IRS expands the scope of tax-free treatment in reorganizations.

On Jan. 5, 1998, the Service issued final regulations under Secs. 354,355 and 356 on the taxation of rights to acquire stock exchanged in reorganizations and corporate divisions (e.g., spin-offs). The final regulations became effective March 9, 1998. The Service also issued temporary and proposed regulations to coordinate the final regulations with the treatment of "nonqualified preferred stock" and new Secs. 354(a)(2)(C), 355(a)(3)(D) and 356(e).

The IRS wished to extend the nonrecognition rules of Secs. 354,355 and 356 to certain exchanges involving rights to acquire stock. Sec. 354 generally provides that, in most tax-free reorganizations, no gain or loss is recognized to a shareholder on an exchange of stock for stock, or on an exchange of securities for stock or securities of the same or lesser principal amount. Sec. 355 generally provides that, if various requirements are met, the distribution by a corporation of the stock or securities of a controlled subsidiary is tax-free to the distributing corporation and its shareholders. Sec. 356 generally provides that gain (but not loss) is recognized on receipt of "other property" in a tax-free reorganization or distribution.

To extend the nonrecognition rules of these sections, the rights to acquire stock (e.g., warrants) had to be characterized as either stock or securities. Logically, rights to acquire stock appear to be most like an equity interest; however, the Supreme Court has held that warrants are not stock. Consequently, the IRS needed to characterize rights to acquire stock as securities (albeit with no principal amount). In reorganizations, this characterization allows a tax-free exchange of warrants for warrants, while requiring at least some gain recognition if securities are received in exchange for warrants.

The characterization of rights to acquire stock as securities is somewhat unnatural, and may cause an awkward analysis of some transactions from an economic perspective. Nevertheless, the final regulations under Secs. 354, 355 and 356 adopt this characterization and confirm that the term "rights to acquire stock" has the same meaning as the term has in Secs. 305 (distributions of stock and stock rights) and 317(a) (providing the term "property" means any property other than stock or rights to acquire stock in the corporation making the distribution). The final regulations have no effect on other rules that pertain to securities, including Secs. 83 (generally treating property received for services as income), and 421 through 424 (incentive stock options and employee stock purchase plans).

The final regulations also confirm that Sec. 354 does not apply to a shareholder's receipt of solely securities that are rights to acquire stock in exchange solely for stock (and no securities); see Regs. Sec. 1.354-1(d), Example (4). However, it appears Sec. 354 would apply to a shareholder's receipt of solely securities that are rights to acquire stock in exchange for stock and at least one security; see Sec. 354(a)(2)(a)(ii). The final regulations do not address exchanges of rights to acquire stock as part of a larger transaction that includes a stock-for-stock reorganization, nor do they address the tax issues of rights to acquire stock under Secs. 302, 305, 306 and 351. However, Rev. Rul. 98-10 confirms that a security-for-security exchange in a B reorganziation is governed by Secs. 354 and 356.

Regs. Secs. 1.354-1(e) and 1.355-1(c) confirm that a right to acquire stock issued by a corporation that is a party to a reorganization is a security of the corporation with no principal amount. Further, Regs. Sec. 1.356-3(b) now provides that a right to acquire stock treated as a security for purposes of Sec. 354 or 355 has no principal amount and thus is not boot in a Sec. 356 transaction (regardless of whether securities are surrendered ill the exchange).

The parenthetical language in Regs. Sec. 1.356-3(b) confirms that, even when no securities are surrendered, Sec. 356 still applies and gain is measured by the entire principal amount of the securities received. Otherwise, a literal reading of Sec. 356(a) seems to provide that, if no securities are surrendered, the recipient of securities must recognize gain based on the fair market value (FMV) of the securities received, as opposed to just the excess principal amount. Under this incorrect reading, a taxpayer that includes a single security with the stock surrendered, for example, would avoid recognizing any gain on the receipt of warrants (which are deemed to have no principal amount), as opposed to recognizing gain on the FMV of the same warrants received solely in exchange for stock. The parenthetical language in Regs. Sec. 1.356-3(b) now confirms that both situations are treated similarly, resulting in no gain recognition on the receipt of warrants in exchange for stock, whether or not securities are surrendered in the exchange.

