2016 US Code
Title 26 - Internal Revenue Code
Subtitle A - Income Taxes
Chapter 1 - Normal Taxes and Surtaxes
Subchapter C - Corporate Distributions and Adjustments
Part VI - Treatment of Certain Corporate Interests as Stock or Indebtedness
Sec. 385 - Treatment of certain interests in corporations as stock or indebtedness
| 26 U.S.C. § 385 (2016) |
| §385. Treatment of certain interests in corporations as stock or indebtedness |
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(a) Authority to prescribe regulations
The Secretary is authorized to prescribe such regulations as may be necessary or appropriate to determine whether an interest in a corporation is to be treated for purposes of this title as stock or indebtedness (or as in part stock and in part indebtedness). (b) FactorsThe regulations prescribed under this section shall set forth factors which are to be taken into account in determining with respect to a particular factual situation whether a debtor-creditor relationship exists or a corporation-shareholder relationship exists. The factors so set forth in the regulations may include among other factors: (1) whether there is a written unconditional promise to pay on demand or on a specified date a sum certain in money in return for an adequate consideration in money or money's worth, and to pay a fixed rate of interest, (2) whether there is subordination to or preference over any indebtedness of the corporation, (3) the ratio of debt to equity of the corporation, (4) whether there is convertibility into the stock of the corporation, and (5) the relationship between holdings of stock in the corporation and holdings of the interest in question. The characterization (as of the time of issuance) by the issuer as to whether an interest in a corporation is stock or indebtedness shall be binding on such issuer and on all holders of such interest (but shall not be binding on the Secretary). Except as provided in regulations, paragraph (1) shall not apply to any holder of an interest if such holder on his return discloses that he is treating such interest in a manner inconsistent with the characterization referred to in paragraph (1). The Secretary is authorized to require such information as the Secretary determines to be necessary to carry out the provisions of this subsection. |
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(Added Pub. L. 91–172, title IV, §415(a), Dec. 30, 1969, 83 Stat. 613; amended Pub. L. 94–455, title XIX, §1906(b)(13)(A), Oct. 4, 1976, 90 Stat. 1834; Pub. L. 101–239, title VII, §7208(a)(1), Dec. 19, 1989, 103 Stat. 2337; Pub. L. 102–486, title XIX, §1936(a), Oct. 24, 1992, 106 Stat. 3032.) |
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AMENDMENTS
1992—Subsec. (c). Pub. L. 102–486 added subsec. (c). 1989—Subsec. (a). Pub. L. 101–239 inserted "(or as in part stock and in part indebtedness)" before period at end. 1976—Subsec. (a). Pub. L. 94–455 struck out "or his delegate" after "Secretary". EFFECTIVE DATE OF 1992 AMENDMENTPub. L. 102–486, title XIX, §1936(b), Oct. 24, 1992, 106 Stat. 3032, provided that: "The amendment made by subsection (a) [amending this section] shall apply to instruments issued after the date of the enactment of this Act [Oct. 24, 1992]." REGULATIONS NOT TO BE APPLIED RETROACTIVELYPub. L. 101–239, title VII, §7208(a)(2), Dec. 19, 1989, 103 Stat. 2337, provided that: "Any regulations issued pursuant to the authority granted by the amendment made by paragraph (1) [amending this section] shall only apply with respect to instruments issued after the date on which the Secretary of the Treasury or his delegate provides public guidance as to the characterization of such instruments whether by regulation, ruling, or otherwise." |
| United States Code, 2012 Edition, Supplement 4, Title 26 - INTERNAL REVENUE CODE |
| Bills and Statutes |
| United States Code |
| Y 1.2/5: |
| Title 26 - INTERNAL REVENUE CODE Subtitle A - Income Taxes CHAPTER 1 - NORMAL TAXES AND SURTAXES Subchapter C - Corporate Distributions and Adjustments PART VI - TREATMENT OF CERTAIN CORPORATE INTERESTS AS STOCK OR INDEBTEDNESS Sec. 385 - Treatment of certain interests in corporations as stock or indebtedness |
| section 385 |
| 2016 |
| January 6, 2017 |
| No |
| standard |
| 83 Stat. 613 90 Stat. 1834 103 Stat. 2337 106 Stat. 3032 |
| Public Law 91-172, Public Law 94-455, Public Law 101-239, Public Law 102-486 |
