (b) of this section, 
    X's net recognized built-in gain consists of recognized built-in 
    ordinary income of $7,200 [$15,000 x ($9,600/$20,000)=$7,200] and 
    recognized built-in capital gain of $2,400 [$5,000 x ($9,600/
    $20,000)=$2,400]. Under paragraph (c) of this section, X has a 
    recognized built-in gain carryover to 1997 of $10,400 
    ($20,000-$9,600=$10,400), consisting of $7,800 
    ($15,000-$7,200=$7,800) of recognized built-in ordinary income and 
    $2,600 ($5,000-$2,400=$2,600) of recognized built-in capital gain.
    
    
    Sec. 1.1374-3  Net unrealized built-in gain.
    
        (a) In general. An S corporation's net unrealized built-in gain is 
    the total of the following--
        (1) The amount that would be the amount realized if, at the 
    beginning of the first day of the recognition period, the corporation 
    had remained a C corporation and had sold all its assets at fair market 
    value to an unrelated party that assumed all its liabilities; decreased 
    by
        (2) Any liability of the corporation that would be included in the 
    amount realized on the sale referred to in paragraph (a)(1) of this 
    section, but only if the corporation would be allowed a deduction on 
    payment of the liability; decreased by
        (3) The aggregate adjusted bases of the corporation's assets at the 
    time of the sale referred to in paragraph (a)(1) of this section; 
    increased or decreased by
        (4) The corporation's section 481 adjustments that would be taken 
    into account on the sale referred to in paragraph (a)(1) of this 
    section; and increased by
        (5) Any recognized built-in loss that would not be allowed as a 
    deduction under section 382, 383, or 384 on the sale referred to in 
    paragraph (a)(1) of this section.
        (b) Example. The rules of this section are illustrated by the 
    following example.
    
        Example. Net unrealized built-in gain. (i) (a) X, a calendar 
    year C corporation using the cash method, elects to become an S 
    corporation on January 1, 1996. On December 31, 1995, X has assets 
    and liabilities as follows:
    
    ------------------------------------------------------------------------
                        Assets                          FMV         Basis   
    ------------------------------------------------------------------------
    Factory.......................................     $500,000     $900,000
    Accounts Receivable...........................      300,000            0
    Goodwill......................................      250,000            0
                                                   -------------------------
          Total...................................    1,050,000      900,000
                      Liabilities                      Amount               
    Mortgage......................................     $200,000             
    Accounts Payable..............................      100,000             
                                                   -------------            
          Total...................................      300,000  ...........
    ------------------------------------------------------------------------
    
        (b) Further, X must include a total of $60,000 in taxable income 
    in 1996, 1997, and 1998 under section 481(a).
        (ii) If, on December 31, 1995, X sold all its assets to a third 
    party that assumed all its liabilities, X's amount realized would be 
    $1,050,000 ($750,000 cash received+$300,000 liabilities 
    assumed=$1,050,000). Thus, X's net unrealized built-in gain is 
    determined as follows:
    
    Amount realized -.......................................     $1,050,000 
    Deduction allowed-......................................       (100,000)
    Basis of X's assets--...................................       (900,000)
    Section 481 adjustments.................................         60,000 
                                                             ---------------
          Net unrealized built-in gain-.....................        110,000 
                                                                            
    
    Sec. 1.1374-4  Recognized built-in gain or loss.
    
        (a) Sales and exchanges--(1) In general. Section 1374(d)(3) or 
    1374(d)(4) applies to any gain or loss recognized during the 
    recognition period in a transaction treated as a sale or exchange for 
    federal income tax purposes.
        (2) Oil and gas property. For purposes of paragraph (a)(1) of this 
    section, an S corporation's adjusted basis in oil and gas property 
    equals the sum of the shareholders' adjusted bases in the property as 
    determined in section 613A(c)(11)(B).
        (3) Examples. The rules of this paragraph (a) are illustrated by 
    the following examples.
    
        Example 1. Production and sale of oil. X is a C corporation that 
    purchased a working interest in an oil and gas property for $100,000 
    on July 1, 1993. X elects to become an S corporation effective 
    January 1, 1996. On that date, the working interest has a fair 
    market value of $250,000 and an adjusted basis of $50,000, but no 
    oil has as yet been extracted. In 1996, X begins production of the 
    working interest, sells oil that it has produced to a refinery for 
    $75,000, and includes that amount in gross income. Under paragraph 
    (a)(1) of this section, the $75,000 is not recognized built-in gain 
    because as of the beginning of the recognition period X held only a 
    working interest in the oil and gas property (since the oil had not 
    yet been extracted from the ground), and not the oil itself.
        Example 2. Sale of oil and gas property. Y is a C corporation 
    that elects to become an S corporation effective January 1, 1996. Y 
    has two shareholders, A and B. A and B each own 50 percent of Y's 
    stock. In addition, Y owns a royalty interest in an oil and gas 
    property with a fair market value of $300,000 and an adjusted basis 
    of $200,000. Under section 613A(c)(11)(B), Y's $200,000 adjusted 
    basis in the royalty interest is allocated $100,000 to A and 
    $100,000 to B. During 1996, A and B take depletion deductions with 
    respect to the royalty interest of $10,000 and $15,000, 
    respectively. As of January 1, 1997, A and B have a basis in the 
    royalty interest of $90,000 and $85,000, respectively. On January 1, 
    1997, Y sells the royalty interest for $250,000. Under paragraph 
    (a)(1) of this section, Y has gain recognized and recognized built-
    in gain of $75,000 ($250,000-($90,000+$85,000)=$75,000) on the sale.
    
        (b) Accrual method rule--(1) Income items. Except as otherwise 
    provided in this section, any item of income properly taken into 
    account during the recognition period is recognized built-in gain if 
    the item would have been properly included in gross income before the 
    beginning of the recognition period by an accrual method taxpayer 
    (disregarding any method of accounting for which an election by the 
    taxpayer must be made unless the taxpayer actually used the method when 
    it was a C corporation).
        (2) Deduction items. Except as otherwise provided in this section, 
    any item of deduction properly taken into account during the 
    recognition period is recognized built-in loss if the item would have 
    been properly allowed as a deduction against gross income before the 
    beginning of the recognition period to an accrual method taxpayer 
    (disregarding any method of accounting for which an election by the 
    taxpayer must be made unless the taxpayer actually used the method when 
    it was a C corporation). In determining whether an item would have been 
    properly allowed as a deduction against gross income by an accrual 
    method taxpayer for purposes of this paragraph, section 461(h)(2)(C) 
    and Sec. 1.461-4(g) (relating to liabilities for tort, worker's 
    compensation, breach of contract, violation of law, rebates, refunds, 
    awards, prizes, jackpots, insurance contracts, warranty contracts, 
    service contracts, taxes, and other liabilities) do not apply.
        (3) Examples. The rules of this paragraph (b) are illustrated by 
    the following examples.
    
