Kahn corp tax fall2011
Corporate Tax
· Introduction
o Corp. treatment: (1) “entity” approach (C corporation), (2) “conduit” approach (partnership), or (3) (S corporation, trust or estate)
§ Corp. = foreign or domestic
o C corporations
§ Advantages: ltd. liability, continuity of interest, centralization of mgmt., transferability of shareholder interests, diversification of ownership types, easier to sell interest to public, useful nonrecognition provisions, advantageous deferred comp. provisions, fringe benefits
§ General treatment: tax on every dollar of income not reduced by specific deduction
· Many same deductions as individuals (e.g., § 212), although some sections apply only to corps. (e.g., § 219)
· Some nonrecognition provisions (defer taxation)
§ Special tax rates (35% max nominal, but also surtaxes) ~ page 3 for table
· EXCEPT: personal service corp. taxed at 35% on all income § 11
§ Inapplicable: itemized/nonitemized deductions, AGI, §§ 67-68 lims. on deductions, std. deduction, preferential capital gains treatment, election to use cash receipts & disbursements method of accounting § 448
§ No deduction for shareholder distributions on account of stock Þ double taxation
· Effects can be reduced w/closely-held corporations
· Harbenger shift: double tax on corps. Þ more capital into partnerships, increase price of corp. goods
· Movement in Eur. to integrate corp. & ind. taxes (shareholders take credit), but not so much in USA (no corp. support)
§ Dividends: taxed at capital gains rates (until 2013) to encourage capital investment, reduce double tax
o Corporation = “associations, joint stock companies, and insurance companies” § 7701(a)(3)
§ What is “association”? Much litigation (Morrissey (S. Ct. 1937) ~ “resemblance test”)
§ Since 1997 Þ “check the box” regs.
· Eligible entity = (1) treated as bus. entity for fed. income tax, (2) not classified as corp. by § 301.7701-2
¨ Non-eligible: incorp. orgs., ins. cos., certain foreign entities, REITs, publicy-traded partnerships treated as corps. by § 7704
· If 2+ members Þ corp. or partnership (default)
· If 1 member Þ corp. or “tax nothing” (default)
· § 301 Distributions to Shareholders
o § 301 distribution = amt. of money + FMV of prop. in kind received by shareholder § 301(b)(1)
§ Reduced (but not below zero) by sum of liabilities assumed by shareholder pursuant to distribution § 301(b)(2)
· Recourse liab. assumed only when transferee accepts obligation, nonrecourse automatically transfers § 1.301-1(g)
o Dividend = distribution to shareholder out of e & p § 316(a)
§ Current e & p (for the given taxable yr.) first allocated pro rata to all distributions made that yr.
· Allocated first to preferential-rights stock Rev. Rul. 69-440
· If remainder Þ allocate accumulated (post-02/28/1913) e & p in chronological order of distribution
· Std. only used to determine div., otherwise just use accumulated
§ Negative e & p: if accumulated Þ treat as 0 for div. purposes
· If current Þ deduct from accumulated pro rata (up to that point in yr.) or actual loss if known
§ Tax at preferential rates (capital gains 15%), but otherwise treat as ordinary I (cannot deduct capital losses except up to $3K § 1211(b))
· Only qualified div. from domestic corp. (except tax-exempt one or mutual savings bank) or lim. class of foreign corps.
§ Dividend-received deduction for corp. shareholders
· Ordinarily 70% § 243(a)(1) Þ 30% of div. taxed to shareholder
¨ 80% if corp. shareholder owns 20%+ of voting rights and value of outstanding stock § 243(c)
¨ Ltd. by § 246(b)
· 100% if divs. paid among members of “affiliated group” §§ 243(a)(2), (3)
· Holding period lims. (generally 45 days) § 243(c)
· § 246A limitation on deduction where portfolio stock debt-financed
o Extraordinary div. (beyond certain basis threshold) to corp. shareholder holding stock < 2 yrs Þ reduce basis or recognize additional I § 1059
o Disguised/constructive dividend = when closely held corp. confers benefit on shareholder
§ Examples: bargain sale, loans w/no intent to repay, unreasonably large salary or bonus to shareholder-employee (no § 162 deduction for excess)
· Fact-specific inquiries, but cts. should be wary of policing reasonability of salaries Exacto Spring Corp. v. Comm’r (Posner, J.) // KAHN: “zone of reasonableness”
§ Rev. Proc. 67-14: waiver-of-divs. transaction legit. where bona fide bus. reason exists & relatives poised to benefit receive < 20% of total divs. distributed to nonwaiving shareholders
o Earnings & profits: not defined in IRC, guidelines under Rev. Proc. 75-17
§ Purpose: measure amts. available for distribution w/out impairing capital, use same accounting method as for taxable I
