Bloomberg Bloomberg
Comprehensive Tax Research. Practitioner to Practitioner. ®

Internal Revenue Code, § 1368. Distributions

I.R.C. § 1368(a) General Rule
A distribution of property made by an S corporation with respect to its stock to which (but for this subsection) section 301(c) would apply shall be treated in the manner provided in subsection (b) or (c), whichever applies.
I.R.C. § 1368(b) S Corporation Having No Earnings And Profits
In the case of a distribution described in subsection (a) by an S corporation which has no accumulated earnings and profits—
I.R.C. § 1368(b)(1) Amount Applied Against Basis
The distribution shall not be included in gross income to the extent that it does not exceed the adjusted basis of the stock.
I.R.C. § 1368(b)(2) Amount In Excess Of Basis
If the amount of the distribution exceeds the adjusted basis of the stock, such excess shall be treated as gain from the sale or exchange of property.
I.R.C. § 1368(c) S Corporation Having Earnings And Profits
In the case of a distribution described in subsection (a) by an S corporation which has accumulated earnings and profits—
I.R.C. § 1368(c)(1) Accumulated Adjustments Account
That portion of the distribution which does not exceed the accumulated adjustments account shall be treated in the manner provided by subsection (b).
I.R.C. § 1368(c)(2) Dividend
That portion of the distribution which remains after the application of paragraph (1) shall be treated as a dividend to the extent it does not exceed the accumulated earnings and profits of the S corporation.
I.R.C. § 1368(c)(3) Treatment Of Remainder
Any portion of the distribution remaining after the application of paragraph (2) of this subsection shall be treated in the manner provided by subsection (b).
Except to the extent provided in regulations, if the distributions during the taxable year exceed the amount in the accumulated adjustments account at the close of the taxable year, for purposes of this subsection, the balance of such account shall be allocated among such distributions in proportion to their respective sizes.
I.R.C. § 1368(d) Certain Adjustments Taken Into Account
Subsections (b) and (c) shall be applied by taking into account (to the extent proper)—
I.R.C. § 1368(d)(1)
the adjustments to the basis of the shareholder's stock described in section 1367, and
I.R.C. § 1368(d)(2)
the adjustments to the accumulated adjustments account which are required by subsection (e)(1).
In the case of any distribution made during any taxable year, the adjusted basis of the stock shall be determined with regard to the adjustments provided in paragraph (1) of section 1367(a) for the taxable year.
I.R.C. § 1368(e) Definitions And Special Rules
For purposes of this section—
I.R.C. § 1368(e)(1) Accumulated Adjustments Account
I.R.C. § 1368(e)(1)(A) In General
Except as otherwise provided in this paragraph, the term “accumulated adjustments account” means an account of the S corporation which is adjusted for the S period in a manner similar to the adjustments under section 1367 (except that no adjustment shall be made for income (and related expenses) which is exempt from tax under this title and the phrase “(but not below zero)” shall be disregarded in section 1367(a)(2)) and no adjustment shall be made for Federal taxes attributable to any taxable year in which the corporation was a C corporation.
I.R.C. § 1368(e)(1)(B) Amount Of Adjustment In The Case Of Redemptions
In the case of any redemption which is treated as an exchange under section 302(a) or 303(a), the adjustment in the accumulated adjustments account shall be an amount which bears the same ratio to the balance in such account as the number of shares redeemed in such redemption bears to the number of shares of stock in the corporation immediately before such redemption.
I.R.C. § 1368(e)(1)(C) Net Loss For Year Disregarded
I.R.C. § 1368(e)(1)(C)(i) In General
In applying this section to distributions made during any taxable year, the amount in the accumulated adjustments account as of the close of such taxable year shall be determined without regard to any net negative adjustment for such taxable year.
I.R.C. § 1368(e)(1)(C)(ii) Net Negative Adjustment
For purposes of clause (i), the term “net negative adjustment” means, with respect to any taxable year, the excess (if any) of—
I.R.C. § 1368(e)(1)(C)(ii)(I)
the reductions in the account for the taxable year (other than for distributions), over
I.R.C. § 1368(e)(1)(C)(ii)(II)
the increases in such account for such taxable year.
I.R.C. § 1368(e)(2) S Period
The term “S period” means the most recent continuous period during which the corporation has been an S corporation. Such period shall not include any taxable year beginning before January 1, 1983.
I.R.C. § 1368(e)(3) Election To Distribute Earnings First
I.R.C. § 1368(e)(3)(A) In General
An S corporation may, with the consent of all of its affected shareholders, elect to have paragraph (1) of subsection (c) not apply to all distributions made during the taxable year for which the election is made.
I.R.C. § 1368(e)(3)(B) Affected Shareholder
For purposes of subparagraph (A), the term “affected shareholder” means any shareholder to whom a distribution is made by the S corporation during the taxable year.
I.R.C. § 1368(f) Restricted Bank Director Stock
If a director receives a distribution (not in part or full payment in exchange for stock) from an S corporation with respect to any restricted bank director stock (as defined in section 1361(f)), the amount of such distribution—
I.R.C. § 1368(f)(1)
shall be includible in gross income of the director, and
I.R.C. § 1368(f)(2)
shall be deductible by the corporation for the taxable year of such corporation in which or with which ends the taxable year in which such amount is included in the gross income of the director.
