26 U.S.C. § 1504 — Definitions

Page 2550 TITLE 26—INTERNAL REVENUE CODE § 1504 Amendment by section 1052(c)(5) of Pub. L. 94–455 ef- fective with respect to taxable years beginning after Dec. 31, 1979, see section 1052(d) of Pub. L. 94–455, set out as a note under section 170 of this title. Amendment by section 1507(b)(3) of Pub. L. 94–455 ap- plicable to taxable years beginning after Dec. 31, 1980, see section 1507(c) of Pub. L. 94–455, set out as a note under section 1504 of this title. Amendment by section 1901(b)(1)(Y) of Pub. L. 94–455 applicable with respect to taxable years beginning after Dec. 31, 1976, see section 1901(d) of Pub. L. 94–455, set out as a note under section 2 of this title. EFFECTIVE DATE OF 1964 AMENDMENT Pub. L. 88–272, title II, § 234(c), Feb. 26, 1964, 78 Stat. 116, provided that: ‘‘The amendments made by sub- sections (a) and (b) [amending this section and sections 12, 172, 904, 1341, 1552, and 7701 of this title] shall apply with respect to taxable years beginning after December 31, 1963.’’ EFFECTIVE DATE OF 1960 AMENDMENT Amendment by Pub. L. 86–780 applicable to taxable years beginning after Dec. 31, 1960, see section 4 of Pub. L. 86–780, set out as a note under section 904 of this title. SAVINGS PROVISION For provisions that nothing in amendment by Pub. L. 101–508 be construed to affect treatment of certain transactions occurring, property acquired, or items of income, loss, deduction, or credit taken into account prior to Nov. 5, 1990, for purposes of determining liabil- ity for tax for periods ending after Nov. 5, 1990, see sec- tion 11821(b) of Pub. L. 101–508, set out as a note under section 45K of this title. § 1504. Definitions (a) Affiliated group defined For purposes of this subtitle— (1) In general The term ‘‘affiliated group’’ means— (A) 1 or more chains of includible corpora- tions connected through stock ownership with a common parent corporation which is an includible corporation, but only if— (B)(i) the common parent owns directly stock meeting the requirements of para- graph (2) in at least 1 of the other includible corporations, and (ii) stock meeting the requirements of paragraph (2) in each of the includible cor- porations (except the common parent) is owned directly by 1 or more of the other in- cludible corporations. (2) 80-percent voting and value test The ownership of stock of any corporation meets the requirements of this paragraph if it— (A) possesses at least 80 percent of the total voting power of the stock of such cor- poration, and (B) has a value equal to at least 80 percent of the total value of the stock of such cor- poration. (3) 5 years must elapse before reconsolidation (A) In general If— (i) a corporation is included (or required to be included) in a consolidated return filed by an affiliated group, and (ii) such corporation ceases to be a mem- ber of such group, with respect to periods after such cessation, such corporation (and any successor of such corporation) may not be included in any consolidated return filed by the affiliated group (or by another affiliated group with the same common parent or a successor of such common parent) before the 61st month beginning after its first taxable year in which it ceased to be a member of such af- filiated group. (B) Secretary may waive application of sub- paragraph (A) The Secretary may waive the application of subparagraph (A) to any corporation for any period subject to such conditions as the Secretary may prescribe. (4) Stock not to include certain preferred stock For purposes of this subsection, the term ‘‘stock’’ does not include any stock which— (A) is not entitled to vote, (B) is limited and preferred as to dividends and does not participate in corporate growth to any significant extent, (C) has redemption and liquidation rights which do not exceed the issue price of such stock (except for a reasonable redemption or liquidation premium), and (D) is not convertible into another class of stock. (5) Regulations The Secretary shall prescribe such regula- tions as may be necessary or appropriate to carry out the purposes of this subsection, in- cluding (but not limited to) regulations— (A) which treat warrants, obligations con- vertible into stock, and other similar inter- ests as stock, and stock as not stock, (B) which treat options to acquire or sell stock as having been exercised, (C) which provide that the requirements of paragraph (2)(B) shall be treated as met if the affiliated group, in reliance on a good faith determination of value, treated such requirements as met, (D) which disregard an inadvertent ceasing to meet the requirements of paragraph (2)(B) by reason of changes in relative values of different classes of stock, (E) which provide that transfers of stock within the group shall not be taken into ac- count in determining whether a corporation ceases to be a member of an affiliated group, and (F) which disregard changes in voting power to the extent such changes are dis- proportionate to related changes in value. (b) Definition of ‘‘includible corporation’’ As used in this chapter, the term ‘‘includible corporation’’ means any