[Code of Federal Regulations]
[Title 26, Volume 12]
[Revised as of April 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 26CFR1.1504-4]

[Page 561-568]
 
                       TITLE 26--INTERNAL REVENUE
 
    CHAPTER I--INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY 
                               (CONTINUED)
 
PART 1_INCOME TAXES--Table of Contents
 
Sec. 1.1504-4  Treatment of warrants, options, convertible obligations, 
and other similar interests.

    (a) Introduction--(1) General rule. This section provides 
regulations under section 1504(a)(5) (A) and (B) regarding the 
circumstances in which warrants, options, obligations convertible into 
stock, and other similar interests are treated as exercised for purposes 
of determining whether a corporation is a member of an affiliated group. 
The fact that an instrument may be treated as an option under these 
regulations does not prevent such instrument from being treated as stock 
under general principles of law. Except as provided in paragraph (a)(2) 
of this section, this section applies to all provisions under the 
Internal Revenue Code and the regulations to which affiliation within 
the meaning of section 1504(a) (with or without the exceptions in 
section 1504(b)) is relevant, including those provisions that refer to 
section 1504(a)(2) (with or without the exceptions in section 1504(b)) 
without referring to affiliation, provided that the 80 percent voting 
power and 80 percent value requirements of section 1504(a)(2) are not 
modified therein.
    (2) Exceptions. This section does not apply to sections 163(j), 
864(e), or 904(i) or to the regulations thereunder. This section also 
does not apply to any other provision specified by the Internal Revenue 
Service in regulations, a revenue ruling, or revenue procedure. See 
Sec. 601.601(d)(2)(ii)(b) of this chapter.
    (b) Options not treated as stock or as excerised--(1) General rule. 
Except as provided in paragraph (b)(2) of this section, an option is not 
considered either as stock or as exercised. Thus, options are 
disregarded in determining whether a corporation is a member of an 
affiliated group unless they are described in paragraph (b)(2) of this 
section.
    (2) Options treated as exercised--(i) In general. Solely for 
purposes of determining whether a corporation is a member of an 
affiliated group, an option is treated as exercised if, on a

[[Page 562]]

measurement date with respect to such option--
    (A) It could reasonably be anticipated that, if not for this 
section, the issuance or transfer of the option in lieu of the issuance, 
redemption, or transfer of the underlying stock would result in the 
elimination of a substantial amount of federal income tax liability (as 
described in paragraphs (e) and (f) of this section); and
    (B) It is reasonably certain that the option will be exercised (as 
described in paragraph (g) of this section).
    (ii) Aggregation of options. All options with the same measurement 
date are aggregated in determining whether the issuance or transfer of 
an option in lieu of the issuance, redemption, or transfer of the 
underlying stock would result in the elimination of a substantial amount 
of federal income tax liability.
    (iii) Effect of treating option as exercised--(A) In general. An 
option that is treated as exercised is treated as exercised for purposes 
of determining the percentage of the value of stock owned by the holder 
and other parties, but is not treated as exercised for purposes of 
determining the percentage of the voting power of stock owned by the 
holder and other parties.
    (B) Cash settlement options, phantom stock, stock appreciation 
rights, or similar interests. If a cash settlement option, phantom 
stock, stock appreciation right, or similar interest is treated as 
exercised, the option is treated as having been converted into stock of 
the issuing corporation. If the amount to be received upon the exercise 
of such an option is determined by reference to a multiple of the 
increase in the value of a share of the issuing corporation's stock on 
the exercise date over the value of a share of the stock on the date the 
option is issued, the option is treated as converted into a 
corresponding number of shares of such stock. Appropriate adjustments 
must be made in any situation in which the amount to be received upon 
exercise of the option is determined in another manner.
    (iv) Valuation. For purposes of section 1504(a)(2)(B) and this 
section, all shares of stock within a single class are considered to 
have the same value. Thus, control premiums and minority and blockage 
discounts within a single class are not taken into account.
    (3) Example. The provisions of paragraph (b)(2) of this section may 
be illustrated by the following example:

    Example. (i) Corporation P owns all 100 shares of the common stock 
of Corporation S, the only class of S stock outstanding. Each share of S 
stock has a fair market value of $10 and has one vote. On June 30, 1992, 
P issues to Corporation X an option to acquire 80 shares of the S stock 
from P.
    (ii) If, under the provisions of this section, the option is treated 
as exercised, then, solely for purposes of determining affiliation, P is 
treated as owning only 20 percent of the value of the outstanding S 
stock and X is treated as owing the remaining 80 percent of the value of 
the S stock. P is still treated as owning all of the voting power of S. 
Accordingly, because P is treated as owning less than 80 percent of the 
value of the outstanding S stock, P and S are no longer affiliated. 
However, because X is not treated as owning any of the voting power of 
S, X and S are also not affiliated.

    (c) Definitions. For purposes of this section--
    (1) Issuing corporation. ``Issuing corporation'' means the 
corporation whose stock is subject to an option.
    (2) Related or sequential option. ``Related or sequential option'' 
means an option that is one of a series of options issued to the same or 
related persons. For purposes of this section, any options issued to the 
same person or related persons within a two-year period are presumed to 
be part of a series of options. This presumption may be rebutted if the 
facts and circumstances clearly establish that the options are not part 
of a series of options. Any options issued to the same person or related 
persons more than two years apart are presumed not to be part of a 
series of options. This presumption may be rebutted if the facts and 
circumstances clearly establish that the options are part of a series of 
options.
    (3) Related persons. Persons are related if they are related within 
the meaning of section 267(b) (without the application of sections 
267(c) and 1563(e)(1)) or 707(b)(1), substituting ``10 percent'' for 
``50 percent'' wherever it appears.
    (4) Measurement date--(i) General rule. ``Measurement date'' means a 
date on which an option is issued or transferred or on which the terms 
of an existing

[[Page 563]]

option or the underlying stock are adjusted (including an adjustment 
pursuant to the terms of the option or the underlying stock).
    (ii) Issuances, transfers, or adjustments not treated as measurement 
dates. A measurement date does not include a date on which--
    (A) An option is issued or transferred by gift, at death, or between 
spouses or former spouses under section 1041;
    (B) An option is issued or transferred--
    (1) Between members of an affiliated group (determined with the 
exceptions in section 1504(b) and without the application of this 
section); or
    (2) Between persons none of which is a member of the affiliated 
group (determined without the exceptions in section 1504(b) and without 
the application of this section), if any, of which the issuing 
corporation is a member, unless--
    (i) Any such person is related to (or acting in concert with) the 
issuing corporation or any member of its affiliated group; and
    (ii) The issuance or transfer is pursuant to a plan a principal 
purpose of which is to avoid the application of section 1504 and this 
section;
    (C) An adjustment occurs in the terms or pursuant to the terms of an 
option or the underlying stock that does not materially increase the 
likelihood that the option will be exercised; or
    (D) A change occurs in the exercise price of an option or in the 
number of shares that may be issued or transferred pursuant to the 
option as determined by a bona fide, reasonable, adjustment formula that 
has the effect of preventing dilution of the interests of the holders of 
the options.
    (iii) Transactions increasing likelihood of exercise. If a change or 
alteration referred to in this paragraph (c)(4)(iii) is made for a 
principal purpose of increasing the likelihood that an option will be 
exercised, a measurement date also includes any date on which--
    (A) The capital structure of the issuing corporation is changed; or
    (B) The fair market value of the stock of the issuing corporation is 
altered through a transfer of assets to or from the issuing corporation 
(other than regular, ordinary dividends) or by any other means.
    (iv) Measurement date for options issued pursuant to a plan. In the 
case of options issued pursuant to a plan, a measurement date for any of 
the options constitutes a measurement date for all options issued 
pursuant to the plan that are outstanding on the measurement date.
    (v) Measurement date for related or sequential options. In the case 
of related or sequential options, a measurement date for any of the 
options constitutes a measurement date for all related or sequential 
options that are outstanding on the measurement date.
    (vi) Example. The provisions of paragraph (c)(4)(v) of this section 
may be illustrated by the following example.