(Added Pub. L. 97-354, Sec. 2, Oct. 19, 1982, 96 Stat. 1680, and amended Pub. L. 97-448, title III, Sec. 305(d)(2), Jan. 12, 1983, 96 Stat. 2399; Pub. L. 98-369, div. A, title VII, Sec. 721(r), July 18, 1984, 98 Stat. 970; Pub. L. 99-514, title XVIII, Sec. 1879(m)(1)(B), Oct. 22, 1986, 100 Stat. 2910; Pub. L. 104-188, title I, Sec. 1309, Aug. 20, 1996, 110 Stat. 1755; Pub. L. 110-28, title VIII, Sec. 8232(b), May 25, 2007, 121 Stat. 112; Pub. L. 115-141, Div. U, title IV, Sec. 401(a)(193), Mar. 23, 2018, 132 Stat. 348.)
BACKGROUND NOTES
AMENDMENTS
2018 — Subsec. (f)(2). Pub. L. 115-141, Div. U, Sec. 401(a)(193), amended par. (2) by substituting “is included” for “in included”.
2007 — Subsec. (f). Pub. L. 110-28, Sec. 8232(a), added subsec. (f).
1996 — Subsec. (d). Pub. L. 104-188, Sec. 1309(a), added a new sentence at the end.
Subsec. (e)(1)(A). Pub. L. 104-188, Sec. 1309(c), substituted “as otherwise provided in this paragraph” for “as provided in subparagraph (B)" and substituted “section 1367(a)(2)” for “section 1367(b)(2)(A)”.
Subsec. (e)(1)(C). Pub. L. 104-188, Sec. 1309(b), added subpar. (C).
1986 — Subsec. (e)(1)(A). Pub. L. 99-514 inserted “and no adjustment shall be made for Federal taxes attributable to any taxable year in which the corporation was a C corporation” before period at end.
1984 — Subsec. (c). Pub. L. 98-369, Sec. 721(r)(2), inserted “Except to the extent provided in regulations, if the distributions during the taxable year exceed the amount in the accumulated adjustments account at the close of the taxable year, for purposes of this subsection, the balance of such account shall be allocated among such distributions in proportion to their respective sizes.”
Subsec. (e)(1)(A). Pub. L. 98-369, Sec. 721(r)(1), substituted “(except that no adjustment shall be made for income (and related expenses) which is exempt from tax under this title and the phrase ‘(but not below zero)’ shall be disregarded in section 1367(b)(2)(A))” for “(except that no adjustment shall be made for income which is exempt from tax under this title and no adjustment shall be made for any expense not deductible in computing the corporation's taxable income and not properly chargeable to capital account)”.
1983 — Subsec. (e)(3). Pub. L. 97-448 added par. (3).
EFFECTIVE DATE OF 2018 AMENDMENTS
Amendment by Pub. L. 115-141, Div. U, Sec. 401(a)(193), effective March 23, 2018.
EFFECTIVE DATE OF 2007 AMENDMENTS
Amendment by Pub. L. 110-28, Sec. 8232(b), effective for taxable years beginning after December 31, 2006. Sec. 8232(c) of Pub. L. 110-28 provided the following special rule:
“(2) SPECIAL RULE FOR TREATMENT AS SECOND CLASS OF STOCK- In the case of any taxable year beginning after December 31, 1996, restricted bank director stock (as defined in section 1361(f) of the Internal Revenue Code of 1986, as added by this section) shall not be taken into account in determining whether an S corporation has more than 1 class of stock.”
EFFECTIVE DATE OF 1996 AMENDMENTS
Amendment by Pub. L. 104-188 effective for taxable years beginning after December 31, 1996. Sec. 1317(b) provided the following special rule:
“(b) Treatment of Certain Elections Under Prior Law.--For purposes of section 1362(g) of the Internal Revenue Code of 1986 (relating to election after termination), any termination under section 1362(d) of such Code in a taxable year beginning before January 1, 1997, shall not be taken into account.”
EFFECTIVE DATE OF 1986 AMENDMENTS
Amendment by Pub. L. 99-514 applicable to taxable years beginning after Dec. 31, 1982, see section 1879(m)(2) of Pub. L. 99-514, set out as a note under section 1361 of this title.
EFFECTIVE DATE OF 1984 AMENDMENTS
Amendment by Pub. L. 98-369 effective as if included in the Subchapter S Revision Act of 1982, Pub. L. 97-354, see section 721(y)(1) of Pub. L. 98-369, set out as a note under section 1361 of this title.
EFFECTIVE DATE OF 1983 AMENDMENTS
Section 311(c)(4) of Pub. L. 97-448 provided that: “The amendments made by subsection (d) of section 305 [amending sections 221, 1368, 1374, and 4975 of this title, enacting provisions set out as a note under section 1361 of this title, and amending provisions set out as a note under section 1361 of this title] shall take effect on the date of the enactment of the Subchapter S Revision Act of 1982 [Oct. 19, 1982].”
EFFECTIVE DATE
Section applicable to taxable years beginning after Dec. 31, 1982, see section 6(a) of Pub. L. 97-354, set out as a note under section 1361 of this title.