corporation except— (1) Corporations exempt from taxation under section 501. (2) Insurance companies subject to taxation under section 801. (3) Foreign corporations. (4) Regulated investment companies and real estate investment trusts subject to tax under subchapter M of chapter 1. Page 2551 TITLE 26—INTERNAL REVENUE CODE § 1504 (5) A DISC (as defined in section 992(a)(1)). (6) An S corporation. (c) Includible insurance companies Notwithstanding the provisions of paragraph (2) of subsection (b)— (1) Two or more domestic insurance compa- nies each of which is subject to tax under sec- tion 801 shall be treated as includible corpora- tions for purposes of applying subsection (a) to such insurance companies alone. (2)(A) If an affiliated group (determined without regard to subsection (b)(2)) includes one or more domestic insurance companies taxed under section 801, the common parent of such group may elect (pursuant to regulations prescribed by the Secretary) to treat all such companies as includible corporations for pur- poses of applying subsection (a) except that no such company shall be so treated until it has been a member of the affiliated group for the 5 taxable years immediately preceding the taxable year for which the consolidated return is filed. (B) If an election under this paragraph is in effect for a taxable year— (i) section 243(b)(3) and the exception pro- vided under section 243(b)(2) with respect to subsections (b)(2) and (c) of this section, (ii) section 542(b)(5), and (iii) subsection (a)(4) and (b)(2)(D) of sec- tion 1563, and the reference to section 1563(b)(2)(D) contained in section 1563(b)(3)(C), shall not be effective for such taxable year. (d) Subsidiary formed to comply with foreign law In the case of a domestic corporation owning or controlling, directly or indirectly, 100 percent of the capital stock (exclusive of directors’ qualifying shares) of a corporation organized under the laws of a contiguous foreign country and maintained solely for the purpose of com- plying with the laws of such country as to title and operation of property, such foreign corpora- tion may, at the option of the domestic corpora- tion, be treated for the purpose of this subtitle as a domestic corporation. (e) Includible tax-exempt organizations Despite the provisions of paragraph (1) of sub- section (b), two or more organizations exempt from taxation under section 501, one or more of which is described in section 501(c)(2) and the others of which derive income from such 501(c)(2) organizations, shall be considered as in- cludible corporations for the purpose of the ap- plication of subsection (a) to such organizations alone. (f) Special rule for certain amounts derived from a corporation previously treated as a DISC In determining the consolidated taxable in- come of an affiliated group for any taxable year beginning after December 31, 1984, a corporation which had been a DISC and which would other- wise be a member of such group shall not be treated as such a member with respect to— (1) any distribution (or deemed distribution) of accumulated DISC income which was not treated as previously taxed income under sec- tion 805(b)(2)(A) of the Tax Reform Act of 1984, and (2) any amount treated as received under section 805(b)(3) of such Act. (Aug. 16, 1954, ch. 736, 68A Stat. 369; Mar. 13, 1956, ch. 83, § 5(8), 70 Stat. 49; Pub. L. 85–866, title I, § 64(d)(3), Sept. 2, 1958, 72 Stat. 1657; Pub. L. 86–69, § 3(f)(1), June 25, 1959, 73 Stat. 140; Pub. L. 86–376, § 2(c), Sept. 23, 1959, 73 Stat. 699; Pub. L. 86–779, § 10(j), Sept. 14, 1960, 74 Stat. 1009; Pub. L. 89–389, § 4(b)(3), Apr. 14, 1966, 80 Stat. 116; Pub. L. 91–172, title I, § 121(a)(4), Dec. 30, 1969, 83 Stat. 537; Pub. L. 92–178, title V, § 502(e), Dec. 10, 1971, 85 Stat. 550; Pub. L. 94–455, title VIII, § 803(b)(3), title X, §§ 1051(g), 1053(d)(2), title XV, § 1507(a), Oct. 4, 1976, 90 Stat. 1584, 1646, 1649, 1739; Pub. L. 95–600, title I, § 141(f)(4), Nov. 6, 1978, 92 Stat. 2795; Pub. L. 96–222, title I, § 101(a)(7)(L)(i)(VIII), (iv)(II), Apr. 1, 1980, 94 Stat. 199, 200; Pub. L. 98–369, div. A, title I, § 60(a), title II, § 211(b)(20), July 18, 1984, 98 Stat. 577, 756; Pub. L. 99–514, title X, § 1024(c)(15), (16), title XVIII, §§ 1804(e)(1), (10), 1899A(35), Oct. 22, 1986, 100 Stat. 2408, 2800, 2804, 2960; Pub. L. 100–647, title I, § 1018(d)(10), Nov. 10, 1988, 102 Stat. 3581; Pub. L. 101–508, title XI, § 11814(b), Nov. 5, 1990, 104 Stat. 1388–557; Pub. L. 104–188, title I, §§ 1308(d)(2), 1702(h)(6), Aug. 20, 1996, 110 Stat. 1783, 1874; Pub. L. 113–295, div. A, title II, § 221(a)(93), Dec. 19, 2014, 128 Stat. 4050; Pub. L. 115–141, div. U, title IV, § 401(d)(1)(D)(xvii)(I), Mar. 23, 2018, 132 Stat. 1208.) Editorial Notes REFERENCES IN TEXT Section 805(b)(2)(A) and (3) of the Tax Reform Act of 1984, referred to in subsec. (f)(1), (2), is section 805(b)(2)(A) and (3) of Pub. L. 98–369, which is set out as a note under section 991 of this title. AMENDMENTS 2018—Subsec. (b)(4) to (8). Pub. L. 115–141 redesignated pars. (6) to (8) as (4) to (6), respectively, and struck out former par. (4) which read as follows: ‘‘Corporations with respect to which an election under section 936 (re- lating to possession tax credit) is in effect for the tax- able year.’’ 2014—Subsec. (a)(3)(A). Pub. L. 113–295 struck out ‘‘for a taxable year which includes any period after Decem- ber 31, 1984’’ after ‘‘affiliated group’’ in cl. (i) and struck out ‘‘in a taxable year beginning after December 31, 1984’’ after ‘‘such group’’ in cl. (ii). 