When business downturns occur, even sophisticated tax practitioners need to quickly reacquaint themselves with issues they may not have confronted recently. Review some highlights of the many potential exposures concerning distressed businesses.
By Mark L. Lubin, CPA, JD, LLM
Business downturns tend to be cyclical. When they occur, even sophisticated tax practitioners face pressure to quickly reacquaint themselves with issues they haven’t confronted recently. This blog highlights some of the many potential exposures concerning distressed businesses.
Most practitioners are aware that a cancellation of debt generally results in taxable cancellation of indebtedness income (COI), absent bankruptcy or insolvency.1 Moreover, “significant” modifications of debt trigger deemed exchanges that can result in tax consequences to debtors and creditors.2 Broadly speaking, changes in a debt instrument’s legal terms constitutes a modification, and modifications will be considered significant if they – cumulatively with other modifications – have a significant economic impact. Changes in obligor, interest rate, or security are typically significant modifications.
Debt modifications and cancellations can lead to unexpected tax results. A few examples include the following:
Moreover, foreclosures and other property transfers in settlement of debt can have varying consequences, depending on whether the debt is recourse or nonrecourse in nature, the value of the property, and the balance of the debt.8
Net operating losses can generally be carried forward indefinitely and used to offset 80% of taxable income (determined with modifications).9 However, IRC Section 382 limits the use of C corporation loss carryovers following an “ownership change,” which is generally an ownership increase of more than 50 percentage points by any combination of 5% shareholders within a three-year testing period.10 Section 382 practice is rife with pitfalls, including the following considerations:
The Internal Revenue Code provides deductions for worthless stock and bad debts.13 These deductions raise factual questions on which taxpayers have the burden of proof. Both areas present pitfalls, such as the following:
Business entities are required to collect certain taxes imposed on other taxpayers. For example, they are typically required to withhold income and employment taxes imposed on their employees, and they are required to collect sales taxes from customers to whom they sell property or provide certain services. Where such a business falls into distress, there can be a strong temptation to “temporarily” use collected taxes for other purposes, such as to meet payroll or pay other expenses. Although rules vary by jurisdiction and tax, these situations can present a huge pitfall because personal liability can result to owners, managers, and other parties that have control or some degree of responsibility over business affairs.15 Even where such liability ultimately is found not to apply, the time and cost required to defend these cases can have a devastating impact on clients and advisers.
1 IRC Section 108(a). The insolvency exception applies only to the extent of the debtor’s insolvency. Other exceptions to COI apply in certain situations involving cancellations of farm or real property indebtedness or student loans.
2 Treas. Reg. 1.1001-3.
3 IRC Section 108(e)(4).
4 Compare IRC Section 108(e)(6), (8), and (10).
5 See IRC Section 163(e)(5) and (i). Those issues can often be avoided by limiting the remaining term to five years.
6 IRC Section 108(b), which prescribes an ordering rule regarding such reduction and an election to reduce depreciable property basis before reducing other attributes.
7 IRC Section 108(d)(6).
8 See, e.g., Treas. Reg. Sec. 1.1001-2(c), Examples 7 and 8, and Com’r v. Tufts, 461 U.S. 300 (1983).
9 See generally IRC Section 172(a)(2) and (b)(2). Unused credits can also generally be carried forward.
10 IRC Section 382(g). Section 383 imposes similar limits regarding certain credits and capital loss carryovers, and Section 384 restricts the use of certain preacquisition losses against “built-in” gains.
11 IRC Section 382(h).
12 IRC Section 385(l)(5) generally has a favorable impact in those situations, but an election out of Section 385(l)(5) can be made, in which event the Section 382 limitation will often be increased under Section 385(l)(6).
13 IRC Sections 165 and 166.
14 IRC Sections 166(e).
15 See e.g., IRC Section 6672.
Mark L. Lubin, CPA, JD, LLM, is special counsel at the law firm Chamberlain Hrdlicka in Philadelphia, where his practice focuses on tax planning and complex business transactions. He can be reached at mlubin@chamberlainlaw.com.
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Statements of fact and opinion are the authors’ responsibility alone and do not imply an opinion on the part of the PICPA's officers or members. The information contained herein does not constitute accounting, legal, or professional advice. For actionable advice, you must engage or consult with a qualified professional.
Statements of fact and opinion are the authors’ responsibility alone and do not imply an opinion on the part of PICPA officers or members. The information contained in herein does not constitute accounting, legal, or professional advice. For professional advice, please engage or consult a qualified professional.