Rev. Proc. 81-42

SECTION 346

CHECKLIST QUESTIONNAIRE

CONTENTS

1. PURPOSE

2. BACKGROUND

3. CHANGES

4. INFORMATION TO BE INCLUDED IN REQUESTS FOR RULINGS UNDER SECTION 346 OF THE CODE

.01 Information Regarding The Liquidating Corporation (The Distributor)

1. Identification

2. Tax Year

3. Jurisdiction

.02 Type And Description Of Partial Liquidation

1. Series Of Distributions In Complete Liquidation

(a) Reasons

(b) Expected date and amount of each of the distributions

(c) Dissolution

2. Distribution Not Essentially Equivalent To A Dividend

(a) General information as to the business or businesses of the Distributor, both before and after the transaction

(1) Description

(2) How and when the business or businesses were acquired

(b) Termination of a business

(1) Active business

(2) Five-year requirement

(c) Genuine or bona fide contraction of a business

(1) Involuntary

(2) Voluntary

(3) Date or period contracted

(4) Dividends paid

(d) Reductions resulting from the termination or contraction of a business

(1) Assets

(2) Gross sales, fees, etc.

(3) Employees

(4) Other reductions

(e) Changes in business and assets of the Distributor

(1) Past changes

(2) Proposed changes

(f) Other factors relevant in determining whether there is a true termination or genuine contraction

(1) Information as to source of assets to be distributed

(2) Purpose of distribution

(g) Distribution of assets

(1) Property other than cash (2) Cash

(3) Timely distributions

(4) All assets or proceeds from terminated business distributed

(5) Distributed assets are not to be substituted assets

(h) Discharge or disposition of liabilities

(1) Amount

(2) Discharge

(3) Reduction in distribution

(4) Assumption by shareholders

.03 Recognition Of Gain Or Income To The Distributor

1. Unreported Or Anticipatory Assignment Of Income

2. Reserve For Bad Debts

3. Installment Obligations And Recapture Provisions

4. Sale, Lease, Or Other Disposition Of Property

.04 Redemption Of Stock

1. Description Of Outstanding Stock

2. Ownership Of Stock

3. Shares Redeemed

(a) Number

(b) None redeemed

(c) Non pro rata redemption

4. Transactions In Which Stock To Be Redeemed Was Acquired If Stock Is Closely Held And Acquired Within Last Five Years

(a) When acquired

(b) From whom acquired

(c) Consideration

5. Other Factors Affecting The Taxable Status Of The Distribution

(a) Declared but unpaid dividends

(b) Distribution in redemption of stock under section 302 of the Code

6. Value Of Stock Redeemed

.05 General

1. Covenants Not To Compete

2. Documents

(a) Plan of complete or partial liquidation

(b) Financial statements

.06 Assumptions Or Representations

.07 Transactions In Addition To The Partial Liquidation.

1. Multiple Transactions

2. Shareholder And The Distributor In Dual Capacity

3. Related Transactions

5. INQUIRIES

6. EFFECT ON OTHER DOCUMENTS

SECTION 1. PURPOSE.

The purpose of this Revenue Procedure is to update Rev. Proc. 73-36, 1973-2 C.B. 496, which sets forth in a convenient checklist questionnaire the information necessary to be included in a request for a ruling under section 346 of the Internal Revenue Code (and its related sections, 331 and 336) which relates to a distribution by a corporation in partial liquidation.

SEC. 2. BACKGROUND.

The Internal Revenue Service receives many requests for rulings in which the information furnished as to the proposed transaction is not complete enough to permit a determination to be made. In such cases it is necessary to secure additional facts from the taxpayer before the ruling request can be considered. This procedure is time-consuming for both Service personnel and taxpayers and delays issuance of the final ruling letter. This checklist will facilitate the filing of requests for rulings under section 346 of the Code by showing specific information which should be included so that the application will be as complete as possible when originally filed. However, since the information necessary to rule on a particular transaction depends upon all the facts and circumstances of that case, information in addition to that suggested in this revenue procedure may be required. Nevertheless, careful use of the checklist should avoid much needless delay and permit the issuance of rulings in the most expeditious fashion possible.

