1) TAX UPDATE
Vol. 2016, Issue 2
VIDEO
ARTICLES IN THIS ISSUE
Howard S. Goldberg
“The Pepper Minute:
Taking the LLC or
Partnership Public”
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Deductibility of Transaction Costs for a Target
Company: No Safe Harbor in Deemed Asset
Deals
Page 2
Disregarded Entities and Cancellation of Debt
Income: Are They Really Disregarded if They
Are in Bankruptcy or Insolvent? Will We See
More Guidance on When They Are Disregarded?
HIGHLIGHTS
Page 6
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2) Deductibility of Transaction Costs for
a Target Company: No Safe Harbor in
Deemed Asset Deals
Annette M. Ahlers | ahlersa@pepperlaw.com
On June 10, 2016, the Internal Revenue Service released a Chief Counsel Memorandum
dated July 8, 2015, addressing the issue of whether a target S-corporation, which
participated in a transaction in which the parties made a Section 338(h)(10) election,
could avail itself of the safe harbor election of Revenue Procedure 2011-29 for purposes
of deducting certain success-based fees. As described below, the Service’s view is that
the target S-corporation cannot make such an election, and all deductible expenses need
to be determined under the applicable law.
General Rules for Deduction vs. Capitalization of Transaction Costs
In general, Treas. Reg. Section 1.263(a)-5, et seq., was adopted to provide a regulatory
regime for the treatment of transaction costs incurred to facilitate an acquisition of a trade
or business. The Internal Revenue Code, Treasury Regulations, Service rulings and
case law have historically found that taxpayers may divide transaction-related costs into
three categories: (i) costs deductible under Sections 162 and 165; (ii) costs capitalizable
and amortizable under Sections 167, 168, 195, 197 and 248 or other authorities; and (iii)
costs capitalizable under Section 263, INDOPCO v. Commissioner1 and other authorities
2
3) Section 162(a) generally allows a current deduction for those ordinary and necessary
business expenses incurred in a taxpayer’s trade or business. A cost that is otherwise
deductible may not be immediately deducted if it is considered a “capital expenditure”
— a cost that yields future benefits to the taxpayer’s business. Section 263 requires
capitalization of certain nondeductible expenditures.
Under Treas. Reg. Section 1.263(a)-5(a), a taxpayer must capitalize an amount paid
to facilitate any one of 10 specified transactions. The Treasury Regulations clarify that
investigatory costs are considered facilitative unless there is a specific exception.2 Treas.
Reg. Section 1.263(a)-5(e) provides a significant exception for certain transaction costs
that are incurred in connection with “covered transactions,” which include (i) “[a] taxable
acquisition by a taxpayer of assets that constitute a trade or business,” (ii) a taxable
acquisition of the ownership interests in a business entity (whether the taxpayer is the
acquirer in the acquisition or the target of the acquisition) where the acquirer and the
target are related immediately after the transaction, and (iii) a reorganization generally
described in Section 368(a)(1)(A), (B) and (C) and, in certain instances, Section 368(a)(1)
(D).
Success-Based Fees
Treas. Reg. Section 1.263(a)-5(f) provides that an amount paid that is contingent on the
successful closing of a transaction specifically described in Treas. Reg. Section 1.263(a)5(a) (a “success-based fee”) is deemed an amount paid to facilitate such transaction.
Treas. Reg. Section 1.263(a)-5(f) provides that a taxpayer may maintain sufficient
documentation that establishes that a part of the success-based fee is allocable to
activities that did not facilitate the transaction, allowing the taxpayer to deduct the portion
of the success-based fee sufficiently substantiated as not facilitative of the transaction.
To resolve difficult issues for both the Service and taxpayers in providing relevant
documentation for success-based fees, on April 8, 2011, the Service issued Revenue
Procedure 2011-29, which provides a safe harbor method for allocating success-based
fees between those activities that are facilitative of a transaction and those that are not.
