United States: REIT Spinoffs: Passive REITs, Active Businesses

I. INTRODUCTION

A real estate investment trust is essentially a corporation that pools the capital of many investors to own and operate income-producing real estate assets. REITs enjoy a unique hybrid status for federal income tax purposes. From a shareholder's perspective, a REIT is a separate taxable entity. A REIT shareholder generally is taxed only on dividends paid by the REIT and on gains upon the disposition of REIT shares, and, unlike in a tax partnership, is not deemed to be conducting the entity's operations. A REIT is a corporation for U.S. tax purposes, but because it receives a dividends paid deduction, the REIT generally is not subject to corporate tax if it distributes to its shareholders substantially all of its taxable income for each year.1 As discussed below, REITs must satisfy numerous requirements to enjoy their special status.

This report focuses on REIT technical and policy issues, general tax policy concerns, and section 355 questions presented by REIT spinoffs.2 For purposes of this report, unless otherwise indicated, a REIT spinoff broadly means a transaction in which (1) a newly taxable C corporation parent (Parent or Distributing) contributes a portion of its assets to its newly formed wholly owned C corporation subsidiary (SpinCo or Controlled) in exchange for 100 percent of SpinCo's stock, and Parent distributes all the SpinCo stock to Parent shareholders in a transaction intended to qualify as a tax-free reorganization under sections 368(a)(1)(D) and 355;3 (2) SpinCo elects REIT status; and (3) Parent may lease back a substantial portion of its properties from SpinCo (an OpCo-PropCo lease).4

Depending on the nature of the assets involved, REIT spinoffs may raise the question whether the IRS has inappropriately broadened its interpretation of qualifying real property for purposes of the REIT rules.5 Some also have raised a more general concern about the activity level of REITs and their subsidiaries as compared with the expected scope of a REIT's operations when Congress enacted the original REIT legislation in 1960. These two issues are discussed in sections II.B. and II.C, respectively. REIT spinoffs also lead some to argue that these transactions inappropriately reduce federal tax revenue. That policy issue is discussed in Section II.D. Finally, REIT spinoffs raise the policy question whether SpinCo's distribution followed by its REIT conversion and entry into an OpCo-PropCo lease produces the type of bona fide separation that section 355 contemplates, as well as the technical question whether REIT spinoffs satisfy the requisite business purpose, active trade or business (ATOB), and device tests. These section 355 issues are discussed in Part 2, Section III.

This report argues that traditional REIT spinoffs are fairly well supported by current law and that the common criticisms of these transactions generally miss the mark.6 It concludes that (1) Treasury and the IRS over time have adopted a fairly comprehensive definition of real property for REIT purposes, and the current ruling practice reflects an application of this preexisting standard to contemporary circumstances; (2) although Congress has repeatedly expanded the scope of a REIT group's permitted activities, REITs remain largely restricted from running non-real-estate businesses; (3) based on available information, REIT spinoffs are not a tremendous drain on government revenues, may provide important benefits, and are likely worth their relatively small cost to the fisc; and (4) if properly structured, REIT spinoffs generally should satisfy section 355 and do not contravene the underlying policies of that section.

A. Recent Transactions

In November 2013, after receipt of a private letter ruling from the IRS, Penn National Gaming Inc. spun off its subsidiary, Gaming and Leisure Properties Inc. (GLPI), in a tax-free transaction under section 355. GLPI held Penn National's casino and gaming real estate, elected to be treated as a REIT, and entered into an OpCo-PropCo lease.7 Since some had argued that it would be difficult to observe both the tax-free spinoff rules, which require the conduct of an active business, and the REIT rules, which historically limited REITs to passive operations,8 the Penn National transaction attracted significant attention.9

