should be a current officer of [IRI

date:

to:

from:

subject:

should be a current officer of [IRI

Should sign under that name, and the EIN on the

Office of Chief Counsel

Internal Revenue Service

memorandum

CC: WR:NCA:SF:TL-N-2166-939

MTRobus

JUN 2.4 1998

District Director, Northern California District |

Attn: Charlene Louie, Revenue Agent, Group 1122, Exam Br. I

District Counsel, Northern California District, San Francisco

EIN: - Years: FY 9jand a

On May 17, 1993, we provided you with advice regarding the

proper party to extend the limitations period for the aboveentitled taxpayer. Our National Office, which was sent a copy of

that advice for post-review, has advised us that they are in

agreement with the advice rendered therein. Our National Office

did, however, recommend that we include a reference to §§ 1.1502-

77T(a) (1) & (a) (4) (i), which clearly indicate that the old common

parent of a group is an alternative agent for the group in

situations such as this one. Our National Office commented

further that the entity named on the second page of Form 872

front page of Form 872 should be that of ee.

Please contact the undersigned at (415) 744-9217 if you have

any questions.

WILLIAM K. SHIPLEY

Acting District Counsel

/ “oo

By: “Ghezeon 7.

MARION T. ROBUS

Attorney

| 10598

date:

to:

from:

subject:

Office of Chief Counsel

Internal Revenue Service

memorandum

CC:WR:NCA:SF:TL-N~2166-99

MTRobus

MAY 17 1999

District Director, Northern California District

Attn: Charlene Louie, Revenue Agent, Group 1122, Exam Br. I

District Counsel, Northern California District, San Francisco

EIN: - Years: FY and

This is in response to your memo dated March 29, 1999,

requesting advice on the proper party to extend the limitations

period discussed below. 7

ISSUES

1. Is there a statute problem with the consents as secured

for ME anc >

2. How should the consents for this taxpayer be worded in

the future?

3. Are other documents required or desirable at this time

to supplement the consents we already have (e.g., Form 2045,

Transferee Liability) ?

4. If future consents for FY BM are different in format

(i.e., name of taxpayer, EIN, and any supplemental wording or

documents), will it affect our legal standing on the issue should

the taxpayer challenge the validity of the earlier consents?

CONCLUSIONS.

1. There is no statute problem with the consents as secured

cor AE 2oc AE. [nn

is the proper party to extend the limitations period and to

receive notices of deficiency for the group's J IE HEME,

and MJ taxable years because it was the common parent during

those years and is still in existence. .

2. The name of the taxpayer on the consent should be the

same name as Shown on the tax return. You have secured consents

CC:WR:NCA: SF: TL-N~2166-99 page 2

for both anc MM in the name of "II

" which is the name shown on the SEER

pe

ince the return was filed in the name of "

" that name should be on future consents

secured for . We do not see any problem, however, with the

MMMM consent as secured. | |

3, Transferee liability consent forms are not required at

this time.

4. If future consents for FY J differ because of

subsequent circumstances, e.g., a change in the taxpayer's name

or EIN, such change will not affect the validity of the consents

which were secured previously.

FACTS

Briefly, ie == Nevade

Corporation, was the common parent of a consolidated group filing

returns on a calendar i basis. It filed consolidated returns

for the group's P| and MM taxable years.

Pursuant to an agreement and plan to merger,

a

subsidiary of , a Delaware

Corporation, merged with and into and the separate corporate

existence of MMM ceased. The transaction was structured to

qualify under I.R.C. §368(a)(1)(B). Ali of 's stock was

acquired by J oe. The stockholders of J

received stock of in the transaction. The purpose of the

reorganization was for the acquiring corporation to acquire the

assets of

iF

DISCUSSION

Because the common parent of the consolidated group is still

in existence, it is the proper party to extend the limitations

period on assessment_and_to receive the notice of deficiency for

the group's WM anc MMM years. Treas. Reg.

§ 1.1502-77(a); Craigie, Inc. v. Commissioner, 84 T.C. 466

(1985). This is so even though Mis no longer the common

parent.

The notice of deficiency issued to | | should include the

names of all members of the group during any portion of the

and taxable years. See Treas. Reg.

group's | '

§ 1.1502-77 (a).

Transferee liability arises only when the merged corporation

goes out of existence and the surviving corporation takes over

CC:WR:NCA: SF: TL-N-2166-99 page 3

the liabilities of the dissolved corporation. Potential

transferee liability may also arise if there is a transfer of

assets without consideration. Here there is no transferee

liability, since Fis still in existence, and there was an

exchange of stock for stock, presumably in an arms-length

transaction. |

Please contact the undersigned at (415) 744-9217 if you have

any questions. Thank you for your assistance.

| j

WILLIAM K. SHIPLEY

Acting District Counsel

By: Ufttreo a

MARION T. ROBUS

Attorney

cc: Office of Assistant Chief Counsel

(Field Service) (CC:DOM:FS)