Consider a Sec 336(e) Election When Planning an Acquisition or Sale Transaction

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When negotiating your next business acquisition or sales transaction, don’t be so quick to dismiss an election under Section 336(e) that might be ideal in your particular circumstances. Regulations were recently issued that provide finality, as well as some long awaited perks.


Enacted as part of the 1986 Tax Reform Act, the Sec 336(e) regime election was intended as a relief provision that would help certain corporate entity taxpayers that were negatively impacted due to the repeal of the General Utilities doctrine and were not eligible to qualify for deemed asset sale tax treatment under a Sec 338(h)(10).

As originally constructed, the Sec 336(e) election basically stated that, under regulation to be prescribed by the Secretary, a corporation that owned at least 80% of the voting shares and value of another corporation, could sell, exchange or distribute all of its ownership in such corporation and be eligible to make an election to treat such sale, exchange, or distribution as a disposition of all of the assets of such corporation, and no gain or loss would be recognized on such sale, exchange, or distribution of such stock. The Sec 336(e) election provision, as originally enacted, was a mere promise awaiting interpretation from the Treasury. Furthermore, there were many unanswered questions, including:

  • What type of corporation would qualify (e.g., Can a foreign corporation qualify? Can an S Corporation be a target?)
  • What was meant by selling, exchanging, or distributing all its stock ownership (e.g., Is at least the 80% threshold good enough? Can you aggregate ownership within a selling affiliated group?)
  • How the deemed asset sale would mechanically work (e.g., Like a Sec 338(h)(10) sales transaction?)
  • Are the tax attributes (e.g., NOLs, unused credit carried forward, etc.) transferred to the new owner?

All of these questions have now been addressed with the issuance of the final regulation covering qualified stock dispositions transacted on or after May 15, 2013.

Ideal Scenarios for a Potential Sec 336(e) Election

The election under Sec 336(e) should be considered under the following scenarios:

  • A qualified target stock acquisition with large unused NOLs and general business credit that would be able to mitigate the tax attributable to the deemed asset sale gain
  • A qualified target stock acquisition with high tax basis assets that again would be able to offset the gain realized from the deemed asset sale
  • To accommodate a qualified purchaser that does not qualify for a Sec 338(h)(10) election because it is not a qualified buyer entity (e.g., another S Corporation or consolidated filing group)

Under all the above scenarios, a present value tax calculation analysis should be performed to quantify:

  1. 1)The additional tax to be paid by the selling party from the deemed asset sale, compared to a stock sale with no election
  2. 2)Tax benefit to be enjoyed by the buying party in the future from the write-off attributable to the stepped-up basis adjustment (i.e., up to fair market value) for the assets deemed acquired from the seller.

Depending on buyer’s internal rate of borrowing/raising capital and other business factors beyond the scope of this blog post, the buyer might be willing to partially or fully reimburse the seller for making the election.

In summary, if you do not qualify for Sec 338(h)(10) joint election filing, which is always controlling, a Sec 336(e) election might be appropriate for you in your next business acquisition or contemplated sales transaction.

If you have any questions or would like more specific information, please contact your Aronson LLC tax advisor or Jorge Rodriguez, Tax Director at 301.222.8220.

About Jorge Rodriguez

Jorge Rodriguez has written 26 post in this blog.

Jorge L. Rodriguez, CPA, serves as a partner in Aronson's Tax Services Group. He is a seasoned professional with more than 25 years of public accounting experience. He is known for delivering a broad, in-depth tax perspective, informed by his deep, wide-ranging industry knowledge, to every engagement for the benefit of his diverse clientele. Jorge specializes in federal tax consulting and compliance with a special focus on M&A transaction structuring, planning, and modeling. He routinely helps his clients resolve highly complex tax matters including: entity formation, classification, and conversion planning issues; accounting method and period elections and changes; consolidated tax return filling elections and tax accounting concerns; Sec 382 analysis and study; and all aspects of ASC 740 compliance involving purchase accounting and foreign operation reporting areas. Jorge works with a broad cross section of companies. His clients include emerging businesses, middle-market firms, and public business enterprises engaged in a wide variety of industries including government contracting, software development, light manufacturing, IT technology services and products sales, and specialty construction contracting. Jorge is passionate about helping his clients formulate tax strategies that make business sense. He shares his expert insights freely as a regular contributor to Aronson’s Tax Matters blog with series such as “M&A Shop Talk.” Prior to joining Aronson in 2009, Jorge was a practicing tax partner with several regional public accounting firms. He is licensed to practice in Maryland and Virginia. Professional & Community Involvement: Maryland Association of Certified Public Accountants: Member American Institute of Certified Public Accountants: Member Education: University of Maryland: Bachelor of Science in Accounting -Ongoing education in tax matters

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