Tax Consequences of Liquidation of an S Corporation

The shareholder consequences of a complete liquidation of an S corporation are governed by §§ 331 and 1001.  The dividend rules that otherwise apply to corporate distributions are not applicable to distributions in complete liquidation.  Distributions received by the shareholder are treated as payment in full for the exchange of stock.  The shareholder’s adjusted basis in the stock is subtracted from the cash and fair market value (FMV) of other property received from the corporation.  If the shareholder assumes known corporate liabilities or receives corporate property subject to a liability (such as the distribution of mortgaged land), the amount realized is reduced by the amount of the liability (Ford, 311 F.2d 951 (Ct. Cl. 1963)).

The general rule is that a shareholder’s stock basis is determined as of the end of the S corporation’s tax year.  It appears that the adjusted basis of stock held in a liquidating corporation is adjusted for current-year passthrough items prior to determination of gain or loss from the receipt of the liquidating distributions (see Regs. § 1.1367-1(d)(1) and Letter Ruling 200106009).

If the shareholder has different bases in different blocks of stock, the computation of gain or loss depends on whether there is a single distribution or a series of liquidating distributions (Rev. Ruls, 68-348 and 85-48).  The shareholder recognizes gain when the adjusted basis of each block has been recovered, while loss is not recognized until the corporation has made its final distribution.

Example 1:

T holds 30 shares of stock in an S corporation, represented by two blocks of stock.  T has a basis of $10,000 in Block 1 (which represents 10 shares) and a basis of $40,000 in Block 2 (which represents 20 shares).  The corporation distributes $45,000 cash to T in return for his stock.

The $45,000 is allocated pro rata to the two blocks, so $15,000 is allocated to Block 1 (10 ÷ 30 x $45,000) and $30,000 to Block 2 (20 ÷30 x $450,000).  T recognizes a $5,000 gain on Block 1 ($15,000 – $10,000 basis) and a $10,000 loss on Block 2 ($30,000 – $40,000 basis).

If T receives $45,000 in 2007 and an additional $135,000 in 2008, each distribution is allocated ratably between the blocks based on the number of shares in each block.  The 2007 distribution is allocated the same as before.  T recognizes a $5,000 gain on Block 1 ($15,000 – $10,000 basis), which reduces his basis in that block to zero.  T recognizes no gain or loss on Block 2 ($30,000 – $40,000 basis) and has a remaining basis of $10,000 in Block 2.

The 2008 distribution is allocated $45,000 to Block 1 (10 ÷ 30 x $135,000) and $90,000 to Block 2 (20 ÷ 30 x $135,000).  T recognizes a $45,000 gain on Block 1 ($45,000 – $0 basis) and an $80,000 gain on Block 2 ($90,000 – $10,000 basis).

Determining the Character of Gain of Loss.

The character of gain or loss recognized by the S shareholder depends on whether the stock is a capital asset in the shareholder’s hands and whether the transaction constitutes a complete or a partial liquidation.  Long-term or short-term classification of a liquidation that qualifies for capital gain treatment depends on the shareholder’s holding period, with long-term status having significant importance due to the 15% tax rate cap on long-term capital gains.  Shareholders in the 35% tax bracket achieve a 57.1% ((35% – 15%) ÷ 35%) tax savings on capital gain versus ordinary income.  For tax years beginning in 2008, 2009 and 2010, the savings is even greater for taxpayers in the 10% and 15% brackets because their net capital gain is taxed at 0% in those tax years.

Planning Tip.  If the stock surrendered in the liquidation qualifies as § 1244 stock, the shareholder may be able to claim an ordinary loss rather than a capital loss.

Distributions in complete liquidation of an S corporation are treated as payments in exchange for the shareholders surrendered stock (§ 331(a)).  The ordinary distribution rules of § 1368 do not apply.  Thus, accumulated earnings and profits (“AE&P”) or accumulated adjustments accounts (“AAA”) are not relevant to the characterization of the liquidating distribution.  Since the existence of AE&P has no impact on the characterization of a liquidating distribution, an S corporation with AE&P should identify liquidating distributions as such (for example, in a board resolution adopting the plan of complete liquidation).

In addition, during the liquidation of an S corporation, it may be difficult to predict the ending balance of AAA.  This may, in turn, make it difficult to accurately determine the AAA available for ordinary distributions and make inadvertent dividend distributions from AE&P more likely to occur.  If the S corporation has AE&P, the shareholders may want to forgo distributions prior to commencement of the liquidating distributions, because once the AAA is exhausted, preliquidation distributions are treated as dividend income to the extent of AE&P.

Determining the Basis of Property Received.

The shareholder’s basis in assets received is their FMV at the time of the distribution.  Basis is not affected by the shareholder’s assuming corporation liabilities or receiving corporate property that is subject to a liability (§ 334(a); see also Ford, supra).

Structuring a Partial Liquidation for Best Tax Results.