After Penn National's REIT spinoff, the Ensign Group Inc. followed suit in June 2014, spinning off CareTrust REIT Inc., which holds Ensign's skilled nursing, assisted living, and independent living properties. CareTrust entered into an OpCo-PropCo lease with Ensign and elected REIT status for 2014.10 Later, in July 2014, CBS Corp. split off its subsidiary, CBS Outdoor Americas Inc. (CBS Outdoors), which operated an outdoor advertising business and held many advertising structures, such as billboards attached to buildings or mounted in the ground, as well as advertising displays on bus shelters and in other transit areas. CBS Outdoors elected REIT status for 2014 and later changed its name to Outfront Media Inc.11

Several other transactions have been announced as well. Windstream Holdings Inc. plans to spin off its copper and fiberoptic cable assets and related facilities in a new company called Communications Sales & Leasing Inc. (CS&L), which will elect REIT status and enter into an OpCo-PropCo lease with Windstream.12 Windstream expects the transaction to close in the second quarter of 2015.13 Four casino companies — Caesars Entertainment Corp., Pinnacle Entertainment Inc., Boyd Gaming, and MGM Resorts International — have all indicated they either are planning to separate their (or a subsidiary's) real estate into a REIT or are at least considering doing so.14 Interested parties have urged other companies with significant real estate assets to consider REIT spinoffs.15

B. Reactions to REIT Spinoffs

Some have criticized REIT conversions16 in general and REIT spinoffs in particular as unjustified methods of tax avoidance, likening them to inversions and other transactions currently in the news.17 There are at least three common policy criticisms of REIT spinoffs: (1) The definition of real property has been inappropriately expanded to accommodate industries and assets that should not be eligible for REIT status;18 (2) REITs were intended to be passive entities and are now too active;19 and (3) REIT expansion threatens to diminish the corporate tax base or tax revenues generally and is not justified by the benefits produced.20 These criticisms are addressed below, the first in Section II.B, the second in Section II.C, and the third in Section II.D.

Former House Ways and Means Committee Chair Dave Camp introduced a detailed series of tax reform proposals in 2013 and 2014 that contained several restrictive provisions affecting REITs. First, section 355 would not apply for a spinoff if either the distributing or the controlled corporation were a REIT.21 Second, neither the distributing nor the controlled corporation in a tax-free spinoff could elect REIT status for at least 10 years after the tax year in which the spinoff occurred.22 Third, entities electing REIT or regulated investment company status would have to recognize all built-in gains on their assets as part of that election.23 Fourth, REITs would be required to distribute earnings and profits from non-REIT years solely in cash even though entities electing REIT status typically use a combination of stock and cash.24 Finally, the Camp proposals would exclude assets with a class life of less than 27.5 years from the definition of real property.25 The Camp proposals, in general, were poorly received,26 and the House did not act on them in the last Congress. It is unclear whether similar proposals will be introduced or adopted in the new Congress.27

To read this Report in full, please click here.

Originally published by Tax Notes, March 23, 2015.

Footnotes

1. See section 857(b)(2)(B).

2. For discussions of REIT spinoffs, see Joshua M. Holmes, ''REITs and Spins: Strange Bedfellows'' (Dec. 1, 2014) (paper presented at the New York Tax Club; copy of manuscript on file with author); Debra J. Bennett, ''The Evolution of REIT Spin- Offs,'' 92 Taxes 9 (Dec. 2014); Robert Rizzi, ''Real Estate and Spinoffs: Revisiting Plum Creek,'' 40 Corp. Tax'n 50 (2013); David M. Einhorn, Adam O. Emmerich, and Robin Panovka, REITs: Mergers and Acquisitions, section 10.04 (2013); Andrea M. Despotes, ''Assessing REIT Spin-Off Transactions,'' 1 J. Tax'n Corp. Trans. 17 (2002); Robert Willens and Harley G.A. Wright, ''Tax-Free Real Estate Spinoffs: Will They Catch On?'' Tax Notes, Feb. 4, 2002, p. 619.

3. As discussed below, Parent instead may effect the distribution as a split-off in which participating Parent shareholders tender all or a portion of their Parent shares in exchange for SpinCo stock.