1996—Subsec. (b)(8). Pub. L. 104–188, § 1308(d)(2), added par. (8). Subsec. (c)(2)(B)(i). Pub. L. 104–188, § 1702(h)(6), in- serted ‘‘section’’ before ‘‘243(b)(2)’’. 1990—Subsec. (c)(2)(B)(i). Pub. L. 101–508, § 11814(b), substituted ‘‘section 243(b)(3)’’ for ‘‘section 243(b)(6)’’ and ‘‘243(b)(2)’’ for ‘‘section 243(b)(5)’’. 1988—Subsec. (b)(7). Pub. L. 100–647, § 1018(d)(10)(A), amended par. (7) generally, striking out ‘‘, or any other corporation which has accumulated DISC income which is derived after December 31, 1984’’ after ‘‘in section 992(a)(1))’’. Subsec. (f). Pub. L. 100–647, § 1018(d)(10)(B), added sub- sec. (f). 1986—Subsec. (a)(4)(C). Pub. L. 99–514, § 1804(e)(1), amended subpar. (C) generally. Prior to amendment, subpar. (C) read as follows: ‘‘has redemption and liq- uidation rights which do not exceed the paid-in capital or par value represented by such stock (except for a reasonable redemption premium in excess of such paid- in capital or par value), and’’. Subsec. (b)(2). Pub. L. 99–514, § 1024(c)(15), struck out ‘‘or 821’’ after ‘‘section 802’’. Page 2552 TITLE 26—INTERNAL REVENUE CODE § 1504 Subsec. (b)(7). Pub. L. 99–514, § 1804(e)(10), amended par. (7) generally. Prior to amendment, par. (7) read as follows: ‘‘A DISC or former DISC (as defined in section 992(a)).’’ Subsec. (c)(2)(A). Pub. L. 99–514, § 1899A(35), struck out ‘‘or 821’’ after ‘‘section 801’’. Pub. L. 99–514, § 1024(c)(16), substituted ‘‘subsection (b)(2)) includes’’ for ‘‘subsection (b)(2) includes’’. 1984—Subsec. (a). Pub. L. 98–369, § 60(a), in amending subsec. (a), generally, revised existing provisions of subsec. (a) into pars. (1), (2), and (4), added pars. (3) and (5), revised definition of ‘‘affiliated group’’, and ex- panded the enumeration of securities not included under term ‘‘stock’’. Subsecs. (b)(2), (c)(1), (2)(A). Pub. L. 98–369, § 211(b)(20), substituted ‘‘section 801’’ for ‘‘section 802’’. 1980—Subsec. (a). Pub. L. 96–222 substituted ‘‘a tax credit employee stock ownership plan’’ for ‘‘an ESOP’’ and ‘‘employee’’ for ‘‘leveraged employee’’. 1978—Subsec. (a). Pub. L. 95–600 substituted ‘‘(within the meaning for section 409A(l)) while such securities are held under an ESOP, or qualifying employer securi- ties (within the meaning of section 4975(e)(8)) while such securities are held under a leveraged employee stock ownership plan which meets the requirements of section 4975(e)(7)’’ for ‘‘within the meaning of section 301(d)(9)(A) of the Tax Reduction Act of 1975, or quali- fying employer securities within the meaning of sec- tion 4975(e)(8) while such securities are held under an employee stock ownership plan which meets the re- quirements of section 301(d) of such Act or section 4975(e)(7), respectively’’. 1976—Subsec. (a). Pub. L. 94–455, § 803(b)(3), sub- stituted ‘‘dividends, employer securities within the meaning of section 301(d)(9)(A) of the Tax Reduction Act of 1976, or qualifying employer securities within the meaning of section 4975(e)(8) while such securities are held under an employee stock ownership plan which meets the requirements of section 301(d) of such Act or section 4975(e)(7), respectively’’ for ‘‘dividends’’ after ‘‘preferred as to’’. Subsec. (b)(4). Pub. L. 94–455, § 1051(g), substituted ‘‘Corporations with respect to which an election under section 936 (relating to possession tax credit) is in ef- fect for the taxable year’’ for ‘‘Corporations entitled to the benefits of section 931, by reason of receiving a large percentage of their income from sources within possessions of the United States’’ in par. (4). Subsec. (b)(5). Pub. L. 94–455, § 1053(d)(2), struck out par. (5) which included corporations organized under the China Trade Act, 1922, within term ‘‘includible cor- poration’’. Subsec. (c). Pub. L. 94–455, § 1507(a), designated exist- ing provisions as provision preceding par. (1) and par. (1), in provision preceding par. (1) as so designated, sub- stituted ‘‘Notwithstanding the provisions’’ for ‘‘Despite the provisions’’, in par. (1) as so designated, substituted ‘‘tax under section 802 shall be treated’’ for ‘‘taxation under the same section of this subtitle shall be consid- ered’’ and added par. (2). 1971—Subsec. (b)(7). Pub. L. 92–178 added par. (7). 1969—Subsec. (e). Pub. L. 91–172 added subsec. (e). 1966—Subsec. (b)(7). Pub. L. 89–389 struck out par. (7) exception to definition of ‘‘includible corporation’’ of unincorporated business enterprises subject to tax as corporations under section 1361 of this title. 1960—Subsec. (b)(6). Pub. L. 86–779 inserted ‘‘and real estate investment trusts’’ after ‘‘Regulated investment companies’’. 