        Example 1. Accounts receivable. X is a C corporation using the 
    cash method that elects to become an S corporation effective January 
    1, 1996. On January 1, 1996, X has $50,000 of accounts receivable 
    for services rendered before that date. On that date, the accounts 
    receivable have a fair market value of $40,000 and an adjusted basis 
    of $0. In 1996, X collects $50,000 on the accounts receivable and 
    includes that amount in gross income. Under paragraph (b)(1) of this 
    section, the $50,000 included in gross income in 1996 is recognized 
    built-in gain because it would have been included in gross income 
    before the beginning of the recognition period if X had been an 
    accrual method taxpayer. However, if X instead disposes of the 
    accounts receivable for $45,000 on July 1, 1996, in a transaction 
    treated as a sale or exchange for federal income tax purposes, X 
    would have recognized built-in gain of $40,000 on the disposition.
        Example 2. Contingent liability. Y is a C corporation using the 
    cash method that elects to become an S corporation effective January 
    1, 1996. In 1995, a lawsuit was filed against Y claiming $1,000,000 
    in damages. In 1996, Y loses the lawsuit, pays a $500,000 judgment, 
    and properly claims a deduction for that amount. Under paragraph 
    (b)(2) of this section, the $500,000 deduction allowed in 1996 is 
    not recognized built-in loss because it would not have been allowed 
    as a deduction against gross income before the beginning of the 
    recognition period if Y had been an accrual method taxpayer (even 
    disregarding section 461(h)(2)(C) and Sec. 1.461-4(g)).
        Example 3. Deferred payment liabilities. X is a C corporation 
    using the cash method that elects to become an S corporation on 
    January 1, 1996. In 1995, X lost a lawsuit and became obligated to 
    pay $150,000 in damages. Under section 461(h)(2)(C), this amount is 
    not allowed as a deduction until X makes payment. In 1996, X makes 
    payment and properly claims a deduction for the amount of the 
    payment. Under paragraph (b)(2) of this section, the $150,000 
    deduction allowed in 1996 is recognized built-in loss because it 
    would have been allowed as a deduction against gross income before 
    the beginning of the recognition period if X had been an accrual 
    method taxpayer (disregarding section 461(h)(2)(C) and Sec. 1.461-
    4(g)).
        Example 4. Deferred prepayment income. Y is a C corporation 
    using an accrual method that elects to become an S corporation 
    effective January 1, 1996. In 1995, Y received $2,500 for services 
    to be rendered in 1996, and properly elected to include the $2,500 
    in gross income in 1996 under Rev. Proc. 71-21, 1971-2 C.B. 549 (see 
    Sec. 601.601(d)(2)(ii)(b) of this chapter). Under paragraph (b)(1) 
    of this section, the $2,500 included in gross income in 1996 is not 
    recognized built-in gain because it would not have been included in 
    gross income before the beginning of the recognition period by an 
    accrual method taxpayer using the method that Y actually used before 
    the beginning of the recognition period.
        Example 5. Change in method. X is a C corporation using an 
    accrual method that elects to become an S corporation effective 
    January 1, 1996. In 1995, X received $5,000 for services to be 
    rendered in 1996, and properly included the $5,000 in gross income. 
    In 1996, X properly elects to include the $5,000 in gross income in 
    1996 under Rev. Proc. 71-21, 1971-2 C.B. 549 (see 
    Sec. 601.601(d)(2)(ii)(b) of this chapter). As a result of the 
    change in method of accounting, X has a $5,000 negative section 
    481(a) adjustment. Under paragraph (b)(1) of this section, the 
    $5,000 included in gross income in 1996 is recognized built-in gain 
    because it would have been included in gross income before the 
    beginning of the recognition period by an accrual method taxpayer 
    using the method that X actually used before the beginning of the 
    recognition period. In addition, the $5,000 negative section 481(a) 
    adjustment is recognized built-in loss because it relates to an item 
    (the $5,000 X received for services in 1995) attributable to periods 
    before the beginning of the recognition period under the principles 
    for determining recognized built-in gain or loss in this section. 
    See paragraph (d) of this section for rules regarding section 481(a) 
    adjustments.
    
        (c)-Section 267(a)(2) and 404(a)(5) deductions--(1) Section 
    267(a)(2). Notwithstanding paragraph (b)(2) of this section, any amount 
    properly deducted in the recognition period under section 267(a)(2), 
    relating to payments to related parties, is recognized built-in loss to 
    the extent--
        (i) All events have occurred that establish the fact of the 
    liability to pay the amount, and the exact amount of the liability can 
    be determined, as of the beginning of the recognition period; and
        (ii) The amount is paid--
        (A) In the first two and one-half months of the recognition period; 
    or
        (B) To a related party owning, under the attribution rules of 
    section 267, less than 5 percent, by voting power and value, of the 
    corporation's stock, both as of the beginning of the recognition period 
    and when the amount is paid.
        (2) Section 404(a)(5). Notwithstanding paragraph (b)(2) of this 
    section, any amount properly deducted in the recognition period under 
    section 404(a)(5), relating to payments for deferred compensation, is 
    recognized built-in loss to the extent--
        (i) All events have occurred that establish the fact of the 
    liability to pay the amount, and the exact amount of the liability can 
    be determined, as of the beginning of the recognition period; and
        (ii) The amount is not paid to a related party to which section 
    267(a)(2) applies.
        (3) Examples. The rules of this paragraph (c) are illustrated by 
    the following examples.
    
        Example 1. Fixed annuity. X is a C corporation that elects to 
    become an S corporation effective January 1, 1996. On December 31, 
    1995, A is age 60, has provided services to X as an employee for 20 
    years, and is a vested participant in X's unfunded nonqualified 
    retirement plan. Under the plan, A receives $1,000 per month upon 
    retirement until death. The plan provides no additional benefits. A 
    retires on December 31, 1997, after working for X for 22 years. A at 
    no time is a shareholder of X. X's deductions under section 
    404(a)(5) in the recognition period on paying A the $1,000 per month 
    are recognized built-in loss because all events have occurred that 
    establish the fact of the liability to pay the amount, and the exact 
    amount of the liability can be determined, as of the beginning of 
    the recognition period.
        Example 2. Increase in annuity for working beyond 20 years. The 
    facts are the same as Example 1, except that under the plan A 
    receives $1,000 per month, plus $100 per month for each year A works 
    for X beyond 20 years, upon retirement until death. X's deductions 
    on paying A the $1,000 per month are recognized built-in loss. 
    However, X's deductions on paying A the $200 per month for the two 
    years A worked for X beyond 20 years are not recognized built-in 
    loss because all events have not occurred that establish the fact of 
    the liability to pay the amount, and the exact amount of the 
    liability cannot be determined, as of the beginning of the 
    recognition period.
        Example 3. Cost of living adjustment. The facts are the same as 
    Example 1, except that under the plan A receives $1,000 per month, 
    plus annual cost of living adjustments, upon retirement until death. 
    X's deductions under section 404(a)(5) on paying A the $1,000 per 
    month are recognized built-in loss. However, X's deductions under 
    section 404(a)(5) on paying A the annual cost of living adjustment 
    are not recognized built-in loss because all events have not 
    occurred that establish the fact of the liability to pay the amount, 
    and the exact amount of the liability cannot be determined, as of 
    the beginning of the recognition period.
    
        (d) Section 481(a) adjustments--(1) In general. Any section 481(a) 
    adjustment taken into account in the recognition period is recognized 
    built-in gain or loss to the extent the adjustment relates to items 
    attributable to periods before the beginning of the recognition period 
    under the principles for determining recognized built-in gain or loss 
    in this section. The principles for determining recognized built-in 
    gain or loss in this section include, for example, the accrual method 
    rule under paragraph (b) of this section.
        (2) Examples. The rules of this paragraph (d) are illustrated by 
    the following examples.
    
