The Accidental Inversion. American Bar Association Section of Taxation Joint CLE Meeting Denver, CO September 19, 2014

Transcription

1 The Accidental Inversion American Bar Association Section of Taxation Joint CLE Meeting Denver, CO September 19, 2014

2 Panelists Private sector: David G. Shapiro Saul Ewing LLP Joseph M. Calianno Grant Thornton LLP Government: John J. Merrick Special Counsel to the Associate Chief Counsel (International) Internal Revenue Service Brenda L. Zent Tax Law Specialist Department of the Treasury 2

3 Agenda Brief overview of the current rules Summary of key Treasury and legislative proposals Accidental inversions Clear problems Possible issues 3

4 Section 7874: Relevant provisions Section 7874(a)(2)(B): A foreign corporation (the foreign acquiring corporation ) typically is treated as a surrogate foreign corporation if: The foreign acquiring corporation completes after March 4, 2003, the direct or indirect acquisition of substantially all of the properties held directly or indirectly by a domestic corporation, or substantially all the properties constituting a trade or business of a domestic partnership, After the acquisition, at least 60% (by vote or value) of the equity interests in the foreign acquiring corporation is held by former owners of the domestic entity by reason of holding equity interests in the domestic entity (the ownership fraction ), and After the acquisition, the expanded affiliated group that includes the foreign acquiring corporation does not have substantial business activities in the relevant foreign country In determining the ownership fraction, section 7874(c)(2)(B) provides that stock of the foreign acquiring corporation that is sold in a public offering related to the acquisition is not taken into account. This is known as the statutory public offering rule. 4

5 Section 7874: Relevant provisions (continued) If the requirements for a 60% inversion are satisfied, there are limitations on the use of corporate attributes to offset inversion gain. If the ownership fraction is at least 80%, the foreign acquiring corporation will be treated as a domestic corporation. Special rules relate to the application of section 7874, including anti-avoidance rules (e.g. section 7874(c)(4)). 5

6 Classic inversion Existing USCo Shareholders Existing USCo Shareholders FA USCo USCo The foreign acquiring corporation ( FA ) is incorporated in a foreign jurisdiction with a low tax rate. The group does not have substantial business activities in FA s country of incorporation. Tax consequences under section 7874 depend on percentage ownership of FA by former owners of the U.S. corporation ("USCo") by reason of their ownership of USCo 6

7 IRS concern leading to Notice Old USCo shareholders New Investor USCo stock for FA stock 79% FA 21% cash for FA stock USCo New investor uses cash to facilitate an inversion Statutory anti-abuse rule requires proving a principal purpose 7

8 Notice and temporary regulations Notice ("the Notice") indicated that regulations to be issued under section 7874 would identify stock of a foreign acquiring corporation that is not taken into account in determining the ownership fraction Temporary regulations published January 16, 2014 set forth the rules described in the Notice, subject to certain modifications Effective date: generally for acquisitions completed on or after September 17, 2009 (the date of the Notice) The temporary regulations modify the scope of the public offering rule to address the potentially over- and under-inclusive application of section

9 Modifications to statutory public offering rule Temp. Reg T Subject to de minimis exception, FA stock that is disqualified stock is excluded from the denominator of the ownership fraction, regardless of whether FA stock is publicly traded Statutory public offering rule will not apply to exclude FA stock that is not disqualified stock, even if that stock is publicly traded Stock is disqualified stock if, related to the acquisition, the stock is transferred: To a person other than the domestic entity in exchange for nonqualified property or For property and, pursuant to the same plan (or series of related transactions), the transferee retransfers the stock in exchange for satisfaction or assumption of an obligation associated with the exchanged property AND The exchange increases the fair market value of the assets of the foreign acquiring corporation or decreases the amount of its liabilities 9

