McGraw-Hill/Irwin Copyright © 2012 by The McGraw-Hill Companies, Inc. All rights reserved. Chapter 19 Corporate Formation, Reorganization, and Liquidation.

McGraw-Hill/Irwin Copyright © 2012 by The McGraw-Hill Companies, Inc. All rights reserved.

Chapter 19

Corporate Formation, Reorganization, and Liquidation

19-2

Learning Objectives

1. Recall the general tax rules that apply to property transactions

2. Compute the tax consequences to the parties to a tax-deferred corporate formation

3. Identify the different forms of taxable and tax-deferred acquisitions

19-3

Learning Objectives

4. Compute the tax consequences to the parties to a corporate acquisition

5. Calculate the basic tax law consequences that apply to the parties to a complete liquidation of a corporation

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Without any tax provision to the contrary, transfers of property to a corporation in return for the corporation’s stock would be taxable events if the property was appreciated or depreciated (§1001).

Gain/loss to the transferor

FMV of stock received– Basis of property transferred

(+) Gain () Loss

A loss is disallowed under §267 if the transferor is “related” to the corporation (owned more than 50% after the transfer).

Tax-Deferred Transfers of Property to a Corporation

19-5

§351 facilitates corporate formations by providing for gain and loss deferral on property transfers that meet its requisites.

§351 was enacted in 1921 to remove tax consequences as an impediment to forming a corporation and allow flexibility in choosing the preferred form of doing business.

Tax-Deferred Transfers of Property to a Corporation

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§351 contemplates a transfer of property by a person or persons who maintain a “continuity of proprietary interest” in the assets transferred (through stock ownership in the corporation now holding the assets).

Tax-Deferred Transfers of Property to a Corporation

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Transactions Subject to Tax Deferral Meeting the Section 351 Tax Deferral Requirements

Section 351 applies Only to the Transfer of Property to the Corporation (Services are excluded)

Property transferred to the corporation must be exchanged solely for stock of the corporation

Receipt of boot will cause the transferor to recognize gain, but not loss, realized on the exchange

Boot – Adding additional property to equalize the exchange

Transferor(s) of property to the corporation must be in Control, in aggregate, of the corporation immediately after the transfer.

Tax-Deferred Transfers of Property to a Corporation

19-8

Tax consequences when a shareholder receives other property (boot)

A shareholder recognizes gain (but not loss) in an amount not to exceed the lesser of

Gain realized The fair market value of the boot received

Boot in a §351 transaction must be allocated to the property exchanged on a pro rata basis using the relative fair market values of the properties.

Tax-Deferred Transfers of Property to a Corporation

19-9

The character of gain recognized depends on the nature of the asset transferred on which gain is recognized. §1231 (capital) gain

§1245 depreciation recapture

Ordinary income

Boot received has a tax basis equal to its fair market value.

Tax-Deferred Transfers of Property to a Corporation

19-10

Assumption of shareholder liabilities by the corporation

General rule – a shareholder’s liability attached to property transferred is not treated as boot received.

Two exceptions in which liability assumed by the corporation is treated as boot

Tax-avoidance transactions Liabilities in excess of Basis

Tax-Deferred Transfers of Property to a Corporation

19-11

Other issues related to incorporating an ongoing business

Depreciable assets transferred to a corporation Practitioners often advise against transferring appreciated

property into a closely held corporation Helps shareholder in creating two assets with the same

built in gain as of the original property The federal government can now collect taxes twice on the

same gain When the corporation sells the property received and When shareholder sells the stock

Tax-Deferred Transfers of Property to a Corporation

19-12

Contributions to Capital Transfer of property to a corporation by a

shareholder/nonshareholder for which no stock or other property is received in return

When property is contributed by a shareholder, corporation takes a carryover tax basis in the property

When property is contributed by a nonshareholder, corporation’s tax basis in the property is zero

Shareholder making a capital contribution gets a chance to increase the tax basis in existing stock to an amount equal to the tax basis of the property contributed

Tax-Deferred Transfers of Property to a Corporation

19-13

Section 1244 Stock

Corporation is Qualifying small business corporation (capitalized for less than

$1 million) and Original holder of the stock

Corporation must meet the active trade or business requirement for 5 years before the stock meets the §1244 requirements

Tax-Deferred Transfers of Property to a Corporation

19-14

If the §1244 requirements are met

The shareholder can recognize up to $50,000 per year of loss ($100,000 in the case of married, filing jointly) on subsequent sale of the stock as an ordinary loss, rather than as a capital loss

The balance amount of loss is treated as a capital loss, which can offset other capital gains plus $3,000 of ordinary income.

