A corporate reorganization under IRC §368 allows corporations to merge, divide, or restructure without immediate recognition of gain or loss - provided the transaction meets the specific requirements of one of the enumerated reorganization types. Shareholders who receive stock of the acquiring corporation recognize no gain. Cash or other property (boot) received is taxable. The benefit is substantial: a $100 million merger can occur tax-free if structured as a §368 reorganization, while the same transaction structured as an asset sale triggers immediate corporate-level and shareholder-level taxation. The requirements are precise and technical - small deviations can cause the entire transaction to fail reorganization status.
Type A (§368(a)(1)(A)): Statutory merger or consolidation. Most flexible - no consideration requirements, but must be a merger authorized under state or foreign corporate law.
Type B (§368(a)(1)(B)): Stock-for-stock exchange. Acquirer uses solely its voting stock (or its parent's) to acquire at least 80% of the target's voting power and value. Solely requirement is strict - any cash creates a failed B.
Type C (§368(a)(1)(C)): Stock-for-assets. Acquirer uses primarily voting stock to acquire substantially all assets of target. Up to 20% boot permitted in limited circumstances.
Type D (§368(a)(1)(D)): Division or acquisitive reorganization. Used for spin-offs (with §355), split-offs, and split-ups. Complex - requires compliance with both §368(a)(1)(D) and §355.
All reorganizations must satisfy three continuity requirements that are not explicit in the statute but are embedded in the regulations:
Continuity of interest (COI): A substantial portion of the consideration paid in the reorganization must consist of equity of the acquiring corporation. The historic shareholder continuity must be maintained - typically at least 40% of the total consideration (by value) must be acquiring corporation stock under the safe harbor in Treas. Reg. §1.368-1(e). Below 40% creates significant reorganization risk. Pre-closing sales of target stock to persons other than the acquirer do not count against COI (the signing date rule).
Continuity of business enterprise (COBE): After the reorganization, the acquiring corporation must continue the target's historic business or use a significant portion of the target's historic business assets in a business. A reorganization where the target's business is immediately shut down and assets liquidated fails COBE.
Business purpose: The reorganization must have a genuine business purpose beyond tax avoidance. Courts apply a business purpose requirement derived from Gregory v. Helvering - a reorganization that is purely a device to extract corporate earnings without dividend treatment fails.
A shareholder who receives property other than acquiring corporation stock in a reorganization recognizes gain (but not loss) equal to the lesser of the boot received or the realized gain on the exchange (§354 and §356). The character of the recognized gain depends on whether the exchange has the effect of a dividend distribution under §356(a)(2). If the boot has the effect of a dividend, the gain recognized is treated as a dividend (ordinary income) to the extent of the shareholder's ratable share of accumulated earnings and profits, then as capital gain for the remainder. The dividend-within-gain concept requires a hypothetical redemption analysis under §302.
A failed reorganization - one that does not meet the statutory requirements - is treated as a taxable sale or exchange. The target corporation recognizes gain on the transfer of its assets (or the target shareholders recognize gain on the exchange of their stock). The acquirer takes a cost basis in the acquired assets or stock. For a transaction that was expected to be tax-free, failure can create an unexpected multi-million-dollar corporate tax liability with no cash to pay it. Common failure reasons: inadequate stock consideration (COI failure), boot exceeding limits, failure to satisfy state law requirements for a statutory merger (Type A failure), or mixing consideration types that violate the solely-voting-stock requirement in a Type B.