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The Proskauer Tax Blog

Proposed Regulations Under Section 355 Clarify Device and Active Trade or Business Requirements for Spin-offs

The U.S. Internal Revenue Service (IRS) and the Department of the Treasury (“Treasury”) have published proposed regulations that would modify the device and active trade or business requirements for tax-free spin-offs under section 355 of the Code in three important respects.

First, the proposed regulations clarify the “device” test and its relationship to the “business purpose” requirement. Second, the proposed regulations would prohibit a tax-free spin-off if (1) two-thirds or more of the assets of the distributing corporation or the controlled corporation consist of nonbusiness assets and (2) the percentage of the distributing corporation’s nonbusiness assets differs significantly from those of controlled, under three specified tests. Third, the proposed regulations would require that the assets constituting an active trade or business must represent at least 5% of the total assets of the distributing corporation and the distributed corporation in order for the spin-off to be tax-free. Thus, the proposed regulations would effectively repeal the so-called “hot dog stand” rule, under which a de minimis active trade or business could support a spin-off of a relatively much larger collection of passive assets.

If promulgated as proposed, the proposed regulations will affect distributing corporations and their shareholders and security holders in spin-offs, split-offs, and split-ups that occur on or after final regulations are published.

For more on this topic, please see our client alert here.

IRS Proposes Modifications to Proposed Income Inclusion Regulations under Section 409A

In general, proposed rulemaking issued in December 2008 with respect to income inclusion under Section 409A of the Internal Revenue Code of 1986, as amended (available here) provides that if there is a Section 409A violation in a taxable year, all compensation deferred under the applicable nonqualified deferred compensation arrangement for that taxable year and all preceding years is includible in the service provider’s gross income to the extent not subject to a substantial risk of forfeiture (i.e., vested) and not previously included in gross income in a prior taxable year. Although the proposed income inclusion regulations appear to permit the correction of certain plan provisions that do not comply with Section 409A without penalty as long as the underlying amounts are unvested, they include certain anti-abuse provisions intended to prevent impermissible changes in the time or form of payment. Continue Reading

Proposed Section 409A Regulations Would Clarify Separation from Service Analysis in Connection with Change in Status From Employee to Independent Contractor

Pursuant to the final regulations under Section 409A of the Internal Revenue Code of 1986, as amended, a termination of employment generally occurs at such time as the employer and employee reasonably anticipate that the level of services to be performed after such time, whether as an employee or an independent contractor, would permanently decrease to no more than 20% of the average level of services performed over the immediately preceding 36-month period (or, if services were performed for less than 36 months, over the full period of services). Further, an independent contractor has a separation from service when there is a good faith and complete termination of the underlying contractual relationship. Continue Reading

IRS Releases Proposed Regulations To Clarify Section 409A Provisions

The Internal Revenue Service (IRS) recently issued proposed Treasury Regulations (available here) that would clarify certain provisions of the final regulations under Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”). The proposed regulations also would expand the anti-abuse provisions of proposed rulemaking issued in December 2008 with respect to income inclusion under Code Section 409A (available here). The IRS simultaneously released new proposed Treasury Regulations under Code Section 457, which you can read about in our Client Alert available here.

The proposed regulations under Section 409A are subject to a 90-day comment period ending September 20, 2016, and would become applicable on or after the date of publication in the Federal Register as final rules. While not effective until adopted in final form, proposed regulations may be relied on immediately.

The proposed regulations touch upon a variety of distinct issues under Section 409A. In general, the guidance from the proposed regulations is consistent with how we have interpreted and analyzed the underlying Section 409A requirements. We will be posting a series of blog entries on the proposed rules over the upcoming weeks, with specific analysis and explanations of their individual components.

SEC Approves New Nasdaq Rule 5250(b): Disclosure of “Golden Leash” Arrangements

The SEC recently released an order (available here) approving new Nasdaq listing standard 5250(b)(3), which will require a public issuer to disclose cash and non-cash remuneration (e.g., health insurance, indemnification) that a third party has agreed to pay a director on (or director nominee for) the issuer’s board of directors. These are often referred to as “golden leash” arrangements. The new disclosure requirement includes an exception for pre-existing compensation arrangements. Thus, if a fund manager, consultant, or other “friend of the fund” serves on the board of a public portfolio company, the company need only disclose any incremental additional compensation promised by the fund that is directly related to that board service. With some exceptions, the disclosure must be made on the company’s website or in its next proxy statement prepared for a shareholders meeting at which directors are elected. The disclosure must be repeated annually until the director’s departure from the board, or until one year after the termination of the arrangements. Public issuers will need to establish processes for collecting relevant information from its directors. The new listing standard will be effective 30 days after its publication in the Federal Register – thus it should be effective in August of 2016.