10 Nonqualified property Temp. Reg T(i)(7) Cash or cash equivalents Marketable securities as defined in 453(f)(2) Exception: Equity interests in a company that becomes a member of the foreign acquiring corporation s expanded affiliated group ( EAG ) in a transaction related to the acquisition are marketable securities only if the equity interests were acquired with a principal purpose of avoiding 7874 Obligation owed by: A member of the EAG that includes FA (or any person with an ownership interest in that member) A former stakeholder of the domestic entity (or any person with an ownership interest in that stakeholder) Any person related (within the meanings of 267 or 707(b)) to a member of FA s EAG or to a former stakeholder of the domestic entity Any other property acquired in a transaction related to the acquisition with a principal purpose of avoiding the purposes of

11 Substantial business activities Temp. Reg T Number of employees based in the relevant country must be at least 25% of the total number of group employees Total payroll in the relevant country must be at least 25% of the total group payroll Assets located in the relevant country must represent at least 25% of the total value of group assets Income derived in the relevant country must be at least 25% of the total group income Special rules and limitations apply, e.g.: business activities associated with properties whose transfer is disregarded under 7874(c)(4) Assets, employees or income located in the relevant country with a principal purpose of avoiding the purposes of

12 Other key regulatory provisions Treas. Reg : Disregard of affiliate-owned stock FA stock held by members of the EAG not taken into account in determining the ownership fraction Exception: Internal restructuring Prior to acquisition, 80% of the stock (by vote and value) or partnership interests (capital and profits), as applicable, in the domestic entity were held, directly or indirectly by the company that is the common parent of the EAG after the acquisition After the acquisition, at least 80% of the vote and value of FA stock is held, directly or indirectly, by that group parent Exception: Loss of control After acquisition, the former owners of the domestic entity do not hold, in the aggregate, more than 50% (by vote or value) of any member of the EAG Treas. Reg includes some key operative rules, including: Broad definition of indirect acquisition [-2(c)] Integration of plans involving multiple foreign acquirors or domestic targets [-2(d)-(e)] Options treated as exercised immediately prior to acquisition for purposes of determining ownership fraction, with value determined net of exercise price 12

13 Administration FY2015 budget proposals to amend 7874 Modifications to by reason of test: FA would be treated as domestic corporation if ownership fraction is greater than 50% (reduced from at least 80%) Eliminates 60% intermediate ownership test so any inversion would result in FA being treated as a domestic corporation Regardless of shareholder continuity, a transaction will be an inversion if the EAG has substantial business activities in the US and FA is primarily managed and controlled in the US An inversion transaction can occur on acquisition of partnership assets if: there is an acquisition of substantially all of the assets of a domestic partnership (regardless of the presence of a trade or business) OR There is an acquisition of substantially all of the assets of a trade or business of a domestic partnership 13

14 Other legislative proposals Levin proposals: Substantially similar to Administration proposal Carl Levin proposal has 2-year sunset Schumer proposal: focuses on earnings stripping by inverted corporations (applying a more than than 50% test) Eliminates 1.5:1 debt-equity ratio safe harbor for inverted corporations, so that interest expense of an inverted corporation is subject to the deduction cap regardless of capitalization. Reduces 163(j) interest deduction cap to 25% of adjusted taxable income (vs. 50% for other US corporations). Eliminates carry-forward by inverted corporation of both interest disallowed and excess limitation under 163(j). Requires IRS pre-approval of terms of related party transactions for 10 years after inversion. Current draft would apply to corporations that inverted (as redefined by the bill) any time in the last 20 years. 14

15 Accidental inversions, part 1: Some clear problems

16 FIRPTA and estate planning FS US Co Investment real estate FS, a foreign individual, acquires investment real estate in the US. FS is advised that, for FIRPTA planning purposes, she should hold the real estate through a domestic corporation. 16

17 FIRPTA and estate planning (continued) FS US Co Investment real estate FS FA US Co Investment real estate FS meets with an estate planning lawyer, who advises that US Co should be held through a foreign corporation for estate planning purposes. FS transfers US Co to a new foreign corporation, FA. Inversion! Same result if US Co is transferred to FA immediately after the investment real estate is transferred to US Co, apparently even if part of an integrated plan Different result if FS forms FA, which forms US Co, which then acquires the real estate. 17

