Preventing International Arbitrage in Reorganizations: An Analysis of the Gap Closing Provisions of the Recently Released Final Regulations to Section 367(B)

Abstract

Few sections of the Internal Revenue Code are as confusing as section 367(b), which addresses inbound nonrecognition transactions, foreign-to-foreign nonrecognition transactions and divisive reorganizations. Prior regulations that addressed these transactions were developed on a piecemeal basis, with no attempt to meld the relevant rules into a coherent, integrated set of regulatory principles. This morass created a trap for the unwary, undercut voluntary taxpayer compliance with the section 367 rules, added significant transaction costs to the structuring of such transactions, and increased the costs to the Internal Revenue Service in administering the rules.

The IRS recently took an important step toward providing greater clarity to the situation by publishing new and comprehensive regulations under section 367(b). In some instances these new regulations will result in few, if any, changes from the prior regulations. In other situations the changes between the prior regulations and new regulations are more significant - some taxpayers will face a more deleterious tax treatment, while others will face more lenient treatment.

This article is designed to assist the reader in navigating this new section 367(b) labyrinth. Part II of the article begins by discussing the relevant background and history of section 367(b). Part III notes and analyzes the recent changes in section 367(b) - more specifically, the difference between the recently released final regulations and the prior regulations that were contained in the 1999 edition of the Code of Federal Regulations. Finally, Part IV discusses the subparts of sections 367(b) that are still under construction and open for comment.

After reading the discussion and examples contained in this article, the reader will have a solid understanding about the application of the new regulations to inbound transfers and how to better maneuver within the 367(b) labyrinth.

Keywords: International arbitrage, corporate nonrecognition, corporate nonrecognition provisions, inbound nonrecognition transaction, foreign-to-foreign nonrecognition transaction, controlled foreign corporation, divisive reorganization, gap closing, gap closing provisions, Section 367(b)

JEL Classification: K1, K2, K3, K4, M4