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USC Title 26 enacted through 2008

§ 367. Foreign corporations

 
(a)
Transfers of property from the United States
 
(1)
General rule
 
If, in connection with any exchange described in section 332, 351, 354, 356, or 361, a United States person transfers property to a foreign corporation, such foreign corporation shall not, for purposes of determining the extent to which gain shall be recognized on such transfer, be considered to be a corporation.
 
(2)
Exception for certain stock or securities
 
Except to the extent provided in regulations, paragraph (1) shall not apply to the transfer of stock or securities of a foreign corporation which is a party to the exchange or a party to the reorganization.
 
(3)
Exception for transfers of certain property used in the active conduct of a trade or business
 
(A)
In general
 
Except as provided in regulations prescribed by the Secretary, paragraph (1) shall not apply to any property transferred to a foreign corporation for use by such foreign corporation in the active conduct of a trade or business outside of the United States.
 
(B)
Paragraph not to apply to certain property
 
Except as provided in regulations prescribed by the Secretary, subparagraph (A) shall not apply to any -
 
(i)
property described in paragraph (1) or (3) of section 1221(a) (relating to inventory and copyrights, etc.),
 
(ii)
installment obligations, accounts receivable, or similar property,
 
(iii)
foreign currency or other property denominated in foreign currency,
 
(iv)
intangible property (within the meaning of section 936(h)(3)(B)), or
 
(v)
property with respect to which the transferor is a lessor at the time of the transfer, except that this clause shall not apply if the transferee was the lessee.
 
(C)
Transfer of foreign branch with previously deducted losses
 
Except as provided in regulations prescribed by the Secretary, subparagraph (A) shall not apply to gain realized on the transfer of the assets of a foreign branch of a United States person to a foreign corporation in an exchange described in paragraph (1) to the extent that -
 
(i)
the sum of losses -
 
(I)
which were incurred by the foreign branch before the transfer, and
 
(II)
with respect to which a deduction was allowed to the taxpayer, exceeds
 
(ii)
the sum of -
 
(I)
any taxable income of such branch for a taxable year after the taxable year in which the loss was incurred and through the close of the taxable year of the transfer, and
 
(II)
the amount which is recognized under section 904(f)(3) on account of the transfer.
 
Any gain recognized by reason of the preceding sentence shall be treated for purposes of this chapter as income from sources outside the United States having the same character as such losses had.
 
(4)
Special rule for transfer of partnership interests
 
Except as provided in regulations prescribed by the Secretary, a transfer by a United States person of an interest in a partnership to a foreign corporation in an exchange described in paragraph (1) shall, for purposes of this subsection, be treated as a transfer to such corporation of such person's pro rata share of the assets of the partnership.
 
(5)
Paragraphs (2) and (3) not to apply to certain section 361 transactions
 
Paragraphs (2) and (3) shall not apply in the case of an exchange described in subsection (a) or (b) of section 361. Subject to such basis adjustments and such other conditions as shall be provided in regulations, the preceding sentence shall not apply if the transferor corporation is controlled (within the meaning of section 368(c)) by 5 or fewer domestic corporations. For purposes of the preceding sentence, all members of the same affiliated group (within the meaning of section 1504) shall be treated as 1 corporation.
 
(6)
Secretary may exempt certain transactions from application of this subsection
 
Paragraph (1) shall not apply to the transfer of any property which the Secretary, in order to carry out the purposes of this subsection, designates by regulation.
 
(b)
Other transfers
 
(1)
Effect of section to be determined under regulations
 
In the case of any exchange described in section 332, 351, 354, 355, 356, or 361 in connection with which there is no transfer of property described in subsection (a)(1), a foreign corporation shall be considered to be a corporation except to the extent provided in regulations prescribed by the Secretary which are necessary or appropriate to prevent the avoidance of Federal income taxes.
 
(2)
Regulations relating to sale or exchange of stock in foreign corporations
 
The regulations prescribed pursuant to paragraph (1) shall include (but shall not be limited to) regulations dealing with the sale or exchange of stock or securities in a foreign corporation by a United States person, including regulations providing -
 
(A)
the circumstances under which -
 
(i)
gain shall be recognized currently, or amounts included in gross income currently as a dividend, or both, or
 
(ii)
gain or other amounts may be deferred for inclusion in the gross income of a shareholder (or his successor in interest) at a later date, and
 
(B)
the extent to which adjustments shall be made to earnings and profits, basis of stock or securities, and basis of assets.
 
(c)
Transactions to be treated as exchanges
 
(1)
Section 355 distribution
 
For purposes of this section, any distribution described in section 355 (or so much of section 356 as relates to section 355) shall be treated as an exchange whether or not it is an exchange.
 
(2)
Contribution of capital to controlled corporations
 
For purposes of this chapter, any transfer of property to a foreign corporation as a contribution to the capital of such corporation by one or more persons who, immediately after the transfer, own (within the meaning of section 318) stock possessing at least 80 percent of the total combined voting power of all classes of stock of such corporation entitled to vote shall be treated as an exchange of such property for stock of the foreign corporation equal in value to the fair market value of the property transferred.
 