1959—Subsec. (b)(2). Pub. L. 86–69 struck out reference to section 811. Subsec. (b)(8). Pub. L. 86–376 struck out par. (8) which excepted an electing small business corporation from term ‘‘includible corporation’’. 1958—Subsec. (b)(8). Pub. L. 85–866 added par. (8). 1956—Subsec. (b)(2), Act Mar. 13, 1956, inserted ref- erence to section 811. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2014 AMENDMENT Amendment by Pub. L. 113–295 effective Dec. 19, 2014, subject to a savings provision, see section 221(b) of Pub. L. 113–295, set out as a note under section 1 of this title. EFFECTIVE DATE OF 1996 AMENDMENT Amendment by section 1308(d)(2) of Pub. L. 104–188 ap- plicable to taxable years beginning after Dec. 31, 1996, see section 1317(a) of Pub. L. 104–188, set out as a note under section 641 of this title. Amendment by section 1702(h)(6) of Pub. L. 104–188 ef- fective, except as otherwise expressly provided, as if in- cluded in the provision of the Revenue Reconciliation Act of 1990, Pub. L. 101–508, title XI, to which such amendment relates, see section 1702(i) of Pub. L. 104–188, set out as a note under section 38 of this title. EFFECTIVE DATE OF 1990 AMENDMENT Amendment by Pub. L. 101–508 applicable to taxable years beginning after Dec. 31, 1990, and for purposes of section 243(b)(3) of this title, references to elections under such section to include references to an election under section 243(b) of this title as in effect on Nov. 4, 1990, see section 11814(c) of Pub. L. 101–508, set out as a note under section 243 of this title. EFFECTIVE DATE OF 1988 AMENDMENT Amendment by Pub. L. 100–647 effective, except as otherwise provided, as if included in the provision of the Tax Reform Act of 1986, Pub. L. 99–514, to which such amendment relates, see section 1019(a) of Pub. L. 100–647, set out as a note under section 1 of this title. EFFECTIVE DATE OF 1986 AMENDMENT Amendment by section 1024(c)(15), (16) of Pub. L. 99–514 applicable to taxable years beginning after Dec. 31, 1986, see section 1024(e) of Pub. L. 99–514, set out as a note under section 831 of this title. Amendment by section 1804(e)(1), (10) of Pub. L. 99–514 effective, except as otherwise provided, as if included in the provisions of the Tax Reform Act of 1984, Pub. L. 98–369, div. A, to which such amendment relates, see section 1881 of Pub. L. 99–514, set out as a note under section 48 of this title. EFFECTIVE DATE OF 1984 AMENDMENT Pub. L. 98–369, div. A, title I, § 60(b), July 18, 1984, 98 Stat. 579, as amended by Pub. L. 99–514, § 2, title XVIII, § 1804(e)(2)–(5), Oct. 22, 1986, 100 Stat. 2095, 2800, provided that: ‘‘(1) IN GENERAL.—Except as otherwise provided in this subsection, the amendment made by subsection (a) [amending this section] shall apply to taxable years be- ginning after December 31, 1984. ‘‘(2) SPECIAL RULE FOR CORPORATIONS AFFILIATED ON JUNE 22, 1984.—In the case of a corporation which on June 22, 1984, is a member of an affiliated group which files a consolidated return for such corporation’s tax- able year which includes June 22, 1984, for purposes of determining whether such corporation continues to be a member of such group for taxable years beginning be- fore January 1, 1988, the amendment made by sub- section (a) [amending this section] shall not apply. The preceding sentence shall cease to apply as of the first day after June 22, 1984, on which such corporation does not qualify as a member of such group under section 1504(a) of the Internal Revenue Code of 1954 [now 1986] (as in effect on the day before the date of the enact- ment of this Act [July 18, 1984]). ‘‘(3) SPECIAL RULE NOT TO APPLY TO CERTAIN SELL- DOWNS AFTER JUNE 22, 1984.—If— ‘‘(A) the requirements of paragraph (2) are satisfied with respect to a corporation, ‘‘(B) more than a de minimis amount of the stock of such corporation— ‘‘(i) is sold or exchanged (including in a redemp- tion), or Page 2553 TITLE 26—INTERNAL REVENUE CODE § 1504 ‘‘(ii) is issued, after June 22, 1984 (other than in the ordinary course of business), and ‘‘(C) the requirements of the amendment made by subsection (a) are not satisfied after such sale, ex- change, or issuance, then the amendment made by subsection (a) [amending this section] shall apply for purposes of determining whether such corporation continues to be a member of the group. The preceding sentence shall not apply to any transaction if such transaction does not reduce the percentage of the fair market value of the stock of the corporation referred to in the preceding sentence held by members of the group determined without regard to this paragraph. ‘‘(4) EXCEPTION FOR CERTAIN SELL-DOWNS.