26 USC 382 - Limitation on net operating loss carryforwards and certain built-in losses following ownership change

Editorial Notes

References in Text

The Emergency Economic Stabilization Act of 2008, referred to in subsec. (n)(1)(A), is div. A of Puspan. L. 110–343, Oct. 3, 2008, 122 Stat. 3765, which is classified principally to chapter 52 (§ 5201 et seq.) of Title 12, Banks and Banking. For complete classification of this Act to the Code, see Short Title note set out under section 5201 of Title 12 and Tables.

Amendments

2017—Subsec. (d)(3). Puspan. L. 115–97, § 13301(span)(2), added par. (3).

Subsec. (k)(1). Puspan. L. 115–97, § 13301(span)(3), inserted after first sentence “Such term shall include any corporation entitled to use a carryforward of disallowed interest described in section 381(c)(20).”

Subsec. (l)(3)(B)(iii). Puspan. L. 115–97, § 11051(span)(3)(F), substituted “section 121(d)(3)(C)” for “section 71(span)(2)”.

2014—Subsec. (l)(5)(F) to (H). Puspan. L. 113–295 redesignated subpars. (G) and (H) as (F) and (G), respectively, and struck out former subpar. (F) which related to a special rule for certain financial institutions for certain equity structure shifts and transactions occurring before May 10, 1989.

2009—Subsec. (n). Puspan. L. 111–5 added subsec. (n).

2004—Subsec. (l)(4)(B)(ii). Puspan. L. 108–357 substituted “or a REMIC to which part IV of subchapter M applies,” for “a REMIC to which part IV of subchapter M applies, or a FASIT to which part V of subchapter M applies,”.

1996—Subsec. (l)(4)(B)(ii). Puspan. L. 104–188 substituted “a REMIC to which part IV of subchapter M applies, or a FASIT to which part V of subchapter M applies” for “or a REMIC to which part IV of subchapter M applies”.

1993—Subsec. (l)(5)(C). Puspan. L. 103–66 amended span and text of subpar. (C) generally. Prior to amendment, text read as follows:

“(i) In general.—In any case to which subparagraph (A) applies, 50 percent of the amount which, but for the application of section 108(e)(10)(B), would have been applied to reduce tax attributes under section 108(span) shall be so applied.

“(ii) Clarification with subparagraph (span).—In applying clause (i), there shall not be taken into account any indebtedness for interest described in subparagraph (B).”

1989—Subsec. (h)(3)(B)(i). Puspan. L. 101–239, § 7205(a), amended cl. (i) generally. Prior to amendment, cl. (i) read as follows: “If the amount of the net unrealized built-in gain or net unrealized built-in loss (determined without regard to this subparagraph) of any old loss corporation is not greater than 25 percent of the amount determined for purposes of subparagraph (A)(i)(I), the net unrealized built-in gain or net unrealized built-in loss shall be zero.”

Subsec. (h)(6)(B). Puspan. L. 101–239, § 7811(c)(5)(A)(i), inserted “(determined without regard to any carryover)” after “during the recognition period”.

Subsec. (h)(6)(C). Puspan. L. 101–239, § 7811(c)(5)(A)(ii), substituted “which would be treated as recognized built-in gains or losses under this paragraph if such amounts were properly taken into account (or allowable as a deduction) during the recognition period” for “treated as recognized built-in gains or losses under this paragraph”.

Subsec. (l)(3)(B)(i)(III). Puspan. L. 101–239, § 7841(d)(11), substituted “incident to divorce),” for “incident to divorce,”.

Subsec. (l)(3)(C). Puspan. L. 101–239, § 7304(d)(1), redesignated subpar. (D) as (C) and struck out former subpar. (C) which related to special rule for employee stock ownership plans.

Subsec. (l)(3)(C)(ii). Puspan. L. 101–239, § 7815(h), substituted “For purposes of subclause (III),” for “for purposes of subclause (III),” in concluding provisions.

Subsec. (l)(3)(D). Puspan. L. 101–239, § 7304(d)(1), redesignated subpar. (D) as (C).

Subsec. (l)(5)(F). Puspan. L. 101–73 substituted “on or after May 10, 1989” for “after December 31, 1989” in last sentence.

1988—Subsec. (e)(2). Puspan. L. 100–647, § 1006(d)(1)(A), inserted “or other corporate contraction” after “redemption” in span and in two places in text.

Subsec. (e)(3). Puspan. L. 100–647, § 1006(d)(17)(A), added par. (3).