Tax-Deferred Transfers of Property to a Corporation

19-15

Motivation for Business Acquisitions

Decision to acquire an existing business can be motivated by many factors

Desire to diversify

Acquire a source of raw materials (vertical integration)

Expand into new product or geographic markets

Acquire specific assets or technologies

Providing improved distribution channels

Taxable and Tax-deferred Corporate Acquisitions

19-16

Buyer can purchase either stock or assets in a transaction that is either taxable or tax-deferred to the seller

Allows the acquiring corporation to step-up the tax basis of the assets acquired to fair value

Stock acquisitions and tax-deferred asset acquisitions

Tax basis of the target corporation’s assets remain at their carryover basis (generally, cost less any depreciation)

Taxable and Tax-deferred Corporate Acquisitions

19-17

Taxable Acquisitions Cash purchases of stock are the most common form of

acquisition of publicly held corporations Using cash to acquire another company has several

nontax advantages Acquiring corporation does not “acquire” the target corporation’s

shareholders in the transaction Does not increase the denominator in its calculation of earnings

per share If one company acquires another company through a

stock acquisition for cash, then acquired company retains its tax and legal identity unless acquiring company liquidates acquired company into itself or merges it into an existing subsidiary

Computing the tax consequences to the parties from a Corporate Acquisition

19-18

Tax-Deferred Acquisitions Tax law allows

Taxpayers to organize a corporation in a tax-deferred manner under §351

Taxpayers to reorganize their corporate structure in a tax deferred manner

For tax purposes, reorganizations encompass Acquisitions and dispositions of corporate assets (including

subsidiaries stock) Corporation’s restructuring of its capital structure Place of incorporation Company name

Computing the tax consequences to the parties from a Corporate Acquisition

19-19

Judicial principles that underlie all Tax-deferred Reorganizations

Continuity of Interest (COI)

Shareholders of the acquired corporation retain a continuing ownership interest in the target corporation’s assets or historic business through ownership of stock in the acquiring corporation

Computing the tax consequences to the parties from a Corporate Acquisition

19-20

Continuity of Business Enterprise (COBE)

For a transaction to qualify as a tax-deferred reorganization, the acquiring corporation must

Continue the target corporation’s historic business or

Continue to use a significant portion of the target corporation’s historic business assets

Business Purpose Test

Acquiring corporation must be able to show a significant nontax avoidance purpose for engaging in the transaction for meeting business purpose test

Computing the tax consequences to the parties from a Corporate Acquisition

19-21

Type A Asset Acquisitions

One corporation acquires the assets and liabilities of another corporation in return for stock or a combination of stock and cash

Acquisition is tax-deferred if the transaction satisfies the continuity of interest, continuity of business, and business purpose requirements

Must meet state law requirements to be a merger or consolidation

Computing the tax consequences to the parties from a Corporate Acquisition

19-22

Forward Triangular Type A Merger Acquiring corporation uses stock of its parent corporation to

acquire the target corporation’s stock, after which the target corporation merges into the acquiring corporation

For tax-deferred purpose, the transaction must meet the requirements to be a Type A merger

Acquiring corporation must use solely the stock of its parent corporation and acquire “substantially all” of the target corporation’s property in the transaction

Target corporation merges into an 80 percent or more owned acquisition subsidiary of the acquiring corporation

Acquisition subsidiary must acquire “substantially all” of the target corporation’s properties in the exchange

Computing the tax consequences to the parties from a Corporate Acquisition

19-23

Reverse Triangular Type A Merger

Acquiring corporation uses stock of its parent corporation to acquire the target corporation’s stock, after which the acquiring corporation merges into the target corporation

For tax-deferred purpose, the transaction must satisfy three requirements

Surviving corporation must hold “substantially all” of the properties of both the surviving and the merged corporations

Target shareholders must transfer in exchange an amount of stock in the target that constitutes control of the target (80 percent or more of the target’s stock)