—Subsection (b)(2) (and not subsection (b)(3)) will apply to a corpora- tion if such corporation issues or sells stock after June 22, 1984, pursuant to a registration statement filed with the Securities and Exchange Commission on or before June 22, 1984, but only if the requirements of the amendment made by subsection (a) [amending this sec- tion] (substituting ‘more than 50 percent’ for ‘at least 80 percent’ in paragraph (2)(B) of section 1504(a) of the Internal Revenue Code of 1986 [formerly I.R.C. 1954]) are satisfied immediately after such issuance or sale and at all times thereafter until the first day of the first tax- able year beginning after December 31, 1987. For pur- poses of the preceding sentence, if there is a letter of intent between a corporation and a securities under- writer entered into on or before June 22, 1984, and the subsequent issuance or sale is effected pursuant to a registration statement filed with the Securities and Exchange Commission, such stock shall be treated as issued or sold pursuant to a registration statement filed with the Securities and Exchange Commission on or before June 22, 1984. ‘‘(5) NATIVE CORPORATIONS.— ‘‘(A) In the case of a Native Corporation established under the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.), or a corporation all of whose stock is owned directly by such a corporation, during any taxable year (beginning after the effective date of these amendments and before 1992), or any part thereof, in which the Native Corporation is subject to the provisions of section 7(h)(1) of such Act (43 U.S.C. 1606(h)(1))— ‘‘(i) the amendment made by subsection (a) [amending this section] shall not apply, and ‘‘(ii) the requirements for affiliation under sec- tion 1504(a) of the Internal Revenue Code of 1986 be- fore the amendment made by subsection (a) shall be applied solely according to the provisions expressly contained therein, without regard to escrow ar- rangements, redemption rights, or similar provi- sions. ‘‘(B) Except as provided in subparagraph (C), during the period described in subparagraph (A), no provi- sion of the Internal Revenue Code of 1986 (including sections 269 and 482) or principle of law shall apply to deny the benefit or use of losses incurred or credits earned by a corporation described in subparagraph (A) to the affiliated group of which the Native Cor- poration is the common parent. ‘‘(C) Losses incurred or credits earned by a corpora- tion described in subparagraph (A) shall be subject to the general consolidated return regulations, includ- ing the provisions relating to separate return limita- tion years, and to sections 382 and 383 of the Internal Revenue Code of 1986. ‘‘(D) Losses incurred and credits earned by a cor- poration which is affiliated with a corporation de- scribed in subparagraph (A) shall be treated as having been incurred or earned in a separate return limita- tion year, unless the corporation incurring the losses or earning the credits satisfies the affiliation require- ments of section 1504(a) without application of sub- paragraph (A). ‘‘(6) TREATMENT OF CERTAIN CORPORATIONS AFFILIATED ON JUNE 22, 1984.—In the case of an affiliated group which— ‘‘(A) has as its common parent a Minnesota cor- poration incorporated on April 23, 1940, and ‘‘(B) has a member which is a New York corpora- tion incorporated on November 13, 1969, for purposes of determining whether such New York corporation continues to be a member of such group, paragraph (2) shall be applied by substituting for ‘Janu- ary 1, 1988,’ the earlier of January 1, 1994, or the date on which the voting power of the preferred stock in such New York corporation terminates. ‘‘(7) ELECTION TO HAVE AMENDMENTS APPLY FOR YEARS BEGINNING AFTER 1983.—If the common parent of any group makes an election under this paragraph, not- withstanding any other provision of this subsection, the amendments made by subsection (a) [amending this section] shall apply to such group for taxable years be- ginning after December 31, 1983. Any such election, once made, shall be irrevocable. ‘‘(8) TREATMENT OF CERTAIN AFFILIATED GROUPS.—If— ‘‘(A) a corporation (hereinafter in this paragraph referred to as the ‘parent’) was incorporated in 1968 and filed consolidated returns as the parent of an af- filiated group for each of its taxable years ending after 1969 and before 1985, ‘‘(B) another corporation (hereinafter in this para- graph referred to as the ‘subsidiary’) became a mem- ber of the parent’s affiliated group in 1978 by reason of a recapitalization pursuant to which the parent in- creased its voting interest in the subsidiary from not less than 56 percent to not less than 85 percent, and ‘‘(C) such subsidiary is engaged (or was on Sep- tember 27, 1985, engaged) in manufacturing and dis- tributing a broad line of business systems and related supplies for binding, laminating, shredding, graphics, and providing secure identification, then, for purposes of determining whether such sub- sidiary corporation is a member of the parent’s affili- ated group under section 1504(a) of the Internal Rev- enue Code of 1954 [now 1986] (as amended by subsection (a)), paragraph (2)(B) of such section 1504(a) shall be ap- plied by substituting ‘55 percent’ for ‘80 percent’. ‘‘(9) TREATMENT OF CERTAIN CORPORATIONS AFFILIATED DURING 1971.