Corporate Tax II

By Esther Lawrence,2014-04-11 03:45
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Corporate Reorganizations. Reorganization Checklist. Determine the type of reorg and check requirements; If stock/assets has been transferred check -2(k)

    Corporate Tax II Weisbach 2009

    I. Taxable Acquisitions

    A. Asset Purchases

    1. 2 levels of tax asset sale + liquidation

    a. Forward Merger T mergers into Acq sub

    i. Rev. Ruling 69-6: where Acq sub is formed for purpose of merger & T s/hs get cash, transitory existence of

    Acq sub is disregarded and transaction is treated as an asset sale

    2. Intangibles, ?197: permits amortization of intangible assets over 15 year period

    3. Purchase Price Allocation, Regs. ?1.338-6: (see slide 5)

    B. Stock Purchases

    1. 1 level of tax, carryover basis

    a. Reverse Merger Acq sub mergers into T 2. Historical Treatment Kimbell-Diamond: step trans makes stock purchase + liquidation = asset purchase; eventually

    repealed by statute

    3. Current Treatment of Stock Purchases, ?338 if corp makes “Qualified Stock Purchase” it may elect to qualify for

    either asset or stock purchase treatment

    a. Qualified Stock Purchase (QSP), Requirements and Consequences

    i. P must make taxable purchase of 80% of value and vote of T w/in 12 month period

    ii. Election must be made no later than 9.5 months from QSP

    iii. In QSP, “Old T” treated as selling assets to “New T” and liquidating into P one day after stock purchase

    and outside of any consolidated returns

    b. ?338(h)(10): If S & T eligible to file consolidated return, then P & S may make joint election to treat stock

    purchase as an asset sale

    c. ?336(e): if corp owns 80% of vote/value of sub & owner sells, exchanges or distributes stock (Qualified Stock

    Disposition, QSD), election may be made to treat the disposition as a disposition of assets w/ no gain/loss

    recognized with respect to stock

    d. Rev Ruling 90-95: where P created transitory acquisition sub to acquire T in reverse subsidiary cash merger;

    i. Situation 1: creation of acquisition sub is disregarded, and merger is treated as QSP

    ii. Situation 2: subsequent liquidation of T is given independent significance and does not result in QSP being

    recast as asset purchase; step trans turned off and trans treated as stock purchase + liquidation

    a. Rationale: Congress intended to completely repeal Kimbell-Diamond by enacting ?338, thus ?338

    election principles control

    4. Sale/Redemption: where subsidiary borrows and distributes cash to s/h after a merger, distribution is treated as a

    redemption to be analyzed under ?302

    II. Corporate Reorganizations

    A. Reorganization Checklist

    1. Determine the type of reorg and check requirements 2. If stock/assets has been transferred check -2(k) 3. Make sure entities involved are “parties to the reorganization” under -2(f)

    B. Statutory Forms

    1. A Reorganizations, ?368(a)(1)(A)

    a. Requirements

    i. Merger or consolidation

    a. Rev. Rul 2000-5: where T transfers only half of assets to P and continues to exist, or where T transfers

    half of assets to each of two purchasers, such transfers are not mergers b/c merger contemplates T

    ceasing to exist and divisive mergers only dealt with in ?355

    ii. Continuity of interest (COI)

    iii. Continuity of business Enterprise (COBE)

    b. (a)(2)(C) may make one drop to a subsidiary

    c. Disregarded Entities

    i. Regs. 1.368-2(b)(1)(ii): assets/liabilities of transferors combining unit become assets/liabilities of transferee

    combined unit and transferor combining unit ceases to exist

    2. B Reorganizations, ?368(a)(1)(B)

    a. Requirements

    i. Exchange of T stock solely for voting stock of acquiring (no boot allowed)

    a. Creeping B: may consummate creeping B so long as exchanges are solely for stock; possibly up to 16

    years required to make cash purchases “old and cold”

    b. Contingent Consideration: P may agree to issue future stock under certain circumstances; contingent

    consideration/poison pill does not qualify as boot

    c. Rev. Ruling 98-10: B reorg + debenture exchange does not violate B reorg rules if substantially all

    holders of debentures are non-stockholders and principal of new debentures is same as old debentures

    ii. Immediately after acquisition acquiring has control of target (no need to transfer control)

    a. Rev. Ruling 67-274: B reorg + liquidation of T or acq is a C reorg b/c no control immediately after is

    liquidation; no QSP b/c it is a stock for stock exchange, thus step trans applies

    b. Rev. Ruling 55-440: preferred stock called but not presented by exchange date is disregarded for

