Difference between revisions of "Title 6 § 395. Prohibition on contracts with corporate expatriates (Inverted Domestic Corporations)"
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==(a) In general== | ==(a) In general== | ||
| − | The Secretary may not enter into any contract with a foreign incorporated entity which is treated as an inverted domestic corporation under subsection (b) of this section, or any subsidiary | + | The Secretary may not enter into any contract with a foreign incorporated entity which is treated as an inverted domestic corporation under subsection (b) of this section, or any subsidiary of such an entity. |
| − | of such an entity. | + | |
| − | (b) Inverted domestic corporation | + | |
| − | For purposes of this section, a foreign incorporated | + | ==(b) Inverted domestic corporation== |
| − | entity shall be treated as an inverted | + | For purposes of this section, a foreign incorporated entity shall be treated as an inverted domestic corporation if, pursuant to a plan (or a series of related transactions)— |
| − | domestic corporation if, pursuant to a plan (or a | + | |
| − | series of related transactions)— | + | |
| − | (1) the entity completes before, on, or after | + | :(1) the entity completes before, on, or after November 25, 2002, the direct or indirect acquisition of substantially all of the properties held directly or indirectly by a domestic corporation or substantially all of the properties constituting a trade or business of a domestic partnership; |
| − | November 25, 2002, the direct or indirect acquisition | + | |
| − | of substantially all of the properties | + | |
| − | held directly or indirectly by a domestic corporation | + | :(2) after the acquisition at least 80 percent of the stock (by vote or value) of the entity is held— |
| − | or substantially all of the properties | + | |
| − | constituting a trade or business of a domestic | + | ::(A) in the case of an acquisition with respect to a domestic corporation, by former shareholders of the domestic corporation by reason of holding stock in the domestic corporation; or |
| − | partnership; | + | |
| − | (2) after the acquisition at least 80 percent of | + | ::(B) in the case of an acquisition with respect to a domestic partnership, by former partners of the domestic partnership by reason of holding a capital or profits interest in the domestic partnership; and |
| − | the stock (by vote or value) of the entity is | + | |
| − | held— | + | |
| − | (A) in the case of an acquisition with respect | + | :(3) the expanded affiliated group which after the acquisition includes the entity does not have substantial business activities in the foreign country in which or under the law of which the entity is created or organized when compared to the total business activities of such expanded affiliated group. |
| − | to a domestic corporation, by former | + | |
| − | shareholders of the domestic corporation by | + | |
| − | reason of holding stock in the domestic corporation; | + | ==(c) Definitions and Special Rules== |
| − | or | + | |
| − | (B) in the case of an acquisition with respect | + | ===(1) Rules for application of subsection (b)=== |
| − | to a domestic partnership, by former | + | In applying subsection (b) of this section for purposes of subsection (a) of this section, the following rules shall apply: |
| − | partners of the domestic partnership by reason | + | |
| − | of holding a capital or profits interest in | + | ====(A) Certain stock disregarded==== |
| − | the domestic partnership; and | + | There shall not be taken into account in determining ownership for purposes of subsection (b)(2) of this section— |
| − | (3) the expanded affiliated group which after | + | |
| − | the acquisition includes the entity does not | + | :(i) stock held by members of the expanded affiliated group which includes the foreign incorporated entity; or |
| − | have substantial business activities in the foreign | + | |
| − | country in which or under the law of | + | :(ii) stock of such entity which is sold in a public offering related to the acquisition described in subsection (b)(1) of this section. |