The Revenue Procedure applies only to transactions that are covered transactions as
defined in Treas. Reg. Section 1.263(a)-5(e)(3), and it allows taxpayers to elect to treat
70 percent of the success-based fees paid or incurred by the taxpayer in taxable years
ended on or after April 8, 2011 as amounts that do not facilitate a transaction under
Treas. Reg. Section 1.263(a)-5, while requiring that the remaining 30 percent of the
success-based fees be capitalized.
3
4) CCA 201624021 (July 8, 2015)
The issue before the Chief Counsel’s office was whether a target S-corporation, which
used the Section 338(h)(10) election to treat the stock sale as a deemed asset sale,
could make the safe harbor election under the Revenue Procedure and treat 70 percent
of its success-based fees as nonfacilitative fees. The Service stated that, “[w]ith regard to
an acquired taxpayer in an asset acquisition, the transaction is not a ‘covered transaction’
under Treas. Reg. § 1.263(a)-5(e)(3).”
In denying the ability of the target corporation to make the safe harbor election, the
Service focused on the language of the covered transaction rule in Treas. Reg. §
1.263(a)-5(e)(3)(i), which “uses the phrase ‘taxable acquisition by the taxpayer’”
(emphasis in original), and found that, in the present case, the “taxpayer” did not make
a taxable acquisition. Here, the taxpayer was the seller of the assets, not the buyer.
The Service did acknowledge that the taxpayer could perform a traditional analysis with
respect to its transaction costs and, if consistent with its facts, could document that a
portion of the success-based fees at issue were properly deductible.
Pepper Perspective
The Service took the view that the specific language in Treas. Reg. 1.263(a)-5(e)
(3)(i) must be followed and thus disallowed the safe harbor election under the
Revenue Procedure to a target corporation electing to treat the sale of its stock as
a deemed asset sale under Section 338(h)(10). This approach seems consistent
with the historical view of the treatment of transaction costs in an asset sale, which
is that such costs are generally treated as an offset to the sales proceeds received
in exchange for the assets. See Treas. Reg. § 1.263(a)-5(g)(2)(ii) and Section 1060.
Thus, rather than taking what might be an ordinary deduction under Section 162
for 70 percent of the success-based fees, the taxpayer is required to treat such
selling costs as an offset to the sales proceeds in the deemed asset sale. This
alternative treatment can result in the reduction of capital gains in certain situations
(where a significant amount of the assets being sold are capital assets), and, thus,
it may be less desirable than a deduction of such costs under Section 162 on the
S-corporation’s final tax return. Presumably, the same conclusions would be reached
by the Service if an election were made under Section 336(e) to treat certain stock
sales as asset sales. In those situations, as with the CCA, the target corporation
would not be able to make the safe harbor election under the Revenue Procedure.
The highly factual nature of the analysis of transaction costs demonstrates the
need for contemporaneous documentation during the pendency of the transaction
and consultation with a tax advisor who is familiar with these rules to maximize the
potential recovery of costs associated with corporate transactions. Consultation
4
5) with a tax advisor on these types of issues becomes very important if the parties
to the transaction are providing for the benefits of the anticipated transaction
cost deductions as part of the deal terms. This approach is becoming more
common, and, thus, the federal income tax treatment of transaction costs needs to
resolved, in many of these cases, prior to the close of the transaction. Taxpayers
cannot determine the deductibility of a particular cost through a provision in their
agreements. They can provide for the economic benefits of any potential deductions
to be allocated between the contracting parties, but it is a matter of federal income
tax law whether or not a particular transaction cost can be deducted.
Endnotes
1. 503 U.S. 79 (1992). See, e.g., I.R.S. Priv. Ltr. Rul. 2008-30-009 (Apr. 11, 2008)
(determining that allocation of transaction costs among various categories is
appropriate).
2. Treas. Reg. § 1.263(a)-(5)(b), (e).
5
6) Disregarded Entities and Cancellation
of Debt Income: Are They Really
Disregarded if They Are in
Bankruptcy or Insolvent? Will We See
More Guidance on When They Are
Disregarded?