The authority and general procedures of the National Office of the Service and of the Office of the District Directors of Internal Revenue with respect to the issuance of rulings and determination letters are outlined in Rev. Proc. 80-20, 1980-1 C.B. 633, as amended by Rev. Proc. 81-33, page 564, this Bulletin. See also Rev. Proc. 81-10, 1981-1 C.B. 647. Careful attention to all the requirements of those revenue procedures will serve to minimize needless delays in processing requests for rulings.

SEC. 3. CHANGES.

.01 Section 1 has been changed to indicate that the purpose of the revenue procedure is to update Rev. Proc. 73-36.

.02 Sections 2 and 4 and the index have been modified by substituting more complete and updated numbering and references. The present section 4 was section 3 in the prior revenue procedure.

.03 Section 4 has been modified to emphasize the desirability of providing all the information requested in the checklist, or, if appropriate, briefly stating why a checklist item is believed not to be nonapplicable.

.04 Section 4.01-1 has been modified to provide that references in this revenue procedure to the Distributor corporation include a liquidating subsidiary of such Distributor.

.05 Section 4.01-3 has been expanded regarding whether the identical issue presented in the ruling request is, or has been, under consideration elsewhere in the Service.

.06 Section 4.02-2(a) has been expanded to request a description of the continuing business.

.07 Section 4.02-2(c) has been expanded to include termination of a business (as well as a contraction), and to request a five-year dividend history for the Distributor.

.08 Section 4.02-2(d)(1)(A) has been expended to request information as to whether reduced assets were active or passive.

.09 Section 4.02-2(d) also has been expanded to request information as to the amount of assets to be reduced, and to request any other information demonstrating a contraction or termination.

.10 Section 4.02-2(g) has been modified by having the term "cash" also reference cash equivalents and by requesting a breakdown between United States and foreign cash.

.11 Section 3.02-2(g)(3)(B)(ii) has been expanded to request information whether proceeds from sales, etc., will be segregated in a special account and not used in the continuing business of the Distributor.

.12 Section 4.02-02(g)(5) has been added to request a statement that the distributed assets are assets that were actively used in the business or the proceeds from their sale, and not substituted assets.

.13 Section 4.03-3 has been modified by changing section 453(d) to section 453B and adding sections 1248, 1254, and LIFO inventory.

.14 Section 4.03-4 is modified by deleting the phrase "other than cash."

.15 Section 4.05 has been expanded to request information as to employment agreements between the Distributor corporation and its shareholders.

.16 Section 4.06 has been expanded to show representations that must be included in a taxpayer's ruling request.

.17 Section 4.07 has been added to deal with related or multiple transactions in addition to the partial liquidation.

SEC. 4. INFORMATION TO BE INCLUDED IN REQUESTS FOR RULINGS UNDER SECTION 346 OF THE CODE.

Each of the items included in this section should be specifically dealt with in the application even though some may not appear to be applicable. Presentation of the information required should follow the format of this revenue procedure as closely as possible with appropriate descriptive headings. If an item is believed not to be applicable, say so, and briefly explain why it does not apply. Processing ruling requests is significantly expedited by providing all the information requested in exactly the order in which it is requested herein.

.01 Information regarding the liquidating corporation.

1 Identification. Name, taxpayer identification number, and place and date of incorporation of the liquidating corporation (the Distributor). If the transaction also includes a liquidation of a subsidiary of the Distributor, then, throughout this checklist questionnaire, the information requested should be furnished with regard to both the Distributor and such liquidating subsidiary.

2 Tax year.--The last day of the Distributor's taxable year.

3 Jurisdiction.--Identify the District Office that will have audit jurisdiction over the return of the Distributing corporations and state whether to the best of the knowledge of the taxpayer and the taxpayer's representative(s), if any, the identical issue is in a return of the taxpayer (or of a related taxpayer within the meaning of section 267 of the Code, or a member of an affiliated group of which the taxpayer is also a member within the meaning of section 1504) and, if so, whether the issue (1) is being examined by a District Director, (2) has been examined and the statutory period of limitation on assessment or refund of tax has not expired or a closing agreement covering the issue or liability has not been entered into by a District Director, (3) is being considered by an Appeals office in connection with the taxpayer's return for an earlier period, or that issue has been considered by an Appeals office and the statutory period of limitation on assessment or refund of tax has not expired or a closing agreement covering the issue or liability has not been entered into by an Appeals office, or (4) is pending in litigation in a case involving the taxpayer or a related taxpayer. The request must contain a statement whether, to the best of the knowledge of the taxpayer and the taxpayer's representative(s), the identical or similar issue has been ruled on by the Service to the taxpayer or to the taxpayer's predecessor and, if so, when and with what results. If after the request is filed but before a ruling is issued, the taxpayer knows that an examination of the issue by a District Director has been started, the taxpayer must notify the National Office of such action. If a return is filed before a ruling is received from the National Office concerning the return, a copy of the request must be attached to the return. This alerts the District Office and avoids premature District action on the issue.