    Example. (i) Corporation P owns all 80 shares of the common stock of 
Corporation S, the only class of S stock outstanding. On January 1, 
1992, S issues a warrant, exercisable within 3 years, to U, an unrelated 
corporation, to acquire 10 newly issued shares of S common stock. On 
July 1, 1992, S issues a second warrant to U to acquire 10 additional 
newly issued shares of S common stock. On January 1, 1993, S issues a 
third warrant to T, a wholly owned subsidiary of U, to acquire 10 newly 
issued shares of S common stock. Assume that the facts and circumstances 
do not clearly establish that the options are not part of a series of 
options.
    (ii) January 1, 1992, July 1, 1992, and January 1, 1993, constitute 
measurement dates for the first warrant, the second warrant, and the 
third warrant, respectively, because the warrants were issued on those 
dates.
    (iii) Because the first and second warrants were issued within two 
years of each other, and both warrants were issued to U, the warrants 
constitute related or sequential options. Accordingly, July 1, 1992, 
constitutes a measurement date for the first warrant as well as for the 
second warrant.
    (iv) Because the first, second, and third warrants were all issued 
within two years of each other, and were all issued to the same or 
related persons, the warrants constitute related or sequential options. 
Accordingly, January 1, 1993, constitutes a measurement date for the 
first and second warrants, as well as for the third warrant.

    (5) In-the-money. ``In-the-money'' means the exercise price of the 
option is less than (or in the case of an option to sell stock, greater 
than) the fair market value of the underlying stock.

[[Page 564]]

    (d) Options--(1) Instruments treated as options. For purposes of 
this section, except to the extent otherwise provided in this paragraph 
(d), the following are treated as options:
    (i) A call option, warrant, convertible obligation, put option, 
redemption agreement (including a right to cause the redemption of 
stock), or any other instrument that provides for the right to issue, 
redeem, or transfer stock (including an option on an option); and
    (ii) A cash settlement option, phantom stock, stock appreciation 
right, or any other similar interest (except for stock).
    (2) Instruments generally not treated as options. For purposes of 
this section, the following will not be treated as options:
    (i) Options on section 1504(a)(4) stock. Options on stock described 
in section 1504(a)(4);
    (ii) Certain publicly traded options--(A) General rule. Options 
which on the measurement date are traded on (or subject to the rules of) 
a qualified board or exchange as defined in section 1256(g)(7), or on 
any other exchange, board of trade, or market specified by the Internal 
Revenue Service in regulations, a revenue ruling, or revenue procedure. 
See Sec. 601.601(d)(2)(ii)(b) of this chapter;
    (B) Exception. Paragraph (d)(2)(ii)(A) of this section does not 
apply to options issued, transferred, or listed with a principal purpose 
of avoiding the application of section 1504 and this section. For 
example, a principal purpose of avoiding the application of section 1504 
and this section may exist if warrants, convertible or exchangeable debt 
instruments, or other similar instruments have an exercise price (or, in 
the case of convertible or exchangeable instruments, a conversion or 
exchange premium) that is materially less than, or a term that is 
materially longer than, those that are customary for publicly traded 
instruments of their type. A principal purpose may also exist if a large 
percentage of an issuance of an instrument is placed with one investor 
(or group of investors) and a very small percentage of the issuance is 
traded on a qualified board or exchange;
    (iii) Stock purchase agreements. Stock purchase agreements or 
similar arrangements whose terms are commercially reasonable and in 
which the parties' obligations to complete the transaction are subject 
only to reasonable closing conditions;
    (iv) Escrow, pledge, or other security agreements. Agreements for 
holding stock in escrow or under a pledge or other security agreement 
that are part of a typical commercial transaction and that are subject 
to customary commercial conditions;
    (v) Compensatory options--(A) General rule. Stock appreciation 
rights, warrants, stock options, phantom stock, or other similar 
instruments provided to employees, directors, or independent contractors 
in connection with the performance of services for the corporation or a 
related corporation (and that is not excessive by reference to the 
services performed) and which--
    (1) Are nontransferable within the meaning of Sec. 1.83-3(d); and
    (2) Do not have a readily ascertainable fair market value as defined 
in Sec. 1.83-7(b) on the measurement date;
    (B) Exceptions. (1) Paragraph (d)(2)(v)(A) of this section does not 
apply to options issued or transferred with a principal purpose of 
avoiding the application of section 1504 and this section; and
    (2) Paragraph (d)(2)(v)(A) of this section ceases to apply to 
options that become transferable;
    (vi) Options granted in connection with a loan. Options granted in 
connection with a loan if the lender is actively and regularly engaged 
in the business of lending and the options are issued in connection with 
a loan to the issuing corporation that is commercially reasonable. This 
paragraph (d)(2)(vi) continues to apply if the option is transferred 
with the loan (or if a portion of the option is transferred with a 
corresponding portion of the loan). However, if the option is 
transferred without a corresponding portion of the loan, this paragraph 
(d)(2)(vi) ceases to apply;
    (vii) Options created pursuant to a title 11 or similar case. 
Options created by the solicitation or receipt of acceptances to a plan 
of reorganization in a title 11 or similar case (within the meaning of 
section 368(a)(3)(A)), the option created by the confirmation of the