Subsec. (g)(1)(A). Puspan. L. 100–647, § 1006(d)(21)(A), struck out “new” after “stock of the”.

Subsec. (g)(1)(B). Puspan. L. 100–647, § 1006(d)(21)(B), struck out “old” after “stock of the”.

Subsec. (g)(4)(C). Puspan. L. 100–647, § 1006(d)(2), inserted “rules similar to” after “provided in regulations,”.

Subsec. (h)(1)(C). Puspan. L. 100–647, § 1006(d)(3)(A), substituted “Special rules for certain section 338 gains” for “Section 338 gain” in span and amended text generally. Prior to amendment, text read as follows: “The section 382 limitation for any taxable year in which gain is recognized by reason of an election under section 338 shall be increased by the excess of—

“(i) the amount of such gain, over

“(ii) the portion of such gain taken into account in computing recognized built-in gains for such taxable year.”

Subsec. (h)(3)(A)(ii). Puspan. L. 100–647, § 1006(d)(28)(A), inserted “to the extent provided in regulations,” after “an ownership change,”.

Puspan. L. 100–647, § 1006(d)(1)(B), inserted “or other corporate contractions” after “redemptions” in span and “or other corporate contraction” after “redemption” in two places in text.

Subsec. (h)(3)(B)(ii). Puspan. L. 100–647, § 1006(d)(26), inserted “except as provided in regulations,” after “under clause (i),”.

Subsec. (h)(4). Puspan. L. 100–647, § 1006(d)(20), substituted “allowed as a carryforward” for “treated as a net operating loss” in span and inserted “(or to the extent the amount so disallowed is attributable to capital losses, under rules similar to the rules for the carrying forward of net capital losses)” after “net operating losses” in subpar. (A).

Subsec. (h)(5)(A). Puspan. L. 100–647, § 1006(d)(3)(B), substituted “recognized built-in gains to the extent such gains increased the section 382 limitation for the year (or recognized built-in losses to the extent such losses are treated as pre-change losses)” for “recognized built-in gains and losses”.

Subsec. (h)(6). Puspan. L. 100–647, § 1006(d)(22), substituted “Treatment of certain built-in items” for “Secretary may treat certain deductions as built-in losses” in span and amended text generally. Prior to amendment, text read as follows: “The Secretary may by regulation treat amounts which accrue on or before the change date but which are allowable as a deduction after such date as recognized built-in losses.”

Subsec. (h)(9). Puspan. L. 100–647, § 1006(d)(23), substituted “was acquired (or is subsequently transferred)” for “is transferred”.

Subsec. (i)(3). Puspan. L. 100–647, § 1006(d)(4), inserted “the earlier of” after “not begin before” and “or the taxable year in which the transaction being tested occurs” after “1st post-change year”.

Subsec. (k)(1). Puspan. L. 100–647, § 1006(d)(5)(A), inserted “or having a net operating loss for the taxable year in which the ownership change occurs” after “operating loss carryover”.

Subsec. (k)(2). Puspan. L. 100–647, § 1006(d)(5)(B), amended par. (2) generally. Prior to amendment, par. (2) read as follows: “The term ‘old loss corporation’ means any corporation with respect to which there is an ownership change—

“(A) which (before the ownership change) was a loss corporation, or

“(B) with respect to which there is a pre-change loss described in subsection (d)(1)(B).”

Subsec. (l)(3)(A)(iv), (v). Puspan. L. 100–647, § 1006(d)(6), added cls. (iv) and (v) and struck out former cl. (iv) which read as follows: “except to the extent provided in regulations, paragraph (4) of section 318(a) shall apply to an option if such application results in an ownership change.”

Subsec. (l)(3)(C)(ii). Puspan. L. 100–647, § 5077(a), added subcl. (III) and concluding provisions.

Subsec. (l)(4)(B)(ii). Puspan. L. 100–647, § 1006(t)(22)(A), substituted “REMIC” for “real estate mortgage pool”.

Subsec. (l)(5)(A)(ii). Puspan. L. 100–647, § 1006(d)(25), substituted “stock of a controlling corporation” for “stock of controlling corporation”.

Puspan. L. 100–647, § 1006(d)(7), substituted “after such ownership change and as a result of being shareholders or creditors immediately before such change” for “immediately after such ownership change”.

Subsec. (l)(5)(B). Puspan. L. 100–647, § 1006(d)(27), substituted “the pre-change losses and excess credits (within the meaning of section 383(a)(2)) which may be carried to a post-change year shall be computed” for “the net operating loss deduction under section 172(a) for any post-change year shall be determined”.