| − | which the entity is created or organized when | + | |
| − | compared to the total business activities of | + | ====(B) Plan deemed in certain cases==== |
| − | such expanded affiliated group. | + | If a foreign incorporated entity acquires directly or indirectly substantially all of the properties of a domestic corporation or partnership during the 4-year period beginning on the date which is 2 years before the ownership requirements of subsection (b)(2) of this section are met, such actions shall be |
| − | (c) Definitions and | + | |
| − | (1) Rules for application of subsection (b) | + | |
| − | In applying subsection (b) of this section for | + | |
| − | purposes of subsection (a) of this section, the | + | |
| − | following rules shall apply: | + | |
| − | (A) Certain stock disregarded | + | |
| − | There shall not be taken into account in | + | |
| − | determining ownership for purposes of subsection | + | |
| − | (b)(2) of this section— | + | |
| − | (i) stock held by members of the expanded | + | |
| − | affiliated group which includes the | + | |
| − | foreign incorporated entity; or | + | |
| − | (ii) stock of such entity which is sold in | + | |
| − | a public offering related to the acquisition | + | |
| − | described in subsection (b)(1) of this section. | + | |
| − | (B) Plan deemed in certain cases | + | |
| − | If a foreign incorporated entity acquires | + | |
| − | directly or indirectly substantially all of the | + | |
| − | properties of a domestic corporation or partnership | + | |
| − | during the 4-year period beginning | + | |
| − | on the date which is 2 years before the ownership | + | |
| − | requirements of subsection (b)(2) of | + | |
| − | this section are met, such actions shall be | + | |
treated as pursuant to a plan. | treated as pursuant to a plan. | ||
| − | (C) Certain transfers disregarded | + | |
| − | The transfer of properties or liabilities (including | + | ====(C) Certain transfers disregarded==== |
| − | by contribution or distribution) | + | The transfer of properties or liabilities (including by contribution or distribution) shall be disregarded if such transfers are part of a plan a principal purpose of which is to avoid the purposes of this section. |
| − | shall be disregarded if such transfers are | + | |
| − | part of a plan a principal purpose of which is | + | ====(D) Special rule for related partnerships==== |
| − | to avoid the purposes of this section. | + | For purposes of applying subsection (b) of this section to the acquisition of a domestic partnership, except as provided in regulations, all domestic partnerships which are under common control (within the meaning of section 482 of title 26) shall be treated as I 1 partnership. |
| − | (D) Special rule for related partnerships | + | |
| − | For purposes of applying subsection (b) of | + | ====(E) Treatment of certain rights==== |
| − | this section to the acquisition of a domestic | + | The Secretary shall prescribe such regulations as may be necessary to— |
| − | partnership, except as provided in regulations, | + | |
| − | all domestic partnerships which are | + | (i) treat warrants, options, contracts to acquire stock, convertible debt instruments, and other similar interests as stock; and |
| − | under common control (within the meaning | + | |
| − | of section 482 of title 26) shall be treated as | + | |
| − | I 1 partnership. | + | |
| − | (E) Treatment of certain rights | + | |
| − | The Secretary shall prescribe such regulations | + | |
| − | as may be necessary to— | + | |
| − | (i) treat warrants, options, contracts to | + | |
| − | acquire stock, convertible debt instruments, | + | |
| − | and other similar interests as | + | |
| − | stock; and | + | |
(ii) treat stock as not stock. | (ii) treat stock as not stock. | ||
| − | (2) Expanded affiliated group | + | |
| − | The term ‘‘expanded affiliated group’’ means | + | ===(2) Expanded affiliated group=== |
| − | an affiliated group as defined in section 1504(a) | + | The term '''‘‘expanded affiliated group’’''' means an affiliated group as defined in section 1504(a) of title 26 (without regard to section 1504(b) of |
