Internal Revenue Code · 26 U.S.C.

§ 385. Treatment of certain interests in corporations as stock or indebtedness

In force Text current through Public Law 119-121 (October 9, 2026) release point 119-121

Official text, no changes From the Office of the Law Revision Counsel, release point 119-121 (current through Public Law 119-121 (October 9, 2026)). Compare it with the official text at uscode.house.gov (external site).

Cite as 26 U.S.C. § 385

At a glance

Read from the text, the source credit and the official notes. Not part of the law.

Status: In force
Added: December 30, 1969 by Pub. L. 91–172
Last amended: October 24, 1992 by Pub. L. 102–486
Amendments: 3 dated changes in the source credit
Length: 3 subsections · 373 words · about 2 min to read
Cross-references: cites 0; cited by 0 Code sections and 4 other regulations
Regulations: 3 issued under this section

¶(a) Authority to prescribe regulations

The Secretary is authorized to prescribe such regulations as may be necessary or appropriate to determine whether an interest in a corporation is to be treated for purposes of this title as stock or indebtedness (or as in part stock and in part indebtedness).

¶(b) Factors The regulations prescribed under this section shall set forth factors which are to be taken into account in determining with respect to a particular factual situation whether a debtor-creditor relationship exists or a corporation-shareholder relationship exists. The factors so set forth in the regulations may include among other factors:

¶(1) whether there is a written unconditional promise to pay on demand or on a specified date a sum certain in money in return for an adequate consideration in money or money’s worth, and to pay a fixed rate of interest,

¶(2) whether there is subordination to or preference over any indebtedness of the corporation,

¶(3) the ratio of debt to equity of the corporation,

¶(4) whether there is convertibility into the stock of the corporation, and

¶(5) the relationship between holdings of stock in the corporation and holdings of the interest in question.

¶(c) Effect of classification by issuer

¶(1) In general

The characterization (as of the time of issuance) by the issuer as to whether an interest in a corporation is stock or indebtedness shall be binding on such issuer and on all holders of such interest (but shall not be binding on the Secretary).

¶(2) Notification of inconsistent treatment

Except as provided in regulations, paragraph (1) shall not apply to any holder of an interest if such holder on his return discloses that he is treating such interest in a manner inconsistent with the characterization referred to in paragraph (1).

¶(3) Regulations

The Secretary is authorized to require such information as the Secretary determines to be necessary to carry out the provisions of this subsection.

(Added Pub. L. 91–172, title IV, § 415(a), Dec. 30, 1969, 83 Stat. 613; amended Pub. L. 94–455, title XIX, § 1906(b)(13)(A), Oct. 4, 1976, 90 Stat. 1834; Pub. L. 101–239, title VII, § 7208(a)(1), Dec. 19, 1989, 103 Stat. 2337; Pub. L. 102–486, title XIX, § 1936(a), Oct. 24, 1992, 106 Stat. 3032.)

Regulations under this section

Treasury regulations (26 CFR) issued under § 385

Cross-references

Computed from the citations in the text of Title 26 and 26 CFR.

Cited in 4 regulations not issued under it

Amendment history

From the source credit and the official notes, newest first.

October 24, 1992Amended by Pub. L. 102–486Parts changed in 1992: (c)
December 19, 1989Amended by Pub. L. 101–239Parts changed in 1989: (a)
October 4, 1976Amended by Pub. L. 94–455Parts changed in 1976: (a)
December 30, 1969Added by Pub. L. 91–172

Where it sits in the Code

Official notes

Show the Law Revision Counsel's notes (amendments, effective dates)

Editorial Notes

Amendments

1992—Subsec. (c). Pub. L. 102–486 added subsec. (c).

1989—Subsec. (a). Pub. L. 101–239 inserted “(or as in part stock and in part indebtedness)” before period at end.

1976—Subsec. (a). Pub. L. 94–455 struck out “or his delegate” after “Secretary”.

Effective Date of 1992 Amendment

Pub. L. 102–486, title XIX, § 1936(b), Oct. 24, 1992, 106 Stat. 3032, provided that: “The amendment made by subsection (a) [amending this section] shall apply to instruments issued after the date of the enactment of this Act [Oct. 24, 1992].”

Regulations Not To Be Applied Retroactively

Pub. L. 101–239, title VII, § 7208(a)(2), Dec. 19, 1989, 103 Stat. 2337, provided that: “Any regulations issued pursuant to the authority granted by the amendment made by paragraph (1) [amending this section] shall only apply with respect to instruments issued after the date on which the Secretary of the Treasury or his delegate provides public guidance as to the characterization of such instruments whether by regulation, ruling, or otherwise.”