Tag Archives: foreign

The S Corporation Inversion – How to Convert an S Corporation into a Tax Partnership Tax-Free

Tax inversions have been in the news for several years now, but almost always in the context of a public US company reincorporating in a foreign country to achieve lower tax rates on non-US source income. However, there is another type of inversion, the S corporation inversion, that does not involve any foreign countries but can be an elegant solution to a problem faced my many small and medium-sized businesses operated as S corporations.

Many businesses start as S corporations for good tax reasons, but later in their lifecycle want to convert to a tax partnership (such as an LLC taxed as a partnership) for a variety of business and tax reasons. For example, perhaps a private equity fund or foreign investor (which are both impermissible S corporation shareholders) want to invest in the business and become owners. Another example is where an S corporation wants to grant an equity interest to a key employee in exchange for their past and future services. Oftentimes, the best approach in this case is to grant the employee a “profits interest” in the business, but S corporations cannot grant such interests, while tax partnerships can. Simply converting or merging the S corporation into an LLC taxed as a partnership is not satisfactory, because that transaction would trigger the taxable liquidation of the S corporation.

One method to convert to a tax partnership tax-free, without undergoing an inversion, is the “LLC drop-down,” which entails the S corporation forming a wholly-owned LLC, that is initially a disregarded entity for tax purposes, and transferring all of the S corporation’s assets and business to the new LLC. Once this is accomplished, the new investors can invest in the business by investing into the new LLC, which will become a tax partnership. However, this restructuring is deceptively simple, because migrating the S corporation’s business to the new LLC can create many issues, including (1) migrating employees, payroll, and benefit plans to the new LLC; (2) opening new operating and payroll bank accounts for the new LLC; (3) consulting with insurance agents to obtain coverage for the new LLC; (4) assigning customer, lease, vendor, and other key agreements to the new LLC, which oftentimes requires the counterparty’s consent; (5) transferring or obtaining new licenses and permits for the new LLC to operate the business; and (6) obtaining lender consent.

These headaches can oftentimes be avoided by utilizing an S corporation inversion. The S corporation inversion is accomplished by having the shareholders of the S corporation (“Old S”) transfer their stock to a newly formed S corporation (“New S”) in exchange for all the stock of New S. Old S immediately makes an election to be a qualified subchapter S subsidiary, and so Old S will be disregarded for tax purposes. New S then forms a wholly-owned LLC, which is initially disregarded for tax purposes, and then merges Old S into the new LLC, with new LLC as the survivor of the merger. The merger is without tax consequences, because it’s a merger of two entities, Old S and LLC, that are disregarded for tax purposes. Furthermore, by operation of the Florida merger statute, all of the assets, liabilities, contracts, and legal relationships of Old S transfer to LLC and in most circumstances no third party consents are required. Now the old business is in a new LLC that can take on new investors in a tax partnership format and without many of the headaches of migrating a business to a new legal entity. For guidance on this structure, see Treasury Regulation Section 1.1361-5(b)(c), Example 2.

Michael J. Wilson
mwilson@williamsparker.com
941-536-2043

Proposed Regulations Expand Reporting Obligations for Foreign-Owned Disregarded Entities

In the wake of the Panama Papers leak, Treasury promulgated proposed regulations that require a US disregarded entity that is wholly-owned by a foreign owner to comply with the reporting, record maintenance, and associated compliance requirements that currently apply to US corporations that are owned 25% or more by a foreign owner under Code section 6038A, including the obligation to file Form 5472. The regulations also expand the types of transactions that must be reported. For example, contributions and distributions between the disregarded entity and its foreign owner would be subject to reporting even though these transactions would otherwise be ignored for tax purposes because of the involvement of the disregarded entity.

A link to the proposed regulations is here: https://www.gpo.gov/fdsys/pkg/FR-2016-05-10/pdf/2016-10852.pdf

Michael J. Wilson
mwilson@williamsparker.com
941-536-2043

Going Global: What Are the International Tax Issues for a Small or Mid-Size Company

From a legal perspective, global expansion can have many forms, structures, and functions, including creating contractual relationships with distributors or licensees; establishing international legal entities for sales, manufacturing, or other business functions; or entering into an international joint venture. Regardless of the form or size of the contemplated global business expansion, there are a host of complex tax issues that have to be wrestled with in addition to the plethora of business and regulatory issues. Mike Wilson recently authored an article on this topic, which can be found here: http://www.williamsparker.com/docs/default-source/PDFs/international-tax-small-business_mjw

Michael J. Wilson
mwilson@williamsparker.com
941-536-2043

Changing Investment Structures for Foreign-Owned US Real Property has Many Traps for the Unwary

There are various ways to structure a foreign investment in US real property and each has its own advantages and disadvantages (see below for a link to a previous blog post on this topic). A frequently chosen structure is a pass-through or fiscally transparent structure which, very generally, has income tax advantages (especially upon a disposition of the property), but US estate tax disadvantages. Over time, however, clients age and their plans change, and so we are sometimes called upon to convert a pass-through structure to a structure with US estate tax advantages (i.e., typically by inserting a foreign corporation into the structure), but which has income tax disadvantages. Converting such structures can at first blush seem relatively simple, but there are several traps for the unwary. A common approach to converting such structures is for the foreign client to contribute their ownership interests in the US pass-through entity (such as a partnership or LLC taxed as a partnership or disregarded for federal income tax purposes) to a foreign corporation. Normally, such a transaction would be tax-free under IRC section 351 as a contribution to the capital of a corporation. However, FIRPTA complicates the picture. Specifically, FIRPTA rules add additional requirements in order for this transaction to be tax-free, including that the ownership interest in the US pass-through entity (which is considered a US real estate property interest (“USRPI”) for FIRPTA purposes), be exchanged for another USRPI. Stock of a foreign corporation is generally not a USRPI, and therefore the contribution of the ownership interests in the pass-through entity to the foreign corporation would be considered a taxable sale. There are at least two planning techniques to avoid this issue that involve the use of a US corporation or having the foreign corporation elect to be treated as a US corporation for federal income tax purposes, but both techniques have their own set of advantages and disadvantages that must be carefully considered.

A previous blog post on structuring options for foreign investment in US real estate can be found here:
blog.williamsparker.com/businessandtax/2014/04/15/tax-planning-foreign-investors-purchasing-real-estate

Michael J. Wilson
mwilson@williamsparker.com
941-536-2043

Tax Planning for Foreign Investors Purchasing Real Estate

Foreigners, especially Canadians, continue to comprise a significant percentage of Florida real estate purchases. The National Association of Realtors reported that during the recent 12-month period ending July 2013 the total sales volume of Florida residential real estate purchases by foreigners was $6.4 billion (9% of total Florida residential sales volume). 30% of these foreign purchasers were Canadian. These figures do not included foreign purchases of commercial real estate. Unfortunately, many Canadians and other foreign real estate purchasers do not sufficiently consider the U.S. tax ramifications of their purchase. There are many alternatives for structuring a foreigner’s purchase of U.S. real estate, and each alternative has tax advantages and disadvantages.

Below is a link to an article that discusses the U.S. tax issues and planning techniques that can help minimize tax headaches for Canadian (and other foreign) owners of Florida real property.

Tax Planning For Canadians Purchasing Property In Florida

If you need assistance with a foreign purchaser of U.S. real estate, please contact us.

Michael J. Wilson
mwilson@williamsparker.com
941-536-2043