26 U.S.C. § 318

Constructive ownership of stock

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(a) General ruleFor purposes of those provisions of this subchapter to which the rules contained in this section are expressly made applicable—(1) Members of family(A) In generalAn individual shall be considered as owning the stock owned, directly or indirectly, by or for—(i) his spouse (other than a spouse who is legally separated from the individual under a decree of divorce or separate maintenance), and(ii) his children, grandchildren, and parents.(B) Effect of adoption

For purposes of subparagraph (A)(ii), a legally adopted child of an individual shall be treated as a child of such individual by blood.

(2) Attribution from partnerships, estates, trusts, and corporations(A) From partnerships and estates

Stock owned, directly or indirectly, by or for a partnership or estate shall be considered as owned proportionately by its partners or beneficiaries.

(B) From trusts(i) Stock owned, directly or indirectly, by or for a trust (other than an employees’ trust described in section 401(a) which is exempt from tax under section 501(a)) shall be considered as owned by its beneficiaries in proportion to the actuarial interest of such beneficiaries in such trust.(ii) Stock owned, directly or indirectly, by or for any portion of a trust of which a person is considered the owner under subpart E of part I of subchapter J (relating to grantors and others treated as substantial owners) shall be considered as owned by such person.(C) From corporations

If 50 percent or more in value of the stock in a corporation is owned, directly or indirectly, by or for any person, such person shall be considered as owning the stock owned, directly or indirectly, by or for such corporation, in that proportion which the value of the stock which such person so owns bears to the value of all the stock in such corporation.

(3) Attribution to partnerships, estates, trusts, and corporations(A) To partnerships and estates

Stock owned, directly or indirectly, by or for a partner or a beneficiary of an estate shall be considered as owned by the partnership or estate.

(B) To trusts(i) Stock owned, directly or indirectly, by or for a beneficiary of a trust (other than an employees’ trust described in section 401(a) which is exempt from tax under section 501(a)) shall be considered as owned by the trust, unless such beneficiary’s interest in the trust is a remote contingent interest. For purposes of this clause, a contingent interest of a beneficiary in a trust shall be considered remote if, under the maximum exercise of discretion by the trustee in favor of such beneficiary, the value of such interest, computed actuarially, is 5 percent or less of the value of the trust property.(ii) Stock owned, directly or indirectly, by or for a person who is considered the owner of any portion of a trust under subpart E of part I of subchapter J (relating to grantors and others treated as substantial owners) shall be considered as owned by the trust.(C) To corporations

If 50 percent or more in value of the stock in a corporation is owned, directly or indirectly, by or for any person, such corporation shall be considered as owning the stock owned, directly or indirectly, by or for such person.

(4) Options

If any person has an option to acquire stock, such stock shall be considered as owned by such person. For purposes of this paragraph, an option to acquire such an option, and each one of a series of such options, shall be considered as an option to acquire such stock.

(5) Operating rules(A) In general

Except as provided in subparagraphs (B) and (C), stock constructively owned by a person by reason of the application of paragraph (1), (2), (3), or (4), shall, for purposes of applying paragraphs (1), (2), (3), and (4), be considered as actually owned by such person.

(B) Members of family

Stock constructively owned by an individual by reason of the application of paragraph (1) shall not be considered as owned by him for purposes of again applying paragraph (1) in order to make another the constructive owner of such stock.

Stock constructively owned by a partnership, estate, trust, or corporation by reason of the application of paragraph (3) shall not be considered as owned by it for purposes of applying paragraph (2) in order to make another the constructive owner of such stock.

(D) Option rule in lieu of family rule

For purposes of this paragraph, if stock may be considered as owned by an individual under paragraph (1) or (4), it shall be considered as owned by him under paragraph (4).

(E) S corporation treated as partnershipFor purposes of this subsection—(i) an S corporation shall be treated as a partnership, and(ii) any shareholder of the S corporation shall be treated as a partner of such partnership.The preceding sentence shall not apply for purposes of determining whether stock in the S corporation is constructively owned by any person.(b) Cross referencesFor provisions to which the rules contained in subsection (a) apply, see—(1) section 302 (relating to redemption of stock);(2) section 304 (relating to redemption by related corporations);(3) section 306(b)(1)(A) (relating to disposition of section 306 stock);(4) section 338(h)(3) (defining purchase);(5) section 382(l)(3) (relating to special limitations on net operating loss carryovers);(6) section 856(d) (relating to definition of rents from real property in the case of real estate investment trusts);(7) section 958(b) (relating to constructive ownership rules with respect to controlled foreign corporations); and(8) section 6038(e)(2) (relating to information with respect to certain foreign corporations).(Aug. 16, 1954, ch. 736, 68A Stat. 99; Pub. L. 86–779, § 10(h), Sept. 14, 1960, 74 Stat. 1009; Pub. L. 87–834, § 20(d)(1), Oct. 16, 1962, 76 Stat. 1063; Pub. L. 88–554, § 4(a), (b)(2), Aug. 31, 1964, 78 Stat. 762, 763; Pub. L. 97–248, title II, § 224(c)(3), Sept. 3, 1982, 96 Stat. 489; Pub. L. 98–369, div. A, title VII, §§ 712(k)(5)(E), 721(j), July 18, 1984, 98 Stat. 950, 969; Pub. L. 99–514, title VI, § 621(c)(1), Oct. 22, 1986, 100 Stat. 2266; Pub. L. 105–34, title XI, § 1142(e)(3), Aug. 5, 1997, 111 Stat. 983; Pub. L. 109–135, title IV, § 412(u), Dec. 21, 2005, 119 Stat. 2638.)Editorial NotesAmendments

