Code of Federal Regulations · Section
§ 1.367(e)-1 — (e)-1 Distributions Described In Section 367(e)(1)
26 C.F.R. § 1.367(e)-1
(a) Purpose and scope. This section provides rules for recognition (and nonrecognition) of gain by a domestic corporation (distributing corporation) on a distribution of stock or securities of a corporation (controlled corporation) to foreign persons that is described in section 355. Paragraph (b) of this section contains the general rule that gain is recognized on the distribution to the extent stock or securities of controlled are distributed to foreign persons. Paragraph (c) of this section provides an exception to the gain recognition rule for distributions of stock or securities of a domestic corporation. Paragraph (d) of this section contains rules for determining whether distributees of stock or securities in a section 355 distribution are qualified U.S. persons. Paragraph (e) of this section provides cross-references. Finally, paragraph (f) of this section specifies the effective date of this section.
(b) Gain recognition—(1) General rule. If a domestic corporation makes a distribution of stock or securities of a corporation that qualifies for nonrecognition under section 355 to a person who is not a qualified U.S. person, then, except as provided in paragraph (c) of this section, the distributing corporation shall recognize gain (but not loss) on the distribution under section 367(e)(1). A distributing corporation shall not recognize gain under this section with respect to a section 355 distribution to a qualified U.S. person. For purposes of this section, a qualified U.S. person is—
(A) A citizen or resident of the United States; or
(B) A domestic corporation.
(2) Stock owned through partnerships, disregarded entities, trusts, and estates. For purposes of this section, distributing corporation stock or securities owned by or for a partnership (whether foreign or domestic) are owned proportionately by its partners. A partner's proportionate share of the stock or securities of the distributing corporation shall be equal to the partner's distributive share of the gain that would have been recognized had the partnership sold the stock or securities (at a taxable gain) immediately before the distribution. The partner's distributive share of gain shall be determined under the rules and principles of sections 701 through 761 and the regulations thereunder. For purposes of this section, stock or securities owned by or for an entity that is disregarded as an entity separate from its owner (disregarded entity) under § 301.7701-3 of this chapter are owned directly by the owner of such disregarded entity. For purposes of this section, stock or securities owned by or for a trust or estate (whether foreign or domestic) are owned proportionately by the persons who would be treated as owning such stock or securities under section 318(a)(2)(A) and (B). In applying section 318(a)(2)(B)(i), if a trust includes interests that are not actuarially ascertainable, all such interests shall be considered to be owned by foreign persons. In a case where an interest holder in a partnership, a disregarded entity, trust, or estate that (directly or indirectly) owns stock of the distributing corporation is itself a partnership, disregarded entity, trust, or estate, the rules of this paragraph (b)(2) apply to such interest holder.
(3) Gain computation. Gain recognized under paragraph (b)(1) of this section shall be equal to the excess of the fair market value of the stock or securities distributed to persons who are not qualified U.S. persons (determined as of the time of the distribution) over the distributing corporation's adjusted basis in the stock or securities distributed to such distributees. For purposes of the preceding sentence, the distributing corporation's adjusted basis in each unit of each class of stock or securities distributed to a distributee shall be equal to the distributing corporation's total adjusted basis in all of the units of the respective class of stock or securities owned immediately before the distribution, divided by the total number of units of the class of stock or securities owned immediately before the distribution.
(4) Treatment of distributee. If the distribution otherwise qualifies for nonrecognition under section 355, each distributee shall be considered to have received stock or securities in a distribution qualifying for nonrecognition under section 355, even though the distributing corporation may recognize gain on the distribution under this section. Thus, the distributee shall not be considered to have received a distribution described in section 301 or a distribution in an exchange described in section 302(b) upon the receipt of the stock or securities of the controlled corporation, and the domestic distributing corporation shall have no withholding responsibilities under section 1441. Except where section 897(e)(1) and the regulations thereunder cause gain to be recognized by the distributee, the basis of the distributed domestic or foreign corporation stock in the hands of the foreign distributee shall be the basis of the distributed stock determined under section 358 without any increase for any gain recognized by the domestic corporation on the distribution.
(c) Nonrecognition of gain. A domestic distributing corporation shall not recognize gain under paragraph (b)(1) of this section on the distribution of stock or securities of a domestic corporation.
(d) Determining whether distributees are qualified U.S. persons—(1) General rule—presumption of foreign status. Except as provided in paragraphs (d)(2) and (3) of this section, all distributions of stock or securities in a distribution described in section 355 in which the distributing corporation is domestic and the controlled corporation is foreign are presumed to be to persons who are not qualified U.S. persons, as defined in paragraph (b)(1) of this section.