— In the case of a group of corporations which filed a consolidated Federal income tax return for the taxable year beginning during 1971 and which— ‘‘(A) included as a common parent on December 31, 1971, a Delaware corporation incorporated on August 26, 1969, and ‘‘(B) included as a member thereof a Delaware cor- poration incorporated on November 8, 1971, for taxable years beginning after December 31, 1970, and ending before January 1, 1988, the requirements for af- filiation for each member of such group under section 1504(a) of the Internal Revenue Code of 1954 [now 1986] (before the amendment made by subsection (a) [amend- ing this section]) shall be limited solely to the provi- sions expressly contained therein and by reference to stock issued under State law as common or preferred stock. During the period described in the preceding sen- tence, no provision of the Internal Revenue Code of 1986 (including sections 269 and 482) or principle of law, ex- cept the general consolidated return regulations (in- cluding the provisions relating to separate return limi- tation years) and sections 382 and 383 of such Code, shall apply to deny the benefit or use of losses incurred or credits earned by members of such group.’’ Amendment by section 211(b)(20) of Pub. L. 98–369 ap- plicable to taxable years beginning after Dec. 31, 1983, see section 215 of Pub. L. 98–369, set out as an Effective Date note under section 801 of this title. EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96–222 effective, except as oth- erwise provided, as if it had been included in the provi- sions of the Revenue Act of 1978, Pub. L. 95–600, to which such amendment relates, see section 201 of Pub. L. 96–222, set out as a note under section 32 of this title. EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95–600 effective with respect to qualified investment for taxable years beginning Page 2554 TITLE 26—INTERNAL REVENUE CODE § 1504 after Dec. 31, 1978, see section 141(g)(1) of Pub. L. 95–600, set out as a Effective Date note under section 409 of this title. EFFECTIVE DATE OF 1976 AMENDMENT Amendment by section 803(b)(3) of Pub. L. 94–455 ap- plicable for taxable years beginning after Dec. 31, 1974, see section 803(j) of Pub. L. 94–455, set out as a note under section 46 of this title. Amendment by section 1051(g) of Pub. L. 94–455 appli- cable to taxable years beginning after Dec. 31, 1975, see section 1051(i) of Pub. L. 94–455, set out as a note under section 27 of this title. Pub. L. 94–455, title X, § 1053(e), Oct. 4, 1976, 90 Stat. 1649, provided that: ‘‘The amendments made by sub- sections (a) and (b) [amending section 941 and 943 of this title] shall apply with respect to taxable years be- ginning after December 31, 1975. The amendments made by subsections (c) and (d) [amending this section and sections 116, 6072, and 6091 of this title and repealing sections 941–943 of this title] shall apply with respect to taxable years beginning after December 31, 1977.’’ Pub. L. 94–455, title XV, § 1507(c)(1), Oct. 4, 1976, 90 Stat. 1740, provided that: ‘‘The amendments made by subsections (a) and (b) [amending this section and sec- tions 821, 843, and 1503 of this title] shall apply to tax- able years beginning after December 31, 1980.’’ EFFECTIVE DATE OF 1971 AMENDMENT Amendment by Pub. L. 92–178 applicable with respect to taxable years ending after Dec. 31, 1971, except that a corporation may not be a DISC for any taxable year beginning before Jan. 1, 1972, see section 507 of Pub. L. 92–178, set out as an Effective Date note under section 991 of this title. EFFECTIVE DATE OF 1969 AMENDMENT Amendment by Pub. L. 91–172 applicable to taxable years beginning after Dec. 31, 1969, see section 121(g) of Pub. L. 91–172, set out as a note under section 511 of this title. EFFECTIVE DATE OF 1966 AMENDMENT Pub. L. 89–389, § 4(b), Apr. 14, 1966, 80 Stat. 116, pro- vided that the amendment made by that section is ef- fective on Jan. 1, 1969. EFFECTIVE DATE OF 1960 AMENDMENT Amendment by Pub. L. 86–779 applicable with respect to taxable years of real estate investment trusts begin- ning after Dec. 31, 1960, see section 10(k) of Pub. L. 86–779, set out as an Effective Date note under section 856 of this title. EFFECTIVE DATE OF 1959 AMENDMENTS Pub. L. 86–376, § 2(d), Sept. 23, 1959, 73 Stat. 699, pro- vided that: ‘‘The amendment made by subsection (a) [amending section 1371 of this title] shall apply to tax- able years beginning after December 31, 1959. The amendments made by subsections (b) and (c) [amending this section and section 1374 of this title] shall take ef- fect on the day after the date of the enactment of this Act [Sept. 23, 1959].’’ Amendment by Pub. L. 86–69 applicable only with re- spect to taxable years beginning after Dec. 31, 1957, see section 4 of Pub. L. 86–69, set out as an Effective Date note under section 381 of this title. EFFECTIVE DATE OF 1958 AMENDMENT Amendment by Pub. L. 85–866 applicable only with re- spect to taxable years beginning after Dec. 31, 1958, see section 64(e) of Pub. L. 85–866, set out as a note under section 172 of this title. EFFECTIVE DATE OF 1956 AMENDMENT Amendment by act Mar. 13, 1956, applicable only to taxable years beginning after Dec. 31, 1954, see section 6 of act Mar. 13, 1956, set out as a note set out under section 316 of this title. SAVINGS PROVISION For provisions that nothing in amendment by Pub. L. 115–141 be construed to affect treatment of certain transactions occurring, property acquired, or items