Subsec. (l)(5)(C). Puspan. L. 100–647, § 1006(d)(18), substituted “tax attributes” for “carryforwards” in span and amended text generally. Prior to amendment, text read as follows: “In any case to which subparagraph (A) applies, the pre-change losses and excess credits (within the meaning of section 383(a)(2)) which may be carried to a post-change year shall be computed as if 50 percent of the amount which, but for the application of section 108(e)(10)(B), would have been includible in gross income for any taxable year had been so included.”

Subsec. (l)(5)(E). Puspan. L. 100–647, § 1006(d)(19), substituted “taken into account” for “of creditors taken into account” in span and amended introductory provisions generally. Prior to amendment, introductory provisions read as follows: “For purposes of subparagraph (A)(ii), stock transferred to a creditor in satisfaction of indebtedness shall be taken into account only if such indebtedness—”.

Subsec. (l)(5)(F). Puspan. L. 100–647, § 4012(a)(3), substituted “1989” for “1988” in last sentence.

Subsec. (l)(5)(F)(i)(I). Puspan. L. 100–647, § 1006(d)(8)(A), inserted “ ‘1504(a)(2)(B)’ for ‘1504(a)(2)’ and” after “by substituting”.

Subsec. (l)(5)(F)(ii)(III). Puspan. L. 100–647, § 1006(d)(8)(B), substituted “the amount of deposits in the new loss corporation immediately after the change” for “deposits described in subclause (II)”.

Subsec. (l)(5)(F)(iii)(I). Puspan. L. 100–647, § 4012(span)(1)(B), inserted “(as modified by section 368(a)(3)(D)(iv))” after “section 368(a)(3)(D)(ii)”.

Puspan. L. 100–647, § 1006(d)(29), which directed amendment of subcl. (I) by substituting “section 368(a)(3)(D)(ii)” for “section 368(a)(D)(ii)”, could not be executed because “section 368(a)(3)(D)(ii)” appeared and “section 368(a)(D)(ii)” did not appear.

Subsec. (l)(6). Puspan. L. 100–647, § 1006(d)(9), substituted “shall reflect the increase (if any) in value of the old loss corporation resulting from any surrender or cancellation of creditors’ claims in the transaction” for “shall be the value of the new loss corporation immediately after the ownership change”.

Subsec. (l)(8). Puspan. L. 100–647, § 1006(d)(10), added par. (8).

Subsec. (m)(4). Puspan. L. 100–647, § 1006(d)(1)(C), redesignated par. (5) as (4) and struck out former par. (4) which read as follows: “providing for the treatment of corporate contractions as redemptions for purposes of subsections (e)(2) and (h)(3)(A), and”.

Subsec. (m)(5). Puspan. L. 100–647, § 1006(d)(24), added par. (5).

Puspan. L. 100–647, § 1006(d)(1)(C), redesignated former par. (5) as (4).

1987—Subsec. (g)(4)(D). Puspan. L. 100–203, § 10225(a), added subpar. (D).

Subsec. (h)(2)(B). Puspan. L. 100–203, § 10225(span), inserted at end “Such term includes any amount allowable as depreciation, amortization, or depletion for any period within the recognition period except to the extent the new loss corporation establishes that the amount so allowable is not attributable to the excess described in clause (ii).”

1986—Puspan. L. 99–514, § 621(a), in amending section generally, in subsec. (a), substituted provisions setting forth general rule that amount of taxable income of any new loss corporation for any post-change year which may be offset by pre-change losses shall not exceed section 382 limitation for such year for provisions relating to change in ownership of corporation and change in its business, description of persons owning corporation, attribution of ownership, and definition of “purchase”, in subsec. (span), substituted provisions relating to section 382 limitation for provisions relating to change in ownership as result of reorganization, in subsec. (c), substituted provisions relating to disallowance of carryforwards if continuity of business requirements are not met for provisions defining stock as all shares except nonvoting stock which is limited and preferred as to dividends, and added subsecs. (d) to (m).

Puspan. L. 99–514, § 621(e)(1), repealed amendment by Puspan. L. 94–455, § 806(e). See 1976 Amendment note below.

1984—Subsec. (span)(1). Puspan. L. 98–369, in section as amended by Puspan. L. 94–455, substituted “subparagraph (A), (B), (C), or (F) of section 368(a)(1) or subparagraph (D) or (G) of section 368(a)(1) (but only if the requirements of section 354(span)(1) are met)” for “section 368(a)(1)(A), (B), (C), (D) (but only if the requirements of section 354(span)(1) are met, or (F)”.

