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5327_Corporate Formation-1

5327_Corporate Formation-1 - TAX CONSEQUENCES FORMATION OF...

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TAX CONSEQUENCES – FORMATION OF CONTROLLED CORPORATIONS (CCH EXPLANATION) Transfer to Controlled Corporation: Synopsis - transfer to controlled corporation When a corporation is organized, the value of the issued stock is usually the same as the value of the property, including intangibles, transferred to the corporation. Such value may be greater or less than the depreciated cost or other basis of the transferred property to the transferor-stockholder. Therefore, the transfer may result in gain or loss to the transferor measured by the difference between the adjusted basis of the property and the value of the stock. Code Sec. 351 provides for the nonrecognition of such gain or loss provided that the transferors are in control of the corporation after the exchange. Nonrecognition is not limited to transfers in connection with the organization of a corporation, it also applies to gain or loss on transfers to existing corporations if the control test is met. Also, the law applies even though the transferors were in control of the corporation before the transfer. That is, control need not be acquired coincidentally with the transfer. Transfer to Controlled Corporation: General rule No gain or loss is recognized if one or more persons transfer property to a corporation, other than an investment company, solely in exchange for its stock if, immediately after the transfer, those persons are in control of the corporation ( Code Sec. 351(a) ). Losses. The provisions of Code Sec. 351 are not elective. If the statutory requirements are satisfied, neither loss nor gain will be recognized. In certain circumstances, it may be beneficial to the taxpayer to avoid qualification under Code Sec. 351 in order to recognize a loss on the transferred property, obtain a basis step-up in the transferred property or utilize loss carryovers (see ¶16,405.042 ). The term persons includes individuals, partnerships, associations, companies, corporations, estates and trusts ( Reg. §1.351-1(a) and Reg. §301.7701-1(a) ). Property transferred to a controlled corporation generally includes all property, tangible or intangible, with certain limitations, see ¶16,405.023 . Services rendered to the issuing corporation are not considered property, see
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¶16,405.0234 . The general rule of Code Sec. 351 does not apply to transfers to an investment company which result in diversification of the transferor's interests ( Reg. §1.351- 1(c)(1) , see ¶16,405.035 ). Although the language of Code Sec. 351 states that property must be transferred solely in exchange for stock, other consideration may be received without destroying the essential tax-free nature of the transaction. If the transferor stockholder receives other property or cash (boot), the gain is recognized (but not the loss). Such gain is recognized, however, only to the extent of an amount not in excess of the cash or the fair market value of the other property received (see ¶16,405.05 ). The
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5327_Corporate Formation-1 - TAX CONSEQUENCES FORMATION OF...

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