1. LLM Corporate Tax Instructor: Dwight Drake XYZ IncJim Equipment – Basis 100k, FMV 200k 100 Shrs Common Stock Assume No Special Rules 1. Jim recognizes 100k gain. 2. Corp recognizes 200k gain. 3. Jim basis in stock 200k, new holding period. 4. Corp’s basis in equipment 200k, new holding period. Special Rules Change All This - Maybe

2. LLM Corporate Tax Instructor: Dwight Drake XYZ IncJim Equipment – Basis 100k, FMV 200k 100 Shrs Common Stock Rule 1: 351 Rule No gain or loss is recognized by the transferor on the transfer of property to a corporation in exchange for stock of the corporation if: 1. Property is transferred 2. Solely in exchange for stock 3. Transferor(s) in “control” “immediately after exchange. Two 80% requirements – 80% of all voting stock and 80% of total shares of each other class of stock. Result: Jim recognizes no gain or loss on the exchange.

3. LLM Corporate Tax Instructor: Dwight Drake XYZ Inc Jim Equipment – Basis 100k, FMV 200k Common Stock + Cash Rule 2: 351(b) Boot Rule If 351 would apply except that corporation issues property in addition to stock (“boot”) to the shareholder, then shareholder recognizes gain on the property transferred to corporation equal to the lesser of: 1. The built-in gain on the property transferred – the excess of FMV over basis 2. The FMV of boot received by the shareholder. Result: If 80k cash boot, Jim recognizes gain equal to boot – 80k. If 120k boot paid by XYZ Inc in addition to stock, Jim would recognize gain equal to 100k – excess of 200k FMV over 100k basis.

4. LLM Corporate Tax Instructor: Dwight Drake XYZ Inc Jim Equipment – Basis 100k, FMV 200k Common Stock + Cash Rule 3: The 358 Basis Rule If 351 applies to an exchange of property for stock in a corporation, the basis of the stock received by the shareholder equals: 1. The basis of the property transferred to the corporation in the hands of the shareholder, plus 2. Any gain recognized by shareholder ala the 351(b) rule, less 3. The FMV of any boot received. Result: If XYZ Inc issues 100 share of its stock and 80k cash, Jim recognizes gain equal to boot – 80k, and Jim’s basis in stock is equal to 100k (basis in equipment), plus 80k gain less 80k boot = 100k. If 120k boot was paid by XYZ Inc in addition to stock, Jim would recognize gain equal to 100k. Basis in stock would equal 100k plus 100k gain less 120k boot = 80k basis.

5. LLM Corporate Tax Instructor: Dwight Drake XYZ Inc Jim Equipment – Basis 100k, FMV 200k Common Stock + Cash Rule 4: Shareholder Tacking Rule If 351 applies to an exchange of property for stock in a corporation, the holding period of the property transferred by the shareholder is “tacked on” to the holding period of the stock if the transferred property was a capital asset or a 1231 asset (asset used in trade or business). No inventories or receivables. Result: Jim’s holding period of equipment is “tacked on” in determining holding period of stock.

6. LLM Corporate Tax Instructor: Dwight Drake XYZ Inc Jim Equipment – Basis 100k, FMV 200k Common Stock + Cash Rule 5: The 1032 Rule Corporation recognizes no gain or loss on receipt of money or property in exchange for its own stock Result: XYZ Inc issues 100 share of its stock and 80k cash to its sole shareholder Jim for equipment worth 200k that has a basis of 100k. XYZ Inc recognizes no gain or loss.

7. LLM Corporate Tax Instructor: Dwight Drake XYZ Inc Jim Equipment – Basis 100k, FMV 200k Common Stock + Cash Rule 6: The 362 Rule A corporation’s basis in property acquired in exchange for its stock in a transaction that qualifies under 351 equals the shareholder’s basis in the property basis plus any gain recognized by the shareholder. But if net built-in loss, basis limited to FMV of property unless all elect to reduce stock basis of shareholder to FMV. Result: XYZ Inc issues 100 share of its stock and 80k cash to Jim, Jim recognizes gain equal to boot – 80k. XYZ Inc.’s basis in equipment is equal to 100k (Jim’s basis in equipment), plus 80k gain recognized by Jim = 180K.

8. LLM Corporate Tax Instructor: Dwight Drake XYZ Inc Jim Equipment – Basis 100k, FMV 200k Common Stock + Cash Rule 7: Corporate Tacking Rule If 351 applies to an exchange of property for stock in a corporation, the holding period of the property transferred by the shareholder is “tacked on” in determining the holding period of the property in the hand of the corporation. Result: Jim’s holding period of equipment is “tacked on” in determining XYZ Inc.’s holding period of equipment.