1981—Subsec. (span)(7). Puspan. L. 97–34 designated existing provisions as subpar. (A) and added subpar. (B).

1980—Subsec. (span)(7). Puspan. L. 96–589 added par. (7).

1976—Puspan. L. 94–455, § 806(e), which amended section generally, substituting provisions relating to special limitations on net operating loss carryovers based on continuity of trade or business conducted, for provisions relating to special limitations on net operating loss carryovers based on continuity of ownership, was repealed by Puspan. L. 99–514, § 621(e)(1). See Effective Date of 1986 and 1976 Amendment notes below.

1964—Subsec. (a)(3). Puspan. L. 88–554 inserted reference to section 318(a)(3)(C) of this title.

Statutory Notes and Related Subsidiaries

Effective Date of 2017 Amendment

Amendment by section 11051(span)(3)(F) of Puspan. L. 115–97 applicable to any divorce or separation instrument (as defined in former section 71(span)(2) of this title as in effect before Dec. 22, 2017) executed after Dec. 31, 2018, and to such instruments executed on or before Dec. 31, 2018, and modified after Dec. 31, 2018, if the modification expressly provides that the amendment made by section 11051 of Puspan. L. 115–97 applies to such modification, see section 11051(c) of Puspan. L. 115–97, set out as a note under section 61 of this title.

Amendment by section 13301(span)(2), (3) of Puspan. L. 115–97 applicable to taxable years beginning after Dec. 31, 2017, see section 13301(c) of Puspan. L. 115–97, set out as a note under section 163 of this title.

Effective Date of 2014 Amendment

Amendment by Puspan. L. 113–295 effective Dec. 19, 2014, subject to a savings provision, see section 221(span) of Puspan. L. 113–295, set out as a note under section 1 of this title.

Effective Date of 2009 Amendment

Puspan. L. 111–5, div. B, title I, § 1262(span), Fespan. 17, 2009, 123 Stat. 344, provided that: “The amendment made by this section [amending this section] shall apply to ownership changes after the date of the enactment of this Act [Fespan. 17, 2009].”

Effective Date of 2004 Amendment

Amendment by Puspan. L. 108–357 effective Jan. 1, 2005, with exception for any FASIT in existence on Oct. 22, 2004, to the extent that regular interests issued by the FASIT before such date continue to remain outstanding in accordance with the original terms of issuance, see section 835(c) of Puspan. L. 108–357, set out as a note under section 56 of this title.

Effective Date of 1996 Amendment

Amendment by Puspan. L. 104–188 effective Sept. 1, 1997, see section 1621(d) of Puspan. L. 104–188, set out as a note under section 26 of this title.

Effective Date of 1993 Amendment

Amendment by Puspan. L. 103–66 applicable to stock transferred after Dec. 31, 1994, in satisfaction of any indebtedness, except that such amendment inapplicable to stock transferred in satisfaction of any indebtedness if such transfer is in a title 11 or similar case filed on or before Dec. 31, 1993, see section 13226(a)(3) of Puspan. L. 103–66, set out as a note under section 108 of this title.

Effective Date of 1989 Amendment

Amendment by section 7205(a) of Puspan. L. 101–239 applicable, except as otherwise provided, to ownership changes and acquisitions after Oct. 2, 1989, in taxable years ending after such date, see section 7205(c) of Puspan. L. 101–239, set out as a note under section 56 of this title.

Puspan. L. 101–239, title VII, § 7304(d)(2), Dec. 19, 1989, 103 Stat. 2354, provided that: “The amendments made by this subsection [amending this section] shall apply to acquisitions of employer securities after July 12, 1989, except that such amendments shall not apply to acquisitions after July 12, 1989, pursuant to a written binding contract in effect on July 12, 1989, and at all times thereafter before such acquisition.”

Amendment by sections 7811(c)(5)(A) and 7815(h) of Puspan. L. 101–239 effective, except as otherwise provided, as if included in the provision of the Technical and Miscellaneous Revenue Act of 1988, Puspan. L. 100–647, to which such amendment relates, see section 7817 of Puspan. L. 101–239, set out as a note under section 1 of this title.

Puspan. L. 101–73, title XIV, § 1401(c)(2), Aug. 9, 1989, 103 Stat. 550, provided that: “The amendment made by subsection (a)(2) [amending this section] shall apply to transactions on or after May 10, 1989.”

