Scott J. Bakal, Partner, Neal Gerber & Eisenberg, Chicago Robert C. Stevenson, Attorney, Skadden Arps Slate Meagher & Flom, Washington, D.C.

Transcription

1 Presenting a live 90-minute webinar with interactive Q&A : Tax Basis Step-Up Through Deemed Asset Sale Treatment Structuring Qualifying Stock Dispositions for Partnership and Private Equity Acquirers WEDNESDAY, NOVEMBER 14, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Scott J. Bakal, Partner, Neal Gerber & Eisenberg, Chicago Robert C. Stevenson, Attorney, Skadden Arps Slate Meagher & Flom, Washington, D.C. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 1. NOTE: If you are seeking CPE credit, you must listen via your computer phone listening is no longer permitted.

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6 Tax Basis Step-Up Through Deemed Asset Sale Treatment Scott J. Bakal & Robert C. Stevenson

7 Presented By Scott J. Bakal Robert C. Stevenson Neal, Gerber & Eisenberg LLP Skadden, Arps, Slate, Meagher & Flom LLP Two North LaSalle Street, Suite 1700 Chicago, IL (fax) 1440 New York Avenue, N.W. Washington, D.C (fax) 7

8 Overview of A parent corporation that sells or distributes stock of a corporate subsidiary, or shareholders that sell stock of an S corporation, may be subject to double taxation on a single economic gain Corporate parent taxed on sale of subsidiary stock, and subsidiary s assets retain built-in gain Corporate parent taxed on built-in gain upon distribution of subsidiary stock if distribution does not qualify for tax-free treatment, and there is no increase in basis of target s assets Shareholders of S corporation taxed on sale of S corporation stock, but basis of target s assets not increased to reflect gain, so (i) potential double taxation if corporate level tax imposed as a result of terminated S status and (ii) timing and/or character mismatches for the purchasing shareholder Section 336(e) authorizes the issuance of Treasury regulations under which an election may be made to treat the sale, exchange, or distribution of at least 80 percent of the voting power and value of the stock of a corporation (target) as a sale of all its underlying assets Purpose is to provide relief from potential double taxation of the same economic gain upon transfer of appreciated corporate stock without corresponding basis step-up in assets of the corporation, by allowing purchaser to step-up basis in acquired assets Enacted as part of General Utilities repeal in 1986 Before repeal, corporations generally recognized no gain or loss on distribution of appreciated property to its shareholders 27 years later, Treasury issued final regulations in 2013 Proposed regulations issued in Fed. Reg Final regulations issued on May 10, 2013 (TD 9619), effective for dispositions with a disposition date on or after May 15, 2013 Treasury plans to issue additional proposed regulations refining the section 336(e) rules 8

9 Eligibility Requirements for Election A section 336(e) election is available if a domestic corporation (or S corporation shareholder(s)) dispose of stock of a target corporation in a qualified stock disposition ( QSD ) A QSD is any transaction(s) in which: Stock meeting the requirements of section 1504(a)(2) of a domestic corporation is sold, exchanged, and/or distributed; by another domestic corporation (or S corporation shareholders); during a 12-month disposition period; stock basis to Purchaser not determined by stock basis to Seller; stock is not disposed of in a section 351, 354, 355 (except for section 355(d)(2) or (e)(2) transactions in which gain recognized), or 356 transaction, or a transaction in which the transferor does not recognize gain or loss realized; Sale is not a qualified stock purchase under section 338(d)(3); and stock is not disposed of to a related person 9

10 Disposition Sections 355(d) and (e) A disposition can also include a section 355 distribution to a person who is not a related person in a transaction in which the full amount of stock gain would be recognized pursuant to section 355(d)(2) or (e)(2). Stock may be considered disposed of if, under general principles of tax law, Seller is considered to sell, exchange, or distribute the stock notwithstanding that no amount is paid for (or allocated to) the stock (i.e., section 311 distribution). Stock disposed of and reacquired by Seller or a member of Seller s consolidated group during the 12-month disposition period is not considered disposed of (similar rule for reacquisition by S corporation shareholder). 10

11 Disposition No Related Persons Rule Disposition does not include a transfer to a related person (exclusion not required under section 336(e)). Consistent with section 338 regulations, person is related if stock in a corporation owned by one of the persons would be attributed to the other person under section 318(a), other than 318(a)(4) (option attribution). Sections 318(a)(2)(A) and 318 (a)(3)(a) do not apply to attribute stock ownership from a partnership to a partner or vice versa if such partner owns, directly or indirectly, interests representing less than 5% of the value of the partnership. Reg (b)(12). Section 338(h)(3)(C) and Reg (b)(3) principles apply in determining whether a person is related. Reg (b)(5)(iii). Thus, relatedness generally tested immediately after the disposition or last of a series of dispositions. 11

