Sec. 1.1248-6 Sale or exchange of stock in certain domestic corporations.
General rule.
If a United States person recognizes gain upon the sale or exchange of a share (or block) of stock of a domestic corporation which was formed or availed of principally for the holding, directly or indirectly, of stock of one or more foreign corporations, and if the conditions of paragraph (a)(2) of section 1.1248-1 would be met by such person in respect of the share (or block) if the domestic corporation were a foreign corporation, then section 1248 shall apply in respect of such gain in accordance with the rules provided in paragraph (b) of this section. See paragraph (d) of this section for a rule suspending the application of this section in certain circumstances.
(b) Application.
The gain referred to in paragraph (a) of this section shall be included in the gross income of the United States person as a dividend under section
1248(a)to the extent of the earnings and profits attributable under section
1.1248-2or section
1.1248-3, whichever is applicable, to the share (or block), computed, however, in accordance with the following rules:
The domestic corporation shall be treated as if it were a first tier foreign corporation;
(ii) If, after the application of subdivision (i) of this subparagraph, the provisions of paragraph (a)(3) of section 1.1248-2 or paragraph (f) of section 1.1248-3 (as the case may be) would apply in respect of a foreign corporation the stock of which is owned (within the meaning of section 958(a)) by the domestic corporation treated as the first tier corporation, such foreign corporation shall be considered a lower tier corporation;
(iii) Except to the extent provided in subdivision (iv) of this subparagraph, the earnings and profits of the domestic corporation treated as the first tier corporation accumulated for a taxable year, as computed under paragraph (d) of section 1.1248-2 or paragraph (b) of section 1.1248-3 (as the case may be), shall be considered to be zero; and
(iv) If, during a taxable year, a domestic corporation treated as the first tier corporation realizes gain upon the sale or exchange of stock in a foreign corporation, and solely by reason of the application of section 337 (relating to certain liquidations) the gain was not recognized, then the earnings and profits of such domestic corporation accumulated for the taxable year, as computed under paragraph (d) of section 1.1248-2 or paragraph (b) of section 1.1248-3 (as the case may be), shall be considered to be an amount equal to the portion of such gain realized during the taxable year which, if section 337 had not applied, would have been treated as a dividend under section 1248(a).
If the person selling or exchanging the stock in the domestic corporation is an individual, the limitation on tax attributable to the amount included in his gross income as a dividend under subparagraph (1) of this paragraph shall be determined, in accordance with the principles of paragraph (f) of section
1.1248-4, by treating the domestic corporation as a first tier corporation.
(3)(i) If the earnings and profits of the foreign corporation or corporations (or of the domestic corporation treated as a first tier corporation) to be taken into account under subparagraph (1) of this paragraph are not established in the manner provided in paragraph (a)(1) of section 1.1248-7, all of the gain from the sale or exchange of the share (or block) of the domestic corporation shall be treated as a dividend.
To the extent that the person does not establish, in the manner provided in paragraph (c) of section
1.1248-7, the foreign taxes paid by such foreign corporation or corporations to be taken into account for purposes of computing the limitation on tax attributable to a share, such foreign taxes shall not be taken into account for purposes of such computation.
Corporation formed or availed of principally for holding stock of foreign corporations.
Whether or not a domestic corporation is formed or availed of principally for the holding, directly or indirectly, of stock of one or more foreign corporations shall be determined on the basis of all the facts and circumstances of each particular case.
(d) Temporary suspension of section 1248(e).
Section 1248(e) and the rules of this section do not apply to a sale, exchange, or other disposition of the stock of a domestic corporation during a period when capital gains are taxed at a rate that equals or exceeds the rate at which ordinary income is taxed.
(e) Effective/applicability date.
Paragraph (d) of this section applies to a sale,exchange, or other disposition of the stock of a domestic corporation on or after September 21, 1987.
[T.D. 6779, 29 FR 18143, Dec. 22, 1964, as amended by
T.D. 9614, 78 FR 17023-17052, Mar. 19, 2013.]
