n-05-06.pdf

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# Part III - Administrative, Procedural, and Miscellaneous

Announcement of rule to be included in final regulations under section 367(a) regarding
certain exchanges of securities for stock or securities

## Notice 2005-6

This notice announces that Treasury and the Internal Revenue Service ("the
Service") will amend Treas. Reg. §1.367(a)-3 regarding certain exchanges under
section 354 by U.S. persons of securities of a foreign corporation in a reorganization
described in section 368(a)(1)(E) or securities of a domestic or foreign corporation
pursuant to an asset reorganization described in section 368(a)(1).

## BACKGROUND

Section 354(a)(1) provides that no gain or loss shall be recognized by a
shareholder if stock or securities in a corporation that is a party to a reorganization are,
in pursuance of the plan of reorganization, exchanged solely for stock or securities in
such corporation or in another corporation a party to the reorganization. Section 354
further provides that a security holder may surrender securities and receive securities in
the same principal amount or in a lesser principal amount without the recognition of gain
or loss.

Under section 367(a), gain is recognized if a U.S. person transfers property to a
foreign corporation in connection with an exchange described in section 354 unless an
exception applies. Treasury Reg. §1.367(a)-3(a) provides, in part, that if in an

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exchange described in section 354, a U.S. person exchanges stock of a foreign
corporation in a reorganization described in section 368(a)(1)(E), or a U.S. person
exchanges stock of a domestic or foreign corporation for stock of a foreign corporation
pursuant to an asset reorganization described in section 368(a)(1)(C), (D) or (F) that is
not treated as an indirect stock transfer under Treas. Reg. §1.367(a)-3(d), such section
354 exchange is not a transfer to a foreign corporation subject to section 367(a). This
language excludes from the scope of section 367(a) certain stock-for-stock exchanges
under section 354 by U.S. persons, but does not address whether exchanges of
securities for stock or exchanges of securities for securities, that would qualify for
nonrecognition under section 354, are subject to section 367(a).

## DISCUSSION

The Treasury Department and the Service will issue regulations under Treas.
Reg. §1.367(a)-3 to provide that an exchange described in section 354 by a U.S. person
of securities of a foreign corporation for stock or securities of the foreign corporation in a
reorganization described in section 368(a)(1)(E) will not be subject to section 367(a).
The regulations will further provide that an exchange described in section 354 by a U.S.
person of securities of a domestic or a foreign corporation for stock or securities of a
foreign corporation pursuant to an asset reorganization described in section 368(a)(1),
that is not treated as an indirect transfer described in Treas. Reg. §1.367(a)-3(d), will
not be subject to section 367(a). Conforming amendments to other portions of the
regulations under sections 367 and 6038B will be made as well.

EFFECTIVE DATE

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Regulations to be issued incorporating the guidance set forth in this notice will
apply to transfers of securities after January 5, 2005. Until such regulations are issued,
taxpayers may rely on this notice. Taxpayers also may apply the provisions of this
notice to transfers of securities occurring on or after July 20, 1998 (the effective date of
Treas. Reg. §1.367(a)-3(a)) and on or before January 5, 2005. Taxpayers applying this
notice, however, must do so consistently to all transactions within its scope.
COMMENTS

Written comments on the issues addressed in this notice may be submitted to the
Office of Associate Chief Counsel International, Attention: Mark R. Pollard (Notice 2004-
6), room 4555, CC:INTL:BR3, Internal Revenue Service, 1111 Constitution Avenue,
NW, Washington, DC, 20224. Alternatively, taxpayers may submit comments
electronically to Notice.Comments@m1.irscounsel.treas.gov. Comments will be
available for public inspection and copying. Treasury and the IRS request comments by
April 28, 2005.

## DRAFTING INFORMATION

The principal author of this notice is Mark R. Pollard of the Office of Associate Chief
Counsel (International). For further information regarding this notice contact Mr. Pollard
at (202) 622-3860 (not a toll-free call).