Publication 542 |
2001 Tax Year |
Exchange of Property for Stock
If you transfer property (or money and property) to a corporation
solely in exchange for stock in that corporation (other than
nonqualified preferred stock, described later), and immediately
thereafter you are in control of the corporation, the exchange is
usually not taxable. This rule applies both to individuals and to
groups who transfer property to a corporation. It also applies whether
the corporation is being formed or is already operating. It does not
apply in the following situations.
- The corporation is an investment company.
- The property is transferred in a bankruptcy or similar
proceeding in exchange for stock used to pay creditors.
- The stock is received in exchange for the corporation's debt
(other than a security) or for interest on the corporation's debt
(including a security) that accrued while you held the debt.
Both the corporation and any person involved in a nontaxable
exchange of property for stock must attach to their income tax returns
a complete statement of all facts pertinent to the exchange. For more
information, see section 1.351-3 of the regulations.
Control of a corporation.
To be in control of a corporation, you or your group of transferors
must own, immediately after the exchange, at least 80% of the total
combined voting power of all classes of stock entitled to vote and at
least 80% of the outstanding shares of each class of nonvoting stock
of the corporation.
Example 1.
You and Bill Jones buy property for $100,000. You both organize a
corporation when the property has a fair market value of $300,000. You
transfer the property to the corporation for all its authorized
capital stock, which has a par value of $300,000. No gain is
recognized by you, Bill, or the corporation.
Example 2.
You and Bill transfer the property with a basis of $100,000 to a
corporation in exchange for stock with a fair market value of
$300,000. This represents only 75% of each class of stock of the
corporation. The other 25% was already issued to someone else. You and
Bill recognize a taxable gain of $200,000 on the transaction.
Services rendered.
The term property does not include services rendered or
to be rendered to the issuing corporation. The value of stock received
for services is income to the recipient.
Example.
You transfer property worth $35,000 and render services valued at
$3,000 to a corporation in exchange for stock valued at $38,000. Right
after the exchange you own 85% of the outstanding stock. No gain is
included in income on the exchange of property. However, you recognize
ordinary income of $3,000 as payment for services you rendered to the
corporation.
Property of relatively small value.
The term property does not include property of a
relatively small value. Property transferred will be considered to be
of relatively small value if its fair market value is less than 10% of
the fair market value of the stock and securities already owned or to
be received for services by the transferor.
Stock received in disproportion to property transferred.
If a group of transferors exchange property for corporate stock,
each transferor does not have to receive stock in proportion to his or
her interest in the property transferred. However, if a
disproportionate transfer takes place, it may be treated as if the
stock were first received in proportion and then some of it used to
make gifts, pay compensation for services, or satisfy the transferor's
obligations.
Money or other property received.
If, in an otherwise nontaxable exchange, you also receive money or
property other than stock, you may have to recognize gain. You
recognize gain, if any, only up to the amount of money plus the fair
market value of the other property you receive. The rules for figuring
the recognized gain in this situation generally follow those for a
partially nontaxable exchange discussed in Publication 544
under
Like-Kind Exchanges. If the property you exchange includes
depreciable property, the recognized gain may have to be reported as
ordinary income from depreciation. No loss to the recipient is
recognized. See chapter 3 of Publication 544.
Nonqualified preferred stock.
Nonqualified preferred stock is treated as property other than
stock. Therefore, there could be gain. See Money or other
property received, earlier. Generally, it is preferred stock
with any of the following features.
- The holder has the right to require the issuer or a related
person to redeem or buy the stock.
- The issuer or a related person is required to redeem or buy
the stock.
- The issuer or a related person has the right to redeem the
stock and, on the issue date, it is more likely than not that the
right will be exercised.
- The dividend rate on the stock varies with reference to
interest rates, commodity prices, or similar indices.
For a detailed definition of nonqualified preferred stock, see
section 351(g)(2) of the Internal Revenue Code.
Liabilities.
If the corporation assumes your liabilities, the exchange is
generally not treated as if you received money or other property.
There are two exceptions to this treatment.
- If the liabilities the corporation assumes are more than the
adjusted basis in the property you transfer, gain is recognized up to
the difference. However, if the liabilities assumed give rise to a
deduction when paid, such as a trade account payable or interest, no
gain is recognized.
- If there is no good business reason for the corporation to
assume your liabilities, or if your main purpose in the exchange is to
avoid federal income tax, the assumption is treated as if you received
money in the amount of the liabilities.
For more information on the assumption of liabilities, see
section 357(d) of the Internal Revenue Code.
Example.
You transfer property to a corporation for stock. Immediately after
the transfer you control the corporation. You also receive $10,000 in
the exchange. Your adjusted basis in the transferred property is
$20,000. The stock you receive has a fair market value of $16,000. The
corporation also assumes a $5,000 mortgage on the property for which
you are personally liable. Gain is recognized as follows.
Fair market value of stock received |
$16,000 |
Cash received |
10,000 |
Liability assumed by corporation |
5,000 |
Total received |
$31,000 |
Minus: Adjusted basis of property
transferred |
20,000 |
Realized gain |
$11,000 |
Recognized gain |
$10,000 |
The liability assumed is not treated as money or other property.
The recognized gain is limited to $10,000, the amount of cash
received.
Loss on exchange.
If you have a loss from an exchange and own, directly or
indirectly, more than 50% of the corporation's stock, you cannot
deduct the loss. For more information, see Sales and Exchanges
Between Related Persons and its discussion, Nondeductible
Loss, in chapter 2 of Publication 544.
Basis of stock or other property received.
The basis of the stock you receive is generally the adjusted basis
of the property you transfer. Increase this amount by any amount
treated as a dividend, plus any gain recognized on the exchange.
Decrease this amount by any cash you received, the fair market value
of any other property you received, and any loss recognized on the
exchange. Also decrease this amount by the amount of any liability the
corporation assumed from you, unless payment of the liability gives
rise to a deduction when paid.
Further decreases may be required for the assumption of
liabilities after October 18, 1999, if the basis of the stock would
otherwise be higher than its FMV on the date of the exchange. This
rule does not apply if the entity assuming the liability acquired
either substantially all of the assets or the trade or business with
which the liability is associated.
Example.
Pam transfers $1,000 to a newly formed corporation, Seaweed, in
exchange for all of its common stock. Seaweed also assumes Pam's $500
contingent product liability. Under prior law, Pam's basis in the
stock would have been $1,000. Under new law, in effect for liabilities
assumed after October 18, 1999, Pam's basis is
$500($1,000-$500).
The basis of any other property you receive is its fair market
value on the date of the trade.
Basis of property transferred.
A corporation that receives property from you in exchange for its
stock generally has the same basis you had in the property, increased
by any gain you recognized on the exchange. However, the increase for
the gain recognized may be limited. For more information, see section
362 of the Internal Revenue Code.
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