[[Page 565]]

plan, and any option created under the plan prior to the time the plan 
becomes effective;
    (viii) Convertible preferred stock. Convertible preferred stock, 
provided the terms of the conversion feature do not permit or require 
the tender of any consideration other than the stock being converted; 
and
    (ix) Other enumerated instruments. Any other instruments specified 
by the Internal Revenue Service in regulations, a revenue ruling, or 
revenue procedure. See Sec. 601.601(d)(2)(ii)(b) of this chapter.
    (e) Elimination of federal income tax liability. For purposes of 
this section, the elimination of federal income tax liability includes 
the elimination or deferral of federal income tax liability. In 
determining whether there is an elimination of federal income tax 
liability, the tax consequences to all involved parties are considered. 
Examples of elimination of federal income tax liability include the use 
of a loss or deduction that would not otherwise be utilized, the 
acceleration of a loss or deduction to a year earlier than the year in 
which the loss or deduction would otherwise be utilized, the deferral of 
gain or income to a year later than the year in which the gain or income 
would otherwise be reported, and the acceleration of gain or income to a 
year earlier than the year in which the gain or income would otherwise 
be reported, if such gain or income is offset by a net operating loss or 
net capital loss that would otherwise expire unused. The elimination of 
federal income tax liability does not include the deferral of gain with 
respect to the stock subject to the option that would be recognized if 
such stock were sold on a measurement date.
    (f) Substantial amount of federal income tax liability. The 
determination of what constitutes a substantial amount of federal income 
tax liability is based on all the facts and circumstances, including the 
absolute amount of the elimination, the amount of the elimination 
relative to overall tax liability, and the timing of items of income and 
deductions, taking into account present value concepts.
    (g) Reasonable certainty of exercise--(1) Generally. The 
determination of whether, as of a measurement date, an option is 
reasonably certain to be exercised is based on all the facts and 
circumstances, including:
    (i) Purchase price. The purchase price of the option in absolute 
terms and in relation to the fair market value of the stock or the 
exercise price of the option;
    (ii) In-the-money option. Whether and to what extent the option is 
in-the-money on the measurement date;
    (iii) Not in-the-money option. If the option is not in-the-money on 
the measurement date, the amount or percentage by which the exercise 
price of the option is greater than (or in the case of an option to sell 
stock, is less than) the fair market value of the underlying stock;
    (iv) Exercise price. Whether the exercise price of the option is 
fixed or fluctuates depending on the earnings, value, or other 
indication of economic performance of the issuing corporation;
    (v) Time of exercise. The time at which, or the period of time 
during which, the option can be exercised;
    (vi) Related or sequential options. Whether the option is one in a 
series of related or sequential options;
    (vii) Stockholder rights. The existence of an arrangement (either 
within the option agreement or in a related agreement) that, directly or 
indirectly, affords managerial or economic rights in the issuing 
corporation that ordinarily would be afforded to owners of the issuing 
corporation's stock (e.g., voting rights, dividend rights, or rights to 
proceeds on liquidation) to the person who would acquire the stock upon 
exercise of the option or a person related to such person. For this 
purpose, managerial or economic rights in the issuing corporation 
possessed because of actual stock ownership in the issuing corporation 
are not taken into account;
    (viii) Restrictive covenants. The existence of restrictive covenants 
or similar arrangements (either within the option agreement or in a 
related agreement) that, directly or indirectly, prevent or limit the 
ability of the issuing corporation to undertake certain activities while 
the option is outstanding (e.g., covenants limiting the payment of 
dividends or borrowing of funds);