.02 Type and description of partial liquidation.

1 Series of distributions in complete liquidation.--If it is contended the distribution is one of a series of distributions in redemption of all of the stock of the Distributor, furnish the following information:

(a) Reasons.--Give reasons why the Distributor is being liquidated in a series of distributions rather than in one distribution.

(b) Expected date and amount of each of the distributions.--In this respect, see Sec. 4.017 of Rev. Proc. 81-10, which states that rulings will not ordinarily be issued on the tax effect to shareholders of the liquidation of a corporation by a series of distributions, where the distributions in liquidation are to be made over a period in excess of three years from the adoption of the plan of liquidation.

(c) Dissolution.--State whether the Distributor will be dissolved at the time of the final distribution in complete liquidation. If it will not, give the reasons for not dissolving it.

2 Distribution not essentially equivalent to a dividend.--If it is contended the distribution is not essentially equivalent to a dividend within the meaning of section 346(a)(2) of the Code, furnish the following information:

(a) General information as to the business or businesses of the Distributor, both before and after the transaction.

(1) Description.--Furnish a full and complete description of the business of the Distributor, identify the business terminated or contracted, and describe in detail the business to be continued.

(2) How and when the business or businesses were acquired.

(A) Acquired from another person.--If the business or businesses were acquired within the past five years from other persons, identify the persons, their relationship to the Distributor or its shareholders, the type of transactions in which they were acquired, the consideration given in exchange, the date of the transactions, and the amount of gain or loss, if any, recognized on the transactions.

(B) Initiated by the Distributor.--If the business or businesses were commenced within the past five years by the Distributor, give the source of the capital and assets used to commence and operate each business and give the dates the operation of each business commenced.

(b) Termination of a business.--If it is contended the distribution is not essentially equivalent to a dividend because of the termination of a business within the meaning of section 346(b) of the Code, furnish the following information.

(1) Active business.--Furnish the information necessary to establish that the businesses are "active businesses" within the meaning of section 1.355-1(c) of the Income Tax Regulations.

(2) Five-year requirement.

(A) Date terminated.--Give the date the business operations were terminated.

(B) Continuous and continued operation.--State whether the businesses have been continuously and actively conducted within the meaning of section 1.355-1(c) of the regulations for the five-year period immediately preceding the date of sale (see 4.02-2(g)(3)(B) below) or distribution (see 4.02.2(g)(3)(A) below) of the assets of the terminated business and whether the remaining businesses will continue to be actively operated.

(c) Genuine or bona fide contraction or termination of a business.--If it is contended the distribution is not essentially equivalent to a dividend because of a genuine or bona fide contraction of the Distributor's business within the meaning of section 346(a)(2) of the Code or a termination of a business within the meaning of section 346(b), furnish the following information:

(1) Involuntary.--If the contraction or termination was involuntary in that it was beyond the control of the Distributor, describe the conditions or causes of the contraction such as a fire, flood, storm, condemnation, loss of a franchise, etc.

(2) Voluntary.--If the contraction or termination was voluntary, give the business purpose for, and a complete description of, the circumstances, conditions, or transactions leading to the contraction.

(3) Date or period contracted or terminated.--If the contraction or termination was involuntary give the date of the incident leading to the contraction. If the contraction or termination was voluntary, give the dates on which the contraction commenced and was completed.

(4) Dividends paid.--Give the dates and amounts of all dividends paid by the Distributor in the last five years.

(d) Reductions resulting from the termination or contraction of a business.

(1) Assets.