| − | of title 26 (without regard to section 1504(b) of | + | such title), except that section 1504 of such title shall be applied by substituting ‘‘more than 50 percent’’ for ‘‘at least 80 percent’’ each place it appears. |
| − | such title), except that section 1504 of such | + | |
| − | title shall be applied by substituting ‘‘more | + | ===(3) Foreign incorporated entity=== |
| − | than 50 percent’’ for ‘‘at least 80 percent’’ each | + | The term ‘‘foreign incorporated entity’’ means any entity which is, or but for subsection (b) of this section would be, treated as a foreign corporation for purposes of title 26. |
| − | place it appears. | + | |
| − | (3) Foreign incorporated entity | + | ===(4) Other definitions=== |
| − | The term ‘‘foreign incorporated entity’’ | + | The terms ‘‘person’’, ‘‘domestic’’, and ‘‘foreign’’ have the meanings given such terms by paragraphs (1), (4), and (5) of section 7701(a) of title 26, respectively. |
| − | means any entity which is, or but for subsection | + | |
| − | (b) of this section would be, treated as | + | ==(d) Waivers== |
| − | a foreign corporation for purposes of title 26. | + | The Secretary shall waive subsection (a) of this section with respect to any specific contract if the Secretary determines that the waiver is required in the interest of national security. (Pub. L. 107–296, title VIII, § 835, Nov. 25, 2002, 116 Stat. 2227; Pub. L. 108–7, div. L, § 101(2), Feb. 20, 2003, 117 Stat. 528; Pub. L. 108–334, title V, § 523, Oct. 18, 2004, 118 Stat. 1320.) |
| − | (4) Other definitions | + | |
| − | The terms ‘‘person’’, ‘‘domestic’’, and ‘‘foreign’’ | + | ==AMENDMENTS== |
| − | have the meanings given such terms by | + | 2004—Subsec. (a). Pub. L. 108–334, § 523(1), inserted before period at end ‘‘, or any subsidiary of such an entity’’. Subsec. (b)(1). Pub. L. 108–334, § 523(2), inserted ‘‘before, on, or’’ after ‘‘completes’’. Subsec. (c)(1)(B). Pub. L. 108–334, § 523(3), struck out ‘‘which is after November 25, 2002, and’’ after ‘‘beginning on the date’’. Subsec. (d). Pub. L. 108–334, § 523(4), substituted ‘‘national’’ for ‘‘homeland’’. 2003—Subsec. (d). Pub. L. 108–7 struck out ‘‘, or to prevent the loss of any jobs in the United States or prevent the Government from incurring any additional costs that otherwise would not occur’’ before period at end. |
| − | paragraphs (1), (4), and (5) of section 7701(a) of | + | |
| − | title 26, respectively. | + | |
| − | (d) Waivers | + | |
| − | The Secretary shall waive subsection (a) of | + | |
| − | this section with respect to any specific contract | + | |
| − | if the Secretary determines that the waiver | + | |
| − | is required in the interest of national security. | + | |
| − | (Pub. L. 107–296, title VIII, § 835, Nov. 25, 2002, 116 | + | |
| − | Stat. 2227; Pub. L. 108–7, div. L, § 101(2), Feb. 20, | + | |
| − | 2003, 117 Stat. 528; Pub. L. 108–334, title V, § 523, | + | |
| − | Oct. 18, 2004, 118 Stat. 1320.) | + | |
| − | AMENDMENTS | + | |
| − | 2004—Subsec. (a). Pub. L. 108–334, § 523(1), inserted before | + | |
| − | period at end ‘‘, or any subsidiary of such an entity’’. | + | |
| − | Subsec. (b)(1). Pub. L. 108–334, § 523(2), inserted ‘‘before, | + | |
| − | on, or’’ after ‘‘completes’’. | + | |
| − | Subsec. (c)(1)(B). Pub. L. 108–334, § 523(3), struck out | + | |
| − | ‘‘which is after November 25, 2002, and’’ after ‘‘beginning | + | |
| − | on the date’’. | + | |
| − | Subsec. (d). Pub. L. 108–334, § 523(4), substituted ‘‘national’’ | + | |
| − | for ‘‘homeland’’. | + | |
| − | 2003—Subsec. (d). Pub. L. 108–7 struck out ‘‘, or to | + | |
| − | prevent the loss of any jobs in the United States or prevent | + | |
| − | the Government from incurring any additional | + | |
| − | costs that otherwise would not occur’’ before period at | + | |
| − | end. | + | |
Latest revision as of 15:49, 23 February 2015
Contents
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§ 395. Prohibition on contracts with corporate expatriates
(a) In general
The Secretary may not enter into any contract with a foreign incorporated entity which is treated as an inverted domestic corporation under subsection (b) of this section, or any subsidiary of such an entity.
