United States: Is It Debt Or Is It Not? Proposed Treasury Regulations Would Significantly Change Debt Vs. Equity Analysis

Earlier this month, the IRS and Treasury Department proposed new Treasury regulations (the "Proposed Regulations") under Section 385 of the Internal Revenue Code. The Proposed Regulations would significantly modify the tax analysis concerning the treatment of certain related-party instruments as debt vs. equity for U.S. federal income tax purposes.  If finalized in their current form, the Proposed Regulations would represent a dramatic change from long-standing case law and administrative practice in this area. 

Although the Proposed Regulations were issued as part of a larger package of temporary and proposed Treasury regulations targeting corporate inversions and earnings-stripping transactions, the Proposed Regulations would have a much broader reach and could impact a wide range of cross-border and domestic activities, including M&A transactions, common strategies employed by private equity funds and their portfolio companies, internal corporate restructurings, and routine financing transactions by multinationals.

Furthermore, if finalized in their current form, certain rules included in the Proposed Regulations would apply to debt instruments issued (or deemed issued) on or after April 4, 2016.  Therefore, taxpayers must carefully consider the new rules and their potential implications in connection with their group's structure and currently contemplated and pending transactions.

Prerequisite Procedural Requirements for Related-Party Instruments to Be Treated As Debt

The Proposed Regulations establish new, heightened procedural requirements that must be met as a prerequisite for treating certain related-party instruments as debt.  The new rules require contemporaneous preparation of documentation (generally, within 30 days) evidencing (i) an unconditional obligation to pay a sum certain, (ii) creditor-type rights to enforce the terms of the debt, and (iii) a reasonable expectation of repayment (which may be based on cash flow projections or other financial data).  In addition, the Proposed Regulations require that a genuine debtor-creditor relationship be evidenced after the instrument is issued, including timely payment of principal and interest and reasonable exercise of creditor's right in case of a default.

Thus, the Proposed Regulations require not only certain procedural and administrative due diligence and documentation at the outset, but also continuous diligence and record-keeping throughout the term of the applicable instrument.  Even if these requirements are met, the instrument will not necessarily be respected as debt for U.S. federal income tax purposes.  These requirements are a minimum threshold, and the instrument will still need to "pass muster" under the other debt vs. equity rules set forth in the Proposed Regulations.  On the other hand, if these requirements are not satisfied, the instrument will be treated as stock for U.S. federal income tax purposes, regardless of its other terms.

These procedural requirements apply to any related-party debt instruments issued within "large taxpayer groups," generally meaning groups in which the stock of any member of the group is publicly traded, or groups that report any portion of their financial results on financial statements reflecting (1) total assets exceeding $100 million, or (2) annual total revenue exceeding $50 million.

Certain Related-Party Debt Instruments Treated As Equity

In contrast to long-standing case law and tax practice based thereon, subject to certain exceptions, the Proposed Regulations generally treat as stock debt instruments issued in connection with certain related-party transactions, regardless of the terms of the instrument in question (and thus without regard to whether or not the instrument would be respected as debt had it not been issued between related parties).  Such related-party transactions include (i) a distribution of a debt instrument by a subsidiary to its parent, (ii) an issuance of a debt instrument in exchange for stock of another member of the group, and (iii) an issuance of a debt instrument as consideration pursuant to a certain type of internal group reorganization.  

In addition, pursuant to a "funding rule," the Proposed Regulations treat as stock debt instruments that are issued with a principal purpose of funding a distribution or an acquisition in the circumstances described above.  While the "principal purpose" determination is based on all the applicable facts and circumstances, the Proposed Regulations establish a non-rebuttable presumption that the proscribed principal purpose exist if any of the abovementioned related-party transactions occurs within 36 months prior to, or following, the issuance of the debt instrument.

Importantly, the Proposed Regulations provide that these rules would apply to debt instruments issued (or deemed issued) on or after April 4, 2016 (with only a short 90-day transition period following the adoption of final regulations).

Bifurcated Debt / Equity Treatment

In yet another departure from existing law (under which instruments are generally treated as entirely debt or entirely equity), the Proposed Regulations authorize the IRS (but not taxpayers) to bifurcate the treatment of a related-party instrument in a corporation as part debt and part stock for U.S. federal income tax purposes, based on the "substance" of the instrument.

The bifurcated treatment could apply to related-party debt instruments issued between group members that meet a 50%-relatedness threshold (including groups with a partnership or other non-corporate parent).

This new rule, which deviates from the "all or nothing" approach under current law, could also impact tax audit practice and settlement discussions.  

What's Next?

While the Proposed Regulations are expected to attract extensive comments, including challenge from those who question the authority of Treasury and the IRS to promulgate such broad-sweeping rules in a dramatic deviation from existing law, the IRS and Treasury have indicated their intention to "move swiftly" to finalize the rules. 

The Proposed Regulations generally would apply only after regulations are issued in final form (however, the provisions governing debt instruments issued between related parties in connection with the transactions described above would apply to debt instruments issued (or deemed issued) on or after April 4, 2016). 

If finalized in their current form, the Proposed Regulations could treat as equity, for U.S. federal income tax purposes, instruments that would be treated as debt under current law, merely because they are issued among related parties.  Therefore, taxpayers should carefully review the Proposed Regulations, study the potential impact of the new rules on their existing structure and contemplated or pending transactions, and consider whether any preparatory action should be taken at this time.  

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Sohail Itani
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions