Treasury recently finalized regulations clarifying the application of the bankruptcy and insolvency exceptions to cancellation of debt income involving a debtor partnership with one or more partners that are disregarded for income tax purposes. Section 108(a)(1)(A) and (B) exclude cancellation of debt from income if the cancellation or discharge occurred in a bankruptcy case or to the extent the taxpayer is insolvent. Where the debtor is a tax partnership, these exceptions are applied at the partner level instead of at the partnership level. Where a partner is a disregarded entity or grantor trust, the final regulations clarify that the bankruptcy and insolvency exceptions are applied by looking through the disregarded entity or grantor trust to the ultimate owner for income tax purposes. Consequently, the insolvency analysis is applied to the ultimate owner of the disregarded entity or grantor trust, and not to the disregarded entity or grantor trust itself. Similarly, in order for the bankruptcy exception to apply, the ultimate owner of the disregarded entity or grantor trust must be subject to a bankruptcy court’s jurisdiction.
The Internal Revenue Code prescribes minimum imputed interest rates and time-value-of-money factors applicable to certain loan transactions and estate planning techniques. These rates are tied formulaically to market interest rates. The Internal Revenue Service updates these rates monthly.
These are commonly applicable rates in effect for July 2016:
Short Term AFR (Loans with Terms <= 3 Years) 0.71%
Mid Term AFR (Loans with Terms > 3 Years and <= 9 Years) 1.43%
Long Term AFR (Loans with Terms >9 Years) 2.18%
7520 Rate (Used in many estate planning vehicles) 1.8%
We are pleased to announce the publication of the sixth issue of our firm magazine, Requisite. This issue focusses on succession planning for family businesses of all sizes. We feature an interview with Ken Feld, the CEO of Feld Entertainment (which owns Ringling Bros. and Barnum & Bailey Circus and Disney on Ice). He is the second generation of his family to run the business and is transitioning its control to the third generation. You will also find articles covering some of the emotional and technical challenges to creating a great succession plan. And we consider an underappreciated connection between Henry David Thoreau and his family’s business.
The Canada Revenue Agency (“CRA”) announced at the May 26 meeting of the International Fiscal Association in Montreal that limited liability limited partnerships and limited liability partnerships organized under the laws of Florida or Delaware will be taxable as corporations for Canadian income tax purposes. The CRA has treated US limited liability companies as corporations for many years, but previously treated US LLLPs and LLPs as pass-through entities. The announcement did not specify whether similar entities organized in other US states would be treated the same, but the justification provided by the CRA would appear to apply to such other entities.
The CRA’s announcement raises several issues for US LLLPs and LLPs that have Canadian owners, including such entities that own US real estate. One issue is that income from these entities will now be subject to double income tax. The US will treat these entities as pass-through entities and so only the owners will be subject to US income tax, but Canada will now treat these entities as corporations. Consequently, Canadian dividend tax will apply to distributions received by the Canadian owner, and a Canadian tax credit is not available for the US tax. Previously for such LLLPs and LLPs, but not for LLCs, the Canadian owner could credit the US tax they paid against their Canadian tax. Issues can also arise for US LLLPs or LLPs that do not have Canadian owners, but have business operations or investments in Canada.
The CRA did announce transitional relief so that US LLLPs and LLPs can be treated as pass-through entities for Canadian tax purposes retroactively if certain conditions are satisfied. One of the key conditions is that the LLLP or LLP must convert before 2018 to an entity that is recognized by the CRA as a pass-through entity, such as a general partnership or a limited partnership.
There are many different options for structuring the sale or purchase of a closely-held business, and determining the best option depends on several factors. The presentation linked below discusses some of the key points to consider when selling or acquiring a business. It also describes some of the most common types of transactions and their respective advantages and disadvantages. Lastly, the presentation looks at certain financing arrangements used in connection with a sale or purchase as well as methods to protect the interests of the parties following the closing of the transaction.