2005—Subsec. (b)(8). Pub. L. 109–135 substituted “section 6038(e)(2)” for “section 6038(d)(2)”.

1997—Subsec. (b)(8). Pub. L. 105–34 substituted “6038(d)(2)” for “6038(d)(1)”.

1986—Subsec. (b)(5). Pub. L. 99–514 substituted “382(l)(3)” for “382(a)(3)”.

1984—Subsec. (a)(5)(E). Pub. L. 98–369, § 721(j), added subpar. (E).

Subsec. (b)(4). Pub. L. 98–369, § 712(k)(5)(E), substituted “section 338(h)(3) (defining purchase)” for “section 338(h)(3)(B) (relating to purchase of stock from subsidiaries, etc.)”.

1982—Subsec. (b)(4). Pub. L. 97–248 substituted “section 338(h)(3)(B) (relating to purchase of stock from subsidiaries, etc.)” for “section 334(b)(3)(C) (relating to basis of property received in certain liquidations of subsidiaries)”.

1964—Subsec. (a). Pub. L. 88–554, § 4(a), struck out sidewise attribution by providing that when stock is attributed to a partnership, estate, trust, or corporation from a partner, shareholder, or beneficiary, this stock is not to be attributed again to another partner, beneficiary, or shareholder.

Subsec. (b)(7), (8). Pub. L. 88–554, § 4(b)(2), added par. (7) and redesignated former par. (7) as (8).

1962—Subsec. (b)(7). Pub. L. 87–834 added par. (7).

1960—Subsec. (b)(6). Pub. L. 86–779 added par. (6).

Statutory Notes and Related SubsidiariesEffective Date of 1997 Amendment

Pub. L. 105–34, title XI, § 1142(f), Aug. 5, 1997, 111 Stat. 983, provided that: “The amendments made by this section [amending this section and sections 901 and 6038 of this title] shall apply to annual accounting periods beginning after the date of the enactment of this Act [Aug. 5, 1997].”

Effective Date of 1986 Amendment

Amendment by Pub. L. 99–514 applicable to any ownership change after Dec. 31, 1986, except as otherwise provided, see section 621(f) of Pub. L. 99–514, as amended, set out as a note under section 382 of this title.

Effective Date of 1984 Amendment

Amendment by section 712(k)(5)(E) of Pub. L. 98–369 not applicable to any qualified stock purchase where the acquisition date is before Sept. 1, 1982, see section 712(k)(9)(A) of Pub. L. 98–369, set out as a note under section 338 of this title.

Amendment by section 712(k)(5)(E) of Pub. L. 98–369 effective as if included in the provision of the Tax Equity and Fiscal Responsibility Act of 1982, Pub. L. 97–248, to which such amendment relates, see section 715 of Pub. L. 98–369, set out as a note under section 31 of this title.

Amendment by section 721(j) of Pub. L. 98–369 effective as if included in the Subchapter S Revision Act of 1982, Pub. L. 97–354, see section 721(y)(1) of Pub. L. 98–369, set out as a note under section 1361 of this title.

Effective Date of 1982 Amendment

Amendment by Pub. L. 97–248 applicable to any target corporation with respect to which the acquisition date occurs after Aug. 31, 1982, with special rules for certain acquisitions before Sept. 1, 1982, and certain acquisitions of financial institutions in which there was a binding contract on July 22, 1982, to acquire control, see section 224(d) of Pub. L. 97–248, set out as an Effective Date note under section 338 of this title.