4. OpCo-PropCo leases generally are triple net leases. A net lease is one that requires the tenant to pay costs associated with the leased property, such as utilities, maintenance, taxes, and insurance, in addition to rental payments. See Peter M. Fass, Michael E. Shaff, and Donald B. Zief, Real Estate Investment Trusts Handbook, section 1.4, at 45-46 (2014-2015 ed.) (hereinafter REIT Handbook). Double net and triple net leases require the tenant to pay a correspondingly greater range of costs, with triple net leases requiring the tenant to cover the broadest range of costs. See id.

5. See, e.g., Lee A. Sheppard, ''Can Any Company Be a REIT?'' Tax Notes, Aug. 19, 2013, p. 755 (''Taxpayers used to get the investment tax credit for billboards because they weren't real estate. Now they can put them in REITs because they are real estate. It makes perfect sense.'').

6. For instance, two thorough articles have suggested that the overall revenue loss from a REIT spinoff may be limited. See Bradley T. Borden, ''Rethinking the Tax-Revenue Effect of REIT Taxation,'' 16 Fla. Tax Rev. ___ (coming 2015) (concluding that net revenue loss from REIT spinoffs is modest, in part because of increased taxation of shareholders on REIT dividends); Austan Goolsbee and Edward Maydew, ''Taxes and Organizational Form: The Case of REIT Spin-Offs,'' 55 Nat'l Tax J. 441 (2002) (projecting, based on analysis of qualifying assets and other 2002 business data, that loss of tax revenue from the creation of new REITs would be ''modest,'' in part because of the increase in taxation of shareholders on REIT dividends). See also infra Section II.D.1.

7. See Gaming and Leisure Properties Inc., Annual Report (Form 10-K), at 1 (Mar. 25, 2014).

8. See, e.g., David L. Brandon, ''The Real Spin on the New Spinoff Ruling — Should Corporate-Owned Real Estate Be Put Into REITs?'' 95 J. Tax'n 92, 95 (2001) (''Even assuming that a business need exists to spin off a company's real estate, the remaining tax barriers to the transaction, such as the accumulated earnings distribution requirement, may make it impossible to accomplish'').

9. For examples of noteworthy restructurings of real estate companies before Penn National, see Getty Realty Corp., Annual Report (Form 10-K), at 2-3 (Mar. 29, 2002) (Getty Petroleum spun off its petroleum marketing business in 1997 and left its real estate in the distributing corporation, which elected REIT status four years later); Georgia-Pacific Corp., Annual Report (Form 10-K), at 1 (Mar. 22, 2002); Plum Creek Timber Co. Inc., Annual Report (Form 10-K), at 3 (Mar. 5, 2001) (in 2001 Georgia Pacific spun off some real estate subsidiaries, which merged into an existing REIT, Plum Creek Timber Co.); Howard Hughes Corp., Annual Report (Form 10-K), at 1-2, F-7, F-9, F-25 (Apr. 8, 2011) (in 2010 General Growth Properties, a REIT, distributed the stock of the Howard Hughes Corp., a C corporation that held a variety of residential, office, and retail real estate, in a tax-free distribution as part of a bankruptcy); Sabra Health Care REIT Inc., Registration Statement (Form S-4 Amendment 4), at 1, 68, 77 (Sept. 28, 2010) (in 2010 Sun Healthcare Group Inc. distributed the stock of Sabra Healthcare REIT Inc., which held Sun Healthcare's skilled nursing and assisted and independent living facilities and elected REIT status, in a taxable distribution). These transactions involved either a taxable distribution, a merger by Distributing or Controlled (in either case, a C corporation) and a REIT, or a later unrelated REIT election. Also, in 2014 Oil States International Inc. distributed the stock of the worker housing company, Civeo Corp., in a tax-free spinoff. See Oil States International Inc., Quarterly Report (Form 10-Q), at 8 (Oct. 31, 2014). Although there were expectations that Civeo would elect REIT status, it instead decided to pursue a reincorporation in Canada. See Civeo Corp., Current Report (Form 8-K) (Sept. 29, 2014), Exhibit 99.1.