A distribution in partial liquidation of an S corporation will also qualify for sale or exchange treatment under § 302 if the distribution is pursuant to a plan and occurs within the tax year the plan is adopted or the following tax year and the “safe harbor” of § 302(e)(2) is met.  Under the safe harbor, the assets, or proceeds from the sale of the assets, of a trade or business conducted by the S corporation during the previous 5-year period must be distributed to the terminating shareholder, and the S corporation must continue conducting a trade or business that it conducted during the same prior 5-year period.

A distribution in partial liquidation that does not qualify for sale or exchange treatment will be governed by the usual S corporation distribution rules of § 1368.  In certain cases, this treatment is preferable to sale or exchange treatment.  If the shareholder prefers § 1368 treatment, the sale or exchange rules can be easily avoided, for example, by failing to adopt a plan of liquidation or delaying the distribution until 2 years after the tax year the plan is adopted.

If the S corporation has a large AE&P amount but a nominal AAA balance, a § 1368 distribution will result in dividend income, while sale or exchange treatment allows a partial stock basis offset and capital gain treatment.  Conversely, if the corporation has little or not AE&P or the distribution is less than the AAA balance, a § 1368 distribution allows full stock basis offset at the shareholder level, while sale or exchange treatment allows only part of the shareholder’s stock basis to offset the distribution.

Handling Passthrough Items in the Year of Liquidation.

The liquidation process itself does not terminate the company’s S election.  Therefore, passthrough items in the year of liquidation are allocated under the normal per-share, per-day rule of § 1377(a)(1).  However, a bunching of income can occur in the year of liquidation of a fiscal-tax-year S corporation if the final liquidating distribution occurs on a date other than the last day of the fiscal year.  This can result in the shareholders reporting more than 12 months of passthrough income in a single year.

For example, if an S corporation with an April 30 year-end makes its final liquidating distribution on October 31, 2007, the shareholders will report 18 months of passthrough items on their 2007 returns.  This bunching problem can be avoided if the corporation delays making its final distribution from October 31, 2007, to a date in 2008 (after the end of the shareholders’ calendar tax year).

An additional timing problem can arise from the S corporation’s selling appreciated assets and distributing the proceeds to the shareholders, rather than distributing the assets directly to the shareholders.  The taxable gain from the sale passes through to the shareholders and increases their stock basis, which in turn reduces the gain (or increases the loss) the shareholders recognize from the distribution of the sale proceeds.  If the sale and distribution do not occur in the same tax year, a shareholder may report capital gain from the sale of the asset but report a capital loss (which cannot be carried back) in a later year when the sale proceeds are distributed.  If the sale and distribution occur in the same year but the sale of the asset results in ordinary income, the shareholder may report some or all of the asset sale as ordinary income, which cannot be offset against a capital loss recognized when the proceeds from the sale are distributed.

Example 2:

As part of its complete liquidation, a calendar-year S corporation sells its assets in 2007, for $120,000 in cash but does not distribute the proceeds to SS, its sole shareholder, until early 2008.  The 2007 sale generates a $50,000 capital gain that passes through to SS and increases her stock basis from $100,000 to $150,000.  As a result of the distribution of the $120,000 sales proceeds in 2008, SS realizes a capital loss of $30,000 ($120,000 distribution – $150,000 stock basis).

Thus, SS reports a $50,000 capital gain in 2007, but in the absence of other offsetting capital gains in 2008, her $30,000 realized capital loss will be limited to a $3,000 capital loss deduction in 2008.

Deducting Suspended Passthrough Losses.

In a complete liquidation, passthrough losses suspended because of basis limitations that remain after the basis of the redeemed stock has been reduced to zero do not reduce gain or increase loss resulting from the liquidation.  Since suspended passthrough losses are lost, the shareholder should consider creating additional basis before the final distribution through additional capital contributions or loans.  (See Regs. § 1.1366-2(a)(5).)  While there is no authority on point, it appears that the shareholder is not entitled to restore basis after the liquidation has been completed in a manner similar to the post-termination transition period rules of § 1366(d)(3).

Losses limited by the at-risk rules are also eligible for indefinite carryover (§ 465(a)(2)).  Unlike the basis limitation rules, at-risk basis is increased by gain recognized from disposition of the stock.  Accordingly, it appears that suspended losses arising from the at-risk rules can be claimed by the shareholder to the extent of gain recognized.  (Prop. Regs. § 1.465-66(a) specifically states that this rule applies to the liquidation of a partner’s interest and the complete redemption of an S shareholder’s interest.)

Losses limited by the passive activity rules are also suspended at the shareholder level and carry forward indefinitely to offset future passive income.  While a taxpayer who disposes of his or her entire interest in a passive activity can deduct suspended passive losses (and any loss from the disposition) against current passive and nonpassive income, an exception to this rule postpones the deduction if the passive activity is transferred to a related party (§§ 267(b)(2) and 469(g)(1)(B)).  While a corporation and a 50%-or-more shareholder are related for this purpose, it seems that this exception would not prevent a less-than-50% shareholder from recognizing suspended passive losses due to the liquidation of the corporation.



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