[[Page 566]]

    (ix) Intention to alter value. Whether it was intended that through 
a change in the capital structure of the issuing corporation or a 
transfer of assets to or from the issuing corporation (other than 
regular, ordinary dividends) or by any other means, the fair market 
value of the stock of the issuing corporation would be altered for a 
principal purpose of increasing the likelihood that the option would be 
exercised; and
    (x) Contingencies. Any contingency (other than the mere passage of 
time) to which the exercise of the option is subject (e.g., a public 
offering of the issuing corporation's stock or reaching a certain level 
of earnings).
    (2) Cash settlement options, phantom stock, stock appreciation 
rights, or similar interests. A cash settlement option, phantom stock, 
stock appreciation right, or similar interest is treated as reasonably 
certain to be exercised if it is reasonably certain that the option will 
have value at some time during the period in which the option may be 
exercised.
    (3) Safe harbors--(i) Options to acquire stock. Except as provided 
in paragraph (g)(3)(iv) of this section, an option to acquire stock is 
not considered reasonably certain, as of a measurement date, to be 
exercised if--
    (A) The option may be exercised no more than 24 months after the 
measurement date and the exercise price is equal to or greater than 90 
percent of the fair market value of the underlying stock on the 
measurement date; or
    (B) The terms of the option provide that the exercise price of the 
option is equal to or greater than the fair market value of the 
underlying stock on the exercise date.
    (ii) Options to sell stock. Except as provided in paragraph 
(g)(3)(iv) of this section, an option to sell stock is not considered 
reasonably certain, as of a measurement date, to be exercised if--
    (A) The option may be exercised no more than 24 months after the 
measurement date and the exercise price is equal to or less than 110 
percent of the fair market value of the underlying stock on the 
measurement date; or
    (B) The terms of the option provide that the exercise price of the 
option is equal to or less than the fair market value of the underlying 
stock on the exercise date.
    (iii) Options exercisable at fair market value. For purposes of 
paragraphs (g)(3)(i)(B) and (g)(3)(ii)(B) of this section, an option 
whose exercise price is determined by a formula is considered to have an 
exercise price equal to the fair market value of the underlying stock on 
the exercise date if the formula is agreed upon by the parties when the 
option is issued in a bona fide attempt to arrive at fair market value 
on the exercise date and is to be applied based upon the facts in 
existence on the exercise date.
    (iv) Exceptions. The safe harbors of this paragraph (g)(3) do not 
apply if--
    (A) An arrangement exists that provides the holder or a related 
party with stockholder rights described in paragraph (g)(1)(vii) of this 
section (except for rights arising upon a default under the option or a 
related agreement);
    (B) It is intended that through a change in the capital structure of 
the issuing corporation or a transfer of assets to or from the issuing 
corporation (other than regular, ordinary dividends) or by any other 
means, the fair market value of the stock of the issuing corporation 
will be altered for a principal purpose of increasing the likelihood 
that the option will be exercised; or
    (C) The option is one in a series of related or sequential options, 
unless all such options satisfy paragraph (g)(3) (i) or (ii) of this 
section.
    (v) Failure to satisfy safe harbor. Failure of an option to satisfy 
one of the safe harbors of this paragraph (g)(3) does not affect the 
determination of whether an option is treated as reasonably certain to 
be exercised.
    (h) Examples. The provisions of this section may be illustrated by 
the following examples. These examples assume that the measurement dates 
set forth in the examples are the only measurement dates that have taken 
place or will take place.

