Title 26 — Internal Revenue CodeRelease 119-73
§1368 Distributions
Title 26 › Subtitle Subtitle A— - Income Taxes › Chapter CHAPTER 1— - NORMAL TAXES AND SURTAXES › Subchapter Subchapter S— - Tax Treatment of S Corporations and Their Shareholders › Part PART II— - TAX TREATMENT OF SHAREHOLDERS › § 1368
Summary
When an S corporation gives property to a shareholder, the tax outcome follows one of two sets of rules. If the S corporation has no accumulated earnings and profits, the distribution is tax-free up to the shareholder’s adjusted basis in the stock. Any amount over that basis is taxed as a gain from selling property. If the S corporation does have accumulated earnings and profits, first use the part up to the accumulated adjustments account (AAA) the same way as above. Next, the amount up to the accumulated earnings and profits is treated as a dividend. Anything left after that goes back to the first rule (basis then gain). Do the above after making the stock basis adjustments required under section 1367 and after adjusting the AAA. The AAA is a running account of S-period undistributed income with rules similar to the basis rules, but it ignores tax-exempt income and C-corporation taxes and has special rules for redemptions and negative adjustments. The “S period” is the most recent continuous time the company has been an S corporation and does not include any year starting before January 1, 1983. All affected shareholders can agree to not use the AAA-first rule for a tax year. If a director gets a nonexchange distribution on restricted bank director stock, the director must report it as income and the corporation may deduct it in the same year.
Full Legal Text
Title 26, §1368
Internal Revenue Code — Source: USLM XML via OLRC
(a)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.
(b)In the case of a distribution described in subsection (a) by an S corporation which has no accumulated earnings and profits—
(1)The distribution shall not be included in gross income to the extent that it does not exceed the adjusted basis of the stock.
(2)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.
(c)In the case of a distribution described in subsection (a) by an S corporation which has accumulated earnings and profits—
(1)That portion of the distribution which does not exceed the accumulated adjustments account shall be treated in the manner provided by subsection (b).
(2)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.
(3)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).
(d)Subsections (b) and (c) shall be applied by taking into account (to the extent proper)—
(1)the adjustments to the basis of the shareholder’s stock described in section 1367, and
(2)the adjustments to the accumulated adjustments account which are required by subsection (e)(1).
(e)For purposes of this section—
(1)(A)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.
(B)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.
(C)(i)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.
(ii)For purposes of clause (i), the term “net negative adjustment” means, with respect to any taxable year, the excess (if any) of—
(I)the reductions in the account for the taxable year (other than for distributions), over
(II)the increases in such account for such taxable year.
(2)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.
(3)(A)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.
(B)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.
(f)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—
(1)shall be includible in gross income of the director, and
(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.
Legislative History
Notes & Related Subsidiaries
Editorial Notes
Amendments
2018—Subsec. (f)(2). Pub. L. 115–141 substituted “is included” for “in included”. 2007—Subsec. (f). Pub. L. 110–28 added subsec. (f). 1996—Subsec. (d). Pub. L. 104–188, § 1309(a)(2), inserted at end “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.” Subsec. (e)(1)(A). Pub. L. 104–188, § 1309(c), substituted “as otherwise provided in this paragraph” for “as provided in subparagraph (B)” and “section 1367(a)(2)” for “section 1367(b)(2)(A)”. Subsec. (e)(1)(C). Pub. L. 104–188, § 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, § 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, § 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).
Statutory Notes and Related Subsidiaries
Effective Date
of 2007 AmendmentAmendment by Pub. L. 110–28 applicable to taxable years beginning after Dec. 31, 2006, with special rule for treatment as second class of stock, see section 8232(c) of Pub. L. 110–28, set out as a note under section 1361 of this title.
Effective Date
of 1996 AmendmentAmendment by Pub. L. 104–188 applicable to taxable years beginning after Dec. 31, 1996, see section 1317(a) of Pub. L. 104–188, set out as a note under section 641 of this title.
Effective Date
of 1986 AmendmentAmendment 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 AmendmentAmendment 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 Amendment Pub. L. 97–448, title III, § 311(c)(4), Jan. 12, 1983, 96 Stat. 2411, provided that: “The
Amendments
made by subsection (d) of section 305 [amending this section and section 221, 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. Plan
Amendments
Not Required Until January 1, 1989For provisions directing that if any
Amendments
made by subtitle A or subtitle C of title XI [§§ 1101–1147 and 1171–1177] or title XVIII [§§ 1800–1899A] of Pub. L. 99–514 require an amendment to any plan, such plan amendment shall not be required to be made before the first plan year beginning on or after Jan. 1, 1989, see section 1140 of Pub. L. 99–514, as amended, set out as a note under section 401 of this title.
Reference
Citations & Metadata
Citation
26 U.S.C. § 1368
Title 26 — Internal Revenue Code
Last Updated
Apr 6, 2026
Release point: 119-73