    purposes of control under ?368(c) b. (a)(2)(C) may make one drop to a subsidiary

    3. C Reorganizations, ?368(a)(1)(C)

    a. Requirements

    i. Exchange sub all T assets/liabilities solely for voting stock of acquiring, may include unlimited assumption

    of liabilities

    a. Rev. Ruling 57-518: substantially all assets is 90% gross, 70% net

    b. Rev. Ruling 88-48: where T has two lines of business, sells one line of business to unrelated parties,

    then transfers proceeds + other lines of business to P in exchange for P stock, sub all requirement is


    c. Creeping C: preexisting stock of T owned by P does not count as boot in a C reorg (must be “old and


    ii. Boot relaxation: 20% boot allowed, but if boot used must count liabilities towards boot

    iii. Target liquidates

    b. (a)(2)(C) may make one drop to a subsidiary

    4. Triangular Reorganizations

    a. Triangular A by (a)(2)(D) forward triangular merger

    i. Requirements

    a. All regular A requirements met (merger, COI, COBE)

    b. Exchange must be completely in parent stock (no S stock used in trans)

    c. Acquire sub all target assets

    ii. Drop to subsidiary via (a)(2)(C)

    a. Rev. Ruling 2001-24: forward triangular merger w/ subsequent drop of acquiring into another wholly

    owned subsidiary of P qualifies as a valid reorg via (a)(2)(C) & -2(k)/-2(f)

    b. Triangular A by (a)(2)(E) reverse triangular merger

    i. Requirements

    a. All regular A requirements met (merger, COI, COBE)

    b. Exchange must be completely in parent stock (no S stock used in trans)

    c. T must hold sub all assets

    i. Rev. Ruling 2001-25: sale of 50% of assets to unrelated party after reorg is valid if P “holds”


    d. T s/hs must surrender control in exchange (no creeping (a)(2)(E)’s)

    ii. Drop to subsidiary via (a)(2)(C)

    c. Triangular C w/ solely parent stock

    d. Triangular B w/ solely parent stock

    C. Continuity of Interest,

    1. Generally, Regs. ?1.368-1(e): “proprietary interest” in T must be preserved to get COI in a reorg

    a. Proprietary interest is preserved if

    i. It is exchanged for proprietary interest in P

    ii. It is exchanged by acquirer for direct interest in T

    iii. It otherwise continues as proprietary interest in T

    b. Measured by consideration received in merger, not stake in new company

    c. Amount

    i. 50% or greater is always granted

    ii. Regs allow as low as 40%

    iii. Southwest Natural Gas: statutory merger w/ 16% stock consideration does not qualify as tax free reorg b/c

    not sufficient COI

    d. Dispositions of stock to unrelated parties b/f or after the reorg to persons unrelated to P or T are disregarded for

    COI purposes

    i. Related party: 50% or greater ownership

    ii. Redemptions by P pursuant to plan of reorg count as cash/property consideration

    a. Rev. Ruling 99-58: regular stock repurchase plan which causes P to buy back T stock on the open

    market after reorg will not affect COI if not purposefully directed at T s/hs

    2. Rev. Ruling 66-224: COI not measured w/ respect to individual s/h, instead look to s/h as a group (i.e., 50% stock to

    half of s/h and 50% cash to other half is identical to each s/h receiving 50% stock and 50% cash for COI purposes)

3. Kass: where P purchased 80% of T stock, then T merged into P w/ P exchanging minority s/h T stock for P stock,

    COI for minority s/h measured from point b/f the initial purchase, and thus 20% s/hs did not qualify for A reorg

    treatment b/c they failed COI

    4. Seagrams: where P purchases stock from old s/h, P steps into shoes of old s/h for purposes of COI

    5. Regs 1.338-3(d): stock purchased in QSP immediately becomes “old and cold”

    D. Continuity of Business Enterprise

    1. Generally, Regs ?1.368-1(d): P must either

    a. Continue significant line of T’s historic business, or

    b. Use a significant portion of T’s historic business assets in a business

    i. “Significant” is at least 1/3 of business/assets

    ii. “Historic” must at least be longer than 2 years

    2. Bentsen: no need to carry on identical business of T to qualify for CBOE

    3. Rev. Ruling 81-25: CBOE does not require the acq corp to maintain its own line of business or assets during the


    4. Qualified Group, Regs. ?1.368-1(d)(4)(i), (ii): P treated as holding all businesses and assets of al the members of the

