Not for at least two years.
Disadvantages of Section 382(l)(5)
Apart from the obvious advantages of saving NOLs, there is a decided downside to using this provision. There is a subsequent ownership change rule that has caught more than a few tax practitioners asleep. If within two years following a change in ownership to with the 382(l)(5) exemption applies, there is yet another ownership change, the 382 limits will apply with a vengeance.
On the second change within two years, the 382 limit will be zero! that means the NOLs you've worked so hard to preserve will be zero. Ouch!
There is also a special valuation rule. If a corporation chooses not to avail itself of section 382(l)(5) (or is unable to do so), the value of the corporation that is used to determine the section 382 limit will be increased to reflect the surrender or cancellation of creditor's claims in a G reorganization, or the exchange of stock for debt in the bankruptcy case. This special bankruptcy valuation rule applies to a corporation that either cannot qualify for section 382(l)(5) relief, or chooses not to use it. On the latter point, there is a special elect-out provision that entitles a corporation that would otherwise qualify for 382(l)(5) relief to affirmatively avoid this provision.