    Example 1. (i) P is the common parent of a consolidated group, 
consisting of P, S, and T. P owns all 100 shares of S's only class of 
stock, which is voting common stock. P also owns all the stock of T. On 
June 30, 1992, when the fair market value of the S stock is $40 per 
share, P sells to U, an unrelated corporation, an option to acquire 40 
shares of

[[Page 567]]

the S stock that P owns at an exercise price of $30 per share, 
exercisable at any time within 3 years after the granting of the option. 
P and T have had substantial losses for 5 consecutive years while S has 
had substantial income during the same period. Because P, S, and T have 
been filing consolidated returns, P and T have been able to use all of 
their losses to offset S's income. It is anticipated that P, S, and T 
will continue their earnings histories for several more years. On July 
31, 1992, S declares and pays a dividend of $1 per share to P.
    (ii) If P, S, and T continue to file consolidated returns after June 
30, 1992, it could reasonably be anticipated that P, S, and T would 
eliminate a substantial amount of federal income tax liability by using 
P's and T's future losses to offset S's income in consolidated returns. 
Furthermore, based on the difference between the exercise price of the 
option and the fair market value of the S stock, it is reasonably 
certain, on June 30, 1992, a measurement date, that the option will be 
exercised. Therefore, the option held by U is treated as exercised. As a 
result, for purposes of determining whether P and S are affiliated, P is 
treated as owning only 60 percent of the value of outstanding shares of 
S stock and U is treated as owning the remaining 40 percent. P is still 
treated as owning 100 percent of the voting power. Because members of 
the P group are no longer treated as owning stock possessing 80 percent 
of the total value of the S stock as of June 30, 1992, S is no longer a 
member of the P group. Additionally, P is not entitled to a 100 percent 
dividends received deduction under section 243(a)(3) because P and S are 
also treated as not affiliated for purposes of section 243. P is only 
entitled to an 80 percent dividends received deduction under section 
243(c).
    Example 2. (i) The facts are the same as in Example 1 except that 
rather than P issuing an option to acquire 40 shares of S stock to U on 
June 30, 1992, P, pursuant to a plan, issues an option to U1 on July 1, 
1992, to acquire 20 shares of S stock, and issues an option to U2 on 
July 2, 1992, to acquire 20 shares of S stock.
    (ii) Because the options issued to U1 and U2 were issued pursuant to 
a plan, July 2, 1992, constitutes a measurement data for both options. 
Therefore, both options are aggregated in determining whether the 
issuance of the options, rather than the sale of the S stock, would 
result in the elimination of a substantial amount of federal income tax 
liability. Accordingly, as in Example 1, because the continued 
affiliation of P, S, and T could reasonably be anticipated to result in 
the elimination of a substantial amount of federal income tax liability 
and the options are reasonably certain to be exercised, the options are 
treated as exercised for purposes of determining whether P and S are 
affiliated, and P and S are no longer affiliated as of July 2, 1992.
    Example 3. (i) The facts are the same as in Example 1 except that 
the option gives U the right to acquire all 100 shares of the S stock, 
and U is the common parent of a consolidated group. The U group has had 
substantial losses for 5 consecutive years and it is anticipated that 
the U group will continue its earnings history for several more years.
    (ii) If P sold the S stock, in lieu of the option, to U, S would 
become a member of the U group. Because the U group files consolidated 
returns, if P sold the S stock to U, U would be able to use its future 
losses to offset future income of S. When viewing the transaction from 
the effect on all parties, the sale of the option, in lieu of the 
underlying S stock, does not result in the elimination of federal income 
tax liability because S's income would be offset by the losses of 
members of either the P or U group. Accordingly, the option is 
disregarded and S remains a member of the P group.
    Example 4. (i) P is the common parent of a consolidated group, 
consisting of P and S. P owns 90 of the 100 outstanding shares of S's 
only class of stock, which is voting common stock, and U, an unrelated 
corporation, owns the remaining 10 shares. On August 31, 1992, when the 
fair market value of the S stock is $100 per share, P sells a call 
option to U that entitles U to purchase 20 shares of S stock from P, at 
any time before August 31, 1993, at an exercise price of $115 per share. 
The call option does not provide U with any voting rights, dividend 
rights, or any other managerial or economic rights ordinarily afforded 
to owners of the S stock. There is no intention on August 31, 1992, to 
alter the value of S to increase the likelihood of the exercise of the 
call option.
    (ii) Because the exercise price of the call option is equal to or 
greater than 90 percent of the fair market value of the S stock on 
August 31, 1992, a measurement date, the option may be exercised no more 
than 24 months after the measurement date, and none of the items 
described in paragraph (g)(3)(iv) of this section that preclude 
application of the safe harbor are present, the safe harbor of paragraph 
(g)(3)(i) of this section applies and the call option is treated as if 
it is not reasonably certain to be exercised. Therefore, regardless of 
whether the continued affiliation of P and S would result in the 
elimination of a substantial amount of federal income tax liability, the 
call option is disregarded in determining whether S remains a member of 
the P group.
    Example 5. (i) The facts are the same as in Example 4 except that 
the call option gives U the right to vote similar to that of a 
shareholder.
    (ii) Under paragraph (g)(3)(iv) of this section, the safe harbor of 
paragraph (g)(3)(i) of this section does not apply because the call

