Recognition of Passive Activity Losses in a Complete Redemption of S Corporation Stock

ABSTRACT Under Section 302(b)(3), a taxpayer who redeems all of the stock he owns in an S corporation is treated as having surrendered his stock in a fully taxable exchange. The taxpayer generally recognizes the gain, or loss, realized on the exchange. Moreover, if the interest he redeems is an interest in a passive activity, Section 469(g) re-characterizes a loss on the exchange, and suspended passive activity losses (PAL) from the activity, as losses not from a passive activity, thus freeing up the suspended losses. However, when the taxpayer and the S corporation are related parties, Section 469(g)(1)(B) prohibits recognition of suspended PAL until the S corporation disposes of the “interest acquired” in a taxable transaction. Following a redemption, disposition of the “interest acquired” is not literally possible. Consequently, taxpayers question whether related-party S corporation shareholders lose the ability to recognize suspended PAL when they redeem their stock. For several years, the American Institute of Certified Public Accountants (AICPA) Tax Division has requested guidance from the Treasury Department regarding this question and listed this issue as the top priority item affecting S corporation taxation. The AICPA posits that following a 302(b)(3) redemption, suspended PAL of related-party shareholders disappear. Is the AICPA's literal application of the statute the correct approach? The legal analysis herein answers the question raised by the AICPA and taxpayers and provides guidance to Treasury in drafting administrative authority that is consistent with existing statutes and the legislative history of Section 469. Although Section 469(g)(1)(B) is problematic for related-party S corporation shareholders, their suspended PAL do not disappear. Section 469(g)(1)(B) postpones the recognition of suspended PAL in accordance with the aggregate approach when there is a complete redemption of a related-party S corporation shareholder's interest under Section 302(b)(3).