Tax Talks

The Proskauer Tax Blog

Key Takeaways from IBA Annual Conference Panel

Robert Gaut, the head of our UK tax practice and a partner in the London office of Proskauer, spoke on 20th September on a panel at the International Bar Association’s annual conference in Washington, D.C. The panel was entitled “Practical Issues in Entity Classification and Claiming Tax Treaty Benefits for Transparent Entities”.

Along with co-panelists from the U.S., Argentina, Spain, Canada and the Netherlands, Robert looked at:

  • Mismatches of treatment between those countries in how partnerships are treated for tax purposes
  • Issues created by the current OECD BEPS project in relation to the ability of taxpayers to claim double tax treaty benefits through partnerships, LLCs and other transparent and hybrid structures
  • The continuing implications of the UK Supreme Court judgment in Anson v. Commissioners for Her Majesty’s Revenue and Customs
  • The EU Anti-Tax Avoidance Directive and its effect on hybrid entities

Materials from the presentation are available to IBA members on their website.

Proposed New UK Penalties Regime Precipitated by CRS

Many people will be familiar with the information gathering and reporting requirements the OECD’s Common Reporting Standard (“CRS”) places on financial institutions. The first exchanges of information between tax authorities will take place next year, with all CRS jurisdictions exchanging information by 2018. And we are now starting to see how tax authorities expect this information to change the taxpayer/tax authority dynamic. Continue Reading

IRS Updates Ruling Policy on Corporate Business Purpose and Device Requirements under Section 355

The U.S. Internal Revenue Service (“IRS”) released Revenue Procedure 2016-45 (the “Revenue Procedure”) on August 26, 2016, permitting taxpayers once again to seek private letter rulings on issues of “corporate business purpose” and “device” under Section 355 of the U.S. Internal Revenue Code of 1986, as amended (dealing with tax-free spin-offs and related transactions). The corporate business purpose and device requirements under Section 355 have long been matters on which the IRS has preemptively declined to issue letter rulings or determination letters (these are commonly referred to as “no-rule” areas, the full list of which is reissued annually; see, e.g., Rev. Proc. 2016-3). The Revenue Procedure states that the IRS has determined that there are a number of unresolved legal issues relating to the corporate business purpose and device requirements that may be germane to determining the tax consequences of a transaction. As a result, the IRS will consider ruling requests, dated on or after August 26, 2016, related to the corporate business purpose and device requirements, subject to the overall standard requiring that the request present a “significant issue” and the general latitude of the IRS not to rule if, in their view, the facts and circumstances so warrant.

By removing these issues from the no-rule list, the IRS offers corporations considering a tax-free spin-off the possibility of significantly greater comfort on the U.S. federal income tax treatment of the transaction. The change in position may also reflect recognition by the IRS that while existing published and non-published guidance on corporate business purpose and device addresses many open issues in respect of these requirements of Section 355, significant issues remain that may merit seeking an IRS determination before a transaction proceeds.

The removal of corporate business purpose and device from the no-rule list follows on the heels of the July issuance of proposed regulations under Section 355 addressing the “device” and “active trade or business” requirements of Section 355. Notably, the Revenue Procedure does not specifically discuss whether questions about the application or interpretation of the new proposed regulations relating to device are amenable to ruling requests (indeed, the Revenue Procedure does not mention these proposed regulations at all). Click here for our client alert on the proposed regulations on “device” and “active trade or business”.

A brief background on private letter rulings and no-rule areas under Section 355 follows.

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IRS Eliminates Requirement to Submit Copy of Section 83(b) Elections with Tax Return

The IRS adopted final regulations that no longer require taxpayers who have made Internal Revenue Code §83(b) elections to attach a copy of the election to their annual federal income tax return.

Under §83, restricted stock granted in connection with the performance of services generally becomes taxable as ordinary income compensation when it is no longer subject to a substantial risk of forfeiture and is freely transferable. Section 83(b) and Treasury Regulation §1.83-2(a) permit a taxpayer who has received compensatory restricted stock or other property subject to a substantial risk of forfeiture to make a special election to include in gross income in the year of receipt, any excess of the fair market value of the property at the time of transfer over the amount (if any) paid for the property. Making such an election “closes” the compensation element of the grant, and therefore, future vesting would not be taxable and future sale or transfer generally would generate capital gains and not ordinary income.

In accordance with Treas. Reg. §1.83-2(c), the taxpayer must file a written statement of the election with the IRS no later than 30 days after the date of transfer. In the past, the taxpayer was also required to attach and submit a copy of the §83(b) election with the taxpayer’s income tax return for the year in which the property was granted.

In late July, the IRS released final regulations to amend Treas. Regs. §1.83-2(c) to no longer require taxpayers to submit a copy of the written statement of election with their income tax return covering the year of transfer. In the preamble to the proposed regulations, the IRS explained that the submission of the copy of the election was no longer necessary, given that IRS personnel electronically scan the first filing of the election statement, and acknowledged that most commercial tax preparation software does not permit electronic submission of a copy of an §83(b) election.

The final regulations apply to property transferred on or after January 1, 2016. For property transferred on or after January 1, 2015, taxpayers are permitted to rely on the proposed regulations, which were adopted without change.

Taxpayers remain subject to general recordkeeping obligations when making §83(b) elections, and should continue to use certified mail, return receipt requested, to have proof of timely filing, and to keep copies of their elections and receipts in a safe place for the duration of the statute of limitations.

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