9. LLM Corporate Tax Instructor: Dwight Drake X Corp A Problem 64(a) a) 351 requirements satisfied. Hence: A: No gain or loss. Stock basis 25k. Holding period starts on exchange. B: No gain recognized; Stock basis 5k; no tacking holding period. C: No loss recognition; Stock basis 25k; tacking holding period. D: No gain recognition; Stock basis 5k; tacking holding period. E: No gain recognition; Stock basis 2k; tacking holding period. BCDE 25k Cash / 25 Shares Inventory / 10 Shares Land / 20 Shares Equip. / 25 Shares Note / 20 Shares FMV -10k Basis – 5k FMV - 20k Basis – 25k FMV - 25k Basis – 5k FMV - 20k Basis – 2k

10. LLM Corporate Tax Instructor: Dwight Drake X Corp A Problem 64(b) (b) Per 1032, X Corp recognizes no income on issuance of stock. X takes transferred basis in each asset (except land) and may tack holding period per 1223(2). Tacking is irrelevant to inventory, as it will be ordinary income or loss. Land 5k built-in loss forces basis reduction to FMV 20k per 362(e)(2)(A), unless C agrees to stock basis reduction to 20k. BCDE 25k Cash / 25 Shares Inventory / 10 Shares Land / 20 Shares Equip. / 25 Shares Note / 20 Shares FMV -10k Basis – 5k FMV - 20k Basis – 25k FMV - 25k Basis – 5k FMV - 20k Basis – 2k

11. LLM Corporate Tax Instructor: Dwight Drake X Corp A Problem 64(c) & (d) c) Two land parcels from C – each 10k FMV (20k total) and 23k combined basis (15k and 8k). May net built-in gains with built-in losses in applying basis adjustment of 362(e)(2)(A). Thus only 3k basis reduction, all allocated to built- in loss parcel, reducing its basis to 12k. As option, C could elect to take 3k basis reduction. d) What impact if X corp sells inventory for 10k and B sells stock for 10k. Both recognize 5k gain on inventory appreciation. Thus, double tax inherent in 351 carryover non-recognition impact. Note S Corp impact where shareholder basis is increased by S Corp income. BCDE 25k Cash / 25 Shares Inventory / 10 Shares Two 10k Parcels / 20 Shares Equip. / 25 Shares Note / 20 Shares FMV -10k Basis – 5k #1 – 15k Basis #2 – 8k Basis FMV - 25k Basis – 5k FMV - 20k Basis – 2k

12. LLM Corporate Tax Instructor: Dwight Drake Newco Problem 73-1 (a) & (b) (a) A transfer qualifies under 351 – A has no gain or loss; A stock basis 10k; tack holding period if asset was capital asset or 1231; Newco no gain or loss; Newco takes basis of 10k in property. B transfer not qualify under 351 – B sole transferor and no voting stock. B recognizes 9k gain; Stock basis is 10k; Newco no gain or loss; Newco basis in asset is 10k. (b) If both part of integrated transaction, 351 applies to both – A & B are both transferors and together own all voting and non-voting stock. Requirement of “immediately after exchange” does not require simultaneous transfers. AB Property / 50 Shares Property / 10 Shares Preferred FMV - 50k Basis – 10k FMV - 10k Basis – 1k Jan 2 March 2

13. LLM Corporate Tax Instructor: Dwight Drake Newco Problem 73-1 (c) (c) A gift of half voting shares after integrated transfers should not impact 351 treatment for A & B. If gift on 1/5, between integrated exchanges, 351 is killed because not own voting control after transfers. AB Property / 50 Shares Property / 10 Shares Preferred FMV - 50k Basis – 10k FMV - 10k Basis – 1k Jan 2 March 2 D March 5 25 Share Gift

14. LLM Corporate Tax Instructor: Dwight Drake Newco Problem 73-1 (d) (d) Pre-existing promise to sale stock kills 351. E is not a transferor under 351, but is part of the plan. AB Property / 50 Shares Property / 10 Shares Preferred FMV - 50k Basis – 10k FMV - 10k Basis – 1k Jan 2 March 2 E May 2 15 Share Sale

15. LLM Corporate Tax Instructor: Dwight Drake Jyve Inc. Problem 73- 2 (a) & (b) a)351 requirements not satisfied – services not property for 351 and Java and Venturer (the property contributors) do not have control. Java recognizes 150k gain on incorporation, and Manager has compensation income equal to FMV of stock received – as much as 150k. b)If Manager pays 150k for stock - 351 then works. Note from manager may also qualify as property, but many state laws prohibit unsecured note for stock. May need to secure note with escrowed stock. Java Manager Assets / 200 Shares 5 Yr. Employment / 150 Shares FMV - 200k Basis – 50k 150 k Cash Venturer Cash/ 150 Shares

