26 USC 1042 - Sales of stock to employee stock ownership plans or certain cooperatives

U.S Code last checked for updates: Apr 27, 2024

§ 1042.

Sales of stock to employee stock ownership plans or certain cooperatives

(a)

Nonrecognition of gain

If—

(1)

the taxpayer or executor elects in such form as the Secretary may prescribe the application of this section with respect to any sale of qualified securities,

(2)

the taxpayer purchases qualified replacement property within the replacement period, and

(3)

the requirements of subsection (b) are met with respect to such sale,

then the gain (if any) on such sale which would be recognized as long-term capital gain shall be recognized only to the extent that the amount realized on such sale exceeds the cost to the taxpayer of such qualified replacement property.

(b)

Requirements to qualify for nonrecognition

A sale of qualified securities meets the requirements of this subsection if—

(1)

Sale to employee organizations

The qualified securities are sold to—

(A)

an employee stock ownership plan (as defined in section 4975(e)(7)), or

(B)

an eligible worker-owned cooperative.

(2)

Plan must hold 30 percent of stock after sale

The plan or cooperative referred to in paragraph (1) owns (after application of section 318(a)(4)), immediately after the sale, at least 30 percent of—

(A)

each class of outstanding stock of the corporation (other than stock described in section 1504(a)(4)) which issued the qualified securities, or

(B)

the total value of all outstanding stock of the corporation (other than stock described in section 1504(a)(4)).

(3)

Written statement required

(A)

In general

(B)

Statement

A statement is described in this subparagraph if it is a verified written statement of—

(i)

the employer whose employees are covered by the plan described in paragraph (1), or

(ii)

any authorized officer of the cooperative described in paragraph (l),1

 So in original. Probably should be “paragraph (1),”.

consenting to the application of sections 4978 and 4979A with respect to such employer or cooperative.

(4)

3-year holding period

(c)

Definitions; special rules

For purposes of this section—

(1)

Qualified securities

The term “qualified securities” means employer securities (as defined in section 409(l)) which—

(A)

are issued by a domestic C corporation that has no stock outstanding that is readily tradable on an established securities market, and

(B)

were not received by the taxpayer in—

(i)

a distribution from a plan described in section 401(a), or

(ii)

a transfer pursuant to an option or other right to acquire stock to which section 83, 422, or 423 applied (or to which section 422 or 424 (as in effect on the day before the date of the enactment of the Revenue Reconciliation Act of 1990) applied).

(2)

Eligible worker-owned cooperative

The term “eligible worker-owned cooperative” means any organization—

(A)

to which part I of subchapter T applies,

(B)

a majority of the membership of which is composed of employees of such organization,

(C)

a majority of the voting stock of which is owned by members,

(D)

a majority of the board of directors of which is elected by the members on the basis of 1 person 1 vote, and

(E)

a majority of the allocated earnings and losses of which are allocated to members on the basis of—

(i)

patronage,

(ii)

capital contributions, or

(iii)

some combination of clauses (i) and (ii).

(3)

Replacement period

(4)

Qualified replacement property

(A)

In general

The term “qualified replacement property” means any security issued by a domestic operating corporation which—

(i)

did not, for the taxable year preceding the taxable year in which such security was purchased, have passive investment income (as defined in section 1362(d)(3)(C)) in excess of 25 percent of the gross receipts of such corporation for such preceding taxable year, and

(ii)

is not the corporation which issued the qualified securities which such security is replacing or a member of the same controlled group of corporations (within the meaning of section 1563(a)(1)) as such corporation.

For purposes of clause (i), income which is described in section 954(c)(3) (as in effect immediately before the Tax Reform Act of 1986) shall not be treated as passive investment income.

(B)

Operating corporation

For purposes of this paragraph—

(i)

In general

(ii)

Financial institutions and insurance companies

The term “operating corporation” shall include—

(I)

any financial institution described in section 581, and

(II)

an insurance company subject to tax under subchapter L.

(C)

Controlling and controlled corporations treated as 1 corporation

(i)

In general

For purposes of applying this paragraph, if—

(I)

the corporation issuing the security owns stock representing control of 1 or more other corporations,

(II)

1 or more other corporations own stock representing control of the corporation issuing the security, or

(III)

both,

then all such corporations shall be treated as 1 corporation.

(ii)

Control

(D)

Security defined

(5)

Securities sold by underwriter

(6)

Time for filing election

(7)

Section not to apply to gain of C corporation

(d)

Basis of qualified replacement property

The basis of the taxpayer in qualified replacement property purchased by the taxpayer during the replacement period shall be reduced by the amount of gain not recognized by reason of such purchase and the application of subsection (a). If more than one item of qualified replacement property is purchased, the basis of each of such items shall be reduced by an amount determined by multiplying the total gain not recognized by reason of such purchase and the application of subsection (a) by a fraction—

(1)

the numerator of which is the cost of such item of property, and

(2)

the denominator of which is the total cost of all such items of property.

