§303 — Title 26 Internal Revenue Code | U.S. Code

Summary

When someone dies owning stock in a corporation, the company can buy back some of that stock from the estate or heirs and the buy-back is treated as a sale of the stock, not as a dividend. This favorable treatment is capped: it only covers an amount up to the estate, inheritance, legacy, and succession taxes caused by the death (plus interest), along with the funeral and administration expenses the estate can deduct. To qualify, the stock must make up more than 35 percent of the gross estate after subtracting allowable deductions. Stock in two or more companies can be combined to meet that test if the estate includes 20 percent or more of each company's stock. The buy-back must happen within set time limits, generally within the period the IRS has to assess the estate tax plus 90 days, or longer if the estate is paying the tax in installments or contesting it in Tax Court. The rule applies only to the extent the shareholder's interest actually shrinks to pay those taxes and expenses, and buy-backs made more than 4 years after death face an extra limit tied to amounts still unpaid or paid within 1 year of the buy-back. The same treatment can apply to replacement stock whose value traces back to the original shares, and to stock transferred in a generation-skipping transfer that happens because of a death.

Title 26, §303

Internal Revenue Code — Source: USLM XML via OLRC

(a)A distribution of property to a shareholder by a corporation in redemption of part or all of the stock of such corporation which (for Federal estate tax purposes) is included in determining the gross estate of a decedent, to the extent that the amount of such distribution does not exceed the sum of—

(1)the estate, inheritance, legacy, and succession taxes (including any interest collected as a part of such taxes) imposed because of such decedent’s death, and

(2)the amount of funeral and administration expenses allowable as deductions to the estate under section 2053 (or under section 2106 in the case of the estate of a decedent nonresident, not a citizen of the United States),

(b)(1)Subsection (a) shall apply only to amounts distributed after the death of the decedent and—

(A)within the period of limitations provided in section 6501(a) for the assessment of the Federal estate tax (determined without the application of any provision other than section 6501(a)), or within 90 days after the expiration of such period,

(B)if a petition for redetermination of a deficiency in such estate tax has been filed with the Tax Court within the time prescribed in section 6213, at any time before the expiration of 60 days after the decision of the Tax Court becomes final, or

(C)if an election has been made under section 6166 and if the time prescribed by this subparagraph expires at a later date than the time prescribed by subparagraph (B) of this paragraph, within the time determined under section 6166 for the payment of the installments.

(2)(A)Subsection (a) shall apply to a distribution by a corporation only if the value (for Federal estate tax purposes) of all of the stock of such corporation which is included in determining the value of the decedent’s gross estate exceeds 35 percent of the excess of—

(i)the value of the gross estate of such decedent, over

(ii)the sum of the amounts allowable as a deduction under section 2053 or 2054.

(B)For purposes of subparagraph (A), stock of 2 or more corporations, with respect to each of which there is included in determining the value of the decedent’s gross estate 20 percent or more in value of the outstanding stock, shall be treated as the stock of a single corporation. For purposes of the 20-percent requirement of the preceding sentence, stock which, at the decedent’s death, represents the surviving spouse’s interest in property held by the decedent and the surviving spouse as community property or as joint tenants, tenants by the entirety, or tenants in common shall be treated as having been included in determining the value of the decedent’s gross estate.

(3)Subsection (a) shall apply to a distribution by a corporation only to the extent that the interest of the shareholder is reduced directly (or through a binding obligation to contribute) by any payment of an amount described in paragraph (1) or (2) of subsection (a).

(4)In the case of amounts distributed more than 4 years after the date of the decedent’s death, subsection (a) shall apply to a distribution by a corporation only to the extent of the lesser of—

(A)the aggregate of the amounts referred to in paragraph (1) or (2) of subsection (a) which remained unpaid immediately before the distribution, or

(B)the aggregate of the amounts referred to in paragraph (1) or (2) of subsection (a) which are paid during the 1-year period beginning on the date of such distribution.

(c)If—

(1)a shareholder owns stock of a corporation (referred to in this subsection as “new stock”) the basis of which is determined by reference to the basis of stock of a corporation (referred to in this subsection as “old stock”),

(2)the old stock was included (for Federal estate tax purposes) in determining the gross estate of a decedent, and

(3)subsection (a) would apply to a distribution of property to such shareholder in redemption of the old stock,

(d)Where stock in a corporation is the subject of a generation-skipping transfer (within the meaning of section 2611(a)) occurring at the same time as and as a result of the death of an individual—

(1)the stock shall be deemed to be included in the gross estate of such individual;

(2)taxes of the kind referred to in subsection (a)(1) which are imposed because of the generation-skipping transfer shall be treated as imposed because of such individual’s death (and for this purpose the tax imposed by section 2601 shall be treated as an estate tax);

(3)the period of distribution shall be measured from the date of the generation-skipping transfer; and

(4)the relationship of stock to the decedent’s estate shall be measured with reference solely to the amount of the generation-skipping transfer.