    “qualified group”

    a. Qualified Group: P owns directly stock meeting reqs of ?368(c) in at least one corp, and stock meeting the reqs

    of ?368(c) in each of the corps is owned by one or more of the other corps

    i. Direct subsidiary

    ii. Subsidiary of a subsidiary

    iii. Diamond pattern

    iv. Partnership if P owns of significant interest or P has active and substantial management role

    v. NOT parent

    vi. NOT sister corp

    E. Regulatory Modifications to Reorganization Requirements

    1. Grohman & Bashford Doctrine: dropping assets into subsidiary or using parent stock to acquire T violate reorg

    requirements (has since been mitigated by regs, but still good law)

    2. Asset/Stock Transfers, Regs. ?1.368-2(k): transfer of assets/stock after a reorg in accordance w/ this rule will not

    blow up an otherwise good reorg

    Assets of acquired, acquiring + no liquidation


     Stock w/in qualified group + not all of acquired

     Assets of acquired, acquiring

    Other Transfers No Termination

     Stock of acquired, acquiring w/in qualified group

    3. “Party to the Reorganization”, Regs. ?1.368-2(f)

    Acquired w/in -2(k)

    Stock or assets

     PRS w/in COBE

Stock of acquiring w/in -2(k)

F. Step Transaction Doctrine in Reorganizations

    1. King Enterprises: where P exchanged 51% P stock and 49% cash/notes for T, then pursuant to a plan T merged into

    P in an upstream merger, the step trans doctrine operates to qualify the entire transaction as a valid A reorg

    2. Rev. Ruling 2001-26: where P exchanges P voting stock for 51% of T stock, then S merges into T w/ T surviving

    and T s/hs getting P stock + cash, such a transaction is a valid (a)(2)(E) reorg b/c step trans makes it so that 100%

    control is transferred from T s/hs to P in the “plan of reorganization”

    3. Rev. Ruling 2001-46: where P transfers 70% stock and 30% cash to T s/hs so as to qualify independently as a QSP

    with S merging into T and T surviving, and the transaction is followed by a merger of T into P, the transaction will

    be treated as a single merger by T into P qualifying as an A reorg QSP will be disregarded

    4. Rev. Ruling 2008-25: where T is leveraged, and P transfers 90% stock and 10% cash to T s/h and S merges into T w/

    T surviving, followed by a liquidation of T’s assets into P, transaction is a fully taxable QSP (which turns off step

    trans) followed by an A reorg

    G. Consequences to a Reorganization

    1. To Target Shareholders

    a. Recognition of Gain/Loss

    i. ?354(a)(1): no gain/loss if stock/securities exchanged solely for stock/securities of a “party to the reorg”

    ii. ?354(a)(2): principal amount of securities received cannot exceed principal amount of securities

    surrendered (see ?356(d))

    iii. ?356(a)(1): gain recognized to the extent of boot

    iv. ?356(a)(2): if gain recognized, it is considered dividend if it has the effect of dividend

    a. Clark: where sole s/h of T receives stock + boot in connection w/ merger, exchange must be analyzed

    under ?302 to determine whether it qualifies for dividend treatment

    v. ?356(c): no loss recognized in a reorg

    vi. ?356(d): if principal amount of securities increased, the FMV of increase is taxed as boot b. Basis

    i. ?358: basis is carryover increased by gain, decreased by boot

    2. To Target

    a. On Exchange

    i. ?361(a): no gain/loss recognized if T exchanges property solely for P stock/securities

    ii. If boot, then no gain/loss recognized on exchange if boot is distributed b. On Distribution

    i. No gain/loss recognized on distribution of “qualified property” (refers to stock, securities, etc) to


    ii. Gain recognized on any property distributed that is not qualified property c. Basis

    i. ?358: P stock gets carryover basis + gain - boot

    ii. ?358(f): boot given FMV basis on exchange

    3. To Acquiring

    a. Recognition of Gain

    i. ?1032: no gain/loss recognized on receipt of money/property in exchange for stock b. Basis

    i. ?362(b): basis is carryover increased by gain, decreased by boot

    a. P recognizes gain/loss on all transfers of boot

    4. Triangular Reorganizations

    a. Triangular C and (a)(2)(D) Forward Triangular Merger

    i. Regs. ?1.358-6(c)(1)(i): P’s basis in stock adjusted as if P acquired the T assets in the reorg and dropped

    them into S as a ?351

    b. Reverse Triangular

    i. Regs. ?1.358-6(c)(2)(i): P’s basis determined as if transaction were a forward triangular merger

    c. Triangular B

    i. Regs. ?1.358-6(c)(3):

    d. Consequences to S

    i. Regs. ?1.1032-2(b): S does not recognize gain where P stock issued to S in a triangular reorg pursuant to

    plan of reorg

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