The final regulations confirm that Sec. 356 is the exclusive regime for taxing warrants received in an otherwise tax-free reorganization or spin-off. Previously, there had been questions as to whether Sec. 356 applied to a receipt of only warrants in exchange for stock in a reorganization. Until the final regulations, warrants were arguably "other property," and Sec. 356 would not apply to a receipt of solely "other property." Now, however, a receipt of only warrants will be treated as a receipt of securities subject to Sec. 356.

The preamble to the new regulations clarifies that in the examples, "stock" means common stock and "warrants" mean rights to acquire common stock. Thus, a transfer of common stock (or warrants for common stock) in exchange for common stock and warrants for common stock does not result in excess principal within the meaning of Sec. 356(d). This clarification is consistent with the new temporary and proposed regulations on the receipt in a reorganization of nonqualified preferred stock or the right to acquire nonqualified preferred stock.

Reorganization exchanges of warrants for other warrants win no longer be triggering events for holders with built-in losses in their warrants. Also, in an otherwise tax-free reorganization, a taxpayer who surrenders a warrant to acquire stock (which is deemed to be a security with no principal amount) in exchange for a principal amount security will recognize gain to the extent of the principal of the security received, under Secs. 354(a)(2)(a)(i) and 356(d)(2). Similarly, a taxpayer who receives a security (regardless of whether securities are surrendered in the exchange) recognizes gain to the extent the principal of the security received exceeds the principal of any security surrendered. This focus on the principal amount of a security ignores concepts such as the time value of money, and leaves open planning opportunities to receive securities with the same principal amounts but different values based on interest rates and/or maturity dates.

Temporary and Proposed Regulations Under Sec. 356(e)

Effective June 8, 1997, the Taxpayer Relief Act of 1997 (TRA '97) added Sec. 356(e), treating "nonqualified preferred stock" (as defined in Sec. 351(g)(2)) received in various non-recognition transactions as boot. The TRA '97 also authorized the IRS to issue regulations to carry out the purposes of new Sec. 356(e). These regulations are widely anticipated to determine whether nonqualified preferred stock would continue to be treated as stock for other purposes of the Code.

On Jan. 5, 1998, the Service issued Temp. Regs. Sec. 1.356-6T, which also serves as the text of the proposed regulation. As previously mentioned, these regulations coordinate the final regulations under Secs. 354, 355 and 356 with the treatment of rights to acquire "nonqualified preferred stock." The temporary regulations except certain recapitalizations of family-owned businesses, as well as apply transition rules.

The temporary regulations provide that nonqualified preferred stock and rights to acquire nonqualified preferred stock are not treated as stock or a security if received in exchange for stock other than nonqualified preferred stock, or for a right to acquire stock other than nonqualified preferred stock. In other words, to receive tax-free treatment in a reorganization, a holder of nonqualified preferred stock must receive nonqualified preferred stock (or a right to receive nonqualified preferred stock) in the exchange. Nonqualified preferred stock will not be treated as stock or a security if it was received in exchange for common stock, warrants for common stock, or other securities. Because the nonqualified preferred stock received is neither stock nor a security for this purpose, the exchange is not eligible for treatment under Sec. 354. Rather, the nonqualified preferred stock is treated as "other property" (i.e., boot) under Sec. 356(e) and the exchange is taxable.

None of the newly issued regulations shed any light on some important issues surrounding nonqualified preferred stock and how that stock will be treated by other sections of the Code. For example, the regulations supply no guidance as to whether nonqualified preferred stock provides continuity in a reorganization, or how, nonqualified preferred stock is treated under constructive ownership rules (e.g., Secs. 267(c) and 318).