of income, loss, deduction, or credit taken into account prior to Mar. 23, 2018, for purposes of determining li- ability for tax for periods ending after Mar. 23, 2018, see section 401(e) of Pub. L. 115–141, set out as a note under section 23 of this title. For provisions that nothing in amendment by Pub. L. 101–508 be construed to affect treatment of certain transactions occurring, property acquired, or items of income, loss, deduction, or credit taken into account prior to Nov. 5, 1990, for purposes of determining liabil- ity for tax for periods ending after Nov. 5, 1990, see sec- tion 11821(b) of Pub. L. 101–508, set out as a note under section 45K of this title. REPEAL OF RULES PERMITTING LOSS TRANSFERS BY ALASKA NATIVE CORPORATIONS Pub. L. 100–647, title V, § 5021, Nov. 10, 1988, 102 Stat. 3666, as amended by Pub. L. 101–239, title VII, § 7815(b), Dec. 19, 1989, 103 Stat. 2414, provided that: ‘‘(a) GENERAL RULE.—Nothing in section 60(b)(5) of the Tax Reform Act of 1984 (as amended by section 1804(e)(4) of the Tax Reform Act of 1986) [section 60(b)(5) of Pub. L. 98–369, set out as an Effective Date of 1984 Amendment note above]— ‘‘(1) shall allow any loss (or credit) of any corpora- tion which arises after April 26, 1988, to be used to off- set the income (or tax) of another corporation if such use would not be allowable without regard to such section 60(b)(5) as so amended, or ‘‘(2) shall allow any loss (or credit) of any corpora- tion which arises on or before such date to be used to offset disqualified income (or tax attributable to such income) of another corporation if such use would not be allowable without regard to such section 60(b)(5) as so amended. ‘‘(b) EXCEPTION FOR EXISTING CONTRACTS.— ‘‘(1) IN GENERAL.—Subsection (a) shall not apply to any loss (or credit) of any corporation if— ‘‘(A) such corporation was in existence on April 26, 1988, and ‘‘(B) such loss (or credit) is used to offset income assigned (or attributable to property contributed) pursuant to a binding contract entered into before July 26, 1988. ‘‘(2) $40,000,000 LIMITATION.—The aggregate amount of losses (and the deduction equivalent of credits as determined in the same manner as under section 469(j)(5) of the 1986 Code) to which paragraph (1) ap- plies with respect to any corporation shall not exceed $40,000,000. For purposes of this paragraph, a Native Corporation and all other corporations all of the stock of which is owned directly by such corporation shall be treated as 1 corporation. ‘‘(3) SPECIAL RULE FOR CORPORATIONS UNDER TITLE 11.—In the case of a corporation which on April 26, 1988, was under the jurisdiction of a Federal district court under title 11 of the United States Code— ‘‘(A) paragraph (1)(B) shall be applied by sub- stituting the date 1 year after the date of the enact- ment of this Act [Nov. 10, 1988] for ‘July 26, 1988’, ‘‘(B) paragraph (1) shall not apply to any loss or credit which arises on or after the date 1 year after the date of the enactment of this Act, and ‘‘(C) paragraph (2) shall be applied by substituting ‘$99,000,000’ for ‘$40,000,000’. ‘‘(c) SPECIAL ADMINISTRATIVE RULES.— ‘‘(1) NOTICE TO NATIVE CORPORATIONS OF PROPOSED TAX ADJUSTMENTS.—Notwithstanding section 6103 of the 1986 Code, the Secretary of the Treasury or his delegate shall notify a Native Corporation or its des- ignated representative of any proposed adjustment— ‘‘(A) of the tax liability of a taxpayer which has contracted with the Native Corporation (or other corporation all of the stock of which is owned di- rectly by the Native Corporation) for the use of Page 2555 TITLE 26—INTERNAL REVENUE CODE [§ 1551 1 Section numbers editorially supplied. losses of such Native Corporation (or such other corporation), and ‘‘(B) which is attributable to an asserted over- statement of losses by, or misassignment of income (or income attributable to property contributed) to, an affiliated group of which the Native Corporation (or such other corporation) is a member. Such notice shall only include information with re- spect to the transaction between the taxpayer and the Native Corporation. ‘‘(2) RIGHTS OF NATIVE CORPORATION.— ‘‘(A) IN GENERAL.—If a Native Corporation re- ceives a notice under paragraph (1), the Native Cor- poration shall have the right to— ‘‘(i) submit to the Secretary of the Treasury or his delegate a written statement regarding the proposed adjustment, and ‘‘(ii) meet with the Secretary of the Treasury or his delegate with respect to such proposed adjust- ment. The Secretary of the Treasury or his delegate may discuss such proposed adjustment with the Native Corporation or its designated representative. ‘‘(B) EXTENSION OF STATUTE OF LIMITATIONS.—Sub- paragraph (A) shall not apply if the Secretary of the Treasury or his delegate determines that an ex- tension of the statute of limitation[s] is necessary to permit the participation described in subpara- graph (A) and the taxpayer and the Secretary or his delegate have not agreed to such extension. ‘‘(3) JUDICIAL PROCEEDINGS.