        Example 1. Omitted item attributable to prerecognition period. X 
    is a C corporation that elects to become an S corporation effective 
    January 1, 1996. X improperly capitalizes repair costs and recovers 
    the costs through depreciation of the related assets. In 1999, X 
    properly changes to deducting repair costs as they are incurred. 
    Under section 481(a), the basis of the related assets are reduced by 
    an amount equal to the excess of the repair costs incurred before 
    the year of change over the repair costs recovered through 
    depreciation before the year of change. In addition, X has a 
    negative section 481(a) adjustment equal to the basis reduction. 
    Under paragraph (d)(1) of this section, the portion of X's negative 
    section 481(a) adjustment relating to the repair costs incurred 
    before the recognition period is recognized built-in loss because 
    those repair costs are items attributable to periods before the 
    beginning of the recognition period under the principles for 
    determining recognized built-in gain or loss in this section.
        Example 2. Duplicated item attributable to prerecognition 
    period. Y is a C corporation that elects to become an S corporation 
    effective January 1, 1996. Y improperly uses an accrual method 
    without regard to the economic performance rules of section 461(h) 
    to account for worker's compensation claims. As a result, Y takes 
    deductions when claims are filed. In 1999, Y properly changes to an 
    accrual method with regard to the economic performance rules under 
    section 461(h)(2)(C) for worker's compensation claims. As a result, 
    Y takes deductions when claims are paid. The positive section 481(a) 
    adjustment resulting from the change is equal to the amount of 
    claims filed, but unpaid, before the year of change. Under paragraph 
    (b)(2) of this section, the deduction allowed in the recognition 
    period for claims filed, but unpaid, before the recognition period 
    is recognized built-in loss because a deduction was allowed for 
    those claims before the recognition period under an accrual method 
    without regard to section 461(h)(2)(C). Under paragraph (d)(1) of 
    this section, the portion of Y's positive section 481(a) adjustment 
    relating to claims filed, but unpaid, before the recognition period 
    is recognized built-in gain because those claims are items 
    attributable to periods before the beginning of the recognition 
    period under the principles for determining recognized built-in gain 
    or loss in this section.
    
        (e) Section 995(b)(2) deemed distributions. Any item of income 
    properly taken into account during the recognition period under section 
    995(b)(2) is recognized built-in gain if the item results from a DISC 
    termination or disqualification occurring before the beginning of the 
    recognition period.
        (f) Discharge of indebtedness and bad debts. Any item of income or 
    deduction properly taken into account during the first year of the 
    recognition period as discharge of indebtedness income under section 
    61(a)(12) or as a bad debt deduction under section 166 is recognized 
    built-in gain or loss if the item arises from a debt owed by or to an S 
    corporation at the beginning of the recognition period.
        (g) Completion of contract. Any item of income properly taken into 
    account during the recognition period under the completed contract 
    method (as described in Sec. 1.451-3(d)) where the corporation began 
    performance of the contract before the beginning of the recognition 
    period is recognized built-in gain if the item would have been included 
    in gross income before the beginning of the recognition period under 
    the percentage of completion method (as described in Sec. 1.451-3(c)). 
    Any similar item of deduction is recognized built-in loss if the item 
    would have been allowed as a deduction against gross income before the 
    beginning of the recognition period under the percentage of completion 
    method.
        (h) Installment method--(1) In general. If a corporation sells an 
    asset before or during the recognition period and reports the income 
    from the sale using the installment method under section 453 during or 
    after the recognition period, that income is subject to tax under 
    section 1374.
        (2) Limitation on amount subject to tax. For purposes of paragraph 
    (h)(1) of this section, the taxable income limitation under 
    Sec. 1.1374-2(a)(2) is equal to the amount by which the S corporation's 
    net recognized built-in gain would have been increased from the year of 
    the sale to the earlier of the year the income is reported under the 
    installment method or the last year of the recognition period, assuming 
    all income from the sale had been reported in the year of the sale and 
    all provisions of section 1374 applied. For purposes of the preceding 
    sentence, if the corporation sells the asset before the recognition 
    period, the income from the sale that is not reported before the 
    recognition period is treated as having been reported in the first year 
    of the recognition period.
        (3) Rollover rule. If the limitation in paragraph (h)(2) of this 
    section applies, the excess of the amount reported under the 
    installment method over the amount subject to tax under the limitation 
    is treated as if it were reported in the succeeding taxable year(s), 
    but only for succeeding taxable year(s) in the recognition period. The 
    amount reported in the succeeding taxable year(s) under the preceding 
    sentence is reduced to the extent that the amount not subject to tax 
    under the limitation in paragraph (h)(2) of this section was not 
    subject to tax because the S corporation had an excess of recognized 
    built-in loss over recognized built-in gain in the taxable year of the 
    sale and succeeding taxable year(s) in the recognition period.
        (4) Use of losses and section 1374 attributes. If income is 
    reported under the installment method by an S corporation for a taxable 
    year after the recognition period and the income is subject to tax 
    under paragraph (h)(1) of this section, the S corporation's section 
    1374 attributes may be used to the extent their use is allowed under 
    all applicable provisions of the Code in determining the section 1374 
    tax. However, the S corporation's loss recognized for a taxable year 
    after the recognition period that would have been recognized built-in 
    loss if it had been recognized in the recognition period may not be 
    used in determining the section 1374 tax.
        (5) Examples. The rules of this paragraph (h)are illustrated by the 
    following examples.
    
