The Scope of the General Utilities Repeal
45 Pages Posted: 1 Aug 2013 Last revised: 5 Sep 2013
Date Written: December 16, 2012
More than a quarter of a century ago, Congress repealed the General Utilities doctrine, authorizing Treasury to issue regulations to prevent circumvention of the repeal. Although Treasury has issued several sets of regulations in response, it has never systematically defined the scope of the repeal. Instead, the regulations and other administrative guidance more selectively attack concerns raised by the repeal, almost all of which arise because of the dual nature of stock: A corporate shareholder can choose to treat a subsidiary’s stock as a separate asset or, in certain cases, as an indirect interest in subsidiary assets, a choice facilitated by § 332, the consolidated return regulations, the reorganization provisions, and the interplay of Subchapter C and pass-thru regimes. Unchecked, that choice would allow corporations to readily avoid the repeal, but the choice has been severely restricted by Congress and Treasury.
This article considers the extent to which the response should be further developed and refined. It concludes that Treasury and the Internal Revenue Service (the "Service") should adopt a general rule to implement the repeal. It also concludes that they should simplify the uniform loss rules under § 1.1502-36 and bring final Prop. § 1.337(d)-3 with some modifications. This article first considers the scope of the General Utilities repeal before considering how the repeal should be implemented. It ends with a brief conclusion.
Keywords: General Utilities repeal, May Department Store, liquidation, 1.1502-36. 1.337-3, 311, 336, 337(d)
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