—In the case of any pro- ceeding in a Federal court or the United States Tax Court involving a proposed adjustment under para- graph (1), the Native Corporation, subject to the rules of such court, may file an amicus brief concerning such adjustment. ‘‘(4) FAILURES.—For purposes of the 1986 Code, any failure by the Secretary of the Treasury or his dele- gate to comply with the provisions of this subsection shall not affect the validity of the determination of the Internal Revenue Service of any adjustment of tax liability of any taxpayer described in paragraph (1). ‘‘(d) DISQUALIFIED INCOME DEFINED.—For purposes of subsection (a), the term ‘disqualified income’ means any income assigned (or attributable to property con- tributed) after April 26, 1988, by a person who is not a Native Corporation or a corporation all the stock of which is owned directly by a Native Corporation. ‘‘(e) BASIS DETERMINATION.—For purposes of deter- mining basis for Federal tax purposes, no provision in any law enacted after the date of the enactment of this Act [Nov. 10, 1988] shall affect the date on which the transfer to the Native Corporation is made. The pre- ceding sentence shall apply to all taxable years wheth- er beginning before, on, or after such date of enact- ment.’’ PLAN AMENDMENTS NOT REQUIRED UNTIL JANUARY 1, 1989 For provisions directing that if any amendments made by subtitle A or subtitle C of title XI [§§ 1101–1147 and 1171–1177] or title XVIII [§§ 1800–1899A] of Pub. L. 99–514 require an amendment to any plan, such plan amendment shall not be required to be made before the first plan year beginning on or after Jan. 1, 1989, see section 1140 of Pub. L. 99–514, as amended, set out as a note under section 401 of this title. TRANSACTION RULES Pub. L. 94–455, title XV, § 1507(c)(2), Oct. 4, 1976, 90 Stat. 1740, as amended by Pub. L. 99–514, § 2, Oct. 22, 1986, 100 Stat. 2095, provided that: ‘‘(A) LIMITATIONS ON CARRYOVERS OR CARRYBACKS FOR GROUPS ELECTING UNDER SECTION 1504(c)(2).—If an affili- ated group elects to file a consolidated return pursuant to section 1501(c)(2) of the Internal Revenue Code of 1986 [formerly I.R.C. 1954] a carryover of a loss or credit from a taxable year ending before January 1, 1981, and losses or credits which may be carried back to taxable years ending before such date, shall be taken into ac- count as if this section had not been enacted. ‘‘(B) NONTERMINATION OF AFFILIATED GROUP.—The mere election to file a consolidated return pursuant to such section 1504(c)(2) shall not cause the termination of an affiliated group filing consolidated returns.’’ § 1505. Cross references (1) For suspension of running of statute of limita- tions when notice in respect of a deficiency is mailed to one corporation, see section 6503(a)(1). (2) For allocation of income and deductions of re- lated trades or businesses, see section 482. (Aug. 16, 1954, ch. 736, 68A Stat. 370.) Subchapter B—Related Rules Part Sec.1 I. In general .............................................. 1551 II. Certain controlled corporations ............ 1561 PART I—IN GENERAL Sec. [1551. Repealed.] 1552. Earnings and profits. Editorial Notes AMENDMENTS 2017—Pub. L. 115–97, title I, § 13001(b)(5)(A), Dec. 22, 2017, 131 Stat. 2098, which directed amendment of the table of sections for part I of subchapter B of chapter 5 by striking out item 1551 ‘‘Disallowance of the bene- fits of the graduated corporate rates and accumulated earnings credit’’, was executed to the table of sections for part I of subchapter B of this chapter to reflect the probable intent of Congress. 1978—Pub. L. 95–600, title III, § 301(b)(18)(C), Nov. 6, 1978, 92 Stat. 2823, in item 1551 substituted ‘‘the benefits of the graduated corporate rates’’ for ‘‘surtax exemp- tion’’. 1964—Pub. L. 88–272, title II, § 235(c)(4), Feb. 26, 1964, 78 Stat. 127, inserted table of parts, and heading for part I. [§ 1551. Repealed. Pub. L. 115–97, title I, § 13001(b)(5)(A), Dec. 22, 2017, 131 Stat. 2098] Section, act Aug. 16, 1954, ch. 736, 68A Stat. 371; Pub. L. 85–866, title II, § 205(a), Sept. 2, 1958, 72 Stat. 1680; Pub. L. 88–272, title II, § 235(b), Feb. 26, 1964, 78 Stat. 125; Pub. L. 94–12, title III, § 304(b), Mar. 29, 1975, 89 Stat. 45; Pub. L. 94–455, title XIX, §§ 1901(a)(158), 1906(b)(13)(A), Oct. 4, 1976, 90 Stat. 1790, 1834; Pub. L. 95–600, title III, § 301(b)(18)(A), (B), Nov. 6, 1978, 92 Stat. 2823; Pub. L. 97–34, title II, § 232(b)(2), Aug. 13, 1981, 95 Stat. 250; Pub. L. 99–514, title XVIII, § 1899A(36), Oct. 22, 1986, 100 Stat. 2960; Pub. L. 113–295, div. A, title II, § 221(a)(94), Dec. 19, 2014, 128 Stat. 4051, related to disallowance of the bene- fits of the graduated corporate rates and accumulated earnings credit. Repeal was executed to this section, which is in part I of subchapter B of chapter 6, to re- flect the probable intent of Congress, notwithstanding directory language of Pub. L. 115–97, which repealed section 1551 in part I of subchapter B of chapter 5. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF REPEAL Repeal applicable to taxable years beginning after Dec. 31, 2017, see section 13001(c)(1) of Pub. L. 115–97, set out as an Effective Date of 2017 Amendment note under section 11 of this title.