Target shareholders must receive parent corporation voting stock in return

Computing the tax consequences to the parties from a Corporate Acquisition

19-24

Type B Stock-for-Stock Reorganizations Acquiring corporation must exchange solely voting stock for

stock of the target corporation Acquiring corporation must control the target corporation after

the transaction Acquiring corporation takes a carryover tax basis in the target

corporation stock received in the exchange For tax-deferred purpose, the target shareholders must receive

solely voting stock of the acquiring corporation

Computing the tax consequences to the parties from a Corporate Acquisition

19-25

Type C Acquiring corporation uses its voting stock to acquire

“substantially all” of the target corporation’s assets End result of a Type C reorganization resembles a Type A

reorganization Major difference between Type C and Type A is that state law

governs the form of the Type A merger, while the IRC governs the form of the Type C reorganization

Type D Corporation transfers all or part of its assets to another

corporation, and immediately after the transfer the shareholders of the transferor corporation own at least 50 percent of the voting power or value of the transferee corporation and own at least 80 percent of the transferee corporation

Computing the tax consequences to the parties from a Corporate Acquisition

19-26

Type E Often referred to as recapitalizations Recapitalizations can range from an amendment in the corporate

charter to a change in the redemption price or liquidating value of stock to an actual exchange of stock between the corporation and its shareholders

Type F Described as a “mere change in identity, form, or place of

organization” of a single corporation Corporation uses this type of reorganization to change its

corporate name or its state of incorporation

Type G Often referred to as bankruptcy reorganizations

Computing the tax consequences to the parties from a Corporate Acquisition

19-27

Cash mergers generally are carried out through an acquisition (merger) subsidiary.

An acquisition subsidiary isolates the liabilities of T in a separate corporation apart from the parent company.

The transfer of cash to the Target shareholders is taxable to the shareholders.

Computing the tax consequences to the parties from a Corporate Acquisition

19-28

Complete Liquidation of a Corporation

Occurs when a corporation acquires all of its stock from all of its shareholders in exchange for “all” of its net assets, after which time the corporation ceases to do business

For tax purposes, Form 966 needs to be filed by corporation in order to inform IRS of its intention to liquidate its tax existence

Form should be filed within 30 days after the owners resolve to liquidate the corporation

19-29

Tax Consequences to the Shareholders in a Complete Liquidation

Depends on Shareholder’s identity Ownership percentage in the corporation

All noncorporate shareholders receiving liquidating distributions have a fully taxable transaction

Shareholders treat the property received as in “full payment in exchange for the stock” transferred

Complete Liquidation of a Corporation

19-30

A noncorporate shareholder computes capital gain or loss by subtracting the stock’s tax basis from the money and FMV of property received in return

Shareholder’s tax basis in the property received equals the property’s fair market value

Complete Liquidation of a Corporation

19-31

Corporate shareholders owning 80 percent or more of the stock of the liquidating corporation do not recognize gain or loss on the receipt of liquidating distributions.

The tax basis in the property transferred carries over to the recipient which allows a group of corporations under common control to reorganize their organizational structure without tax consequences.

Complete Liquidation of a Corporation

19-32

Taxable Liquidating Distributions

Liquidating corporation recognizes all gains and certain losses on taxable distributions of property to shareholders

Liquidating corporation does not recognize loss if the property is Distributed to a related party Distribution is non-pro rata Asset distributed is disqualified property

Complete Liquidation of a Corporation

19-33

Disqualified property is property acquired within five years of the date of distribution in a tax deferred §351 transaction or as a nontaxable contribution to capital.

Loss on the complete liquidation of such property is not recognized if the property distributed was acquired in a §351 transaction or as a contribution to capital, and a principal purpose of the contribution was to recognize a loss by the liquidating corporation.

Complete Liquidation of a Corporation

19-34

This rule prevents a built-in loss existing at the time of the distribution from being recognized by treating the basis of the property distributed as being its FMV at the time it was contributed to the corporation.

This provision is designed as an anti-stuffing provision to prevent shareholders from contributing property with built-in losses to a corporation shortly before a liquidation to offset gain property distributed in the liquidation.

Complete Liquidation of a Corporation

19-35

Nontaxable Liquidating Distributions

The liquidating corporation does not recognize gain or loss on tax-free distributions of property to an 80 percent corporate shareholder.

Liquidation-related expenses, including the cost of preparing and effectuating a plan of complete liquidation, are deductible by the liquidating corporation on its final Form 1120.

Deferred or capitalized expenditures such as organizational expenditures also are deductible on the final tax return.

Complete Liquidation of a Corporation