(A) Description.--Describe those assets of the Distributor which have been or will be reduced, and identify each asset reduction with the terminated business or the involuntary or the voluntary acts described in 4.02-2(c)(1) or 4.02-2(c)(2) above. Relate these assets to those assets described in 4.02-2(g)(1) and (2) ("Distribution of assets") below. State whether the assets being reduced are actively used in the business or are passive assets. For either voluntary or involuntary contractions, give the fair market value, net and gross, of both the reduced active assets and the retained assets.

(B) Disposition other than by distribution.--If the Distributor will sell, lease, or otherwise dispose of any property, other than by distribution to the shareholders, furnish the following information:

(i) Transaction.--Describe the assets to be disposed of and the type of transaction.

(ii) Basis and amount realized.--Give the tax basis and the amount and type of consideration to be received in exchange, including insurance proceeds and condemnation award if applicable.

(iii) Relationship of acquiring party.--Identify the person acquiring the assets, and give the relationship, direct or indirect, of the Distributor and its shareholders to that person, including, if a corporation, the number of shares of stock the Distributor and its shareholders own in the acquiring corporation.

(C) Inventory.--If any inventory will be sold other than in the ordinary course of business, furnish the following:

(i) Average inventory.--A statement whether the items in such inventory were substantially similar to, and substantially the same in quantity as, those during the prior five-year period.

(ii) Bulk sale.--A statement whether the inventory will be sold in "bulk" and the number of persons purchasing the inventory.

(D) Actively used in operations.--Furnish a statement whether all of the assets which will be distributed to the shareholders, or those assets which will be sold and the proceeds from the sale distributed, were being actively used in operations at the time of termination or contraction of the business, and whether such assets had been actively used for the past five years, or were replacements of assets actively used for such period, or whether such assets are or were idle, passive or investment assets.

(2) Gross sales, fees, etc.--Give the average annual amount of gross sales, fees, etc. of the terminated or contracted business over the past five years, the percentage of that gross to the total gross of the Distributor and the amount the total gross will be reduced as a result of the termination or contraction.

(3) Employees.--Give the number of employees of the Distributor whose services will be terminated and who will be discharged as a result of the termination or contraction and the percent that number is of the total number of employees of the Distributor.

(4) Other reductions.--Furnish any other information demonstrating a contraction or termination of the business such as reductions in territory, floor space, production, fixed assets, activities, etc.

(e) Changes in business and assets of the Distributor.

(1) Past changes.

(A) Business activity.--Describe any substantial changes in the business activities of the distributor during the past five years in addition to the one on which this application is based, such as acquisitions, expansions, conversions, and other contractions or terminations.

(B) Assets.--Describe any substantial changes in assets during the past five years other than those occurring in the normal course of business, such as an unusual or abnormal increase in working capital, extraordinary sales, purchases, replacements, and renovations of fixed and operating assets, and shifts, transfers, or loans of assets (including working capital) from one business activity to another, including the business terminated or contracted.

(2) Proposed changes.--Describe any acquisitions, expansions, additions, conversions, renovations, or replacements of business activity or assets proposed for the future and the source of funds and capital for such changes.

(f) Other factors relevant in determining whether there is a true termination or genuine contraction.

(1) Information as to source of assets to be distributed.--A statement whether the assets to be distributed or proceeds from sale of assets, are from the following sources:

(A) Expansion reserve.--A reserve for expansion no longer needed.

(B) Business decline.--A mere decline in, or loss of, business.

(C) Working capital decrease.--A mere decrease in need for working capital.

(D) Nominal business.--Proceeds from the sale of a business which is nominal in relation to the entire business of the Distributor.

(E) Loss business. A business operated at a loss which acquired assets from another business of the Distributor.

(2) Purpose of distribution.

(A) The Distributor's purpose.--State the business purpose of, and the advantages to, the Distributor in making the distribution.

(B) Shareholder purpose. State the reasons why the shareholders desire this distribution, their part in formulating and approving the plan, and the advantages to the shareholders as a result of the distribution.

(g) Distribution of assets.

(1) Property other than cash (including negotiable instruments and other cash equivalents within the meaning of Rev. Rul. 66-290, 1966-2 C.B. 112).--Describe fully all types and categories of property, tangible and intangible, other than cash, to be distributed by the Distributor to the shareholders.