§ If gain/loss recognized Þ increase/decrease e & p § 312(f)(1) ~ if deferred Þ no e & p when realized
· If permanent exclusion from I Þ when realized
· Deduction of NOL or capital loss carryover not reduce e & p
§ If discharge of indebtedness Þ increase e & p, except to extent tax attributes reduced by § 108 § 312(b)(1)
§ If § 301 distribution Þ reduce e & p but not below 0 § 312(a)
· Distribution in excess of e & p Þ (1) reduce basis of stock (applied pro rata to all shares held in same class, Prop. § 1.301-2(a)), (2) treat remainder as capital gain from sale or exchange of prop. (applied individual to ea. share, not pro rata) § 301(c)(3)
· Unappreciated prop. Þ reduce e & p by basis § 312(a)(3)
· Appreciated prop. Þ increase current e & p by amt. of appreciation, then decrease accumulated e & p by FMV § 312(b)
· Must account for reduction if prop. taken subject to liab. § 312(c)
§ If stock distribution to which § 301 applies b/c of § 305(b) Þ reduce e & p by FMV § 1.312-1(d)
· If § 301 not apply Þ no effect on e & p § 312(d)
§ If installment sale Þ entire gain added to e & p in yr. of sale § 312(n)(5)
§ Depreciating tangible prop. Þ for e & p purposes use alt. MACRS depreciation system in §§ 168(g)(2), (3) § 312(k)(3) Þ diff. basis for gain/loss
§ 20% corp. shareholder Þ §§ 312(k), (n) not apply when determining whether § 301 dist. is div. or return of capital § 301(e)
· Distributing corp. must maintain 2 separate e & p accounts
o Recognizing gain/loss on distribution
§ DEFUNCT General Utilities doctrine: recognize no gain or loss on making distribution in kind
§ If appreciated prop. distribution Þ recognize gain as if sold for FMV § 311(b)(1)
§ If depreciated prop. Þ recognize no loss § 311(a)
§ No gain/loss for distribution of own stock or debt instrument
§ If part-sale/part-distribution Þ allocate basis Honigman v. Comm’r (CA6 1972)
· KAHN: wrongly decided, parallel w/part-gift/part-sale §§
· Redemption must result in meaningful reduction of proportionate interest in corp.: reduction of shareholder’s voting interest, div. rights, percentage interest in proceeds of complete liquidation, or some combination thereof
¨ Redemption of voting stock
Ø Maj. shareholder: must reduce to 50%- to qualify (CA8: supermajority to simple majority qualifies)
Ø Min. shareholder: reduction of div. rights & liquidation interests more significant (can shareholder join w/others?)
Ø Miniscule shareholder: any non-pro-rata redemption likely qualifies
¨ Redemption of non-voting stock
Ø If no voting stock after redemption Þ usually covered as purchase
Ø If mix of voting & non-voting stock Þ distribution if > 50% voting pwr. or same proportion, unclear if diff. proportions
¨ Hostility among shareholders Þ unclear if operation of § 302(b)(1) after § 318 attribution, but look at facts & circumstances (CA1 = yes, TC = maybe, CA5 & IRS = no)
§ Substantially disproportionate redemption § 302(b)(2)
· Objective std.: shareholder (1) owns < 50%, (2) reduction in voting & (3) common stock of > 20%
· If multiple redemptions = stock ownership not subst. disproportionate to holdings before Þ disqualify § 302(b)(2)(D)
· If § 302(b)(2) applies to common stock redemption Þ same treatment for non-voting stock in same redemption
§ Termination of shareholder’s interest § 302(b)(3)
· Preclude § 318(a)(1) family attribution where interest terminated & none acquired 10 yrs after redemption § 302(c)(2)(A)
¨ Must notify IRS if interest acquired in 10-yr period & may lose bar
Ø Purpose to avoid tax key § 302(c)(2)(B)
· Entity (estate, trust, partnership, corporation) may waive family attribution § 302(c)(2)(C)
§ Partial liquidation (std. set at corp. level) § 302(b)(4)
· Shareholder-distributee must be non-corp., but certain entities (partnerships, estates, trusts) qualify ~ stock deemed held proportionately by partners/beneficiaries § 302(e)(5)
· Definition: redemption “not essentially equivalent to a div.” that covers corp. contractions pursuant to plan § 302(e)(1)
¨ Safe harbor: (1) corp. conducted 2+ trades or businesses immediately before distribution, both actively conducted during preceding 5 yrs & neither acquired by corp. during that period in taxable transaction, (2) distribution attributable to corp.’s ceasing 1+ of trade/bus., (3) corp. continued active conduct of 1+ trade/bus. after distribution §§ 302(e)(2), (3), (4)
Ø Distribution must originate from ceased trade/bus., § 1.346-1(b)(2), but need not be pro rata § 302(e)(4)
Ø If pro rata Þ no actual redemption required
· If plan to liquidate all stock in series of redemptions Þ complete liquidation § 346(a)