[Code of Federal Regulations] [Title 26, Volume 10] [Revised as of April 1, 2004] From the U.S. Government Printing Office via GPO Access [CITE: 26CFR1.996-1] [Page 723-725] TITLE 26--INTERNAL REVENUE CHAPTER I--INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY (CONTINUED) PART 1_INCOME TAXES--Table of Contents Sec. 1.996-1 Rules for actual distributions and certain deemed distributions. (a) General rule. Under section 996(a)(1), any actual distribution (other than a distribution described in paragraph (b) of this section or to which Sec. 1.995-4 applies) to a shareholder by a DISC, or former DISC, which is made out of earnings and profits shall be treated as made-- (1) First, out of ``previously taxed income'' (as defined in Sec. 1.996-3(c)) to the extent thereof, (2) Second, out of ``accumulated DISC income'' (as defined in Sec. 1.996-3(b)) to the extent thereof, and (3) Third, out of ``other earnings and profits'' (as defined in Sec. 1.996-3(d)) to the extent thereof. (b) Rules for qualifying distributions and deemed distributions under section 995(b)(1)(G)--(1) In general. Except as [[Page 724]] provided in subparagraph (2), any actual distribution to meet qualification requirements made pursuant to Sec. 1.992-3 and any deemed distribution pursuant to Sec. 1.995-2(a)(5) (relating to foreign investment attributable to producer's loans) which is made out of earnings and profits shall be treated as made-- (i) First, out of ``accumulated DISC income'' (as defined in Sec. 1.996-3(b)) to the extent thereof. (ii) Second, out of ``other earnings and profits'' (as defined in Sec. 1.996-3(d)) to the extent thereof, and (iii) Third, out of ``previously taxed income'' (as defined in Sec. 1.996-3(c)) to the extent thereof. (2) Special rule. For taxable years beginning after December 31, 1975, paragraph (b)(1) of this section shall apply to one-half of the amount of an actual distribution made pursuant to Sec. 1.992-3 to satisfy the condition of Sec. 1.992-1(b) (the gross receipts test) and paragraph (a) of this section shall apply to the remaining one-half of such amount. (c) Exclusion from gross income. Under section 996(a)(3), amounts distributed out of previously taxed income shall be excluded by the distrib utee from gross income. However, see Sec. 1.996-5(b) for treatment as gain from the sale or exchange of property of the portion of an actual distribution out of previously taxed income to the extent it exceeds the adjusted basis of the stock with respect to which the distribution is made. (d) Priority of distributions. Under section 996(c), for purposes of determining their treatment under paragraphs (a), (b), and (c) of this section, distributions made during a taxable year shall be treated as being made in the following order-- (1) Deemed distributions under Sec. Sec. 1.995-2 and 1.995-3. (2) Actual distributions to meet qualification requirements made pursuant to Sec. 1.992-3 in the order in which they are made, and (3) Other actual distributions in the order in which they are made. Thus, the treatment of any distribution shall be determined after the divisions of earnings and profits have been properly adjusted by taking into account distributions of higher priority which are made or deemed made during the same taxable year. (e) Examples. The provisions of this section may be illustrated by the following examples: Example 1. Y Corporation, which uses the calendar year as its taxable year elects to be treated as a DISC beginning with 1972. During 1973, Y makes a cash distribution of $100 to X Corporation, Y's sole shareholder. For 1973, Y has no earnings and profits. As of the beginning of 1973, Y has $300 of accumulated earnings and profits, which consist of $70 of accumulated DISC income, $40 of previously taxed income, and $190 of other earnings and profits. The entire $100 distribution is a dividend under section 316. However, $40 thereof is treated as made out of previously taxed income and is thus excluded from gross income. Accordingly, only $60 is treated as distributed out of accumulated DISC income and includible in gross income. See Sec. 1.246- 4 for the inapplicability of the dividend received deduction with respect to the entire distribution of $100. Example 2. Assume the same facts as in example 1, except that the cash distribution is designated as a distribution to meet qualification requirements made pursuant to Sec. 1.992-3. Under these facts, X includes the entire distribution in its gross income as a dividend. Of the $100 distributed, $70 is treated as made out of accumulated DISC income and the remaining $30 is treated as made out of other earnings and profits. The dividend received deduction under section 243 is available only with respect to such $30. Example 3. Y Corporation, which uses the calendar year as its taxable year, elects to be treated as a DISC beginning with 1972. As of the end of 1975, Y had failed to meet the gross receipts test for that year. In 1975 Y had $100 of taxable income, $80 of which was attributable to qualified export receipts and $20 of which was attributable to receipts that did not qualify as qualified export receipts. As of the beginning of 1976, Y had $300 of accumulated earnings and profits, which consisted of $70 of accumulated DISC income, $40 of previously taxed income, and $190 of other earnings and profits. In 1976 Y makes a cash distribution of $20 pursuant to Sec. 1.992-3 in order to satisfy the gross receipts test for 1975. For 1976 Y has no earnings and profits and no deemed distributions. The entire $20 distribution is a dividend under section 316. Under Sec. 1.996-1(b)(2), half of the $20 cash distribution is treated pursuant to Sec. 1.996- 1(b)(1) and half is treated pursuant to Sec. 1.996-1(a). Thus, $10 is treated as distributed out of accumulated DISC income and is includible in gross income. The other $10 is treated as made out of previously taxed income and is thus excluded from gross income. As of the beginning of 1977, Y has $280 of accumulated [[Page 725]] earnings and profits, which consists of $60 of accumulated DISC income, $30 of previously taxed income, and $190 of other earnings and profits. [T.D. 7324, 39 FR 35120, Sept. 30, 1974, as amended by T.D. 7854, 47 FR 51742, Nov. 17, 1982]