(2) Cash (including negotiable instruments and other cash equivalents within the meaning of Rev. Rul. 66-290).

(A) Amount.--State the total amount of cash to be distributed, and whether it is United States or foreign cash.

(B) Source.--Furnish a statement whether the amount to be distributed will be limited to the following:

(i) Working capital.--The portion of the working capital reasonably attributable to the terminated or contracted business activities and no longer required in the operation of the continuing business activities. See Rev. Rul. 60-232, 1960-2 C.B. 115, and Rev. Proc. 81-10.

(ii) Net proceeds.--The amount realized on the sale of assets of the business terminated or contracted (or insurance proceeds or condemnation award) less all liabilities attributable to those assets retained or distributed in kind (including all expenses and taxes incurred on the sale and those incurred in connection with the distribution).

(3) Timely distributions.

(A) Date of distributions.--Give the dates, or expected dates, of distributions of all assets pursuant to the plan of partial liquidation. State whether all distributions pursuant to the plan will be made within the taxable year in which the plan is adopted or within the succeeding taxable year.

(B) Proceeds from sale, insurance benefits, condemnation award, etc.

(i) Time between receipt of proceeds and distribution.--Give the dates of sale, destruction, or condemnation, and receipt of proceeds therefrom. If there is any time lag between the receipt of proceeds and distribution, give the reasons.

(ii) Use of proceeds between time of receipt and distribution.

(a) Temporary investments.--Describe how the proceeds will be maintained before the distribution, the type of investment, if any, and how the investment was or will be disposed of. Will the proceeds be segregated in a special account and not used in the Distributor's continuing business?

(b) Gain, income or loss on temporary investments.--State the amount of gain, income or loss realized on the temporary investment and the disposition of any such gain or income.

(4) All assets or proceeds from terminated business distributed.--If it is contended the partial liquidation is a termination under section 346(b) of the Code, furnish a statement that all assets or net proceeds from the sale of the assets will be distributed. If all such assets will not be distributed, give reasons why and explain how the undistributed assets will be used by the Distributor in the future.

(5) Distributed assets are not to be substituted assets.--State that the distributed assets are assets that were being actively used in a business, or the proceeds from their sale, and not substituted assets. See Rev. Rul. 79-275, 1979-2 C.B. 137.

(h) Discharge or disposition of liabilities.

(1) Amount.--Furnish the amount of liabilities of the terminated or contracted business.

(2) Discharge.--State the source of the funds that will be used to discharge these liabilities.

(3) Reduction in distribution.--State whether the property of the terminated or contracted business or the proceeds which will be distributed to the shareholders from the sale of such property will be reduced by the amount of such liabilities. See 4.02-2(g)(1)(B)(ii) above.

(4) Assumption by shareholders.--Furnish the amount of liabilities, if any, to be assumed by each of the distributee-shareholders, the amount of liabilities to which the property distributed is subject, the adjusted basis of the property distributed to each such shareholder in the hands of the Distributor, and the fair market value of the property distributed to such shareholder.

.03 Recognition of gain or income to the Distributor.--If it is contended that neither gain nor income will be recognized to the Distributor upon the distribution of property, state the reasons, including statements with respect to the following:

1 Unreported or anticipatory assignment of income.--State whether the Distributor will distribute any assets which represent earned income to shareholders, such as receivables being reported on a cash basis, unfinished construction contracts, commissions due, or other assets resulting in an anticipatory assignment of income.

2 Reserve for bad debts.--If the Distributor will distribute to its shareholders any receivables, state the amount of any reserve for bad debts related to the receivables.

3 Installment obligations and recapture provisions.--State whether the Distributor will distribute to the shareholders in partial liquidation any installment obligations (section 453B of the Code), property described in sections 48, 341(f), 617(d), 1245(a), 1248, 1250(c), 1251(e), 1252(a), or 1254, or LIFO inventory distributed pursuant to a plan adopted after December 31, 1981 (See section 336(b)), or other assets the cost of which had previously been deducted for federal income tax purposes.

4 Sale, lease, or other disposition of property.--State whether the shareholders will sell, lease, or otherwise dispose of any property received in the distribution. If they will, describe the assets to be so disposed of and the transaction, including the consideration to be received in exchange. Identify the person acquiring the assets, and give the relationship, direct or indirect, of the Distributor and its shareholders to that person including, if a corporation, the number of shares of stock the Distributor and its shareholders own in the acquiring corporation.