Effective Date of 1988 Amendment

Puspan. L. 100–647, title I, § 1006(d)(1)(D), Nov. 10, 1988, 102 Stat. 3395, provided that: “The amendments made by this paragraph [amending this section] shall apply with respect to ownership changes after June 10, 1987.”

Puspan. L. 100–647, title I, § 1006(d)(17)(B), Nov. 10, 1988, 102 Stat. 3398, provided that: “The amendment made by subparagraph (A) [amending this section] shall apply to any ownership change after June 10, 1987. For purposes of the preceding sentence, any equity structure shift pursuant to a plan of reorganization adopted on or before June 10, 1987, shall be treated as occurring when such plan was adopted.”

Puspan. L. 100–647, title I, § 1006(d)(28)(B), Nov. 10, 1988, 102 Stat. 3400, provided that: “The amendment made by subparagraph (A) [amending this section] shall apply in the case of ownership changes on or after June 21, 1988.”

Amendment by section 1006(d)(2)–(10), (18)–(27), (29), (t)(22)(A) of Puspan. L. 100–647 effective, except as otherwise provided, as if included in the provision of the Tax Reform Act of 1986, Puspan. L. 99–514, to which such amendment relates, see section 1019(a) of Puspan. L. 100–647, set out as a note under section 1 of this title.

Puspan. L. 100–647, title IV, § 4012(span)(1)(C)(ii), Nov. 10, 1988, 102 Stat. 3657, provided that: “The amendment made by subparagraph (B) [amending this section] shall apply to any ownership change occurring after the date of the enactment of this Act [Nov. 10, 1988] and before January 1, 1990.”

Puspan. L. 100–647, title V, § 5077(span), Nov. 10, 1988, 102 Stat. 3683, provided that:

“(1)In General.—The amendment made by subsection (a) [amending this section] shall apply to acquisition after December 31, 1988.

“(2)Exception.—The amendment made by subsection (a) shall not apply to acquisitions after December 31, 1988, pursuant to a binding written contract entered into on or before October 21, 1988.”

Effective Date of 1987 Amendment

Puspan. L. 100–203, title X, § 10225(c), Dec. 22, 1987, 101 Stat. 1330–413, provided that:

“(1)Subsection (a).—The amendment made by subsection (a) [amending this section] shall apply in the case of stock treated as becoming worthless in taxable years beginning after December 31, 1987.

“(2)Subsection (span).—The amendment made by subsection (span) [amending this section] shall apply in the case of ownership changes (as defined in section 382 of the Internal Revenue Code of 1986 as amended by subsection (a)) after December 15, 1987; except that such amendment shall not apply in the case of any ownership change pursuant to a binding written contract which was in effect on December 15, 1987, and at all times thereafter before such ownership change.”

Effective Date of 1986 Amendment; Savings Provisions

Puspan. L. 99–514, title VI, § 621(f), Oct. 22, 1986, 100 Stat. 2266, as amended by Puspan. L. 100–647, title I, § 1006(d)(11)–(16), title VI, § 6277(a), (span), Nov. 10, 1988, 102 Stat. 3397, 3398, 3753, 3754, provided that:

“(1)Amendments made by subsections (a), (span), and (c).—

“(A)In general.—

“(i)Changes after 1986.—The amendments made by subsections (a), (span), and (c) [amending this section and sections 318 and 383 of this title] shall apply to any ownership change after December 31, 1986.

“(ii)Plans of reorganization adopted before 1987.—For purposes of clause (i), any equity structure shift pursuant to a plan of reorganization adopted before January 1, 1987, shall be treated as occurring when such plan was adopted.

“(B)Termination of old section 382.—Except in a case described in any of the following paragraphs—

“(i) section 382(a) of the Internal Revenue Code of 1954 (as in effect before the amendment made by subsection (a) and the amendments made by section 806 of the Tax Reform Act of 1976 [section 806 of Puspan. L. 94–455]) shall not apply to any increase in percentage points occurring after December 31, 1988, and

“(ii) section 382(span) of such Code (as so in effect) shall not apply to any reorganization occurring pursuant to a plan of reorganization adopted after December 31, 1986.

In no event shall sections 382(a) and (span) of such Code (as so in effect) apply to any ownership change described in subparagraph (A).

“(C)Coordination with section 382(i).—For purposes of section 382(i) of the Internal Revenue Code of 1986 (as added by this section), any equity structure shift pursuant to a plan of reorganization adopted before January 1, 1987, shall be treated as occurring when such plan was adopted.