(2) Non-publicly traded distributing corporations. If the class of stock or securities of the distributing corporation (in respect to which stock or securities of the controlled corporation are distributed) is not regularly traded on a qualified exchange or other market (as defined in paragraph (d)(4) of this section), then the distributing corporation may only rebut the presumption contained in paragraph (d)(1) of this section by identifying the qualified U.S. persons to which controlled corporation stock or securities were distributed and by certifying the amount of stock or securities that were distributed to the qualified U.S. persons.
(3) Publicly traded distributing corporations. If the class of stock or securities of the distributing corporation (in respect to which stock or securities of the controlled corporation are distributed) is regularly traded on a qualified exchange or other market (as defined in paragraph (d)(4) of this section), then the distributing corporation may only rebut the presumption contained in paragraph (d)(1) of this section as described in this paragraph (d)(3).
(i) Five percent shareholders. A publicly traded distributing corporation may only rebut the presumption contained in paragraph (d)(1) of this section with respect to distributees that are five percent shareholders of the class of stock or securities of the distributing corporation (in respect to which stock or securities of the controlled corporation are distributed) by identifying the qualified U.S. persons to which controlled corporation stock or securities were distributed and by certifying the amount of stock or securities that were distributed to the qualified U.S. persons. A five percent shareholder is a distributee who is required under U.S. securities laws to file with the Securities and Exchange Commission (SEC) a Schedule 13D or 13G under 17 CFR 240.13d-1 or 17 CFR 240.13d-2, and provide a copy of same to the distributing corporation under 17 CFR 240.13d-7.
(ii) Other distributees. A distributing corporation that has made a distribution described in paragraph (d)(3) of this section may rebut the presumption contained in paragraph (d)(1) of this section with respect to distributees that are not five percent shareholders (as defined in this paragraph (d)(3)) by relying on and providing a reasonable analysis of shareholder records and other relevant information that demonstrates a number of distributees that are qualified U.S. persons. Taxpayers may rely on such analysis, unless it is subsequently determined that there are actually fewer distributees who are qualified U.S. persons than were demonstrated in the analysis.
(4) Qualified exchange or other market. For purposes of paragraph (d) of this section, the term qualified exchange or other market means, for any taxable year—
(i) A national securities exchange which is registered with the SEC or the national market system established pursuant to section 11A of the Securities Exchange Act of 1934 (15 U.S.C. 78f); or
(ii) A foreign securities exchange that is regulated or supervised by a governmental authority of the country in which the market is located and which has the following characteristics—
(A) The exchange has trading volume, listing, financial disclosure, and other requirements designed to prevent fraudulent and manipulative acts and practices, to remove impediments to and perfect the mechanism of a free and open market, and to protect investors; and the laws of the country in which the exchange is located and the rules of the exchange ensure that such requirements are actually enforced; and
(B) The rules of the exchange ensure active trading of listed stocks.
(e) Cross-references. For additional rules relating to the distribution of the stock of a foreign corporation by a domestic corporation, see §§ 1.367(a)-3(e), 1.367(a)-7, 1.367(b)-5, and 1.1248(f)-1 through 1.1248(f)-3. See the regulations under section 6038B for reporting requirements for distributions under this section.
(f) Effective/applicability date. This section shall be applicable to distributions occurring in taxable years ending after August 8, 1999.