16. LLM Corporate Tax Instructor: Dwight Drake Jyve Inc. Problem 73- 2 (c) & (d) c) Idea – Manager pays 1k for 150 shares of stock and documents say services of manager not consideration for stock. No hope under 351. Substance will prevail. Stock will still be deemed for services because property is “of relatively small value” compared to services. d) Manager pays 20k for stock? Since property transferred exceeds 10% of shares for services, not “relatively small value” per Rev. Proc. 77-37 and 351 available. This helps Java big time, but Manager still must recognize 130k on receipt of compensation-related shares. Java Manager Assets / 200 Shares 5 Yr. Employment Plus Cash for 150 Shares FMV - 200k Basis – 50k 150 k Cash Venturer Cash/ 150 Shares

17. LLM Corporate Tax Instructor: Dwight Drake Jyve Inc. Problem 73- 2 (e) e) What impact if compensation related shares subject to forfeiture if Manager leaves within 5 years? Per Section 83, Manager not recognize until restriction lapse, but then recognize full FMV as ordinary income. 83(b) election allows recognition now, against risk of forfeiture and potential of more favorable capital gain treatment on growth. Java Manager Assets / 200 Shares 5 Yr. Employment Plus Cash for 150 Shares 130 Subject to Risk FMV - 200k Basis – 50k 150 k Cash Venturer Cash/ 150 Shares

18. LLM Corporate Tax Instructor: Dwight Drake Compensation Gross-Up Game Assume: 1. Stock for services equal 150k 2. Corporation tax rate 34% 3. Executive tax rate 33% Straight recognition transaction: - Executive pays taxes of 50k - 33% of 150k. - Corporation saves taxes of 51k – 34% of 150k Gross up amount formula: [Stock value / (1 - Executive tax rate)] – Stock value = Gross-Up Tax Bonus [ 150k / (1 -.33 =.67)] – 150k = 74k - Corp tax savings: (150k + 74k) x 34% = 76k (More than Gross-up) - Employee tax bill: (150k + 74k) x 33% = 74k (Paid by Gross-up)

19. LLM Corporate Tax Instructor: Dwight Drake X Corp. Problem 83 (a) a)A – 2k boot 1245 ordinary income; Stock basis 15k – 75% common, 25% preferred; holding period tacked; X basis is 17k; X may tack holding period. B – 15k boot allocated 10k inv, 5k land; recognize 10k ordinary on inv, no loss recognition land; B Stock basis is 27k (32k – 15k(boot) + gain recognized(10K)); 1/3 stock tack, 2/3 not. X basis inv is 17k (7k + 10k), land 23k (25k less 2k aggregate built-in loss). A 22k Equip Basis -15k 10k Common 5k Cash 35k Note 15k common 2k Cash 5k Pf 15k Common 15k Cash Inv 20k, Land 10k Basis: 7k Inv, 25k Land B C 50k Land Basis -20k

20. LLM Corporate Tax Instructor: Dwight Drake X Corp. Problem 83 (a) (a) C – 40k boot; 30k gain recognized; If no 453(d) elect out, C could use installment. 10k basis allocated to stock; other to 40k note and cash, with 25% (10k/40k) recovery ration. Of 5k cash, 3.75 recognized yr one; 75% of all future payments taxable. C stock basis is 20k start + 30k gain recognized – 40k boot received = 10k. X Corp land basis is 20k start + 3.75 yr 1 gain and increased as more payments received – ultimately to 50k. A 22k Equip Basis -15k 10k Common 5k Cash 35k Note 15k common 2k Cash 5k Pf 15k Common 15k Cash Inv 20k, Land 10k Basis: 7k Inv, 25k Land B C 50k Land Basis -20k

21. LLM Corporate Tax Instructor: Dwight Drake Problem 83 (a) Calculation for C (a) C - Detailed installment sales calculations: - Transferred basis (20K) first allocated to “permitted property” – the stock – up to FMV – here 10k. Prop. Reg. 1.453-1(f)(3)(iii). - Excess 10k transferred basis is allocated to boot – 5k cash and 35k note. Total boot of 40k, against basis of 10k, and gain of 30k. Thus, ratio of profit to total boot is 30/40 = 75%. - First year payment of 5k produce 3.75 income (5k x.75) - C basis under 358 determined without regard to 453 installment reporting. Hence is 20k transfer + 30k gain – 40k boot = 10k. - X Corp basis does use 453 installment. Hence, year 1 is 20k + 3.75k = 23.75k. Will eventually get to 50k as installment not paid.

22. LLM Corporate Tax Instructor: Dwight Drake X Corp. Problem 83 (b) (b) C instead transfers equipment with 50k FMV and 20k basis. Original cost 50k. All 30 income recognized as 1245 ordinary income, with no 453 installment reporting available. C stock basis is 10k. X Corp basis in equipment is 20k + 30k gain recognized = 50k. A 22k Equip Basis -15k 10k Common 5k Cash 35k Note 15k common 2k Cash 5k Pf 15k Common 15k Cash Inv 20k, Land 10k Basis: 7k Inv, 25k Land B C 50k Equipment Basis -20k