[[Page 568]]

option entitles U to voting rights equivalent to that of a shareholder. 
Accordingly, all of the facts and circumstances surrounding the sale of 
the call option must be taken into consideration in determining whether 
it is reasonably certain that the call option will be exercised.
    Example 6. (i) In 1992, two unrelated corporations, X and Y, decide 
to engage jointly in a new business venture. To accomplish this purpose, 
X organizes a new corporation, S, on September 30, 1992. X acquires 100 
shares of the voting common stock of S, which are the only shares of S 
stock outstanding. Y acquires a debenture of S which is convertible, on 
September 30, 1995, into 100 shares of S common stock. If the conversion 
right is not exercised, X will have the right, on September 30, 1995, to 
put 50 shares of its S stock to Y in exchange for 50 percent of the 
debenture held by Y. The likelihood of the success of the venture is 
uncertain. It is anticipated that S will generate substantial losses in 
its early years of operation. X expects to have substantial taxable 
income during the three years following the organization of S.
    (ii) Under the terms of this arrangement, it is reasonably certain 
on September 30, 1992, a measurement date, that on September 30, 1995, 
either through Y's exercise of its conversion right or X's right to put 
S stock to Y, that Y will own 50 percent of the S stock. Additionally, 
it could reasonably be anticipated, on September 30, 1992, a measurement 
date, that the affiliation of X and S would result in the elimination of 
a substantial amount of federal income tax liability. Accordingly, for 
purposes of determining whether X and S are affiliated, X is treated as 
owning only 50 percent of the value of the S stock as of September 30, 
1992, a measurement date, and S is not a member of the X affiliated 
group.
    Example 7. (i) The facts are the same as in Example 6 except that 
rather than acquiring 100 percent of the S stock and the right to put S 
stock to Y, X acquires only 80 percent of the S stock, while S, rather 
than acquiring a convertible debenture, acquires 20 percent of the S 
stock, and an option to acquire an additional 30 percent of the S stock. 
The terms of the option are such that the option will only be exercised 
if the new business venture succeeds.
    (ii) In contrast to Example 6, because of the true business risks 
involved in the start-up of S and whether the business venture will 
ultimately succeed, along with the fact that X does not have an option 
to put S stock to Y, it is not reasonably certain on September 30, 1992, 
a measurement date, that the option will be exercised and that X will 
only own 50 percent of the S stock on September 30, 1995. Accordingly, 
the option is disregarded in determining whether S is a member of the X 
group.

    (i) Effective date. This section applies, generally, to options with 
a measurement date on or after February 28, 1992. This section does not 
apply to options issued prior to February 28, 1992, which have a 
measurement date on or after February 28, 1992, if the measurement date 
for the option occurs solely because of an adjustment in the terms of 
the option pursuant to the terms of the option as it existed on February 
28, 1992. Paragraph (b)(2)(iv) of this section applies to stock 
outstanding on or after February 28, 1992.

[T.D. 8462, 57 FR 61801, Dec. 29, 1992; 58 FR 7041, Feb. 3, 1993]

  Regulations Applicable for Tax Years for Which a Return Is Due on or 
                         Before August 11, 1999