Corporation reorganization

© 2012 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

Corporations, Partnerships,Estates & Trusts

1

Chapter 7

Corporations: Reorganizations

The Big Picture (slide 1 of 3)

• Rock & Water Corporation (R&W) specializes in industrial park landscaping.

• One of R&W’s central missions is to cause as little negative impact on the environment as possible. – Until recently, R&W applied this policy only to its own work, but the

new CEO, Tony Turner, wants to extend this policy to its suppliers. – R&W is aware that 3 of its suppliers do not use environmentally sound

practices.

• Realizing that simply changing suppliers will not eliminate these polluting practices, – R&W is considering acquiring these three suppliers. – Using this strategy, R&W would control the production practices of

these corporations.


• R&W is unsure of how to structure these potential acquisitions of its suppliers and seeks your advice.

• R&W gives you the following information about these potential acquisitions. – BrineCo is a profitable corporation that has been

owned predominantly by the Adams family since its incorporation in 1950.


– AcidCo started up in 1967. • AcidCo has been having legal troubles and has continually been

fined since more stringent EPA standards came into existence. • Besides chemicals used by R&W, AcidCo produces acids for the

mining industry. – Lastly, ChemCo is a new fertilizer producer with the

technology to produce environmentally safe products. • Its management is inexperienced, however, and the result has been

inefficiencies in production and unintended harm to its surroundings.

• ChemCo has yet to show a profit.

• How will you advise R&W to approach each of these acquisitions?

• Read the chapter and formulate your response.

Reorganizations—In General

• Refers to any corporate restructuring that may be tax-free under §368– To qualify, must meet certain general

requirements:• Must be a plan of reorganization• Must meet continuity of interest and continuity of

business enterprise tests• Must have a sound business purpose• Tax-free status can be denied under step transaction

doctrine

Summary of Different Types of Reorganizations

• The term reorganization includes:– Statutory merger or consolidation– Stock for stock exchange– Stock for assets exchange– Divisive exchange– Recapitalization– Change in identity, form, or place of organization– Transfers in bankruptcy or receivership

Tax Free Reorganization Consequences, in General (slide 1 of 3)

• Consequences to Acquiring Corporation– No gain or loss recognized unless it transfers

property to the Target corporation as part of the transaction

• Then gain, but not loss, may be recognized

– Basis of property received retains basis it had in hands of Target corp plus any gain recognized by the target


• Consequences to Target Corporation– No gain or loss unless it retains “other property”

received in the exchange or it distributes its own property to shareholders

• Other property is defined as anything received other than stock or securities

– Treated as boot

• Gain, but not loss, may be recognized


• Consequences to Target or Acquiring Co. Shareholders– No gain or loss unless shareholders receive cash or

other property in addition to stock• Cash or other property is considered boot

– Gain recognized by the stockholder is the lesser of the boot received or the realized gain

– Basis of shares received is same as basis of those surrendered, decreased by boot received, increased by gain and dividend income, if any, recognized in the transaction

The Big Picture – Example 4 Gain On Exchange Of Stock (slide 1 of 2)

• Return to the facts of The Big Picture on p. 7-2. • R&W proceeds with its acquisition of BrineCo. • Sam acquired a 30% interest in BrineCo 15 years ago for

$80,000. – He exchanges his BrineCo stock for $25,000 cash and stock in R&W

worth $125,000. – At the time of the reorganization, BrineCo’s E & P is $50,000.

• Sam has a $70,000 realized gain – $150,000 cash and stock received - $80,000 BrineCo stock basis.

• Sam has a $25,000 recognized gain (cash boot received). – The first $15,000 ($50,000 BrineCo E & P X 30%) is taxable as a

dividend, and – The remaining $10,000 is treated as capital gain. – Both are taxed at special tax rates.

The Big Picture – Example 4 Gain On Exchange Of Stock (slide 2 of 2)

• Suppose instead that Sam receives 10% of the R&W stock with a $100,000 fair market value and $50,000 cash. – If Sam had received solely stock, he would have received

15% of the R&W stock.

– Since Sam owns less than 80% of the stock he would have owned if solely stock had been distributed (10% ÷ 15% = 67%) and less than 50% of R&W, he qualifies for sale or exchange treatment under § 302(b)(2).

• Therefore, Sam’s $50,000 recognized gain is a long-term capital gain.

Type A Reorganization

• Includes mergers and consolidations– Merger is union of two or more corporations

• One corporation retains it existence and absorbs the others

– Consolidation occurs when a new corporation is created to take the place of two or more corporations

Type A Reorganization (slide 1 of 2)

Type A Reorganization (slide 2 of 2)

The Big Picture – Example 11

‘‘Type A’’ Reorganization• Return to the facts of The Big Picture on p. 7-2. • The Rock & Water Corporation (R&W) formation

occurred as follows. – Roca and Agua Corporations were united under state law

into new R&W Corporation by transferring all of their assets to R&W in exchange for all of R&W’s stock.

– By operation of state law, Roca and Agua liquidated by distributing R&W stock to their shareholders in exchange for the shareholders’ stock in Roca and Agua.

– This ‘‘Type A’’ reorganization is a consolidation.

Type A Reorganization Issues(slide 1 of 2)

• Advantages:– Type A reorganization is flexible– Consideration need not be voting stock– Money or other property can be transferred

without disqualifying the transaction, as long as “continuity of interest” is met

Type A Reorganization Issues (slide 2 of 2)

• Disadvantages:– Money or other property transferred is “boot” so

some gain may be required to be recognized– Shareholders of either entity may dissent; in most

states their shares must be redeemed– Acquiring entity must assume all liabilities of

Target

Type B Reorganization (Stock-for-Stock Reorganization)


‘‘Type B’’ Reorganization• Return to the facts of The Big Picture on p. 7-2. • R&W Corporation proceeds with the acquisition of

AcidCo. – In the transaction between R&W and AcidCo shareholders,

20% of R&W voting stock is exchanged for 90% of all classes of stock in AcidCo.