Effective Date of 1964 Amendment

Pub. L. 88–554, § 4(c), Aug. 31, 1964, 78 Stat. 764, as amended by Pub. L. 99–514, § 2, Oct. 22, 1986, 100 Stat. 2095, provided that: “The amendments made by this section [amending this section and sections 304, 382, 856, 958, and 6038 of this title] shall take effect on the date of the enactment of this Act, [Aug. 31, 1964], except that, for purposes of sections 302 and 304 of the Internal Revenue Code of 1986 [formerly I.R.C. 1954], such amendments shall not apply with respect to distributions in payment for stock acquisitions or redemptions, if such acquisitions or redemptions occurred before the date of the enactment of this Act.”

Effective Date of 1960 Amendment

Amendment by Pub. L. 86–779 applicable with respect to taxable years of real estate investment trusts beginning after Dec. 31, 1960, see section 10(k) of Pub. L. 86–779, set out as an Effective Date note under section 856 of this title.

Notes of Decisions

Cited in 25 cases, 1960–2019 · leading case: In re Wyly, 552 B.R. 338 (Bankr. N.D. Tex. 2016).

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In re Wyly, 552 B.R. 338 (Bankr. N.D. Tex. 2016). · cites it 5× “1164 Turning to 26 U.S.C. § 318 (a)(2)(B)(ii), we see why the SDNY Court’s grantor trust determinations lead to a finding of control under § 6038.”

Petersen v. Comm'r of Internal Revenue, 924 F.3d 1111 (10th Cir. 2019). · cites it 2× “Another of Taxpayers' statutory arguments relies on 26 U.S.C. § 318 , which, in our view, actually supports the Commissioner.”

Est. of Burton W. Kanter, Deceased, Joshua S. Kanter, & Naomi Kanter v. Comm'r of Internal Revenue, 337 F.3d 833 (7th Cir. 2003). · cites it 2× “” See 26 U.S.C. § 318 (a)(2), (3). On August 31, 1983, the promissory notes held by Cashmere were paid off by eight checks drawn on the Administration Co.”

In Re South Beach Sec., Inc., 606 F.3d 366 (7th Cir. 2010). · cites it 2× “But the statute treats family members (spouses, children, grandchildren, parents) as a single owner, corporations as being owned by their shareholders, and trusts as being owned by their beneficiaries, 26 U.S.C. §§ 318 (a)(1), (a)(2)(B), 382(i )(3)(A); 26 C.”

Henry T. Patterson Trust, by Its Tr., the Reeves Banking & Trust Co. v. United States, 729 F.2d 1089 (6th Cir. 1984). · cites it 2× “The district court included the Hicks option in its calculations pursuant to the *1094 plain language of the attribution statute, 26 U.S.C. § 318 (a)(4), which stated [emphasis added]: If any person has an option to acquire stock, such stock shall be considered as owned by such…”

Reddam v. Comm'r, 755 F.3d 1051 (9th Cir. 2014). “See 26 U.S.C. § 318 . Reddam therefore took the position that, for tax purposes, he constructively owned Cormorant’s Deutsche Bank stock.”

Est. of Travis Mixon, Jr. v. United States, 464 F.2d 394 (5th Cir. 1972). “26 U.S.C.A. § 318 . 4 . The record discloses clearly that charging off a loan does not affect the underlying note’s collectibility.”

Boise Cascade Corp. v. United States, 329 F.3d 751 (9th Cir. 2003). “” In turn, 26 U.S.C. § 318 (a)(B)(i) provides: Stock owned, directly or indirectly, by or for a trust (other than an employees’ trust described in section 401(a) which is exempt from tax under section 501(a)) shall be considered as owned by its beneficiaries in proportion to the…”

Jack O. Chertkof & Sophie Chertkof v. Comm'r of Internal Revenue, 649 F.2d 264 (4th Cir. 1981). “” In determining the ownership of stock for purposes of this section, however, the family attribution rules contained in 26 U.S.C. § 318 apply, under which Taxpayer would be considered to own the stock owned by his father, unless he waived these rules by fulfilling the…”

Eva D. Bradbury v. Comm'r of Internal Revenue, 298 F.2d 111 (1st Cir. 1962). “Were it not for the attribution rules of constructive ownership which were added to the 1954 Code through Section 318, 26 U.S.C.A. § 318 , and made applicable to redemptions under Section 302, the foregoing principles would not produce such a stern impact on petitioner’s…”

In Re the Receivership Est. of Indian Motorcycle Mfg., Inc., 299 B.R. 8 (D. Mass. 2003). “(The fact that stock was not actually distributed has no bearing on deductibility; 26 U.S.C. § 318 (a)(4) provides that an owner of an option is treated, for tax purposes, as a stock owner.”

Calvin D. Mitchell & Fay Bond Mitchell v. Comm'r of Internal Revenue, 300 F.2d 533 (4th Cir. 1962). “Other sections of the Internal Revenue Code also specifically include the beneficial ownership of stock within the broad concept of ownership.”

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