Authorizing Statute
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Rules and regulations26 U.S.C. § 7805
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Advanced manufacturing production credit26 U.S.C. § 45X
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Alcohol, etc., used as fuel26 U.S.C. § 40
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Gross income defined26 U.S.C. § 61
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Transfers of excess pension assets to retiree health accounts26 U.S.C. § 420
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Partial exclusion for gain from certain small business stock26 U.S.C. § 1202
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Tax treatment of stripped bonds26 U.S.C. § 1286
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Current taxation of income from qualified electing funds26 U.S.C. § 1293
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Imposition of tax on certain foreign procurement26 U.S.C. § 5000C
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Returns regarding payments of interest26 U.S.C. § 6049
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Signing of returns and other documents26 U.S.C. § 6061
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General requirement of return, statement, or list26 U.S.C. § 6011
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Income from discharge of indebtedness26 U.S.C. § 108
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Indian general welfare benefits26 U.S.C. § 139E
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Bonds must be registered to be tax exempt; other requirements26 U.S.C. § 149
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Trade or business expenses26 U.S.C. § 162
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Accelerated cost recovery system26 U.S.C. § 168
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Amortizable bond premium26 U.S.C. § 171
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Golden parachute payments26 U.S.C. § 280G
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Distributions of stock and stock rights26 U.S.C. § 305
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Transfer to corporation controlled by transferor26 U.S.C. § 351
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Special rules for long-term contracts26 U.S.C. § 460
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Determination of basis of partner’s interest26 U.S.C. § 705
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Taxes of foreign countries and of possessions of United States26 U.S.C. § 901
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Controlled foreign corporations; United States persons26 U.S.C. § 957
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New energy efficient home credit26 U.S.C. § 45L
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2-percent floor on miscellaneous itemized deductions26 U.S.C. § 67
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Certain death benefits26 U.S.C. § 101
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Qualified business income26 U.S.C. § 199A
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Installment method26 U.S.C. § 453
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Certain payments for the use of property or services26 U.S.C. § 467
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Partners, not partnership, subject to tax26 U.S.C. § 701
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Extent of recognition of gain or loss on distribution26 U.S.C. § 731
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Capitalization of certain policy acquisition expenses26 U.S.C. § 848
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Special rules for determining source26 U.S.C. § 863
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Income of foreign governments and of international organizations26 U.S.C. § 892
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Definitions and special rules26 U.S.C. § 6241
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Computation and payment of tax26 U.S.C. § 1503
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Adjusted gross income defined26 U.S.C. § 62
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Treatment of loans with below-market interest rates26 U.S.C. § 7872
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Basis to distributees26 U.S.C. § 358
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Minimum participation standards26 U.S.C. § 410
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Other definitions and special rules26 U.S.C. § 860G
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Adjustments required by changes in method of accounting26 U.S.C. § 481
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Definitions26 U.S.C. § 7701
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Insurance income26 U.S.C. § 953
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Returns relating to actions affecting basis of specified securities26 U.S.C. § 6045B
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Information relating to certain trusts and annuity plans26 U.S.C. § 6047
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Enhanced oil recovery credit26 U.S.C. § 43
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Energy efficient commercial buildings deduction26 U.S.C. § 179D
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Redemption through use of related corporations26 U.S.C. § 304
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Certain stock purchases treated as asset acquisitions26 U.S.C. § 338
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Special limitations on certain excess credits, etc.26 U.S.C. § 383
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Optional treatment of elective deferrals as Roth contributions26 U.S.C. § 402A
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General rule for taxable year of inclusion26 U.S.C. § 451
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Qualified ABLE programs26 U.S.C. § 529A
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Charitable remainder trusts26 U.S.C. § 664
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Nonrecognition of gain or loss on contribution26 U.S.C. § 721
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Investment of earnings in United States property26 U.S.C. § 956
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Definitions and special rule26 U.S.C. § 1377
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Relief from joint and several liability on joint return26 U.S.C. § 6015
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Return of S corporation26 U.S.C. § 6037
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Notice of certain transfers to foreign persons26 U.S.C. § 6038B
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Information at source26 U.S.C. § 6041
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Imposition of accuracy-related penalty on underpayments26 U.S.C. § 6662
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Tax imposed26 U.S.C. § 1
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Railroad track maintenance credit26 U.S.C. § 45G
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Zero-emission nuclear power production credit26 U.S.C. § 45U
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Rehabilitation credit26 U.S.C. § 47
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Clean electricity investment credit26 U.S.C. § 48E
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Special rules26 U.S.C. § 52
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Election to expense certain depreciable business assets26 U.S.C. § 179
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Individual retirement accounts26 U.S.C. § 408
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Special rules for nondealers26 U.S.C. § 453A
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Deductions limited to amount at risk26 U.S.C. § 465
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Exemption from tax on corporations, certain trusts, etc.26 U.S.C. § 501
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Definition of regulated investment company26 U.S.C. § 851