(b) Inverted domestic corporation
For purposes of this section, a foreign incorporated entity shall be treated as an inverted domestic corporation if, pursuant to a plan (or a series of related transactions)—
- (1) the entity completes before, on, or after November 25, 2002, the direct or indirect acquisition of substantially all of the properties held directly or indirectly by a domestic corporation or substantially all of the properties constituting a trade or business of a domestic partnership;
- (2) after the acquisition at least 80 percent of the stock (by vote or value) of the entity is held—
- (A) in the case of an acquisition with respect to a domestic corporation, by former shareholders of the domestic corporation by reason of holding stock in the domestic corporation; or
- (B) in the case of an acquisition with respect to a domestic partnership, by former partners of the domestic partnership by reason of holding a capital or profits interest in the domestic partnership; and
- (3) the expanded affiliated group which after the acquisition includes the entity does not have substantial business activities in the foreign country in which or under the law of which the entity is created or organized when compared to the total business activities of such expanded affiliated group.
(c) Definitions and Special Rules
(1) Rules for application of subsection (b)
In applying subsection (b) of this section for purposes of subsection (a) of this section, the following rules shall apply:
(A) Certain stock disregarded
There shall not be taken into account in determining ownership for purposes of subsection (b)(2) of this section—
- (i) stock held by members of the expanded affiliated group which includes the foreign incorporated entity; or
- (ii) stock of such entity which is sold in a public offering related to the acquisition described in subsection (b)(1) of this section.
(B) Plan deemed in certain cases
If a foreign incorporated entity acquires directly or indirectly substantially all of the properties of a domestic corporation or partnership during the 4-year period beginning on the date which is 2 years before the ownership requirements of subsection (b)(2) of this section are met, such actions shall be treated as pursuant to a plan.
(C) Certain transfers disregarded
The transfer of properties or liabilities (including by contribution or distribution) shall be disregarded if such transfers are part of a plan a principal purpose of which is to avoid the purposes of this section.
For purposes of applying subsection (b) of this section to the acquisition of a domestic partnership, except as provided in regulations, all domestic partnerships which are under common control (within the meaning of section 482 of title 26) shall be treated as I 1 partnership.
(E) Treatment of certain rights
The Secretary shall prescribe such regulations as may be necessary to—
(i) treat warrants, options, contracts to acquire stock, convertible debt instruments, and other similar interests as stock; and
(ii) treat stock as not stock.
(2) Expanded affiliated group
The term ‘‘expanded affiliated group’’ means an affiliated group as defined in section 1504(a) of title 26 (without regard to section 1504(b) of such title), except that section 1504 of such title shall be applied by substituting ‘‘more than 50 percent’’ for ‘‘at least 80 percent’’ each place it appears.
(3) Foreign incorporated entity
The term ‘‘foreign incorporated entity’’ means any entity which is, or but for subsection (b) of this section would be, treated as a foreign corporation for purposes of title 26.
(4) Other definitions
The terms ‘‘person’’, ‘‘domestic’’, and ‘‘foreign’’ have the meanings given such terms by paragraphs (1), (4), and (5) of section 7701(a) of title 26, respectively.
(d) Waivers
The Secretary shall waive subsection (a) of this section with respect to any specific contract if the Secretary determines that the waiver is required in the interest of national security. (Pub. L. 107–296, title VIII, § 835, Nov. 25, 2002, 116 Stat. 2227; Pub. L. 108–7, div. L, § 101(2), Feb. 20, 2003, 117 Stat. 528; Pub. L. 108–334, title V, § 523, Oct. 18, 2004, 118 Stat. 1320.)
AMENDMENTS
2004—Subsec. (a). Pub. L. 108–334, § 523(1), inserted before period at end ‘‘, or any subsidiary of such an entity’’. Subsec. (b)(1). Pub. L. 108–334, § 523(2), inserted ‘‘before, on, or’’ after ‘‘completes’’. Subsec. (c)(1)(B). Pub. L. 108–334, § 523(3), struck out ‘‘which is after November 25, 2002, and’’ after ‘‘beginning on the date’’. Subsec. (d). Pub. L. 108–334, § 523(4), substituted ‘‘national’’ for ‘‘homeland’’. 2003—Subsec. (d). Pub. L. 108–7 struck out ‘‘, or to prevent the loss of any jobs in the United States or prevent the Government from incurring any additional costs that otherwise would not occur’’ before period at end.