10. See CareTrust REIT Inc., Quarterly Report (Form 10-Q), at 6-7, 10 (Oct. 30, 2014).

11. See CBS Outdoor Americas Inc., Quarterly Report (Form 10-Q), at 8, 25 (Nov. 7, 2014). For a summary of material tax information concerning these REIT spinoffs, see Part 2, Appendix A.

12. See Communications Sales & Leasing Inc., General Form for Registration of Securities (Form 10 Amendment 1), at 1-3, 8 (Dec. 22, 2014). Recently, Windstream announced that Parent will retain a 19.9 percent interest in SpinCo and sell those shares strategically to maximize the amount raised. See Windstream Holdings Inc., Current Report (Form 8-K) (Dec. 18, 2014), Exhibit 99.1; Windstream Holdings Inc., Preliminary Proxy Statement (Schedule 14A), at 17 (Dec. 19, 2014).

13. See Windstream Holdings Inc., Quarterly Report (Form 10-Q), at 45 (Dec. 6, 2014). Windstream's board approved the transaction after receiving a letter ruling from the IRS. See Windstream Holdings Inc., Current Report (Form 8-K) (July 29, 2014), Exhibit 99.1.

14. See Pinnacle Entertainment Inc., Current Report (Form 8-K) (Nov. 7, 2014), Exhibit 99.1 (release describing board approval of plan to separate real estate into new REIT, which would lease the real estate back to Pinnacle). Boyd Gaming has stated that it is consulting with advisers to determine if a REIT spinoff is appropriate. Howard Stutz, ''Boyd Gaming Evaluating REIT Spin-Off,'' Las Vegas Review-Journal (Oct. 30, 2014). After the CEO of MGM Resorts expressed possible interest in REIT status, an activist investor released a proposal on March 17, 2015, urging MGM Resorts to consider separating into a REIT and an operating company. See Land and Buildings, ''Creating a Best in Class REIT and Lodging C-Corp: ~70% Upside to Net Asset Value'' (2015), available at http://landandbuildings.com/downloads/LandB%20MGM%20REIT%20Presentation%203-17-2015%20DC.pdf. Caesars Entertainment's filings suggest that as part of a bankruptcy plan for Caesars Entertainment Operating Co., the operating company may enter into a REIT spinoff in which creditors would receive REIT stock under a section 368(a)(1)(G) reorganization. See Caesars Entertainment Corp., Current Report (Form 8-K) (Jan. 14, 2015), Exhibit 10.1. In addition to tax-free REIT spinoffs, Sears has announced a plan to transfer some of its retail real estate to a REIT in a sale-leaseback transaction. See Sears Holdings Corp., Current Report (Form 8-K Amended) (Nov. 7, 2014) (''The Company is actively exploring the monetization of a portion of its owned real estate portfolio (potentially in the range of 200-300 stores), through a saleleaseback transaction, with the selected stores to be sold to a newly-formed [REIT]. The Company would continue to operate in the store locations sold to the REIT under one or more master leases.'').

15. Some contend that McDonald's Corp. is a prime candidate for a REIT spinoff. Recent rumors that Pershing Square Capital Management was pushing McDonald's to change its structure apparently led to a run-up in its stock. See ''McDonald's Rises on Rumor,'' Los Angeles Times, Dec. 18, 2014, at B4. Pershing Square also pushed McDonald's to separate its real estate from its operating business in 2005. See Pershing Square Capital Management, ''A Value Menu for McDonald's'' (2005). Also, an investor recently pushed for Brookdale Senior Living to separate some of its real estate assets into a REIT. See Sandell Castlerigg Investments, ''Unlocking Shareholder Value: Brookdale Senior Living Inc.'' (Feb. 2015). Competitors in industries in which a REIT spinoff has occurred have experienced some pressure to follow suit. For instance, Verizon, when asked about the issue after Windstream announced its plans, responded noncommittally. See Reinhardt Krause, ''Verizon Looks at REIT Conversion, Options Open,'' Investor's Business Daily, Aug. 13, 2014 (''We will continue to look at (our) portfolio to rationalize it, look at nonstrategic assets that we can spin. We continue to look at access lines, so I guess the way to put this is: Everything is on the table right now.''). Smaller companies in the telecom industry may be more likely to adopt a REIT structure than Verizon or AT&T. See Krause, ''AT&T, Verizon Unlikely to Go REIT, Frontier May,'' Investor's Business Daily, Dec. 26, 2014.