18 Combining joint ventures FC1 70% 30% US Sub FA US Sub FC2 FC1 and FC2 operate joint ventures through FA and US Sub US Sub represents 65% of total combined value; FA represents 35% Prior to restructuring, FC1 and FC2 each owned 70% of US Sub and 30% of FA In restructuring, FC1 and FC2 contribute US Sub to FA Inversion! US Sub represents 65% of the total value of New FA so FC1 and FC2 own >60% of FA by reason of prior ownership of US Sub Internal group restructuring exception does not apply because FC1 owned less than 80% of US Sub before the restructuring and less than 80% of FA after the restructuring Could avoid inversion treatment if substantial business activities in FA s country of incorporation (but see the next example) 18

19 Substantial Business Activities Test and the 25% Tests Before After Facts DT SHs USHC DT SHs FA X DT shareholders exchange all of their USHC stock for FA stock. After the exchange, and as part of a plan with the exchange, USHC transfers the stock of FS to FA. FA owns all the assets previously held by USHC. FS X FS X USHC 80% of the group employees is based in country X applying Reg T. 80% of the group assets is located in country X applying Reg T. 24% of the group income is derived in country X applying Reg T. 19

20 Substantial Business Activities Test and the 25% Tests Before After Analysis Inversion! DT SHs USHC DT SHs FA X Based on these facts, the FA group does not have substantial business activities in country X under Reg T and FA is treated as a domestic corporation under section Should this be the result? FS X FS X USHC Suppose little or no presence in the U.S.? Suppose USHC instead liquidated instead of redomiciled? 20

21 Transaction involving less than all assets of a domestic partnership A B C Facts USPS is a domestic partnership. USPS conducts several trades or businesses, including a trade or business in country X. USPS F is a corporation organized under country Y. F stock F substantially all of Country X business properties USPS transfers substantially all of the properties constituting its country X trade or business to F in exchange for all of the stock of F F does not have substantial business activities in country Y. 21

22 Transaction involving less than all assets of a domestic partnership A B C Analysis A, B and C are each treated as holding his/her proportionate share of F by reason of holding an interest in USPS. See Reg (f)(1)(ii). Inversion! F stock USPS F substantially all of Country X business properties F has received all of the assets constituting a trade or business of USPS. F is treated as a domestic corporation under section

23 Accidental inversions, part 2: Possible problems and questions

24 De Minimis Exception Treas. Reg T(d)(1) The regulations provide a de minimis exception as it relates to stock received for nonqualified property: Stock received for nonqualified property is not stock described in the statutory public offering rule of section 7874(c)(2)(B) (even though such stock is disqualified stock) if the ownership fraction (applied without considering the statutory public offering rule as modified by the regulations) is less than five percent (by vote and value), and After the acquisition and all related transactions, the former shareholders (or former partners) in the aggregate own less than five percent (by vote and value) of the stock of the foreign acquiring corporation and in all members of the foreign acquiring corporation s expanded affiliated group This exception does not apply to disqualified stock that is transferred in a transaction (or series of transactions) related to the acquisition with a principal purpose of avoiding the purposes of section This exception allows for some limited founder and/or management rollover in connection with a public offering. 24

25 De Minimis Exception Treas. Reg T(j)(8) Ex. 4 Facts A 100% DT Stock $96x cash + 4% FA Shares FA DT (FMV: $100x) PRS 96% PRS capitalizes FA, a newly formed foreign corporation, with $96x cash. Individual A transfers 100% of the stock outstanding in DT, a domestic corporation, to FA in exchange for $96x and 4 shares of FA stock. 25

