Trafficking-In and Harvesting Tax Benefits May Be Subject to Restrictions and Limitations

Trafficking in and harvesting preexisting or manufactured tax losses and credits may be both beneficial and lucrative, but it may be subject to restrictions and limitations. Internal Revenue Code (“IRC”) Section 269 generally provides that acquisition of control of a corporation to gain the benefit of a deduction, credit, or other allowance is prohibited. Does the Section 269 prohibition present a concrete barrier or is it just a smoke screen? This article examines the business purpose and economic substance doctrines to explain ways to circumvent Section 269.

Then, this article analyzes IRC Section 382 to describe its impact and limitations when an “ownership change” is involved. Finally, this article discusses whether Section 382 applies to S corporations.