16. A REIT conversion means a conversion of an existing non-REIT entity into a REIT. See, e.g., LTR 200748005 (ruling on tax consequences of REIT conversion).

17. See, e.g., Martin A. Sullivan, ''Never Mind Inversions, What About REITs?'' Forbes, Sept. 9, 2014.

18. See, e.g., Gretchen Morgenson, ''A Tax Break That's Closer to Home,'' The New York Times, Aug. 10, 2014, at BU1 (''Traditionally, REIT tax treatment could be applied only to assets with physical characteristics: 'inherently permanent structures,' according to tax rules. But last May, the Treasury and the I.R.S. proposed new regulations clarifying what constitutes an eligible asset for REIT purposes. . . . The new rules say real estate assets may include microwave transmission, cell and broadcast towers as well as parking facilities, bridges and tunnels, railroad tracks, transmission lines, pipelines and storage facilities.'').

19. See, e.g., David M. Einhorn, ''Unintended Advantage: Equity REITs vs. Taxable Real Estate Companies,'' 51 Tax Law. 203 (1998) (''Contrary to the purposes of the original Real Estate Investment Trust Act of 1960 . . . REITs are now active business entities that compete with taxable corporations and expose their shareholders to business risks'').

20. See, e.g., Howard Gleckman, ''How REIT Spinoffs Will Further Erode the Corporate Tax Base,'' Forbes, July 31, 2014 (''If these deals become widespread, they'd be another nail in the coffin of the corporate income tax'').

21. See Tax Reform Act of 2014 (H.R. 1), section 3631(a). As drafted, this proposal would apply to a spinoff of a single larger REIT into multiple smaller REITs or even the spinoff of a taxable C corporation from an existing REIT, even though in those situations the amount of assets in ''REIT solution'' either stays the same or decreases.

22. See id. at section 3631(b).

23. Id. at section 3647.

24. Id. at section 3639.

25. Id. at section 3633. This would affect many assets currently held in REITs. For instance, most telecommunications cabling, billboards, and microwave transmission towers generally have a class life below 27.5 years. See IRS Publication 946, How to Depreciate Property (Jan. 28, 2014).

26. See, e.g., John D. McKinnon, ''Camp Tax Plan Has Something for Everyone (To Hate),'' The Wall Street Journal, Feb. 26, 2014 (quoting Republican economist Douglas Holtz-Eakin as stating regarding Camp that ''everyone's mad at him''); and Marie Sapirie, ''The Convergence Theory of Tax Reform,'' Tax Notes, Mar. 31, 2014, p. 1391 (referring to the ''chilly reception'' that the Camp proposals received from other members of Congress).

27. The recent report on tax reform issued by the Republican staff of the Senate Finance Committee does not mention these proposed restrictions on REITs. See Republican Staff, Committee on Finance, ''Comprehensive Tax Reform for 2015 and Beyond'' (Dec. 2014) (hereinafter Hatch report). Senator Bernard Sanders, I-VT, recently sent a letter to the White House recommending that the income of casino, outdoor advertising, and prison REITs should not qualify as rent for REIT purposes. See letter from Senator Bernard Sanders to President Barack Obama (Feb. 27, 2015), available at http://www.budget.senate.gov/democratic/public/_cache/files/7a8dbc99-3850-4760-be3a-2361c1ec4208/sanders-letter-to-white-house-on-tax-loopholes.pdf.

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