        Example 1. Rollover rule. X is a C corporation that elects to 
    become an S corporation effective January 1, 1996. On that date, X 
    sells Blackacre with a basis of $0 and a value of $100,000 in 
    exchange for a $100,000 note bearing a market rate of interest 
    payable on January 1, 2001. X does not make the election under 
    section 453(d) and, therefore, reports the $100,000 gain using the 
    installment method under section 453. In the year 2001, X has income 
    of $100,000 on collecting the note, unexpired C year attributes of 
    $0, recognized built-in loss of $0, current losses of $100,000, and 
    taxable income of $0. If X had reported the $100,000 gain in 1996, 
    X's net recognized built-in gain from 1996 through 2001 would have 
    been $75,000 greater than otherwise. Under paragraph (h) of this 
    section, X has $75,000 net recognized built-in gain subject to tax 
    under section 1374. X also must treat the $25,000 excess of the 
    amount reported, $100,000, over the amount subject to tax, $75,000, 
    as income reported under the installment method in the succeeding 
    taxable year(s) in the recognition period, except to the extent X 
    establishes that the $25,000 was not subject to tax under section 
    1374 in the year 2001 because X had an excess of recognized built-in 
    loss over recognized built-in gain in the taxable year of the sale 
    and succeeding taxable year(s) in the recognition period.
        Example 2. Use of losses. Y is a C corporation that elects to 
    become an S corporation effective January 1, 1996. On that date, Y 
    sells Whiteacre with a basis of $0 and a value of $250,000 in 
    exchange for a $250,000 note bearing a market rate of interest 
    payable on January 1, 2006. Y does not make the election under 
    section 453(d) and, therefore, reports the $250,000 gain using the 
    installment method under section 453. In the year 2006, Y has income 
    of $250,000 on collecting the note, unexpired C year attributes of 
    $0, loss of $100,000 that would have been recognized built-in loss 
    if it had been recognized in the recognition period, current losses 
    of $150,000, and taxable income of $0. If Y had reported the 
    $250,000 gain in 1996, X's net recognized built-in gain from 1996 
    through 2005 (that is, during the recognition period) would have 
    been $225,000 greater than otherwise. Under paragraph (h) of this 
    section, X has $225,000 net recognized built-in gain subject to tax 
    under section 1374.
        Example 3. Use of section 1374 attribute. Z is a C corporation 
    that elects to become an S corporation effective January 1, 1996. On 
    that date, Z sells Greenacre with a basis of $0 and a value of 
    $500,000 in exchange for a $500,000 note bearing a market rate of 
    interest payable on January 1, 2011. Z does not make the election 
    under section 453(d) and, therefore, reports the $500,000 gain using 
    the installment method under section 453. In the year 2011, Z has 
    income of $500,000 on collecting the note, loss of $0 that would 
    have been recognized built-in loss if it had been recognized in the 
    recognition period, current losses of $0, taxable income of 
    $500,000, and a minimum tax credit of $60,000 arising in 1995. None 
    of Z's minimum tax credit is limited under sections 53(c) or 383. If 
    Z had reported the $500,000 gain in 1996, Z's net recognized built-
    in gain from 1996 through 2005 (that is, during the recognition 
    period) would have been $350,000 greater than otherwise. Under 
    paragraph (h) of this section, Z has $350,000 net recognized built-
    in gain subject to tax under section 1374, a tentative section 1374 
    tax of $122,500 ($350,000  x  .35 = $122,500), and a section 1374 
    tax after using its minimum tax credit arising in 1995 of $62,250 
    ($122,500 - $60,000 = $62,250).
    
        (i) Partnership interests--(1) In general. If an S corporation owns 
    a partnership interest at the beginning of the recognition period or 
    transfers property to a partnership in a transaction to which section 
    1374(d)(6) applies during the recognition period, the S corporation 
    determines the effect on net recognized built-in gain from its 
    distributive share of partnership items as follows--
        (i) Step One: Apply the rules of section 1374(d) to the S 
    corporation's distributive share of partnership items of income, gain, 
    loss, or deduction included in income or allowed as a deduction under 
    the rules of subchapter K to determine the extent to which it would 
    have been treated as recognized built-in gain or loss if the 
    partnership items had originated in and been taken into account 
    directly by the S corporation (partnership 1374 items);
        (ii) Step Two: Determine the S corporation's net recognized built-
    in gain without partnership 1374 items;
        (iii) Step Three: Determine the S corporation's net recognized 
    built-in gain with partnership 1374 items; and
        (iv) Step Four: If the amount computed under Step Three (paragraph 
    (i)(1)(iii) of this section) exceeds the amount computed under Step Two 
    (paragraph (i)(1)(ii) of this section), the excess (as limited by 
    paragraph (i)(2)(i) of this section) is the S corporation's partnership 
    RBIG, and the S corporation's net recognized built-in gain is the sum 
    of the amount computed under Step Two (paragraph (i)(1)(ii) of this 
    section) plus the partnership RBIG. If the amount computed under Step 
    Two (paragraph (i)(1)(ii) of this section) exceeds the amount computed 
    under Step Three (paragraph (i)(1)(iii) of this section), the excess 
    (as limited by paragraph (i)(2)(ii) of this section) is the S 
    corporation's partnership RBIL, and the S corporation's net recognized 
    built-in gain is the remainder of the amount computed under Step Two 
    (paragraph (i)(1)(ii) of this section) after subtracting the 
    partnership RBIL.
        (2) Limitations--(i) Partnership RBIG. An S corporation's 
    partnership RBIG for any taxable year may not exceed the excess (if 
    any) of the S corporation's RBIG limitation over its partnership RBIG 
    for prior taxable years. The preceding sentence does not apply if a 
    corporation forms or avails of a partnership with a principal purpose 
    of avoiding the tax imposed under section 1374.
        (ii) Partnership RBIL. An S corporation's partnership RBIL for any 
    taxable year may not exceed the excess (if any) of the S corporation's 
    RBIL limitation over its partnership RBIL for prior taxable years.
        (3) Disposition of partnership interest. If an S corporation 
    disposes of its partnership interest, the amount that may be treated as 
    recognized built-in gain may not exceed the excess (if any) of the S 
    corporation's RBIG limitation over its partnership RBIG during the 
    recognition period. Similarly, the amount that may be treated as 
    recognized built-in loss may not exceed the excess (if any) of the S 
    corporation's RBIL limitation over its partnership RBIL during the 
    recognition period.
        (4) RBIG and RBIL limitations--(i) Sale of partnership interest. An 
    S corporation's RBIG or RBIL limitation is the total of the following--
        (A) The amount that would be the amount realized if, at the 
    beginning of the first day of the recognition period, the corporation 
    had remained a C corporation and had sold its partnership interest (and 
    any assets the corporation contributed to the partnership during the 
    recognition period) at fair market value to an unrelated party; 
    decreased by
        (B) The corporation's adjusted basis in the partnership interest 
    (and any assets the corporation contributed to the partnership during 
    the recognition period) at the time of the sale referred to in 
    paragraph (i)(4)(i)(A) of this section; and increased or decreased by
        (C) The corporation's allocable share of the partnership's section 
    481(a) adjustments at the time of the sale referred to in paragraph 
    (i)(4)(i)(A) of this section.
        (ii) Amounts of limitations. If the result in paragraph (i)(4)(i) 
    of this section is a positive amount, the S corporation has a RBIG 
    limitation equal to that amount and a RBIL limitation of $0, but if the 
    result in paragraph (i)(4)(i) of this section is a negative amount, the 
    S corporation has a RBIL limitation equal to that amount and a RBIG 
    limitation of $0.
        (5) Small interest exception--(i) In general. Paragraph (i)(1) of 
    this section does not apply to a taxable year in the recognition period 
    if the S corporation's partnership interest represents less than 10 
    percent of the partnership's capital and profits at all times during 
    the taxable year and prior taxable years in the recognition period, and 
    the fair market value of the S corporation's partnership interest as of 
    the beginning of the recognition period is less than $100,000.
        (ii) Contributed assets. For purposes of paragraph (i)(5)(i) of 
    this section, if the S corporation contributes any assets to the 
    partnership during the recognition period and the S corporation held 
    the assets as of the beginning of the recognition period, the fair 
    market value of the S corporation's partnership interest as of the 
    beginning of the recognition period is determined as if the assets were 
    contributed to the partnership before the beginning of the recognition 
    period (using the fair market value of each contributed asset as of the 
    beginning of the recognition period). The contribution does not affect 
    whether paragraph (i)(5)(i) of this section applies for taxable years 
    in the recognition period before the taxable year in which the 
    contribution was made.
        (iii) Anti-abuse rule. Paragraph (i)(5)(i) of this section does not 
    apply if a corporation forms or avails of a partnership with a 
    principal purpose of avoiding the tax imposed under section 1374.
        (6) Section 704(c) gain or loss. Solely for purposes of section 
    1374, an S corporation's section 704(c) gain or loss amount with 
    respect to any asset is not reduced during the recognition period, 
    except for amounts treated as recognized built-in gain or loss with 
    respect to that asset under this paragraph.
        (7) Disposition of distributed partnership asset. If on the first 
    day of the recognition period an S corporation holds an interest in a 
    partnership that holds an asset and during the recognition period the 
    partnership distributes the asset to the S corporation that thereafter 
    disposes of the asset, the asset is treated as having been held by the 
    S corporation on the first day of the recognition period and as having 
    the fair market value and adjusted basis in the hands of the S 
    corporation that it had in the hands of the partnership on that day.
        (8) Examples. The rules of this paragraph (i) are illustrated by 
    the following examples.
    