26 De Minimis Exception Treas. Reg T(j)(8) Ex. 4 Analysis A $96x cash + 4% FA Shares PRS 96% Generally, cash constitutes nonqualified property and so the 96 shares of FA stock received by PRS would be disqualified stock. 100% DT Stock FA DT (FMV: $100x) Additionally, the $96x cash contribution increased FA s fair market value by $96x, which leaves no possibility for a reduction of the amount of disqualified stock under Treas. Reg T(c)(2). 26

27 De Minimis Exception Treas. Reg T(j)(8) Ex. 4 A 100% DT Stock $96x cash + 4% FA Shares FA DT (FMV: $100x) PRS 96% Analysis (continued) However, the ownership fraction in this case would be 4% (4/100 shares of FA are held by A, the former shareholder of DT, by reason of holding stock in DT). Individual A also owns less than 5% of the stock of FA and DT (the members of the FA s expanded affiliated group). Thus, the de minimis exception applies and FA stock transferred to PRS is included in the denominator of the ownership fraction, making the ownership fraction 4/100. Contrast this result if A were to receive 5% or more of the stock of FA (de minimis exception N/A) and the substantial business activities test of section 7874(a)(2)(B)(iii) is met (i.e., no substantial business activities) FA treated as a domestic corporation under section

28 F reorganization: PLR Transaction structure (slightly simplified) Parent F Sub 1 F Sub 2 US Co Other investors FA (newly formed) Parent F Sub 1 FA F Sub 2 Other investors Public shareholders F reorganization in anticipation of private placement of IPO of F Sub 2 Company represented that the restructuring would qualify as an F reorg After restructuring, FA would issue some stock in a private placement and more in an IPO Company represented that after private placement/ipo, FDE3 would still own at least 51% of FA IRS ruled that the reorganization would not be an inversion US Co 28

29 F reorganization: PLR (continued) The FA shares deemed received by F Sub 2 in the F reorg are described in section 7874(a)(2)(B)(ii) (i.e. acquired by reason of prior ownership of stock of a domestic corporation. See Treas. Reg T(a). However, the ownership fraction is 0/0 and no inversion: Shares issued pursuant to the F reorg are excluded from both the numerator and the denominator of the ownership fraction under the EAG rule. See Code 7874(c)(2)(A); Treas. Reg (b). In this case, the EAG rule would apply regardless of whether tested at the F Sub 1 level of the Parent level. In requesting the ruling, the taxpyaer represented that Parent owns (through a disregarded entity) at least 51% of the FA stock. Shares issued in the private placement and IPO are excluded from the numerator and denominator of the ownership fraction under the IPO rule. See Code 7874(c)(2)(B); Treas. Reg T(c) 29

30 F reorganization: Ongoing concern shareholders Old FA (country X) US Co US business shareholders New FA (country Y) US Co US business Is this an acquisition of US Co by New FA? mere change in place of organization BUT Deemed transfer of assets to New FA per Treas. Reg (b)- 2(f) Is it appropriate for this to be an inversion? Should their be different rules for foreign-toforeign vs. US-to-foreign F reorganizations? 30

31 Different Treatment for Stock and Asset Acquisitions Form Matters Under the temporary regulations, the amount of nonqualified property exchanged for stock of the foreign acquiring corporation can differ depending on whether the stock or assets of a corporation are acquired If a foreign acquiring corporation issues stock in exchange for all of the stock of another foreign corporation in a transaction related to the acquisition, none of the stock of the foreign acquiring corporation is considered to be issued in exchange for nonqualified property, without regard to whether the acquired foreign corporation held nonqualified property, unless a principal purpose of the acquisition of the stock of such acquired foreign corporation is the avoidance of the purposes of section 7874 If the transaction instead is structured as the acquisition of all the assets of the acquired foreign corporation (even if the acquired foreign corporation is an old and cold corporation), the stock of the foreign acquiring corporation would not be taken into account to the extent it is treated as issued in exchange for nonqualified property held by the acquired foreign corporation Should there be different results depending on whether the transaction is a stock or asset acquisition? 31