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Source rules for personal property sales26 U.S.C. § 865
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Tax on nonresident alien individuals26 U.S.C. § 871
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Foreign base company income26 U.S.C. § 954
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S corporation defined26 U.S.C. § 1361
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Definitions26 U.S.C. § 1402
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Distributions of property26 U.S.C. § 301
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Life insurance contract defined26 U.S.C. § 7702
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Previously-owned clean vehicles26 U.S.C. § 25E
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Electricity produced from certain renewable resources, etc.26 U.S.C. § 45
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Clean fuel production credit26 U.S.C. § 45Z
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Taxation of employee annuities26 U.S.C. § 403
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Last-in, first-out inventories26 U.S.C. § 472
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Allocation of income and deductions among taxpayers26 U.S.C. § 482
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Definitions applicable to subparts A, B, C, and D26 U.S.C. § 643
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Taxable years of partner and partnership26 U.S.C. § 706
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Disposition of investment in United States real property26 U.S.C. § 897
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Administrative adjustment request by partnership26 U.S.C. § 6227
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Citizens or residents of the United States living abroad26 U.S.C. § 911
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Residence and source rules involving possessions26 U.S.C. § 937
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Rules relating to expatriated entities and their foreign parents26 U.S.C. § 7874
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Regulations26 U.S.C. § 1502
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Capitalization and inclusion in inventory costs of certain expenses26 U.S.C. § 263A
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Foreign corporations26 U.S.C. § 367
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Roth IRAs26 U.S.C. § 408A
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Minimum vesting standards26 U.S.C. § 411
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Partner’s distributive share26 U.S.C. § 704
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Unrealized receivables and inventory items26 U.S.C. § 751
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Taxation of residual interests26 U.S.C. § 860C
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Exclusions from gross income26 U.S.C. § 883
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Income affected by treaty26 U.S.C. § 894
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Other definitions and special rules26 U.S.C. § 989
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Special rules26 U.S.C. § 1474
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Returns of brokers26 U.S.C. § 6045
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Information returns of tax return preparers26 U.S.C. § 6060
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Authority to make credits or refunds26 U.S.C. § 6402
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Failure by individual to pay estimated income tax26 U.S.C. § 6654
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Interest on certain home mortgages26 U.S.C. § 25
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Credit for qualified commercial clean vehicles26 U.S.C. § 45W
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Interest on State and local bonds26 U.S.C. § 103
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Qualified lessee construction allowances for short-term leases26 U.S.C. § 110
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Losses26 U.S.C. § 165
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Charitable, etc., contributions and gifts26 U.S.C. § 170
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Incentive stock options26 U.S.C. § 422
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Deemed paid credit for subpart F inclusions26 U.S.C. § 960
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Election of mark to market for marketable stock26 U.S.C. § 1296
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Returns relating to certain life insurance contract transactions26 U.S.C. § 6050Y
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Clean vehicle credit26 U.S.C. § 30D
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Credit for carbon oxide sequestration26 U.S.C. § 45Q
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Amount of credit26 U.S.C. § 46
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Advanced manufacturing investment credit26 U.S.C. § 48D
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Arbitrage26 U.S.C. § 148
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Amortization of goodwill and certain other intangibles26 U.S.C. § 197
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Interest on education loans26 U.S.C. § 221
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Disallowance of certain entertainment, etc., expenses26 U.S.C. § 274
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Qualifications for tax credit employee stock ownership plans26 U.S.C. § 409
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Unrelated debt-financed income26 U.S.C. § 514
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Rules for allocation of basis26 U.S.C. § 755
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Rules for certain reserves26 U.S.C. § 807
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Special rules in case of foreign oil and gas income26 U.S.C. § 907
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Basis of property acquired from a decedent26 U.S.C. § 1014
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Special rules26 U.S.C. § 1298
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Definitions26 U.S.C. § 3401
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Extension of time for filing returns26 U.S.C. § 6081
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Renumbered § 45C]26 U.S.C. § 28
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Credit for production of clean hydrogen26 U.S.C. § 45V
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Energy credit26 U.S.C. § 48
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Limitation on credit26 U.S.C. § 904
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Qualified pension, profit-sharing, and stock bonus plans26 U.S.C. § 401
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Dependent care assistance programs26 U.S.C. § 129
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Special rules for nuclear decommissioning costs26 U.S.C. § 468A
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Mark to market accounting method for dealers in securities26 U.S.C. § 475
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Basis of distributed property other than money26 U.S.C. § 732
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Straddles26 U.S.C. § 1092
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Qualified electing fund26 U.S.C. § 1295
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Averaging of farm income26 U.S.C. § 1301
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Withholdable payments to foreign financial institutions26 U.S.C. § 1471
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Definitions26 U.S.C. § 1504
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Basis information to persons acquiring property from decedent26 U.S.C. § 6035
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Information with respect to certain foreign-owned corporations26 U.S.C. § 6038A
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Returns relating to cash received in trade or business, etc.26 U.S.C. § 6050I
