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United States Code (Last Updated: May 24, 2014) |
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Title 26. INTERNAL REVENUE CODE |
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SubTitle A. Income Taxes |
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Chapter 1. NORMAL TAXES AND SURTAXES |
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SubChapter O. Gain or Loss on Disposition of Property |
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Part IV. SPECIAL RULES |
§ 1059. Corporate shareholder’s basis in stock reduced by nontaxed portion of extraordinary dividends
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(a) General rule If any corporation receives any extraordinary dividend with respect to any share of stock and such corporation has not held such stock for more than 2 years before the dividend announcement date— (1) Reduction in basis The basis of such corporation in such stock shall be reduced (but not below zero) by the nontaxed portion of such dividends.
(2) Amounts in excess of basis If the nontaxed portion of such dividends exceeds such basis, such excess shall be treated as gain from the sale or exchange of such stock for the taxable year in which the extraordinary dividend is received.
(b) Nontaxed portion For purposes of this section— (1) In general The nontaxed portion of any dividend is the excess (if any) of— (A) the amount of such dividend, over (B) the taxable portion of such dividend. (2) Taxable portion The taxable portion of any dividend is— (A) the portion of such dividend includible in gross income, reduced by (B) the amount of any deduction allowable with respect to such dividend under section 243, 244, or 245. (c) Extraordinary dividend defined For purposes of this section— (1) In general The term “extraordinary dividend” means any dividend with respect to a share of stock if the amount of such dividend equals or exceeds the threshold percentage of the taxpayer’s adjusted basis in such share of stock.
(2) Threshold percentage The term “threshold percentage” means— (A) 5 percent in the case of stock which is preferred as to dividends, and (B) 10 percent in the case of any other stock. (3) Aggregation of dividends (A) Aggregation within 85-day period All dividends— (i) which are received by the taxpayer (or a person described in subparagraph (C)) with respect to any share of stock, and (ii) which have ex-dividend dates within the same period of 85 consecutive days, shall be treated as 1 dividend. (B) Aggregation within 1 year where dividends exceed 20 percent of adjusted basis All dividends— (i) which are received by the taxpayer (or a person described in subparagraph (C)) with respect to any share of stock, and (ii) which have ex-dividend dates during the same period of 365 consecutive days, shall be treated as extraordinary dividends if the aggregate of such dividends exceeds 20 percent of the taxpayer’s adjusted basis in such stock (determined without regard to this section). (C) Substituted basis transactions In the case of any stock, a person is described in this subparagraph if— (i) the basis of such stock in the hands of such person is determined in whole or in part by reference to the basis of such stock in the hands of the taxpayer, or (ii) the basis of such stock in the hands of the taxpayer is determined in whole or in part by reference to the basis of such stock in the hands of such person. (4) Fair market value determination If the taxpayer establishes to the satisfaction of the Secretary the fair market value of any share of stock as of the day before the ex-dividend date, the taxpayer may elect to apply paragraphs (1) and (3) by substituting such value for the taxpayer’s adjusted basis.
(d) Special rules For purposes of this section— (1) Time for reduction Any reduction in basis under subsection (a)(1) shall be treated as occurring at the beginning of the ex-dividend date of the extraordinary dividend to which the reduction relates.
(2) Distributions in kind To the extent any dividend consists of property other than cash, the amount of such dividend shall be treated as the fair market value of such property (as of the date of the distribution) reduced as provided in section 301(b)(2).
(3) Determination of holding period For purposes of determining the holding period of stock under subsection (a), rules similar to the rules of paragraphs (3) and (4) of section 246(c) shall apply; except that “2 years” shall be substituted for the number of days specified in subparagraph (B) of section 246(c)(3).
(4) Ex-dividend date The term “ex-dividend date” means the date on which the share of stock becomes ex-dividend.
(5) Dividend announcement date The term “dividend announcement date” means, with respect to any dividend, the date on which the corporation declares, announces, or agrees to the amount or payment of such dividend, whichever is the earliest.