        Example 1. Pre-conversion partnership interest. X is a C 
    corporation that elects to become an S corporation on January 1, 
    1996. On that date, X owns a 50 percent interest in partnership P 
    and P owns (among other assets) Blackacre with a basis of $25,000 
    and a value of $45,000. In 1996, P buys Whiteacre for $50,000. In 
    1999, P sells Blackacre for $55,000 and recognizes a gain of $30,000 
    of which $15,000 is included in X's distributive share. P also sells 
    Whiteacre in 1999 for $42,000 and recognizes a loss of $8,000 of 
    which $4,000 is included in X's distributive share. Under this 
    paragraph and section 1374(d)(3), X's $15,000 gain is presumed to be 
    recognized built-in gain and thus treated as a partnership 1374 
    item, but this presumption is rebutted if X establishes that P's 
    gain would have been only $20,000 ($45,000-$25,000=$20,000) if 
    Blackacre had been sold on the first day of the recognition period. 
    In such a case, only X's distributive share of the $20,000 built-in 
    gain, $10,000, would be treated as a partnership 1374 item. Under 
    this paragraph and section 1374(d)(4), X's $4,000 loss is not 
    treated as a partnership 1374 item because P did not hold Whiteacre 
    on the first day of the recognition period.
        Example 2. Post-conversion contribution. Y is a C corporation 
    that elects to become an S corporation on January 1, 1996. On that 
    date, Y owns (among other assets) Blackacre with a basis of $100,000 
    and a value of $200,000. On January 1, 1998, when Blackacre has a 
    basis of $100,000 and a value of $200,000, Y contributes Blackacre 
    to partnership P for a 50 percent interest in P. On January 1, 2000, 
    P sells Blackacre for $300,000 and recognizes a gain of $200,000 on 
    the sale ($300,000-$100,000=$200,000). P is allocated $100,000 of 
    the gain under section 704(c), and another $50,000 of the gain for 
    its fifty percent share of the remainder, for a total of $150,000. 
    Under this paragraph and section 1374(d)(3), if Y establishes that 
    P's gain would have been only $100,000 ($200,000-$100,000=$100,000) 
    if Blackacre had been sold on the first day of the recognition 
    period, Y would treat only $100,000 as a partnership 1374 item.
        Example 3. RBIG limitation of $100,000 or $50,000. X is a C 
    corporation that elects to become an S corporation on January 1, 
    1996. On that date, X owns a 50 percent interest in partnership P 
    with a RBIG limitation of $100,000 and a RBIL limitation of $0. P 
    owns (among other assets) Blackacre with a basis of $50,000 and a 
    value of $200,000. In 1996, P sells Blackacre for $200,000 and 
    recognizes a gain of $150,000 of which $75,000 is included in X's 
    distributive share and treated as a partnership 1374 item. X's net 
    recognized built-in gain for 1996 computed without partnership 1374 
    items is $35,000 and with partnership 1374 items is $110,000. Thus, 
    X has a partnership RBIG of $75,000 except as limited under 
    paragraph (i)(2)(i) of this section. Because X's RBIG limitation is 
    $100,000, X's partnership RBIG of $75,000 is not limited and X's net 
    recognized built-in gain for the year is $110,000 
    ($35,000+$75,000=$110,000). However, if X had a RBIG limitation of 
    $50,000 instead of $100,000, X's partnership RBIG would be limited 
    to $50,000 under paragraph (i)(2)(i) of this section and X's net 
    recognized built-in gain would be $85,000 ($35,000+$50,000=$85,000).
        Example 4. RBIL limitation of $60,000 or $40,000. Y is a C 
    corporation that elects to become an S corporation on January 1, 
    1996. On that date, Y owns a 50 percent interest in partnership P 
    with a RBIG limitation of $0 and a RBIL limitation of $60,000. P 
    owns (among other assets) Blackacre with a basis of $225,000 and a 
    value of $125,000. In 1996, P sells Blackacre for $125,000 and 
    recognizes a loss of $100,000 of which $50,000 is included in Y's 
    distributive share and treated as a partnership 1374 item. Y's net 
    recognized built-in gain for 1996 computed without partnership 1374 
    items is $75,000 and with partnership 1374 items is $25,000. Thus, Y 
    has a partnership RBIL of $50,000 for the year except as limited 
    under paragraph (i)(2)(ii) of this section. Because Y's RBIL 
    limitation is $60,000, Y's partnership RBIL for the year is not 
    limited and Y's net recognized built-in gain for the year is $25,000 
    ($75,000-$50,000=$25,000). However, if Y had a RBIL limitation of 
    $40,000 instead of $60,000, Y's partnership RBIL would be limited to 
    $40,000 under paragraph (i)(2)(ii) of this section and Y's net 
    recognized built-in gain for the year would be $35,000 
    ($75,000-$40,000=$35,000).
        Example 5. RBIG limitation of $0. (i) X is a C corporation that 
    elects to become an S corporation on January 1, 1996. X owns a 50 
    percent interest in partnership P with a RBIG limitation of $0 and a 
    RBIL limitation of $25,000.
        (a) In 1996, P's partnership 1374 items are--
        (1) Ordinary income of $25,000; and
        (2) Capital gain of $75,000.
        (b) X itself has--
        (1) Recognized built-in ordinary income of $40,000; and
        (2) Recognized built-in capital loss of $90,000.
        (ii) X's net recognized built-in gain for 1996 computed without 
    partnership 1374 items is $40,000 and with partnership 1374 items is 
    $65,000 ($40,000+$25,000=$65,000). Thus, X's partnership RBIG is 
    $25,000 for the year except as limited under paragraph (i)(2)(i) of 
    this section. Because X's RBIG limitation is $0, X's partnership 
    RBIG of $25,000 is limited to $0 and X's net recognized built-in 
    gain for the year is $40,000.
        Example 6. RBIL limitation of $0. (i) Y is a C corporation that 
    elects to become an S corporation on January 1, 1996. Y owns a 50 
    percent interest in partnership P with a RBIG limitation of $60,000 
    and a RBIL limitation of $0.
        (a) In 1996, P's partnership 1374 items are---
        (1) Ordinary income of $25,000; and
        (2) Capital loss of $90,000.
        (b) Y itself has--
        (1) recognized built-in ordinary income of $40,000; and
        (2) recognized built-in capital gain of $75,000.
        (ii) Y's net recognized built-in gain for 1996 computed without 
    partnership 1374 items is $115,000 ($40,000+$75,000=$115,000) and 
    with partnership 1374 items is $65,000 ($40,000+$25,000=$65,000). 
    Thus, Y's partnership RBIL is $50,000 for the year except as limited 
    under paragraph (i)(2)(ii) of this section. Because Y's RBIL 
    limitation is $0, Y's partnership RBIL of $50,000 is limited to $0 
    and Y's net recognized built-in gain is $115,000.
        Example 7. Disposition of partnership interest. X is a C 
    corporation that elects to become an S corporation on January 1, 
    1996. On that date, X owns a 50 percent interest in partnership P 
    with a RBIG limitation of $200,000 and a RBIL limitation of $0. P 
    owns (among other assets) Blackacre with a basis of $20,000 and a 
    value of $140,000. In 1996, P sells Blackacre for $140,000 and 
    recognizes a gain of $120,000 of which $60,000 is included in X's 
    distributive share and treated as a partnership 1374 item. X's net 
    recognized built-in gain for 1996 computed without partnership 1374 
    items is $95,000 and with partnership 1374 items is $155,000. Thus, 
    X has a partnership RBIG of $60,000. In 1999, X sells its entire 
    interest in P for $350,000 and recognizes a gain of $250,000. Under 
    paragraph (i)(3) of this section, X's recognized built-in gain on 
    the sale is limited by its RBIG limitation to $140,000 
    ($200,000-$60,000=$140,000).
        Example 8. Section 704(c) case. Y is a C corporation that elects 
    to become an S corporation on January 1, 1996. On that date, Y 
    contributes Asset 1, 5-year property with a value of $40,000 and a 
    basis of $0, and an unrelated party contributes $40,000 in cash, 
    each for a 50 percent interest in partnership P. The partnership 
    adopts the traditional method under Sec. 1.704-3(b). If P sold Asset 
    1 for $40,000 immediately after it was contributed by Y, P's $40,000 
    gain would be allocated to Y under section 704(c). Instead, Asset 1 
    is sold by P in 1999 for $36,000 and P recognizes gain of $36,000 
    ($36,000-$0=$36,000) on the sale. However, because book depreciation 
    of $8,000 per year has been taken on Asset 1 in 1996, 1997, and 
    1998, Y is allocated only $16,000 of P's $36,000 gain 
    ($40,000-(3 x $8,000)=($16,000-$0)=$16,000) under section 704(c). 
    The remaining $20,000 of P's $36,000 gain ($36,000-$16,000=$20,000) 
    is allocated 50 percent to each partner under section 704(b). Thus, 
    a total of $26,000 ($16,000+$10,000=$26,000) of P's $36,000 gain is 
    allocated to Y. However, under paragraph (i)(6) of this section, Y 
    treats $36,000 as a partnership 1374 item on P's sale of Asset 1.
        Example 9. Disposition of distributed partnership asset. X is a 
    C corporation that elects to become an S corporation on January 1, 
    1996. On that date, X owns a fifty percent interest in partnership P 
    and P owns (among other assets) Blackacre with a basis of $20,000 
    and a value of $40,000. On January 1, 1998, P distributes Blackacre 
    to X, when Blackacre has a basis of $20,000 and a value of $50,000. 
    Under section 732(a)(1), X has a transferred basis of $20,000 in 
    Blackacre. On January 1, 1999, X sells Blackacre for $60,000 and 
    recognizes a gain of $40,000. Under paragraph (i)(7) of this section 
    and section 1374(d)(3), X has recognized built-in gain from the sale 
    of $20,000, the amount of built-in gain in Blackacre on the first 
    day of the recognition period.
    
