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Section 362 Section 2

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Section 351 of the Internal Revenue code allows a taxpayer to obtain non-recognition of gain or loss when property is transferred solely in exchange for stocks and immediately after the transfer, the transferor or transferors are in control of the corporation. This does not include non-qualified stock as provided under §351(g), however. As described above, each party transferred to the corporation qualifying tangible assets that are established as “property” for rules governing transfers to corporations. Moreover, directly after the exchange both shareholders obtained control of the corporation by satisfying the requirement of I.R.C. §368(c). Section 368 (c), defines control as holding at least 80% of the total combined voting power of all …show more content…

Section 362(e)(2) states that if the transferors adjusted basis of the property transferred is greater than the fair market value right after the transaction, then the basis of the property transferred should obtain a basis that does not exceed the fair market value right after the transfer. In any case, the transferor has the option to select an irrevocable election that allows them to apply the reduction to their stock basis received rather than to the transferee’s basis in the property received. This statute eliminates the transferee’s built-in loss and it does not allow the opportunity that the taxpayer and the corporation can undertake a transaction that results in a “duplicated loss.” Federal Tax Reg. §1.362-4 along with Section 362(e)(2) were established “to prevent the duplication of new loss in transfers undertaken under Section 351.” Subsequently, Congress also included Section 362(e)(2)(C) which permits the transferor and the corporation to make the election and reduce the tax basis rather than to the property received by the corporation. If Mrs. Zhee accepts this election, then the corporation would take the basis of $60,000 for the machine and Mrs. Zhee would then reduce her stock to the fair market value of $40,000. Nonetheless, Mrs. Zhee is not allowed to reduce her stock basis more than the current fair market value. If Mrs. Zhee and the corporation decide not to make the election, then the transaction will not be made pursuant to 362(e)(2) and 362(e)(2)(c). Additionally, the difference will not be recognized by both the transferor and transferee as provided under the duplication loss

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