(6) Exception where stock held during entire existence of corporation (A) In general Subsection (a) shall not apply to any extraordinary dividend with respect to any share of stock of a corporation if— (i) such stock was held by the taxpayer during the entire period such corporation was in existence, and (ii) except as provided in regulations, no earnings and profits of such corporation were attributable to transfers of property from (or earnings and profits of) a corporation which is not a qualified corporation. (B) Qualified corporation For purposes of subparagraph (A), the term “qualified corporation” means any corporation (including a predecessor corporation)— (i) with respect to which the taxpayer holds directly or indirectly during the entire period of such corporation’s existence at least the same ownership interest as the taxpayer holds in the corporation distributing the extraordinary dividend, and (ii) which has no earnings and profits— (I) which were earned by, or (II) which are attributable to gain on property which accrued during a period the corporation holding the property was, a corporation not described in clause (i). (C) Application of paragraph This paragraph shall not apply to any extraordinary dividend to the extent such application is inconsistent with the purposes of this section.
(e) Special rules for certain distributions (1) Treatment of partial liquidations and certain redemptions Except as otherwise provided in regulations— (A) Redemptions In the case of any redemption of stock— (i) which is part of a partial liquidation (within the meaning of section 302(e)) of the redeeming corporation, (ii) which is not pro rata as to all shareholders, or (iii) which would not have been treated (in whole or in part) as a dividend if— (I) any options had not been taken into account under section 318(a)(4), or (II) section 304(a) had not applied, any amount treated as a dividend with respect to such redemption shall be treated as an extraordinary dividend to which paragraphs (1) and (2) of subsection (a) apply without regard to the period the taxpayer held such stock. In the case of a redemption described in clause (iii), only the basis in the stock redeemed shall be taken into account under subsection (a). (B) Reorganizations, etc. An exchange described in section 356 which is treated as a dividend shall be treated as a redemption of stock for purposes of applying subparagraph (A).
(2) Qualifying dividends (A) In general Except as provided in regulations, the term “extraordinary dividend” does not include any qualifying dividend (within the meaning of section 243).
(B) Exception Subparagraph (A) shall not apply to any portion of a dividend which is attributable to earnings and profits which— (i) were earned by a corporation during a period it was not a member of the affiliated group, or (ii) are attributable to gain on property which accrued during a period the corporation holding the property was not a member of the affiliated group. (3) Qualified preferred dividends (A) In general In the case of 1 or more qualified preferred dividends with respect to any share of stock— (i) this section shall not apply to such dividends if the taxpayer holds such stock for more than 5 years, and (ii) if the taxpayer disposes of such stock before it has been held for more than 5 years, the aggregate reduction under subsection (a)(1) with respect to such dividends shall not be greater than the excess (if any) of— (I) the qualified preferred dividends paid with respect to such stock during the period the taxpayer held such stock, over (II) the qualified preferred dividends which would have been paid during such period on the basis of the stated rate of return. (B) Rate of return For purposes of this paragraph— (i) Actual rate of return The actual rate of return shall be the rate of return for the period for which the taxpayer held the stock, determined— (I) by only taking into account dividends during such period, and (II) by using the lesser of the adjusted basis of the taxpayer in such stock or the liquidation preference of such stock. (ii) Stated rate of return The stated rate of return shall be the annual rate of the qualified preferred dividend payable with respect to any share of stock (expressed as a percentage of the amount described in clause (i)(II)).
(C) Definitions and special rules For purposes of this paragraph— (i) Qualified preferred dividend The term “qualified preferred dividend” means any fixed dividend payable with respect to any share of stock which— (I) provides for fixed preferred dividends payable not less frequently than annually, and (II) is not in arrears as to dividends at the time the taxpayer acquires the stock. Such term shall not include any dividend payable with respect to any share of stock if the actual rate of return on such stock exceeds 15 percent. (ii) Holding period In determining the holding period for purposes of subparagraph (A)(ii), subsection (d)(3) shall be applied by substituting “5 years” for “2 years”.
(f) Treatment of dividends on certain preferred stock (1) In general Any dividend with respect to disqualified preferred stock shall be treated as an extraordinary dividend to which paragraphs (1) and (2) of subsection (a) apply without regard to the period the taxpayer held the stock.
(2) Disqualified preferred stock For purposes of this subsection, the term “disqualified preferred stock” means any stock which is preferred as to dividends if— (A) when issued, such stock has a dividend rate which declines (or can reasonably be expected to decline) in the future, (B) the issue price of such stock exceeds its liquidation rights or its stated redemption price, or (C) such stock is otherwise structured— (i) to avoid the other provisions of this section, and (ii) to enable corporate shareholders to reduce tax through a combination of dividend received deductions and loss on the disposition of the stock. (g) Regulations The Secretary shall prescribe such regulations as may be appropriate to carry out the purposes of this section, including regulations— (1) providing for the application of this section in the case of stock dividends, stock splits, reorganizations, and other similar transactions, in the case of stock held by pass-thru entities, and in the case of consolidated groups, and (2) providing that the rules of subsection (f) shall apply in the case of stock which is not preferred as to dividends in cases where stock is structured to avoid the purposes of this section.