Lisa B. Petkun | petkunl@pepperlaw.com
When the debt owed by a debtor is cancelled or forgiven, the debtor generally has
cancellation of indebtedness (COD) income. COD income is generally includable in
gross income, but may be excluded under section 108 of the Internal Revenue Code
in some instances. A statutory exclusion exists for COD income that arises in a title 11
bankruptcy case or when the taxpayer is insolvent. Final regulations were issued recently
that apply these exclusions to a grantor trust or a disregarded entity (DRE). According to
the regulations, DREs include single-member LLCs that do not elect to be classified as
corporations, corporations that are qualified REIT subsidiaries and corporations that are
qualified Subchapter S subsidiaries.
6
7) For example, if a corporation owns 100 percent of an LLC subsidiary and the subsidiary
has lent money to a third party, and that debt is forgiven, the LLC has COD income that
flows through to the corporate owner. But, what if the LLC is legally in bankruptcy? Or the
LLC, on a standalone basis, is insolvent? On one hand, it is appealing to say that, if the
entity is legally in bankruptcy, it cannot have COD income. On the other hand, a DRE is
disregarded for all federal tax purposes, unless the Internal Revenue Code or regulations
provide otherwise (e.g., a DRE has payroll compliance responsibilities and has its own
liabilities for payroll taxes).
In the case of determining COD income, the final regulations, effective for COD income
occurring after June 9, 2016, provide that the bankruptcy and insolvency exclusions are
applied at the owner level; the regulations define the term “taxpayer” for purposes of
these exclusions as the owner of a grantor trust or the owner of a DRE. Consequently,
if a grantor trust or DRE is insolvent, but the owner of the grantor trust or of the DRE is
solvent, according to the regulations, the insolvency exclusion does not apply and the
COD income is recognized.
Similarly, for the bankruptcy exclusion to apply, the owner of a grantor trust or DRE
must itself be under the jurisdiction of the court as the title 11 debtor. The preamble to
the regulations concludes that extending the bankruptcy exclusion to the owner of a
grantor trust or DRE who is not in bankruptcy would be inconsistent with the intended
purpose of the bankruptcy exclusion, as reflected in its legislative history. The preamble
notes that that that debtor’s “fresh start” under the Bankruptcy Reform Act of 1978 is
conditioned upon the debtor committing all of its nonexempt assets to the jurisdiction of
the bankruptcy court, either for sale by the trustee or to determine an appropriate plan to
repay creditors, and that the bankruptcy COD exclusion was enacted in the Bankruptcy
Tax Act of 1980 to supplement the Bankruptcy Reform Act. As stated in the preamble:
Congress did not intend that a solvent, non-debtor owner of a grantor trust or a
disregarded entity, which has committed some but not all of its nonexempt assets to
the bankruptcy court’s jurisdiction, have an exclusion from discharge of indebtedness
income merely by virtue of having some of its assets subject to the jurisdiction of the
bankruptcy court.
Accordingly, for a taxpayer to claim the bankruptcy exclusion, the taxpayer must actually
file a bankruptcy petition, i.e., a discharge of the debt in a petition filed by the DRE or
grantor trust will not trigger the exclusion. For a partnership, section 108(d)(6) provides
7
8) that the insolvency and bankruptcy exclusions apply at the partner level, and not at the
partnership level. The regulations state that, if a partnership holds an interest in a grantor
trust or DRE, the bankruptcy and insolvency exclusions are tested by looking at each
partner to whom the income is allocable. Such partner must be under the jurisdiction of
the court in a title 11 case of that partner as the title 11 debtor, or must be insolvent, for
the exclusions to apply.