Any reduction in basis under this subsection shall not be taken into account for purposes of section 1278(a)(2)(A)(ii) (relating to definition of market discount).

(e)

Recapture of gain on disposition of qualified replacement property

(1)

In general

(2)

Special rule for corporations controlled by the taxpayer

If—

(A)

a corporation issuing qualified replacement property disposes of a substantial portion of its assets other than in the ordinary course of its trade or business, and

(B)

any taxpayer owning stock representing control (within the meaning of section 304(c)) of such corporation at the time of such disposition holds any qualified replacement property of such corporation at such time,

then the taxpayer shall be treated as having disposed of such qualified replacement property at such time.

(3)

Recapture not to apply in certain cases

Paragraph (1) shall not apply to any transfer of qualified replacement property—

(A)

in any reorganization (within the meaning of section 368) unless the person making the election under subsection (a)(1) owns stock representing control in the acquiring or acquired corporation and such property is substituted basis property in the hands of the transferee,

(B)

by reason of the death of the person making such election,

(C)

by gift, or

(D)

in any transaction to which section 1042(a) applies.

(f)

Statute of limitations

If any gain is realized by the taxpayer on the sale or exchange of any qualified securities and there is in effect an election under subsection (a) with respect to such gain, then—

(1)

the statutory period for the assessment of any deficiency with respect to such gain shall not expire before the expiration of 3 years from the date the Secretary is notified by the taxpayer (in such manner as the Secretary may by regulations prescribe) of—

(A)

the taxpayer’s cost of purchasing qualified replacement property which the taxpayer claims results in nonrecognition of any part of such gain,

(B)

the taxpayer’s intention not to purchase qualified replacement property within the replacement period, or

(C)

a failure to make such purchase within the replacement period, and

(2)

such deficiency may be assessed before the expiration of such 3-year period notwithstanding the provisions of any other law or rule of law which would otherwise prevent such assessment.

(g)

Application of section to sales of stock in agricultural refiners and processors to eligible farm cooperatives

(1)

In general

(2)

Qualified refiner or processor

For purposes of this subsection, the term “qualified refiner or processor” means a domestic corporation—

(A)

substantially all of the activities of which consist of the active conduct of the trade or business of refining or processing agricultural or horticultural products, and

(B)

which, during the 1-year period ending on the date of the sale, purchases more than one-half of such products to be refined or processed from—

(i)

farmers who make up the eligible farmers’ cooperative which is purchasing stock in the corporation in a transaction to which this subsection is to apply, or

(ii)

such cooperative.

(3)

Eligible farmers’ cooperative

(4)

Special rules

In applying this section to a sale to which paragraph (1) applies—

(A)

the eligible farmers’ cooperative shall be treated in the same manner as a cooperative described in subsection (b)(1)(B),

(B)

subsection (b)(2) shall be applied by substituting “100 percent” for “30 percent” each place it appears,

(C)

the determination as to whether any stock in the domestic corporation is a qualified security shall be made without regard to whether the stock is an employer security or to subsection (c)(1)(A), and

(D)

paragraphs (2)(D) and (7) of subsection (c) shall not apply.

(Added Pub. L. 98–369, div. A, title V, § 541(a), July 18, 1984, 98 Stat. 887; amended Pub. L. 99–514, title XVIII, §§ 1854(a)(1), (2)(A), (3)(B), (4), (5)(A), (6)(A), (7), (8)(A), (9)(B), (10), (11), (f)(3)(B), 1899A(26), Oct. 22, 1986, 100 Stat. 2872–2878, 2882, 2959; Pub. L. 100–647, title I, § 1018(t)(4)(D)–(F), Nov. 10, 1988, 102 Stat. 3588; Pub. L. 101–239, title VII, § 7303(a), Dec. 19, 1989, 103 Stat. 2352; Pub. L. 101–508, title XI, § 11801(c)(9)(H), Nov. 5, 1990, 104 Stat. 1388–526; Pub. L. 104–188, title I, §§ 1311(b)(3), 1316(d)(3), 1616(b)(13), 1704(t)(50), Aug. 20, 1996, 110 Stat. 1784, 1786, 1857, 1890; Pub. L. 105–34, title IX, § 968(a), Aug. 5, 1997, 111 Stat. 895; Pub. L. 117–328, div. T, title I, § 114(a), (b), Dec. 29, 2022, 136 Stat. 5296.)

cite as: 26 USC 1042