References In Text
Section 246(c)(3) of this title, referred to in subsec. (d)(3), was amended by Pub. L. 105–34, title X, § 1015(b)(2),
Prior Provisions
A prior section 1059 was renumbered section 1061 of this title.
Amendments
1998—Subsec. (g)(1). Pub. L. 105–206 substituted “, in the case of stock held by pass-thru entities, and in the case of consolidated groups” for “and in the case of stock held by pass-thru entities”.
1997—Subsec. (a)(2). Pub. L. 105–34, § 1011(a), amended heading and text of par. (2) generally. Prior to amendment, text read as follows: “In addition to any gain recognized under this chapter, there shall be treated as gain from the sale or exchange of any stock for the taxable year in which the sale or disposition of such stock occurs an amount equal to the aggregate nontaxed portions of any extraordinary dividends with respect to such stock which did not reduce the basis of such stock by reason of the limitation on reducing basis below zero.”
Subsec. (d)(1). Pub. L. 105–34, § 1011(c), amended heading and text of par. (1) generally. Prior to amendment, text read as follows:
“(A) In general.—Except as provided in subparagraph (B), any reduction in basis under subsection (a)(1) shall occur immediately before any sale or disposition of the stock.
“(B) Special rule for computing extraordinary dividend.—In determining a taxpayer’s adjusted basis for purposes of subsection (c)(1), any reduction in basis under subsection (a)(1) by reason of a prior distribution which was an extraordinary dividend shall be treated as occurring at the beginning of the ex-dividend date for such distribution.”
Subsec. (d)(3). Pub. L. 105–34, § 1604(d)(1), substituted “subsection (a)” for “subsection (a)(2)”.
Subsec. (e)(1). Pub. L. 105–34, § 1011(b), amended heading and text of par. (1) generally. Prior to amendment, text read as follows: “Except as otherwise provided in regulations, in the case of any redemption of stock which is—
“(A) part of a partial liquidation (within the meaning of section 302(e)) of the redeeming corporation, or
“(B) not pro rata as to all shareholders,
any amount treated as a dividend under section 301 with respect to such redemption shall be treated as an extraordinary dividend to which paragraphs (1) and (2) of subsection (a) apply without regard to the period the taxpayer held such stock.”
Subsec. (e)(1)(A)(iii). Pub. L. 105–34, § 1013(b), amended cl. (iii) generally. Prior to amendment, cl. (iii) read as follows: “which would not have been treated (in whole or in part) as a dividend if any options had not been taken into account under section 318(a)(4).”
1989—Subsecs. (f), (g). Pub. L. 101–239 added subsecs. (f) and (g) and struck out former subsec. (f) which read as follows: “Regulations.—The Secretary shall prescribe such regulations as may be appropriate to carry out the purposes of this section, including regulations providing for the application of this section in the case of stock dividends, stock splits, reorganizations, and other similar transactions and in the case of stock held by pass-thru entities.”
1988—Subsec. (d)(5). Pub. L. 100–647, § 1006(c)(2), inserted “amount or” after “agrees to the”.
Pub. L. 100–647, § 1006(c)(1), redesignated par. (6) as (5) and struck out former par. (5) which related to extension to certain property distributions.
Subsec. (d)(6). Pub. L. 100–647, § 1006(c)(3), amended par. (6) generally. Prior to amendment, par. (6) read as follows: “Subsection (a) shall not apply to any extraordinary dividend with respect to any share of stock of a corporation if—
“(A) such stock was held by the taxpayer during the entire period such corporation (and any precedessor [sic] corporation) was in existence,
“(B) except as provided in regulations, the only earnings and profits of such corporation were earnings and profits accumulated by such corporation (or any predecessor corporation) during such period, and
“(C) the application of this paragraph to such dividend is not inconsistent with the purposes of this section.”
Pub. L. 100–647, § 1006(c)(1), redesignated par. (7) as (6). Former par. (6) redesignated (5).
Subsec. (d)(7). Pub. L. 100–647, § 1006(c)(1), redesignated par. (7) as (6).
Subsec. (e)(1). Pub. L. 100–647, § 1006(c)(4), substituted “to which paragraphs (1) and (2) of subsection (a) apply without regard to the period the taxpayer held such stock” for “for purposes of this section (without regard to the holding period of the stock)”.
