Issue link: https://mbozikis.ufcontent.com/i/1422521
182 securities offered or sold under the plan for the holders of such securities, (iii) offers to buy securities offered or sold under the plan from the holders of such securities for the purpose of distributing such securities and under an agreement made in connection with the plan or the consummation thereof or with the offer or sale of securities under the plan or (iv) is an issuer, as used in Section 2(11) of the Securities Act of 1933, of such securities. 11 U.S.C. § 1145(b). 5. Special Tax Provisions a. Transfer Tax Exemption The issuance, transfer or exchange of a security or the making or delivery of an instrument of transfer under a confirmed plan is not subject to any laws imposing a stamp or similar transfer tax. 11 U.S.C. § 1146(a). In 2008, the U.S. Supreme Court ruled that a sale of real estate by a debtor prior to confirmation did not qualify for this tax exemption even though the sale was effected as part of a global settlement with creditors and was a significant aspect of the debtor's Chapter 11 plan. The Court concluded that the Bankruptcy Code clearly required that a transfer occur after confirmation to qualify for the exemption. See Fla. Dep't of Revenue v. Piccadilly Cafeterias, Inc., 128 S.Ct. 2326 (2008). It is not clear, however, how courts will apply this exemption in the context of pre-confirmation sales or transfers that do not close until after plan confirmation. At least one court has already held that a pre-confirmation sale that closed post-confirmation was exempt from transfer taxes where the sale was necessary to consummation of the debtor's Chapter 11 plan. See In re New 118th, Inc., 398 B.R. 791 (Bankr. S.D.N.Y. 2009). b. Net Operating Losses (NOLs) The rules relating to the use of a net operating loss ("NOL") by a loss corporation have been changed by the Tax Cuts and Jobs Act of 2017 (the "2017 Tax Act"). Under prior law (and with respect to certain NOLs in pre-2018 tax years), NOLs could be carried back two years and carried forward twenty years in order to offset