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Credit for increasing research activities26 U.S.C. § 41
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Definitions and special rules26 U.S.C. § 150
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Passive activity losses and credits limited26 U.S.C. § 469
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Certain expenses for which credits are allowable26 U.S.C. § 280C
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Assumption of liability26 U.S.C. § 357
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Complete liquidations of subsidiaries26 U.S.C. § 332
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Distribution of stock and securities of a controlled corporation26 U.S.C. § 355
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Period for computation of taxable income26 U.S.C. § 441
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General rule for taxable year of deduction26 U.S.C. § 461
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Special rules for modified guaranteed contracts26 U.S.C. § 817A
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Treatment of variable contracts26 U.S.C. § 817
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Certain reinsurance agreements26 U.S.C. § 845
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Failure to file notice of redetermination of foreign tax26 U.S.C. § 6689
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Branch transactions26 U.S.C. § 987
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Qualified zone property defined26 U.S.C. § 1397D
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Withholdable payments to other foreign entities26 U.S.C. § 1472
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Liquidating, etc., transactions26 U.S.C. § 6043
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Verification of returns26 U.S.C. § 6065
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Mode or time of collection26 U.S.C. § 6302
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Transfer of certain credits26 U.S.C. § 6418
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American Opportunity and Lifetime Learning credits26 U.S.C. § 25A
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Refundable credit for coverage under a qualified health plan26 U.S.C. § 36B
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Clean electricity production credit26 U.S.C. § 45Y
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Other special rules26 U.S.C. § 50
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Treatment of community income26 U.S.C. § 66
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Basis to corporations26 U.S.C. § 362
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Election of taxable year other than required taxable year26 U.S.C. § 444
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Transactions between partner and partnership26 U.S.C. § 707
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Special allocation rules for certain asset acquisitions26 U.S.C. § 1060
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Discounted unpaid losses defined26 U.S.C. § 846
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Definitions and special rules26 U.S.C. § 864
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Capital asset defined26 U.S.C. § 1221
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Interest on tax deferral26 U.S.C. § 1291
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Passive foreign investment company26 U.S.C. § 1297
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Withholding of tax on nonresident aliens26 U.S.C. § 1441
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Returns as to interests in foreign partnerships26 U.S.C. § 6046A
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State and local income tax refunds26 U.S.C. § 6050E
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Returns relating to exchanges of certain partnership interests26 U.S.C. § 6050K
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Returns relating to higher education tuition and related expenses26 U.S.C. § 6050S
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Reporting of health insurance coverage26 U.S.C. § 6055
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Low-income housing credit26 U.S.C. § 42
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New markets tax credit26 U.S.C. § 45D
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Definitions and special rules26 U.S.C. § 414
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Qualified asset account; limitation on additions to account26 U.S.C. § 419A
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General rule for methods of accounting26 U.S.C. § 446
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Interest on certain deferred payments26 U.S.C. § 483
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Reserves for losses on loans of banks26 U.S.C. § 585
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Certain revocable trusts treated as part of estate26 U.S.C. § 645
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Insurance company taxable income26 U.S.C. § 832
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Income from sources within the United States26 U.S.C. § 861
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Treatment of certain foreign currency transactions26 U.S.C. § 988
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Functional currency26 U.S.C. § 985
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Other definitions and special rules26 U.S.C. § 1275
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Election to extend time for payment of tax on undistributed earnings26 U.S.C. § 1294
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Requirement to maintain minimum essential coverage26 U.S.C. § 5000A
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Returns by exempt organizations26 U.S.C. § 6033
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Information with respect to foreign financial assets26 U.S.C. § 6038D
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Returns relating to the cancellation of indebtedness by certain entities26 U.S.C. § 6050P
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Identifying numbers26 U.S.C. § 6109
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Elective payment of applicable credits26 U.S.C. § 6417
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Certain fringe benefits26 U.S.C. § 132
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Dependent defined26 U.S.C. § 152
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Interest26 U.S.C. § 163
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Bad debts26 U.S.C. § 166
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Special rules for credits and deductions26 U.S.C. § 642
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General rule for inventories26 U.S.C. § 471
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Political organizations26 U.S.C. § 527
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Special rules applicable to sections 661 and 66226 U.S.C. § 663
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Allowance of deductions and credits26 U.S.C. § 874
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Branch profits tax26 U.S.C. § 884
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Tax imposed on certain built-in gains26 U.S.C. § 1374
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Foreign tax-exempt organizations26 U.S.C. § 1443
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Valuation tables26 U.S.C. § 7520
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Losses on small business stock26 U.S.C. § 1244
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Distributions26 U.S.C. § 1368
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Definitions26 U.S.C. § 1473
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Information with respect to certain fines, penalties, and other amounts26 U.S.C. § 6050X
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Failure by corporation to pay estimated income tax26 U.S.C. § 6655
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National securities exchanges15 U.S.C. § 78f