12 Election Mechanics Election Mechanics(Treas. Reg (h)) Seller(s) and Target must enter into a written, binding, agreement to make the election in the case of an S corporation target, all shareholders of the S corporation target must enter into the agreement Timing (Treas. Reg (h)) Election statement must be attached to the relevant federal income tax return(s) Seller(s) and target are members of consolidated group» election statement filed on consolidated return and common parent must provide election statement to target on or before due date (including extensions) of consolidated group s return Seller(s) and target are members of affiliated group not filing consolidated return:» election statement filed with seller s and target s timely-filed returns. Target is an S corporation:» election statement filed on the S corporation s return (with extensions) 12

13 Consequences of a 336(e) Election Stock Sale Old Target is deemed to sell its assets to an unrelated person for the aggregate deemed asset disposition price ( ADADP ) at close of disposition date. Reg (b)(1)(i)(A). New Target is deemed to purchase its assets from an unrelated person for the adjusted grossed-up basis ( AGUB ). Reg (b)(1)(ii). For ADADP and AGUB purposes, Old Target liabilities deemed to be assumed by New Target are first determined as of the beginning of the day after the disposition date. Reg (d)(2). Old Target is deemed to liquidate (typically under section 332) after the sale but before the close of the disposition date. Reg (b)(1)(iii). Seller s E&P and other attributes are typically adjusted to account for Target s attributes, taking into account gain or loss on the deemed sale. 13

14 Consequences of a 336(e) Election Taxable Distributions Old Target is deemed to sell all its assets to an unrelated party for ADADP. Gains are recognized, but net losses are disallowed in proportion to the amount of stock distributed (vs. sold) to implement the policy of section 311(b). New Target is deemed to purchase the assets from an unrelated party for AGUB. Old Target is deemed to distribute the consideration deemed received for the assets to Seller (generally a section 332 liquidation). Seller is deemed to purchase from an unrelated party the New Target stock. Reg (b)(1)(iv). Seller is deemed to distribute the New Target stock, and no gain or loss is recognized to Seller. The distributees take fair market value basis, as in any other taxable distribution. 14

15 Consequences of a 336(e) Election Taxable Spins 355(d)/(e) Sale to Self Old Target sells its assets to an unrelated person in a single transaction in exchange for ADADP. Reg (b)(2)(i)(A). Old Target acquires its assets from an unrelated person in exchange for AGUB. Reg (b)(2)(ii)(A). Old Target does not liquidate and retains tax attributes. Reg (b)(2)(i)(A)(1). Seller distributes the stock of Old Target. Seller recognizes no gain or loss on the distribution. Reg (b)(2)(iii). Distributee shareholders do not take a cost basis in the stock, and the AGUB formula would produce a mismatch between amount realized and basis in the deemed asset sale. Seller s distribution of the Target stock is given effect. Thus, Target s tax attributes remain intact. Target s earnings and profits are adjusted to reflect gain or loss on the deemed asset sale. Target s gains in the deemed asset sale are recognized in full, but Target s net losses are disallowed in proportion to the amount of stock distributed. 15

16 Comparison of Sections 336(e) and 338(h)(10) Section 338(h)(10) Trumps - Section 336(e) election is not available for any transaction that qualifies for a section 338(h)(10) election Unlike section 338(h)(10), section 336(e) applies even if: Purchaser of Target stock is not a corporate purchaser Purchaser is not a single entity Creeping transactions within 12-month period Section 336(e) regulations are intended to be similar to the Section 338(h)(10) regulations in principle: Allocation of consideration in the deemed asset sale Determination of Target s basis in its assets from deemed asset sale Allocation of foreign taxes paid by New Target attributable to foreign taxable income earned by Old and New Target during the foreign taxable year Basis and holding period of any stock retained by Seller 16

17 Section 338(h)(10) vs. Section 336(e) Section 338(h)(10) Joint seller and buyer election Election w/n 8.5 months Corporate purchaser Seller is U.S. corporation, and Target is affiliated (but not necessarily consolidated); or Target is S corporation 12-month acquisition period Sale of 80% vote and value (excluding section 1504(a)(4) stock) Related person restriction (section 318(a) attribution) Not available if Seller or Target is foreign Section 336(e) Seller and target election by agreement Election on tax return(s) Corporate or non-corporate acquirer(s) Seller is U.S. corporation, and Target is affiliated (but not necessarily consolidated); or Target is S corporation 12-month disposition period Sale and/or taxable distribution of 80% vote and value (excluding section 1504(a)(4) stock) Related person restriction (section 318(a) attribution but not between partnerships with < 5% partners) Not available if Seller or Target is foreign 17