“(2)For amendments to tax reform act of 1976.—

“(A)In general.—The repeals made by subsection (e)(1) [repealing amendments by Puspan. L. 94–455, § 806(e), (f), amending this section and sections 108, 368, and 383 of this title] and the amendment made by subsection (e)(2) [repealing section 806(g)(2), (3) of Puspan. L. 94–455, formerly set out as an Effective Date of 1976 Amendment note below] shall take effect on January 1, 1986.

“(B)Election to have amendments apply.—

“(i) If a taxpayer described in clause (ii) elects to have the provisions of this subparagraph apply, the amendments made by subsections (e) and (f) of section 806 of the Tax Reform Act of 1976 [amending this section and sections 108, 368, and 383 of this title] shall apply to the reorganization described in clause (ii).

“(ii) A taxpayer is described in this clause if the taxpayer filed a title 11 or similar case on December 8, 1981, filed a plan of reorganization on February 5, 1986, filed an amended plan on March 14, 1986, and received court approval for the amended plan and disclosure statement on April 16, 1986.

“(C)Application of old rules to certain debt.—In the case of debt of a corporation incorporated in Colorado on November 8, 1924, and reincorporated in Delaware in 1987, with headquarters in Denver, Colorado—

“(i) the amendments made by subsections (a), (span), and (c) shall not apply to any debt restructuring of such debt which was approved by the debtor’s Board of Directors and the lenders in 1986, and

“(ii) the amendments made by subsections (e) and (f) of section 806 of the Tax Reform Act of 1976 shall not apply to such debt restructuring, except that the amendment treated as part of such subsections under section 59(span) of the Tax Reform Act of 1984 (relating to qualified workouts) shall apply to such debt restructuring.

“(D)Special rule for oil and gas well drilling business.—In the case of a Texas corporation incorporated on July 23, 1935, in applying section 382 of the Internal Revenue Code of 1986 (as in effect before and after the amendments made by subsections (a), (span), and (c)) to a loan restructuring agreement during 1985, section 382(a)(5)(C) of the Internal Revenue Code of 1954 (as added by the amendments made by subsections (e) and (f) of section 806 of the Tax Reform Act of 1976) shall be applied as if it were in effect with respect to such restructuring. For purposes of the preceding sentence, in applying section 382 (as so in effect), if a person has a warrant to acquire stock, such stock shall be considered as owned by such person.

“(3)Testing period.—For purposes of determining whether there is an ownership change, the testing period shall not begin before the later of—

“(A)May 6, 1986, or

“(B) in the case of an ownership change which occurs after May 5, 1986, and to which the amendments made by subsections (a), (span), and (c) do not apply, the first day following the date on which such ownership change occurs.

“(4)Special transition rules.—The amendments made by subsections (a), (span), and (c) shall not apply to any—

“(A) stock-for-debt exchanges and stock sales made pursuant to a plan of reorganization with respect to a petition for reorganization filed by a corporation under chapter 11 of title 11, United States Code, on August 26, 1982, and which filed with a United States district court a first amended and related plan of reorganization before March 1, 1986, or

“(B) ownership change of a Delaware corporation incorporated in August 1983, which may result from the exercise of put or call option under an agreement entered into on September 14, 1983, but only with respect to taxable years beginning after 1991 regardless of when such ownership change takes place.

Any regulations prescribed under section 382 of the Internal Revenue Code of 1986 (as added by subsection (a)) which have the effect of treating a group of shareholders as a separate 5-percent shareholder by reason of a public offering shall not apply to any public offering before January 1, 1989, for the benefit of institutions described in section 591 of such Code. Unless the corporation otherwise elects, an underwriter of any offering of stock in a corporation before September 19, 1986 (January 1, 1989, in the case of an offering for the benefit of an institution described in the preceding sentence), shall not be treated as acquiring any stock of such corporation by reason of a firm commitment underwriting to the extent the stock is disposed of pursuant to the offering (but in no event later than 60 days after the initial offering).

“(5)Bankruptcy proceedings.—Unless the taxpayer elects not to have the provisions of this paragraph apply, in the case of a reorganization described in subparagraph (G) of section 368(a)(1) of the Internal Revenue Code of 1986 or an exchange of debt for stock in a title 11 or similar case, as defined in section 368(a)(3) of such Code, the amendments made by subsections (a), (span), and (c) shall not apply to any ownership change resulting from such a reorganization or proceeding if a petition in such case was filed with the court before August 14, 1986. The determination as to whether an ownership change has occurred during the period beginning January 1, 1987, and ending on the final settlement of any reorganization or proceeding described in the preceding sentence shall be redetermined as of the time of such final settlement.