The position of the regulations regarding the bankruptcy exclusion is contrary to the Tax
Court’s holdings in the related cases of Gracia v. Commissioner, T.C.Memo 2004-147;
Mirachi v. Commissioner, T.C. Memo 2004-148; Price v. Commissioner, T.C. Memo
2004-149; and Estate of Martinez v. Commissioner, T.C. 2004-150, known as collectively
as Gracia. In Gracia, some of the general partners who executed personal guaranties
on the loan of a partnership that was in title 11 reached a settlement with the bankruptcy
trustee to pay agreed-upon sums to the bankruptcy estate to receive discharges from
their liability. Pursuant to an order, the Bankruptcy Court discharged the taxpayer (the
partner) from all liability to the trustee, the bank and all creditors of the partnership. In
the same order, the Bankruptcy Court explicitly asserted its jurisdiction over the partners
for purpose of the discharge. Because the Bankruptcy Court had asserted jurisdiction
over non-debtor partners for certain matters, the Tax Court upheld the application of the
bankruptcy exclusion to the partners of the partnership, even though the partners were
not title 11 debtors. The preamble to the regulations states that the IRS’s position is that
these cases failed to interpret correctly the limited scope of the bankruptcy exclusion,
which applies only to partners that are also title 11 debtors. In February 2015, the IRS
issued Action on Decision 2015-1, nonacquiescing in the Gracia cases.
There are several areas that the Department of the Treasury and the IRS anticipate
addressing in more detail in future guidance. These include when debt of a DRE is
taken into account in determining an owner’s insolvency and how a grantor’s share of
the liabilities of a multiple-owner grantor trust should be determined for purposes of
assessing the owner’s insolvency. Although not included in the regulations, the preamble
states that Treasury and the IRS are of the view that indebtedness of a grantor trust
or a DRE is indebtedness of the owner and that, assuming that the owner has not
guaranteed the debt and is not otherwise liable for it, the debt should generally be treated
as nonrecourse debt for purposes of the insolvency exclusion. The preamble states that
Treasury and the IRS will continue to review these views and provide additional guidance
for further clarification. The IRS requests comments on these topics. The final regulations
apply to COD income occurring after June 9, 2016.
8
9) Under these COD exclusion regulations — even though the grantor trust or DRE is
the party that is the debtor, either in or outside of bankruptcy, and is the party that is
legally responsible for the debt — the owner is not permitted to utilize the bankruptcy
and insolvency exclusions. However, in other areas of the tax law, an owner that has no
legal liability for debt can benefit from the debt of a DRE or grantor trust. For example,
if a single-member LLC is a shareholder of an S corporation and lends money to the S
corporation, the owner of the LLC will get basis in its S stock, even though the owner has
no legal liability for the debt. Similarly, when a DRE that is created under foreign law pays
foreign income taxes, such taxes are treated as taxes paid by the owner for purposes
of obtaining a foreign tax credit, even though the legal liability for the taxes is that of
the DRE. The difference in these instances from the bankruptcy COD exclusion relates
to the specific purposes for the exclusion as set forth in the legislative history to the
bankruptcy acts. The bankruptcy acts make explicit that it is the owner’s assets that must
be committed to the bankruptcy court’s jurisdiction, and, therefore, conducting business
through a DRE or grantor trust that enters into bankruptcy does not achieve that result.
With regard to the insolvency exclusion, if it applied at the entity level, every business
venture could become eligible for the exclusion if the business did not go well simply by
being conducted by a DRE or grantor trust.
Pepper Perspective
The position of the final regulations had been set forth in the proposed regulations, and,
therefore, taxpayers were on notice concerning the IRS’s views. As to the bankruptcy
exclusion, the preamble makes it clear that the IRS’s position is that the owner must
be a title 11 debtor; the IRS does not accept the holding in Gracia that the bankruptcy
exclusion applied to the partners of the partnership because the Bankruptcy Court had
asserted jurisdiction over the non-debtor partners for certain matters, even though the
partners were not title 11 debtors. The position of the final regulations that the owner of a
DRE or grantor trust must be insolvent prevents taxpayers from taking advantage of the
COD rules by conducting business in the form of a DRE or grantor trust.
9
10) PEPPER HAMILTON’S TAX PRACTICE GROUP
FEDERAL AND INTERNATIONAL TAX ISSUES
Annette M. Ahlers | ahlersa@pepperlaw.com
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Steven D. Bortnick | bortnicks@pepperlaw.com
EMPLOYEE BENEFITS ISSUES
W. Roderick Gagné | gagner@pepperlaw.com
Jonathan A. Clark | clarkja@pepperlaw.com
Howard S. Goldberg | goldbergh@pepperlaw.com
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Todd B. Reinstein | reinsteint@pepperlaw.com
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