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19 Tax Planning Opportunities If Seller has higher inside basis in its assets than outside basis in its stock, it is tax advantageous for Target to be deemed to sell its assets and liquidate. Conversely, it would be tax disadvantageous if Seller has higher outside basis in stock than inside basis in its assets. Expansion of basis step-up opportunities in the context of stock purchases Conversion of Target (C or S corporation) into a noncorporate pass-through entity without the Purchaser/Acquirer incurring significant additional Federal income tax Conversion by state statute transaction is deemed to take the form prescribed for conversion under the CTB regulations (see, e.g., Rev. Rul ) New Target forms pass-through entity, transfers assets to such entity, and liquidates with shareholder(s) receiving ownership interests in exchange for stock New Target liquidates by distributing interests in its assets to shareholder(s), who contribute interests to a pass-through entity New Target s shareholder(s) contribute stock to a pass-through entity, and New Target liquidates and distributes its assets to such pass-through entity 19

20 Example 1 Purchaser desires to purchase assets of S corporation, but transfer of assets and contracts require consents that are too expensive, difficult, or time consuming to obtain Purchaser acquires at least 80% of stock of S corporation from its shareholders over 12-month period Selling shareholders and S corporation make section 336(e) election Purchaser assumes liabilities of S corporation, but also the economic benefits of stepped-up basis in assets of S corporation Purchaser causes S corporation to become an LLC taxable as a partnership or disregarded entity, and operates free of restrictions on S corporations 20

21 Example 2 Purchaser acquires at least 80% of stock of C corporation subsidiary in a transaction that is not a QSP (but is a QSD for seller) Selling corporate parent and Target corporate subsidiary make section 336(e) election Purchaser obtains stock in the C corporation subsidiary, which has a stepped-up basis in its assets Purchaser causes C corporation subsidiary to become an entity taxable as a disregarded entity or a noncorporate pass-through entity 21

22 Contingent Liability Transactions AGUB equals cash paid plus liabilities assumed. Liabilities for this purpose does not include amounts which are not currently deductible or amounts not borrowed from a third party. Assume that the value of the asset of a target corporation are worth 100, the assets are associated with 20 of liabilities, and that the Purchaser pays 80 for the stock of the Target. The AGUB would equal 80, which would become the ADADP. On the deemed liquidation of the Target after filing a conversion election, the value of the assets distributed equals 100 but basis is limited to 80, which potentially triggers 20 of gain! Types of liabilities that might arise Environmental and other contingent liabilities Deferred compensation (404(a)(5)) Obligations to Perform Future Services (Pierce) Economic Performance (461(h)) 22

23 Future Regulatory Guidance Treasury s Priority Guidance Plans has list section 336(e) regulations for several years now Related-person restriction: transfers to related persons can be treated as dispositions included in a QSD Current regulations include a 5-percent threshold for determining whether the Seller and a Purchaser are related persons Thus, a partner owning a 5 percent interest in both the Seller and the Purchaser can prevent application of the section 336(e) election. IRS is considering increasing attribution threshold (50%?) Creeping dispositions of stock occurring on different dates Current regulations include sales and dispositions of Target stock over a 12-month disposition period Too complicated? Application of netted disallowed loss rule on a group basis Current regulations only allow recognition of losses by Target on deemed sale of assets to extent of gain recognized by Target IRS is considering whether all of the corporations that join in making a Section 336(e) elections as part of a distribution should be allowed to determine the amount of loss on a group basis 23

24 Related Party Transactions Qualified Stock Purchase Pension Fund A 5% Corp. 1 5% Corp. 2 Target 24

25 Related Party Transactions Not A Qualified Stock Disposition Pension Fund A 5% Seller Corp. 5% PE Firm Target 25

26 Related Party Transactions Not A Qualified Stock Disposition? Seller Corp. Buyer P/S Target 26

27 Kimball-Diamond Doctrine Partial Repeal Kimbell-Diamond Doctrine Acquisition of stock of a target corporation by an acquirer followed by a liquidation or merger or the target into the acquirer pursuant to an integrated transaction is treated as an acquisition of the target corporation s assets for the consideration paid in form the target corporation s shareholders KD doctrine repealed in relation to qualified stock purchase ( QSP ) of a target corporation under Section 338, but what about section 336(e) transactions? Under asymmetric approach, the form of Transaction applies:» Target corporation s shareholders treated as transferring stock in exchange for consideration provided by acquirer» Target corporation is treated as transferring its assets to the acquirer by liquidation or merger Under symmetric approach, the Step Transaction doctrine applies: Acquirer treated as acquiring assets of target in exchange for consideration provided in form to the target shareholders» target corporation is treated as distributing the consideration to its shareholders pursuant to liquidation distribution Regulatory Clean Up NOT likely to expand applicability of election to transactions involving foreign corporations 27