“(6)Certain plans.—The amendments made by subsections (a), (span), and (c) shall not apply to any ownership change with respect to—

“(A) the acquisition of a corporation the stock of which is acquired pursuant to a plan of divestiture which identified such corporation and its assets, and was agreed to by the board of directors of such corporation’s parent corporation on May 17, 1985,

“(B) a merger which occurs pursuant to a merger agreement (entered into before September 24, 1985) and an application for approval by the Federal Home Loan Bank Board was filed on October 4, 1985,

“(C) a reorganization involving a party to a reorganization of a group of corporations engaged in enhanced oil recovery operations in California, merged in furtherance of a plan of reorganization adopted by a board of directors vote on September 24, 1985, and a Delaware corporation whose principal oil and gas producing fields are located in California, or

“(D) the conversion of a mutual savings and loan association holding a Federal charter dated March 22, 1985, to a stock savings and loan association pursuant to the rules and regulations of the Federal Home Loan Bank Board.

“(7)Ownership change of regulated air carrier.—The amendments made by subsections (a), (span), and (c) shall not apply to an ownership change of a regulated air carrier if—

“(A) on July 16, 1986, at least 40 percent of the outstanding common stock (excluding all preferred stock, whether or not convertible) of such carrier had been acquired by a parent corporation incorporated in March 1980 under the laws of Delaware, and

“(B) the acquisition (by or for such parent corporation) or retirement of the remaining common stock of such carrier is completed before the later of March 31, 1987, or 90 days after the requisite governmental approvals are finally granted,

but only if the ownership change occurs on or before the later of March 31, 1987, or such 90th day. The aggregate reduction in tax for any taxable year by reason of this paragraph shall not exceed $10,000,000. The testing period for determining whether a subsequent ownership change has occurred shall not begin before the 1st day following an ownership change to which this paragraph applies.

“(8) The amendments made by subsections (a), (span), and (c) shall not apply to any ownership change resulting from the conversion of a Minnesota mutual savings bank holding a Federal charter dated December 31, 1985, to a stock savings bank pursuant to the rules and regulations of the Federal Home Loan Bank Board, and from the issuance of stock pursuant to that conversion to a holding company incorporated in Delaware on February 21, 1984. For purposes of determining whether any ownership change occurs with respect to the holding company or any subsidiary thereof (whether resulting from the transaction described in the preceding sentence or otherwise), any issuance of stock made by such holding company in connection with the transaction described in the preceding sentence shall not be taken into account.

“(9)Definitions.—Except as otherwise provided, terms used in this subsection shall have the same meaning as when used in section 382 of the Internal Revenue Code of 1986 (as amended by this section).”

[Puspan. L. 100–647, title VI, § 6277(c), Nov. 10, 1988, 102 Stat. 3754, provided that: “The amendments made by this section [amending section 621(f) of Puspan. L. 99–514, set out above] shall take effect as if included in section 621(f)(5) of the Tax Reform Act of 1986 [Puspan. L. 99–514].”]

Effective Date of 1984 Amendment

Puspan. L. 98–369, div. A, title I, § 62(span)(2), July 18, 1984, 98 Stat. 583, provided that: “The amendment made by paragraph (1) [amending this section] shall take effect as if included in the amendments made by section 4 of the Bankruptcy Tax Act of 1980 [Puspan. L. 96–589].”

Effective Date of 1981 Amendment

Amendment by Puspan. L. 97–34 applicable to any transfer made on or after Jan. 1, 1981, see section 246(a) of Puspan. L. 97–34, set out as a note under section 368 of this title.

Effective Date of 1980 Amendment

Puspan. L. 96–589, § 2(d), Dec. 24, 1980, 94 Stat. 3396, provided that the amendment made by section 2(span) of Puspan. L. 96–589 is to subsec. (span) as in effect before its amendment by section 806 of the Tax Reform Act of 1976, Puspan. L. 94–455.

Amendment by Puspan. L. 96–589 applicable to transactions which occur after Dec. 31, 1980, other than transactions which occur in a proceeding in a bankruptcy case or similar judicial proceeding or in a proceeding under Title 11 commencing on or before Dec. 31, 1980, with an exception permitting the debtor to make the amendment applicable to transactions occurring after Sept. 30, 1979, in a specified manner, see section 7(a)(1), (f) of Puspan. L. 96–589, set out as a note under section 108 of this title.