(d)
Special rules relating to transfers of intangibles
 
(1)
In general
 
Except as provided in regulations prescribed by the Secretary, if a United States person transfers any intangible property (within the meaning of section 936(h)(3)(B)) to a foreign corporation in an exchange described in section 351 or 361 -
 
(A)
subsection (a) shall not apply to the transfer of such property, and
 
(B)
the provisions of this subsection shall apply to such transfer.
 
(2)
Transfer of intangibles treated as transfer pursuant to sale of contingent payments
 
(A)
In general
 
If paragraph (1) applies to any transfer, the United States person transferring such property shall be treated as -
 
(i)
having sold such property in exchange for payments which are contingent upon the productivity, use, or disposition of such property, and
 
(ii)
receiving amounts which reasonably reflect the amounts which would have been received -
 
(I)
annually in the form of such payments over the useful life of such property, or
 
(II)
in the case of a disposition following such transfer (whether direct or indirect), at the time of the disposition.
 
The amounts taken into account under clause (ii) shall be commensurate with the income attributable to the intangible.
 
(B)
Effect on earnings and profits
 
For purposes of this chapter, the earnings and profits of a foreign corporation to which the intangible property was transferred shall be reduced by the amount required to be included in the income of the transferor of the intangible property under subparagraph (A)(ii).
 
(C)
Amounts received treated as ordinary income
 
For purposes of this chapter, any amount included in gross income by reason of this subsection shall be treated as ordinary income. For purposes of applying section 904(d), any such amount shall be treated in the same manner as if such amount were a royalty.
 
(3)
Regulations relating to transfers of intangibles to partnerships
 
The Secretary may provide by regulations that the rules of paragraph (2) also apply to the transfer of intangible property by a United States person to a partnership in circumstances consistent with the purposes of this subsection.
 
(e)
Treatment of distributions described in section 355 or liquidations under section 332
 
(1)
Distributions described in section 355
 
In the case of any distribution described in section 355 (or so much of section 356 as relates to section 355) by a domestic corporation to a person who is not a United States person, to the extent provided in regulations, gain shall be recognized under principles similar to the principles of this section.
 
(2)
Liquidations under section 332
 
In the case of any liquidation to which section 332 applies, except as provided in regulations, subsections (a) and (b)(1) of section 337 shall not apply where the 80-percent distributee (as defined in section 337(c)) is a foreign corporation.
 
(f)
Other transfers
 
To the extent provided in regulations, if a United States person transfers property to a foreign corporation as paid-in surplus or as a contribution to capital (in a transaction not otherwise described in this section), such transfer shall be treated as a sale or exchange for an amount equal to the fair market value of the property transferred, and the transferor shall recognize as gain the excess of -
 
(1)
the fair market value of the property so transferred, over
 
(2)
the adjusted basis (for purposes of determining gain) of such property in the hands of the transferor.








Tax Code (Internal Revenue Code) Section Index


U.S. GAAP by Codification Topic
 
105 GAAP Hierarchy
105 GAAP History

205 Presentation of Financial Statements
205-20 Discontinued Operations
210 Balance Sheet
210-20 Offsetting
220 Comprehensive Income
225 Income Statement
225-20 Extraordinary and Unusual Items
230 Statement of Cash Flows
250 Accounting Changes and Error Corrections
260 Earnings per Share
270 Interim Reporting

310 Impairment of a Loan
320 Investment Securities
320 Other-Than-Temporary Impairments, FSP FAS 115-2
320-10-05 Overview of Investments in Other Entities
320-10-35 Reclassification of Investments in Securities
323-10 Equity Method Investments
323-30 Investments in Partnerships and Joint Ventures
325-20 Cost Method Investments
330 Inventory

340-20 Capitalized Advertising Costs
350-20 Goodwill
350-30 Intangibles Other than Goodwill
350-40 Internal-Use Software
350-50 Website Development Costs
360 Property, Plant and Equipment
360-20 Real Estate Sales

410 Asset Retirement and Environmental Obligations
420 Exit or Disposal Cost Obligations
450 Contingencies
450-20 Loss Contingencies
450-30 Gain Contingencies
480 Redeemable Financial Instruments

505-20 Stock Dividends, Stock Splits
505-30 Treasury Stock

605 SEC Staff Accounting Bulletin, Topic 13
605-25 Revenue Recognition - Multiple Element Arrangements

715-30 Defined Benefit Plans - Pension
718 Share-Based Payment
730 Research and Development
730-20 Research and Development Arrangements

805 Business Combinations
810 Consolidation
810 Noncontrolling Interests
810 Consolidation of Variable Interest Entities, SFAS 167

815 Derivatives and Hedging Overview

820 Fair Value Measurements
820 Fair value when the markets are not active, FSP FAS 157-4
825 Fair Value Option

830 Foreign Currency Matters
830-20 Foreign Currency Transactions
830-30 Translation of Financial Statements
835 Interest
835-20 Capitalization of Interest
835-30 Imputation of Interest

840 Leases
840-20 Operating Leases
840-30 Capital Leases
840-40 Sale-Leaseback Transactions
845 Nonmonetary Transactions

855 Subsequent Events
860-20 Sale of Financial Assets, SFAS 166
860-50 Servicing Assets and Liabilities, SFAS 156

985-20 Costs of software to be sold


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