Subsec. (e)(2). Pub. L. 100–647, § 1006(c)(5), amended par. (2) generally. Prior to amendment, par. (2) read as follows: “Except as provided in regulations, the term ‘extraordinary dividend’ shall not include any qualifying dividend (within the meaning of section 243(b)(1)).”
Subsec. (e)(3)(A). Pub. L. 100–647, § 1006(c)(6), amended subpar. (A) generally. Prior to amendment, subpar. (A) read as follows: “A qualified preferred dividend shall be treated as an extraordinary dividend—
“(i) only if the actual rate of return of the taxpayer on the stock with respect to which such dividend was paid exceeds 15 percent, or
“(ii) if clause (i) does not apply, and the taxpayer disposes of such stock before the taxpayer has held such stock for more than 5 years, only to the extent the actual rate of return exceeds the stated rate of return.”
Subsec. (e)(3)(B). Pub. L. 100–647, § 1006(c)(8)(A), which directed the amendment of subpar. (B) “by striking out ‘subparagraph (A)’ and the material preceding clause (i) and inserting in lieu thereof ‘this paragraph’ ”, was executed by striking out “subparagraph (A)” in the material preceding clause (i) and inserting in lieu thereof “this paragraph”, to reflect the probable intent of Congress.
Subsec. (e)(3)(B)(ii). Pub. L. 100–647, § 1006(c)(8)(B), substituted “clause (i)(II)” for “subparagraph (B)(i)(II)”.
Subsec. (e)(3)(C)(i). Pub. L. 100–647, § 1006(c)(7), inserted “fixed” before “dividend payable” in introductory provisions and inserted at end “Such term shall not include any dividend payable with respect to any share of stock if the actual rate of return on such stock exceeds 15 percent.”
Subsec. (f). Pub. L. 100–647, § 1006(c)(9), inserted “and in the case of stock held by pass-thru entities” after “other similar transactions”.
1986—Subsec. (a). Pub. L. 99–514, § 614(a)(1), amended subsec. (a) generally. Prior to amendment, subsec. (a) read as follows: “If any corporation—
“(1) receives an extraordinary dividend with respect to any share of stock, and
“(2) sells or otherwise disposes of such stock before such stock has been held for more than 1 year,
the basis of such corporation in such stock shall be reduced by the nontaxed portion of such dividend. If the nontaxed portion of such dividend exceeds such basis, such excess shall be treated as gain from the sale or exchange of such stock.”
Subsec. (c)(1). Pub. L. 99–514, § 614(c)(2), struck out “(determined without regard to this section)” after “such share of stock”.
Subsec. (c)(4). Pub. L. 99–514, § 614(b), added par. (4).
Subsec. (d)(1). Pub. L. 99–514, § 614(c)(1), amended par. (1) generally. Prior to amendment, par. (1) read as follows: “Any reduction in basis under subsection (a) by reason of any distribution which is an extraordinary dividend shall occur at the beginning of the ex-dividend date for such distribution.”
Subsec. (d)(3). Pub. L. 99–514, § 614(a)(3), substituted “2 years” for “1 year”.
Subsec. (d)(6). Pub. L. 99–514, § 614(a)(2), added par. (6).
Subsec. (d)(7). Pub. L. 99–514, § 614(d), added par. (7).
Subsecs. (e), (f). Pub. L. 99–514, § 614(e), added subsec. (e) and redesignated former subsec. (e) as (f).
Effective Date Of Amendment
Amendment by Pub. L. 105–206 effective, except as otherwise provided, as if included in the provisions of the Taxpayer Relief Act of 1997, Pub. L. 105–34, to which such amendment relates, see section 6024 of Pub. L. 105–206, set out as a note under section 1 of this title.
Pub. L. 105–34, title X, § 1011(d),
Amendment by section 1013(b) of Pub. L. 105–34 applicable to distributions and acquisitions after
Pub. L. 101–239, title VII, § 7206(b),
Amendment by Pub. L. 100–647 effective, except as otherwise provided, as if included in the provision of the Tax Reform Act of 1986, Pub. L. 99–514, to which such amendment relates, see section 1019(a) of Pub. L. 100–647, set out as a note under section 1 of this title.
Pub. L. 99–514, title VI, § 614(f),
Effective Date
Pub. L. 98–369, div. A, title I, § 53(e),