Treasury, IRS Issue Guidance on Corporate Stock Repurchase Excise Tax, in Advance of Proposed Regulations, Notice 2023-2

The Treasury Department and the IRS have provided guidance announcing that they intend to issue proposed regulations to address the application of the new one-percent corporate stock repurchase excise tax under Code Sec. 4501, which was added by the Inflation Reduction Act of 2022 ( P.L. 117-169).

Excise Tax on Stock Repurchases

Beginning in 2023, a publicly traded U.S. corporation is subject to a one-percent excise tax on the value of its stock that the corporation repurchases during the tax year, effective for stock repurchases made after December 31, 2022. Repurchases include stock redemptions, as well as economically similar transactions as determined by the Treasury Secretary.

The excise tax does not apply if:

• the total value of the stock repurchased during the tax year does not exceed $1 million;
• the repurchased stock (or its value) is contributed to an employee pension plan, employee stock ownership plan (ESOP), or similar plan;
• the repurchase is by a regulated investment company (RIC) or a real estate investment trust (REIT);
• the repurchase is part of a reorganization in which no gain or loss is recognized;
• the repurchase is treated as a dividend; or
• the repurchase is by a dealer in securities in the ordinary course of business.

Interim Guidance

The interim guidance is intended to clarify excise tax calculation, and the application of Code Sec. 4501 to certain transactions and other events occurring before the proposed regulations are issued.

Among other things, the interim guidance addresses the $1 million de minimis exception; the stock repurchase excise tax base; redemptions and economically similar transactions; acquisitions by specified affiliates, applicable specified affiliates, or covered surrogate foreign corporations; timing and fair market value of repurchased stock; statutory exceptions; and a netting rule. The guidance also includes illustrative examples.

Reporting

The proposed regulations are anticipated to provide that the stock repurchase excise tax must be reported on IRS Form 720, Quarterly Federal Excise Tax Return. To facilitate the tax computation, the IRS also intends to issue an additional form that taxpayers will be required to attach to Form 720.

Although Form 720 is filed quarterly, the Treasury and IRS expect the proposed regulations to provide that the stock repurchase tax will be reported once per tax year, on the Form 720 that is due for the first full quarter after the close of the taxpayer’s tax year.

Applicability Dates

The proposed regulations are anticipated to provide that rules consistent with those in the guidance will generally apply to repurchases of stock of a covered corporation made after December 31, 2022, and to issuances of stock made during a tax year ending after December 31, 2022. Rules consistent with those in the guidance on purchases funded by applicable specified affiliates will apply to repurchases and acquisitions of stock made after December 31, 2022, that are funded on or after the date the guidance is released to the public.

Until the proposed regulations are issued, taxpayers can rely on the rules in the guidance.

Request for Comments

Interested parties can submit written comments on the rules by or before 60 days after the date the guidance is published in the Internal Revenue Bulletin. Comments may be submitted by the Federal E-rulemaking Portal ( https://www.regulations.gov), or by mail to Internal Revenue Service, CC:PA:LPD:PR ( Notice 2023-2), Room 5203, P.O. Box 7604, Ben Franklin Station, Washington, D.C., 20044. Refer to Notice 2023-2.