.04 Redemption of stock.

1 Description of outstanding stock.--Furnish a complete description of each class of the Distributor's stock outstanding, setting forth the rights and privileges of each class.

2 Ownership of Stock.--State whether the stock is closely or widely held, and if the former, identify the shareholders, the number of shares of each class held by each shareholder, and the relationship of the shareholders to each other. If widely held, give the number of shareholders and the largest number of shares held by a shareholder.

3 Shares Redeemed.

(a) Number.--Give the number of shares of each class of stock of the Distributor to be redeemed from each shareholder.

(b) None redeemed.--If no shares of stock of the Distributor will be surrendered, give reasons why the distribution should not be considered a dividend.

(c) Non pro rata redemption.--If the distribution of property or redemption of stock will be non pro rata, submit reasons.

4 Transactions in which stock to be redeemed was acquired if stock is closely held and acquired within last five years.

(a) When acquired.--Give the dates on which the stock was acquired.

(b) From whom acquired.--Identify the person or entity from whom the stock was acquired and the relationship of such person to any of the shareholders of the Distributor.

(c) Consideration.--Describe the amount and kind of consideration paid or transferred for the stock.

5 Other factors affecting the taxable status of the distribution.

(a) Declared but unpaid dividends.--State whether there are any declared but unpaid dividends on any of the stock to be redeemed.

(b) Distribution in redemption of stock under section 302 of the Code.--If it is contended any part of the distribution will qualify as one in redemption of stock under section 302, state the amount, identify the shareholders, and furnish information necessary to make a determination under section 302. See sections 1.302-1(b) and 1.346-2 of the regulations. See also Rev. Proc. 73-35, 1973-2 C.B. 490.

6 Value of stock redeemed.--State whether the fair market value of the assets distributed to each shareholder will be equal to the fair market value of the stock surrendered by each shareholder in the exchange. If it will not, give a complete explanation.

.05 General.

1 Covenants not to compete.--If a business of the Distributor will be sold or otherwise acquired by another person, state whether the Distributor will receive consideration for an agreement not to compete with the acquiring person. If it will, state whether such consideration will be included in the distribution to the shareholders.

2 Documents.--Submit copies of the following documents:

(a) Plan of complete or partial liquidation.--If no formal plan of liquidation has been or will be adopted, state whether the plan has been or will be approved by the directors and shareholders, and give the date or expected date of approval or adoption.

(b) Financial statements.--Submit year-end balance sheets and profit and loss statements for each of the past five years.

.06 Assumptions or representations.--Furnish all applicable assumptions and representations including the following representations.

(i) There is no plan or intention to completely liquidate the Distributor.

(ii) The Distributor has no plan or intention to reenter a terminated business or to expand its continuing business operations other than through normal internal growth.

(iii) The liquidation will not be preceded or followed by the reincorporation in, or transfer or sale to, a recipient corporation (Recipient) of any of the business or assets of the Distributor, if persons holding more than 20 percent in value of the stock in the Distributor also hold more than 20 percent in value of the stock in the Recipient.

Representation (i) above does not apply when there will be a series of distributions in complete liquidation under section 346(a)(1) of the Code.

.07 Transactions in addition to the partial liquidation.

1 Multiple transaction.--Describe any property the shareholders will transfer or surrender in the transaction, other than stock of the Distributor, and the consideration to be received in exchange therefor.

2 Shareholder and the Distributor in dual capacity.--State whether all or any part of the consideration from the Distributor will be received by a shareholder as a debtor, creditor, employee, or in some capacity other than that of a shareholder of the Distributor whose stock is being redeemed pursuant to sections 331 and 346 of the Code.

3 Related transactions.--If the request deals with only one step of a larger integrated transaction, the facts, circumstances, etc., relating to the entire transaction must be submitted.

SEC. 5. INQUIRIES.

Inquiries in regard to this revenue procedure should refer to its number and should be addressed to the Assistant Commissioner (Technical), Attention: T:C:R, Internal Revenue Service, Washington, D.C. 20224.

SEC. 6. EFFECT ON OTHER DOCUMENTS.

Rev. Proc. 73-36 is superseded.