    
    Sec. 1.1374-5  Loss carryforwards.
    
        (a) In general. The loss carryforwards allowed as deductions 
    against net recognized built-in gain under section 1374(b)(2) are 
    allowed only to the extent their use is allowed under the rules 
    applying to C corporations. Any other loss carryforwards, such as 
    charitable contribution carryforwards under section 170(d)(2), are not 
    allowed as deductions against net recognized built-in gain.
        (b) Example. The rules of this section are illustrated by the 
    following example.
    
        Example. Section 382 limitation. X is a C corporation that has 
    an ownership change under section 382(g)(1) on January 1, 1994. On 
    that date, X has a fair market value of $500,000, NOL carryforwards 
    of $400,000, and a net unrealized built-in gain under section 
    382(h)(3)(A) of $0. Assume X's section 382 limitation under section 
    382(b)(1) is $40,000. X elects to become an S corporation on January 
    1, 1998. On that date, X has NOL carryforwards of $240,000 (having 
    used $160,000 of its pre-change net operating losses in its 4 
    preceding taxable years) and a section 1374 net unrealized built-in 
    gain of $250,000. In 1998, X has net recognized built-in gain of 
    $100,000. X may use $40,000 of its NOL carryforwards as a deduction 
    against its $100,000 net recognized built-in gain, because X's 
    section 382 limitation is $40,000.
    
    
    Sec. 1.1374-6  Credits and credit carryforwards.
    
        (a) In general. The credits and credit carryforwards allowed as 
    credits against the section 1374 tax under section 1374(b)(3) are 
    allowed only to the extent their use is allowed under the rules 
    applying to C corporations. Any other credits or credit carryforwards, 
    such as foreign tax credits under section 901, are not allowed as 
    credits against the section 1374 tax.
        (b) Limitations. The amount of business credit carryforwards and 
    minimum tax credit allowed against the section 1374 tax are subject to 
    the limitations described in section 38(c) and section 53(c), 
    respectively, as modified by this paragraph. The tentative tax 
    determined under paragraph (a)(3) of Sec. 1.1374-1 is treated as the 
    regular tax liability described in sections 38(c)(1) and 53(c)(1), and 
    as the net income tax and net regular tax liability described in 
    section 38(c)(1). The tentative minimum tax described in section 55(b) 
    is determined using the rate of tax applicable to corporations and 
    without regard to any alternative minimum tax foreign tax credit 
    described in that section and by treating the net recognized built-in 
    gain determined under Sec. 1.1374-2, modified to take into account the 
    adjustments of sections 56 and 58 applicable to corporations and the 
    preferences of section 57, as the alternative minimum taxable income 
    described in section 55(b)(2).
        (c) Examples. The rules of this section are illustrated by the 
    following examples.
    
