The Device Test in a Unified Rate Regime

Abstract

This article explores the impact of the Jobs and Growth Tax Relief Reconciliation Act of 2003 on the policy concerns underlying the section 355 device test for tax-free spin-offs. Under the 2003 legislation, individual shareholders generally are taxed on both qualified dividends and long-term capital gains realized on the sale of corporate stock at the same maximum rate - 15 percent. Unification of these rates appears to neutralize the traditional concern that taxpayers may use a tax-free spin-off as a device to transform ordinary income into capital gains. This article examines the relevance of the device test in this new unified rate environment. The article concludes that the device test should not be repealed completely, but that, during periods of unified rates, application of the device test should be limited and is not necessary when individual shareholders hold their shares in the distributing and controlled corporations with zero basis.