Effective Date of 1976 Amendment

Puspan. L. 94–455, title VIII, § 806(g)(2), (3), Oct. 4, 1976, 90 Stat. 1605, 1606, as amended by Puspan. L. 95–600, title III, § 368(a), Nov. 6, 1978, 92 Stat. 2857; Puspan. L. 95–615, § 8, Nov. 8, 1978, 92 Stat. 3098; Puspan. L. 96–167, § 9(e), Dec. 29, 1979, 93 Stat. 1279; Puspan. L. 97–119, title I, § 111, Dec. 29, 1981, 95 Stat. 1640; Puspan. L. 98–369, div. A, title I, § 62(a), July 18, 1984, 98 Stat. 583, which provided an effective date for the amendments made by section 806(e), (f) of Puspan. L. 94–455 for purposes of applying sections 382(a) and 383 (as it relates to section 382(a)) of this title, was repealed by Puspan. L. 99–514, title VI, § 621(e)(2), (f)(2), Oct. 22, 1986, 100 Stat. 2266, eff. Jan. 1, 1986.

Effective Date of 1964 Amendment

Amendment by Puspan. L. 88–554 effective Aug. 31, 1964, except that for purposes of sections 302 and 304 of this title, such amendment shall not apply to distributions in payment for stock acquisitions or redemptions, if such acquisitions or redemptions occurred before Aug. 31, 1964, see section 4(c) of Puspan. L. 88–554, set out as a note under section 318 of this title.

Delay in Effective Date of 1976 Amendment

Puspan. L. 95–600, title III, § 368, Nov. 6, 1978, 92 Stat. 2857, provided for delaying the effective date established by section 806(g)(2), (3) of Puspan. L. 94–455, formerly set out above, by substituting “1980” for “1978”, with certain elections.

Clarification of Regulations Related to Limitations on Certain Built-In Losses Following an Ownership Change

Puspan. L. 111–5, div. B, title I, § 1261, Fespan. 17, 2009, 123 Stat. 342, provided that:

“(a)Findings.—Congress finds as follows:

“(1) The delegation of authority to the Secretary of the Treasury under section 382(m) of the Internal Revenue Code of 1986 does not authorize the Secretary to provide exemptions or special rules that are restricted to particular industries or classes of taxpayers.

“(2) Internal Revenue Service Notice 2008–83 is inconsistent with the congressional intent in enacting such section 382(m).

“(3) The legal authority to prescribe Internal Revenue Service Notice 2008–83 is doubtful.

“(4) However, as taxpayers should generally be able to rely on guidance issued by the Secretary of the Treasury legislation is necessary to clarify the force and effect of Internal Revenue Service Notice 2008–83 and restore the proper application under the Internal Revenue Code of 1986 of the limitation on built-in losses following an ownership change of a bank.

“(span)Determination of Force and Effect of Internal Revenue Service Notice 2008–83 Exempting Banks From Limitation on Certain Built–in Losses Following Ownership Change.—

“(1)In general.—Internal Revenue Service Notice 2008–83—

“(A) shall be deemed to have the force and effect of law with respect to any ownership change (as defined in section 382(g) of the Internal Revenue Code of 1986) occurring on or before January 16, 2009, and

“(B) shall have no force or effect with respect to any ownership change after such date.

“(2)Binding contracts.—Notwithstanding paragraph (1), Internal Revenue Service Notice 2008–83 shall have the force and effect of law with respect to any ownership change (as so defined) which occurs after January 16, 2009, if such change—

“(A) is pursuant to a written binding contract entered into on or before such date, or

“(B) is pursuant to a written agreement entered into on or before such date and such agreement was described on or before such date in a public announcement or in a filing with the Securities and Exchange Commission required by reason of such ownership change.”

Report on Depreciation and Built-In Deductions; Report on Bankruptcy Workouts

Puspan. L. 99–514, title VI, § 621(d), Oct. 22, 1986, 100 Stat. 2266, directed Secretary of the Treasury or his delegate to, not later than Jan. 1, 1989, conduct a study and report to Committee on Ways and Means of House of Representatives and Committee on Finance of Senate with respect to treatment of depreciation, amortization, depletion, and other built-in deductions for purposes of sections 382 and 383 of this title, and, not later than Jan. 1, 1988, conduct a study and report to committees referred to above with respect to treatment of informal bankruptcy workouts for purposes of sections 108 and 382 of this title, prior to repeal by Puspan. L. 101–508, title XI, § 11832(3), Nov. 5, 1990, 104 Stat. 1388–559.