        Example 1. Business credit carryforward. X is a C corporation 
    that elects to become an S corporation effective January 1, 1996. On 
    that date, X has a $500,000 business credit carryforward from a C 
    year and Asset #1 with a fair market value of $400,000, a basis for 
    regular tax purposes of $95,000, and a basis for alternative minimum 
    tax purposes of $150,000. In 1996, X has net recognized built-in 
    gain of $305,000 from selling Asset #1 for $400,000. Thus, X's 
    tentative tax under paragraph (a)(3) of Sec. 1.1374-1 and regular 
    tax liability under paragraph (b) of this section is $106,750 
    ($400,000-$95,000=$305,000  x  .35= $106,750, assuming a 35 percent 
    tax rate). Also, X's tentative minimum tax determined under 
    paragraph (b) of this section is $47,000 
    [$400,000-$150,000=$250,000-$15,000 ($40,000 corporate exemption 
    amount -$25,000 phase-out=$15,000)=$235,000  x  .20=$47,000, 
    assuming a 20 percent tax rate]. Thus, the business credit 
    limitation under section 38(c) is $59,750 [$106,750-$47,000 (the 
    greater of $47,000 or $20,438 (.25 x $81,750 
    ($106,750-$25,000=$81,750))) = $59,750]. As a result, X's section 
    1374 tax is $47,000 ($106,750-$59,750= $47,000) for 1996 and X has 
    $440,250 ($500,000-$59,750 = $440,250) of business credit 
    carryforwards for succeeding taxable years.
        Example 2. Minimum tax credit. Y is a C corporation that elects 
    to become an S corporation effective January 1, 1996. On that date, 
    Asset#1 has a fair market value of $5,000,000, a basis for regular 
    tax purposes of $4,000,000, and a basis for alternative minimum tax 
    purposes of $4,750,000. Y also has a minimum tax credit of $310,000 
    from 1995. Y has no other assets, no net operating or capital loss 
    carryforwards, and no business credit carryforwards. In 1996, Y's 
    only transaction is the sale of Asset 1 for $5,000,000. 
    Therefore, Y has net recognized built-in gain in 1996 of $1,000,000 
    ($5,000,000-$4,000,000=$1,000,000) and a tentative tax under 
    paragraph (a)(3) of Sec. 1.1374-1 of $350,000 
    ($1,000,000 x .35=$350,000, assuming a 35 percent tax rate). Also, 
    Y's tentative minimum tax determined under paragraph (b) of this 
    section is $47,000 [$5,000,000-$4,750,000=$250,000-$15,000 ($40,000 
    corporate exemption amount -$25,000 phase-out = $15,000) = 
    $235,000 x .20 = $47,000, assuming a 20 percent tax rate]. Thus, Y 
    may use its minimum tax credit in the amount of $303,000 
    ($350,000-$47,000=$303,000) to offset its section 1374 tentative 
    tax. As a result, Y's section 1374 tax is $47,000 
    ($350,000-$303,000=$47,000) in 1996 and Y has a minimum tax credit 
    attributable to years for which Y was a C corporation of $7,000 
    ($310,000-$303,000=$7,000).
    
    
    Sec. 1.1374-7  Inventory.
    
        (a) Valuation. The fair market value of the inventory of an S 
    corporation on the first day of the recognition period equals the 
    amount that a willing buyer would pay a willing seller for the 
    inventory in a purchase of all the S corporation's assets by a buyer 
    that expects to continue to operate the S corporation's business. For 
    purposes of the preceding sentence, the buyer and seller are presumed 
    not to be under any compulsion to buy or sell and to have reasonable 
    knowledge of all relevant facts.
        (b) Identity of dispositions. The inventory method used by an S 
    corporation for tax purposes must be used to identify whether the 
    inventory it disposes of during the recognition period is inventory it 
    held on the first day of that period. Thus, a corporation using the 
    LIFO method does not dispose of inventory it held on the first day of 
    the recognition period unless the carrying value of its inventory for a 
    taxable year during that period is less than the carrying value of its 
    inventory on the first day of the recognition period (determined using 
    the LIFO method as described in section 472). However, if a corporation 
    changes its method of accounting for inventory (for example, from the 
    FIFO method to the LIFO method or from the LIFO method to the FIFO 
    method) with a principal purpose of avoiding the tax imposed under 
    section 1374, it must use its former method to identify its 
    dispositions of inventory.
    
    
    Sec. 1.1374-8  Section 1374(d)(8) transactions.
    
        (a)-In general. If any S corporation acquires any asset in a 
    transaction in which the S corporation's basis in the asset is 
    determined (in whole or in part) by reference to a C corporation's 
    basis in the assets (or any other property) (a section 1374(d)(8) 
    transaction), section 1374 applies to the net recognized built-in gain 
    attributable to the assets acquired in any section 1374(d)(8) 
    transaction.
        (b) Separate determination of tax. For purposes of the tax imposed 
    under section 1374(d)(8), a separate determination of tax is made with 
    respect to the assets the S corporation acquires in one section 
    1374(d)(8) transaction from the assets the S corporation acquires in 
    another section 1374(d)(8) transaction and from the assets the 
    corporation held when it became an S corporation. Thus, an S 
    corporation's section 1374 attributes when it became an S corporation 
    may only be used to reduce the section 1374 tax imposed on dispositions 
    of assets the S corporation held at that time. Similarly, an S 
    corporation's section 1374 attributes acquired in a section 1374(d)(8) 
    transaction may only be used to reduce a section 1374 tax imposed on 
    dispositions of assets the S corporation acquired in the same 
    transaction.
        (c)-Taxable income limitation. For purposes of paragraph (a) of 
    this section, an S corporation's taxable income limitation under 
    Sec. 1.1374-2(a)(2) for any taxable year is allocated between or among 
    each of the S corporation's separate determinations of net recognized 
    built-in gain for that year (determined without regard to the taxable 
    income limitation) based on the ratio of each of those determinations 
    to the sum of all of those determinations.
        (d) Examples. The rules of this section are illustrated by the 
    following examples.
    
        Example 1. Separate determination of tax. (i) X is a C 
    corporation that elected to become an S corporation effective 
    January 1, 1986 (before section 1374 was amended in the Tax Reform 
    Act of 1986). X has a net operating loss carryforward of $20,000 
    arising in 1985 when X was a C corporation. On January 1, 1996, Y 
    (an unrelated C corporation) merges into X in a transaction to which 
    section 368(a)(1)(A) applies. Y has no loss carryforwards, credits, 
    or credit carryforwards. The assets X acquired from Y are subject to 
    tax under section 1374 and have a net unrealized built-in gain of 
    $150,000.
        (ii) In 1996, X has a pre-limitation amount of $50,000 on 
    dispositions of assets acquired from Y and a taxable income 
    limitation of $100,000 (because only one group of assets is subject 
    to section 1374, there is no allocation of the taxable income 
    limitation). As a result, X has a net recognized built-in gain on 
    those assets of $50,000. X's $20,000 net operating loss carryforward 
    may not be used as a deduction against its $50,000 net recognized 
    built-in gain on the assets X acquired from Y. Therefore, X has a 
    section 1374 tax of $17,500 ($50,000  x  .35 = $17,500, assuming a 
    35 percent tax rate) for its 1996 taxable year.
        Example 2. Allocation of taxable income limitation. (i) Y is a C 
    corporation that elects to become an S corporation effective January 
    1, 1996. The assets Y holds when it becomes an S corporation have a 
    net unrealized built-in gain of $5,000. Y has no loss carryforwards, 
    credits, or credit carryforwards. On January 1, 1997, Z (an 
    unrelated C corporation) merges into Y in a transaction to which 
    section 368(a)(1)(A) applies. Z has no loss carryforwards, credits, 
    or credit carryforwards. The assets Y acquired from Z are subject to 
    tax under section 1374 and have a net unrealized built-in gain of 
    $80,000.
        (ii) In 1997, Y has a pre-limitation amount on the assets it 
    held when it became an S corporation of $15,000, a pre-limitation 
    amount on the assets Y acquired from Z of $15,000, and a taxable 
    income limitation of $10,000. However, because the assets Y held on 
    becoming an S corporation have a net unrealized built-in gain of 
    $5,000, its net recognized built-in gain on those assets is limited 
    to $5,000 before taking into account the taxable income limitation. 
    Y's taxable income limitation of $10,000 is allocated between the 
    assets Y held on becoming an S corporation and the assets Y acquired 
    from Z for purposes of determining the net recognized built-in gain 
    from each pool of assets. Thus, Y's net recognized built-in gain on 
    the assets Y held on becoming an S corporation is $2,500 [$10,000 
    x  ($5,000/$20,000) = $2,500]. Y's net recognized built-in gain on 
    the assets Y acquired from Z is $7,500 [$10,000  x  ($15,000/
    $20,000) = $7,500]. Therefore, Y has a section 1374 tax of $3,500 
    [($2,500 + $7,500)  x  .35 = $3,500, assuming a 35 percent tax rate] 
    for its 1997 taxable year.
    