Notes & Related Subsidiaries

Editorial Notes

Amendments

1986—Subsec. (d). Pub. L. 99–514 amended subsec. (d) generally. Prior to amendment, subsec. (d) read as follows: “Under

Regulations

prescribed by the Secretary, where stock in a corporation is subject to tax under section 2601 as a result of a generation-skipping transfer (within the meaning of section 2611(a)), which occurs at or after the death of the deemed transferor (within the meaning of section 2612)— “(1) the stock shall be deemed to be included in the gross estate of the deemed transferor; “(2) taxes of the kind referred to in subsection (a)(1) which are imposed because of the generation-skipping transfer shall be treated as imposed because of the deemed transferor’s death (and for this purpose the tax imposed by section 2601 shall be treated as an estate tax); “(3) the period of distribution shall be measured from the date of the generation-skipping transfer; and “(4) the relationship of stock to the decedent’s estate shall be measured with reference solely to the amount of the generation-skipping transfer.” 1981—Subsec. (b)(1)(C). Pub. L. 97–34, § 422(e)(1), struck out “or 6166A” after “section 6166” in two places. Subsec. (b)(2)(A). Pub. L. 97–34, § 422(b)(1), substituted “35” for “50” before percent. Subsec. (b)(2)(B). Pub. L. 97–34, § 422(b)(2), in heading, substituted “stock in 2” for “stock of two”, in first sentence, struck out “the 50 percent requirement” before “of subparagraph (A)” and substituted “2” for “two” and “20 percent or more in value” for “more than 75 percent in value”, and, in last sentence, substituted “For purposes of the 20-percent requirement” for “For the purpose of the 75 percent requirement” and, in determining value of decedent’s gross estate, treated the estate as including stock which at decedent’s death represented surviving spouse’s interest in property held by the decedent and surviving spouse either as joint tenants, tenants by the entirety, or tenants in common. 1976—Subsec. (b)(1)(C). Pub. L. 94–455, § 2004(e)(1), added subpar. (C). Subsec. (b)(2)(A). Pub. L. 94–455, § 2004(e)(2)(A), substituted provisions limiting the applicability of subsec. (a) to corporate distributions in which the value of the corporate stock included in decedent’s gross estate exceeds 50 percent of the gross estate over deductions allowed under section 2053 and 2054 for provisions limiting the applicability of subsec. (a) to corporate distributions in which the value of the corporate stock included in decedent’s gross estate is either more than 35 percent of the gross estate or 50 percent of the taxable estate. Subsec. (b)(2)(B). Pub. L. 94–455, § 2004(e)(2)(B), substituted “the 50 percent requirement” for “the 35 percent and 50 percent requirements”. Subsec. (b)(3), (4). Pub. L. 94–455, § 2004(e)(3), added pars. (3) and (4). Subsec. (c). Pub. L. 94–455, § 2004(e)(4), substituted “limitation specified in subsection (b)” for “limitation specified in subsection (b)(1)”. Subsec. (d). Pub. L. 94–455, § 2006(b)(4), added subsec. (d).

Statutory Notes and Related Subsidiaries

Effective Date

of 1986 AmendmentAmendment by Pub. L. 99–514 applicable to generation-skipping transfers (within the meaning of section 2611 of this title) made after Oct. 22, 1986, except as otherwise provided, see section 1433 of Pub. L. 99–514, set out as an

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note under section 2601 of this title.

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of 1981 AmendmentAmendment by Pub. L. 97–34 applicable to estates of decedents dying after Dec. 31, 1981, see section 422(f) of Pub. L. 97–34, set out as a note under section 6166 of this title.

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of 1976 AmendmentAmendment by section 2004(e)(1)–(4) of Pub. L. 94–455 applicable to estates of decedents dying after Dec. 31, 1976, see section 2004(g) of Pub. L. 94–455, set out as an

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note under section 6166 of this title. For

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of amendment by section 2006(b)(4) of Pub. L. 94–455, see section 2006(c) of Pub. L. 94–455, set out as an

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note under section 2601 of this title.

§303 Distributions in Redemption of Stock to Pay Death Taxes

Summary

Title 26, §303

Notes & Related Subsidiaries

Editorial Notes

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Regulations

Statutory Notes and Related Subsidiaries

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