Daily Tax Update - September 18, 2015: Treasury, IRS Issue Final F Reorganization Regulations

Treasury, IRS Issue Final F Reorganization Regulations:  Today, Treasury and the IRS issued final regulations addressing the qualification of a transaction as a corporate reorganization under section 368(a)(1)(F) (F reorganization) by virtue of being “a mere change in identity, form, or place of organization of one corporation.”  The final regulations generally adopt, with certain changes, the provisions of regulations proposed in 2004 that were not previously adopted in final regulations issued in 2005.  Under the final regulations, a transaction that involves an actual or deemed transfer of property by one corporation (the transferor corporation) to one other corporation (the resulting corporation) is generally a mere change qualifying as an F reorganization if: (1) all the stock of the resulting corporation is distributed (or deemed distributed) in exchange for stock of the transferor corporation; (2) the same person or persons owns all the stock of the transferor corporation at the beginning of the transaction and all of the stock of the resulting corporation at the end of the transaction, in identical proportions; (3) the resulting corporation does not have any property or tax attributes immediately before the transaction; (4) the transferor corporation completely liquidates for U.S. federal income tax purposes; (5) immediately after the transaction, no other corporation other than the resulting corporation holds property that was held by the transferor corporation immediately before the transaction; and (6) immediately after the transaction, the resulting corporation does not hold property acquired from a corporation other than the transferor corporation.  Under the regulations, related events preceding or following the transaction generally do not cause the transaction to fail to qualify as an F reorganization.  To address situations in which an asset transfer that would constitute a step in an F reorganization is also a necessary step for characterizing a larger transaction as a different nonrecognition transaction, a transaction will not be treated as an F reorganization if the transaction or a step thereof involving a transfer of property from the transferor corporation to the resulting corporation is also a reorganization or part of a reorganization in which a corporation in control of the resulting corporation is a party to the reorganization.  The regulations under section 368(a)(1)(F) apply to transactions occurring on or after September 21, 2015.  The IRS also issued final regulations under section 367(a) addressing outbound F reorganizations, adopting without substantive change provisions of 1990 proposed regulations regarding the close of the taxable year, deemed transactions, and characterization under foreign law.


IRS Issues Notice Addressing Certain FATCA Issues:  Today, in Notice 2015-66, Treasury and the IRS announced that they intend to amend the regulations under chapter 4 (sections 1471-1474) to extend the period of time that certain transitional rules will apply.  Under the amendments, gross proceeds withholding will apply only with respect to sales or other dispositions occurring after December 31, 2018.  The amendments will also extend the start date of withholding on foreign passthru payments to provide that a participating foreign financial institution (FFI) is not required to withhold tax on a foreign passthru payment made to a recalcitrant account holder or a nonparticipating FFI before the later of January 1, 2019, or the date of publication of final regulations defining the term foreign pass-through payment.  Treasury and the IRS also intend to extend until January 1, 2017, the availability of limited branch and limited FFI status and the deadline for a sponsoring entity to register its sponsored entities and redocument such entities with withholding agents.  In addition, in order to reduce compliance burdens on withholding agents that hold collateral as a secured party, the notice announces that Treasury and the IRS intend to modify the rules for grandfathered obligations with respect to collateral.


IRS Issues Notice Addressing Per Capita Interior Department Distributions to Indian Tribe Members:  Today, the IRS issued Notice 2015-67, which provides a general rule that per capita distributions to Indian tribe members made from funds held in trust by the Secretary of the Interior are excluded from the gross income of the members of the tribe receiving the per capita distributions.  Distributions to tribal members from a trust account will constitute gross income under to the members of the tribe receiving the distributions if the trust account is used to mischaracterize taxable income as nontaxable per capita distributions.