Douglas P. McLaulin, Jr. et al. - Page 10




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            qualify for section 355 nonrecognition treatment on two separate                           
            and independent grounds:                                                                   
                  (1)  The contemporaneous redemption and distribution fail to                         
            satisfy the requirements of section 355(b) as to active trade or                           
            business.5  Specifically, respondent argues that, although                                 

                  5     SEC. 355(b) provides:                                                          
                  (b) Requirements as to Active Business.--                                            
                  (1) In general.--Subsection (a) shall apply only if                                  
                  either-                                                                              
                        (A) the distributing corporation, and the                                      
                        controlled corporation (or, if stock of more than                              
                        one controlled corporation is distributed, each of                             
                        such corporations), is engaged immediately after                               
                        the distribution in the active conduct of a trade                              
                        or business, or                                                                
                        (B) immediately before the distribution, the                                   
                        distributing corporation had no assets other than                              
                        stock or securities in the controlled corporations                             
                        and each of the controlled corporations is engaged                             
                        immediately after the distribution in the active                               
                        conduct of a trade or business.                                                
                  (2) Definition.--For purposes of paragraph(1), a                                     
                  corporation shall be treated as engaged in the active                                
                  conduct of a trade or business if and only if--                                      

                        (A) it is engaged in the active conduct of a                                   
                        trade or business, or substantially all of its                                 
                        assets consist of stock and securities of a                                    
                        corporation controlled by it (immediately after                                
                        the distribution) which is so engaged,                                         
                        (B) such trade or business has been actively                                   
                        conducted throughout the 5-year period ending on                               
                        the date of the distribution,                                                  
                        (C) such trade or business was not acquired                                    
                                                                         (continued...)                




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