32 Stock Transaction Treas. Reg T(j)(8) Ex. 3 Step 1: 100% FT Shares Step 2: DMS DT Shareholders FT Shareholders FT FA 1,000 FA Shares 1,000 FA Shares FMS FMS-FT Merger FA Shareholders Facts Pursuant to a plan of reorganization, the following steps are undertaken: Step 1: FT, a publicly traded foreign corporation, forms foreign corporation FA, which then forms DMS and FMS. FMS merges into FT with FT surviving (the FMS-FT merger ). FT shareholders exchange their FT stock for 1,000 shares of FA stock pursuant to the merger. FT becomes a wholly owned subsidiary of FA. DT DMS-DT Merger 100% DT Stock DT FA FT Step 2: DMS merges into DT, a publicly traded domestic corporation. The DT shareholders exchange their DT stock for the remaining 1,000 shares of FA stock making DT a wholly owned subsidiary of FA. 32

33 Stock Transaction Treas. Reg T(j)(8) Ex. 3 Step 1: 100% FT Shares Step 2: DMS DT Shareholders DT DMS-DT Merger FT Shareholders FT FA 1,000 FA Shares 100% DT Stock DT 1,000 FA Shares FMS FMS-FT Merger FA Shareholders FA FT Analysis Since FT becomes a member of the expanded affiliated group that includes FA (the foreign acquiring corporation) in a transaction related to FA s acquisition of DT, the stock of FT does not constitute marketable securities under Treas. Reg T(i)(6) (and thus is not nonqualified property under Treas. Reg T(i)(7)). Thus, FA stock is not disqualified and the ownership fraction is 1,000/2,000 and no inversion. 33

34 Asset Transaction Variation of Facts of Treas. Reg T(j)(8) Ex. 3 (Alternative) Step 1: 100% FT Shares Step 2: DT Shareholders FT Shareholders FT FA DMS 1,500 FA Shares 500 FA Shares FT-FA Merger FA Shareholders Facts: Pursuant to a plan of reorganization, the following steps are undertaken: Step 1: FT, a publicly traded foreign corporation, forms foreign corporation FA, which then forms DMS. FT merges into FA with FA surviving (the FT-FA merger ). FT shareholders exchange their FT stock for 500 shares of FA stock pursuant to the merger. 60% of the property held by FT is nonqualified property (e.g., cash). DT DMS-DT Merger 100% DT Stock FA DMS Step 2: DMS merges into DT, a publicly traded domestic corporation. The DT shareholders exchange their DT stock for 1,500 shares of FA stock making DT a wholly owned subsidiary of FA. 34

35 Asset Transaction Variation of Facts of Treas. Reg T(j)(8) Ex. 3 (Alternative) Step 1: 100% FT Shares FT Shareholders FT FA 500 FA Shares FT-FA Merger Analysis: 60% of the FA stock transferred in step 1 (300 shares) would be treated as disqualified stock, meaning only 40% of the FA stock transferred by FA to FT in exchange for the property of FT (200 shares) is not disqualified stock Step 2: DT Shareholders DMS 1,500 FA Shares FA Shareholders In applying the ownership fraction, the DT shareholders are treated as receiving 88% of the stock of FA (1500/1700 shares note: 300 shares that are disqualified are not counted). DT DMS-DT Merger 100% DT Stock FA DMS Thus, if the FA group does not have substantial business activities in FA's country of organization, FA would be treated as a domestic corporation under section

36 This document is not written tax advice directed at the particular facts and circumstances of any person. This document is for general information purposes only, and should not be used as a substitute for consultation with professional advisors. If you are interested in the subject of this document we encourage you to contact us or an independent tax advisor to discuss the potential application to your particular situation. Nothing herein shall be construed as imposing a limitation on any person from disclosing the tax treatment or tax structure of any matter addressed herein. To the extent this document may be considered to contain written tax advice, any written advice contained in, forwarded with, or attached to this document is not intended to be used, and cannot be used, by any person for the purpose of avoiding penalties that may be imposed under the Internal Revenue Code. 36