    
    Sec. 1.1374-9  Anti-stuffing rule.-
    
        If a corporation acquires an asset before or during the recognition 
    period with a principal purpose of avoiding the tax imposed under 
    section 1374, the asset and any loss, deduction, loss carryforward, 
    credit, or credit carryforward attributable to the asset is disregarded 
    in determining the S corporation's pre-limitation amount, taxable 
    income limitation, net unrealized built-in gain limitation, deductions 
    against net recognized built-in gain, and credits against the section 
    1374 tax.
    
    
    Sec. 1.1374-10  Effective date and additional rules.
    
        (a) In general. Sections 1.1374-1 through 1.1374-9 apply for 
    taxable years ending on or after December 27, 1994, but only in cases 
    where the S corporation's return for the taxable year is filed pursuant 
    to an S election or a section 1374(d)(8) transaction occurring on or 
    after December 27, 1994.
        (b) Additional rules. This paragraph (b) provides rules applicable 
    to certain S corporations, assets, or transactions to which 
    Secs. 1.1374-1 through 1.1374-9 do not apply.
        (1) Certain transfers to partnerships. If a corporation transfers 
    an asset to a partnership in a transaction to which section 721(a) 
    applies and the transfer is made in contemplation of an S election or 
    during the recognition period, section 1374 applies on a disposition of 
    the asset by the partnership as if the S corporation had disposed of 
    the asset itself. This paragraph (b)(1) applies as of the effective 
    date of section 1374, unless the recognition period with respect to the 
    contributed asset is pursuant to an S election or a section 1374(d)(8) 
    transaction occurring on or after December 27, 1994.
        (2) Certain inventory dispositions. For purposes of section 
    1374(d)(2)(A), the inventory method used by the taxpayer for tax 
    purposes (FIFO, LIFO, etc.) must be used to identify whether goods 
    disposed of following conversion to S corporation status were held by 
    the corporation at the time of conversion. Thus, for example, a 
    corporation using the LIFO inventory method will not be subject to the 
    built-in gain tax with respect to sales of inventory except to the 
    extent that a LIFO layer existing prior to the beginning of the first 
    taxable year as an S corporation is invaded after the beginning of that 
    year. This paragraph (b)(2) applies as of the effective date of section 
    1374, unless the recognition period with respect to the inventory is 
    pursuant to an S election or a section 1374(d)(8) transaction occurring 
    on or after December 27, 1994.
        (3) Certain contributions of built-in loss assets. If a built-in 
    loss asset (that is, an asset with an adjusted tax basis in excess of 
    its fair market value) is contributed to a corporation within 2 years 
    before the earlier of the beginning of its first taxable year as an S 
    corporation, or the filing of its S election, the loss inherent in the 
    asset will not reduce net unrealized built-in gain, as defined in 
    section 1374(d)(1), unless the taxpayer demonstrates a clear and 
    substantial relationship between the contributed property and the 
    conduct of the corporation's current or future business enterprises. 
    This paragraph (b)(3) applies as of the effective date of section 1374, 
    unless the recognition period with respect to the contributed asset is 
    pursuant to an S election or a section 1374(d)(8) transaction occurring 
    on or after December 27, 1994.
        (4) Certain installment sales--(i) In general. If a taxpayer sells 
    an asset either prior to or during the recognition period and 
    recognizes income either during or after the recognition period from 
    the sale under the installment method, the income will, when 
    recognized, be taxed under section 1374 to the extent it would have 
    been so taxed in prior taxable years if the selling corporation had 
    made the election under section 453(d) not to report the income under 
    the installment method. For purposes of determining the extent to which 
    the income would have been subject to tax if the section 453(d) 
    election had not been made, the taxable income limitation of section 
    1374(d)(2)(A)(ii) and the built-in gain carryover rule of section 
    1374(d)(2)(B) will be taken into account. This paragraph (b)(4) applies 
    for installment sales occurring on or after March 26, 1990, and before 
    December 27, 1994.
        (ii) Examples. The rules of this paragraph (b)(4) are illustrated 
    by the following examples.
    
        Example 1. In year 1 of the recognition period under section 
    1374, a corporation realizes a gain of $100,000 on the sale of an 
    asset with built-in gain. The corporation is to receive full payment 
    for the asset in year 11. Because the corporation does not make an 
    election under section 453(d), all $100,000 of the gain from the 
    sale is reported under the installment method in year 11. If the 
    corporation had made an election under section 453(d) with respect 
    to the sale, the gain would have been recognized in year 1 and, 
    taking into account the corporation's income and gains from other 
    sources, application of the taxable income limitation of section 
    1374(d)(2)(A)(ii) and the built-in gain carryover rule of section 
    1374(d)(2)(B) would have resulted in $40,000 of the gain being 
    subject to tax during the recognition period under section 1374. 
    Therefore, $40,000 of the gain recognized in year 11 is subject to 
    tax under section 1374.
        Example 2. In year 1 of the recognition period under section 
    1374, a corporation realizes a gain of $100,000 on the sale of an 
    asset with built-in gain. The corporation is to receive full payment 
    for the asset in year 6. Because the corporation does not make an 
    election under section 453(d), all $100,000 of the gain from the 
    sale is reported under the installment method in year 6. If the 
    corporation had made an election under section 453(d) with respect 
    to the sale, the gain would have been recognized in year 1 and, 
    taking into account the corporation's income and gains from other 
    sources, application of the taxable income limitation of section 
    1374(d)(2)(A)(ii) and the built-in gain carryover rule of section 
    1374(d)(2)(B) would have resulted in all of the gain being subjected 
    to tax under section 1374 in years 1 through 5. Therefore, 
    notwithstanding that the taxable income limitation of section 
    1374(d)(2)(A)(ii) might otherwise limit the taxation of the gain 
    recognized in year 6, the entire $100,000 of gain will be subject to 
    tax under section 1374 when it is recognized in year 6.
    Margaret Milner Richardson,
    Commissioner of Internal Revenue.
        Approved: November 23, 1994.
    Leslie Samuels,
    Assistant Secretary of the Treasury.
    [FR Doc. 94-31429 Filed 12-23-94; 8:45 am]
    BILLING CODE 4830-01-U
    
    
    

Document Information

Effective Date:
12/27/1994
Published:
12/27/1994
Department:
Internal Revenue Service
Entry Type:
Uncategorized Document
Action:
Final regulations.
Document Number:
94-31429
Dates:
These regulations are effective December 27, 1994.
Pages:
0-0 (1 pages)
Docket Numbers:
Federal Register: December 27, 1994, TD 8579
RINs:
1545-AK93
CFR: (14)
26 CFR 1.1374-2(a)(1))
26 CFR 1.1374-2(a)(2)
26 CFR 601.601(d)(2)(ii)(b)
26 CFR 1.1374-0
26 CFR 1.1374-1
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