Please feel free to contact the author of this post or your regular Proskauer contact if you have any questions on this topic.

Senator Warren Leads Coalition to Expand Scope of Limitations on Executive Compensation Tax Deductions

Section 162(m) of the Internal Revenue Code generally limits the deductibility of compensation paid in excess of $1 million to the chief executive officer and the three other highest compensated officers (other than the chief financial officer) of a public corporation with securities registered under Section 12 of the Exchange Act. However, payments of certain commissions and “qualified performance-based compensation” under Section 162(m) are not subject to this limitation.

As previously reported in our ERISA Practice Center Blog (see here and here), bills to expand the scope of Section 162(m) and/or to narrow or eliminate the exceptions under Section 162(m) have been proposed in recent years, but have not become law.

Recently, a new coalition named “Take On Wall Street” that is comprised of lawmakers (including Senator Elizabeth Warren (D-MA)), union leaders, civil rights groups, and other community groups has announced plans to pursue five initiatives, one of which is to “end [the] tax exemption for huge CEO bonuses.”

In doing so, the coalition has pledged its support to “The Stop Subsidizing Multimillion Dollar Corporate Bonuses Act” (H.R. 2103 and S. 1127). The House Bill was introduced by Congressman Lloyd Doggett (D-TX) in April 2015 and is currently in the House Committee on Ways and Means; the Senate Bill was introduced by Senators Jack Reed (D-RI) and Richard Blumenthal (D-CT) in April 2015 and is currently in the Senate Committee on Finance. Specifically, the Bills would amend the Internal Revenue Code by:

  1. Eliminating the existing Section 162(m) exceptions for commission payments and qualified performance-based compensation;
  2. Including all current and former employees (not limited to the chief executive officer and the three other highest compensated officers) within the scope of Section 162(m); and
  3. Expanding the scope of Section 162(m) to include public companies subject to periodic reporting under Section 15(d) of the Exchange Act. The practical effect would be to expand the application of Section 162(m) to voluntary filers.

While previous bills to expand Section 162(m) and/or to narrow or eliminate the exceptions to the limitations under Section 162(m) have not gotten much traction, political scrutiny on executive compensation is certain to continue during the 2016 election year and beyond.

EU Council Agrees on Final Anti Tax Avoidance Directive

We wrote in February (European Commission Publishes Anti Tax Avoidance Package) about the draft EU Anti Tax Avoidance Directive (“ATAD”).

On 21st June 2016, the EU Council agreed on the final text of the ATAD and it will be adopted in the next Council meeting, which is scheduled for 12th July.

The Council had reached agreement on 17th June but certain Member States had requested additional time to consider its position.

The final ATAD includes measures in respect of the following topics:

  • Interest deduction limitation;
  • Exit taxation;
  • General abuse of law;
  • Controlled foreign companies (CFC); and
  • Hybrid mismatches.

Interestingly, the original proposal concerning a “switch-over” clause, which would have limited Member States’ ability to apply tax exemptions for income from low-taxed foreign subsidiaries and permanent establishments, was not adopted in the final version.

There have been some changes to the original draft text. The CFC provisions were debated significantly, for example. In effect, the final rules will treat as a CFC an entity or permanent establishment that that is taxed at less than 50% of tax rate applicable in the controlling company’s home Member State.

It is expected that the Member States will have until 31st December 2018 to implement the ATAD into their national law, except for the exit taxation rules, where the time limit will be 31st December 2019. The implementation of the interest deduction limitation provision may be postponed until 1st January 2024 in some circumstances, pending the OECD reaching agreement on a minimum standard (in situations where Member States have targeted rules that are equally effective to the interest limitation rules).

How these proposals will be integrated into the various Member States’ existing (often complex and sophisticated) anti-avoidance legislation remains to be seen, particularly in the light of the outcome of the OECD BEPS Action Points, which cover several of the same areas but in overlapping and sometimes conflicting ways.

The final proposal can be found at this link: Council June ATAD

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