• The exchange qualifies as a ‘‘Type B’’ reorganization.

• R&W becomes the parent of AcidCo.

Type B Reorganization Requirements (slide 1 of 4)

• Corporation acquires stock of Target solely in exchange for its own voting stock (stock for stock)– Acquiring corporation must acquire “control”

of Target• Control is ownership of at least 80% of all classes of

stock of target

• Acquirer may add shares owned previously with shares acquired in reorganization


• Acquiring corporation may acquire shares from either:– (1) Shareholders of Target, or– (2) Directly from Target

• Exception to the “solely for voting stock” requirement when shareholders must receive fractional shares– May receive cash rather than fractional shares in

the acquiring corporation


• Example: Assume Target has 100 shares outstanding:– Acquirer may obtain 80 shares from current Target

shareholders in exchange for Acquirer’s voting stock

– Target may also issue 400 new shares to Acquirer in exchange for Acquirer’s voting stock (500 shares would be outstanding)


• Consideration paid by Acquirer can only include Acquirer’s voting stock or transaction does not qualify

Type C Reorganization (Stock-for-Assets Reorganization)

Type C Reorganization Requirements (slide 1 of 3)

• A ‘‘Type C’’ reorganization is essentially an exchange of voting stock for assets followed by liquidation of the target corporation– Called a “Stock-for-Assets” reorganization– Transfer is generally between the entities, not the

shareholders


• Consideration paid by Acquirer normally consists only of voting stock– However, if at least 80% of FMV of Target is

acquired with voting stock, cash or other property can be used for remainder

– Limitation: liabilities assumed by Acquirer are considered “other property” if any additional “other property” is used


• “Substantially all” of Target’s assets must be transferred to Acquirer

• There is no statutory definition of ‘‘substantially all’’– To receive a favorable ruling from the IRS, the

target must transfer at least 90% of net asset value or 70% of the gross asset value to the acquiring corporation


‘‘Type C’’ Reorganization• Return to the facts of The Big Picture on p. 7-2. • R&W Corporation proceeds with the acquisition of ChemCo.

– R&W transfers voting stock representing a 30% ownership interest to ChemCo for substantially all of ChemCo’s assets.

– After the exchange, ChemCo’s only assets are cash and R&W voting stock.

– ChemCo distributes the R&W stock and cash to its shareholders in exchange for their ChemCo stock.

• The exchange qualifies as a ‘‘Type C’’ reorganization if ChemCo liquidates after the distribution.

• The exchange is taxable to the shareholders to the extent of the cash they received.

Type D Reorganization (slide 1 of 4)

• Generally a mechanism for corporate division– Called a “divisive reorganization” but can be used

to carry out a corporate combination– In a Type D acquisitive reorganization

• Entity transferring assets is considered the acquiring corporation

• Corporation receiving the property is the target


• In an acquisitive Type D reorganization– Substantially all of acquiring corp’s property must

be transferred to target corporation– The acquiring corp must be in control (at least

50%) of the target– Target stock received by the acquiring corp and

any remaining assets of acquiring corp must be distributed to its shareholders

– Acquiring corporation must liquidate


• In a divisive Type D reorganization– A corporation is divided– One or more new corps are formed to receive

assets of original corp– Original corp must receive stock representing

control (80%) of new corps– Stock of new corps is then distributed to

shareholders of original corp


• Three types of divisive “Type D” reorganizations– Spin-Off and Split-Off

• A new corporation is formed to receive some of the assets of the original corporation in exchange for the new corporation's stock

– Split-Up• Two or more corporations are formed to receive

substantially all of the assets of the original corporation

Type D Reorganization Spin-Off (slide 1 of 2)

Type D Reorganization Spin-Off(slide 2 of 2)

Type D Reorganization Split-Off(slide 1 of 2)

Type D Reorganization Split-Off (slide 2 of 2)

Type D Reorganization Split-Up (slide 1 of 2)

Type D Reorganization Split-Up (slide 2 of 2)


‘‘Type D’’ Split-up (slide 1 of 2)

• Return to the facts of The Big Picture on p. 7-2. • R&W Corporation proceeds with its acquisition of

AcidCo. • Gail and Gary are equal shareholders of AcidCo,

which was organized six years ago. • To prepare for the restructuring transaction with

R&W, AcidCo creates two new corporations to receive its business lines. – AbraseCo will receive all of the assets related to the

landscaping chemical business. • These are the assets desired by R&W.

– The remaining mining acid assets are transferred to MineCo.


‘‘Type D’’ Split-up (slide 2 of 2)

• The AbraseCo and MineCo stock received in exchange for AcidCo’s assets is transferred equally to Gary and Gail in exchange for all of their shares in AcidCo.– Gail and Gary now are 100% owners of both AbraseCo

and MineCo. • Having no assets, AcidCo liquidates. • This transaction qualifies as a ‘‘Type D’’ split-up.

– Neither Gary nor Gail recognizes any gain or loss on the exchange.

– Gary and Gail take a basis in the AcidCo stock equal to their basis in the stock of AbraseCo and MineCo.

– The allocation between AbraseCo and MineCo is performed in the manner utilized in Examples 21 and 22.

Type E Reorganization (slide 1 of 2)

• Type E reorganization is a recapitalization– Involves a major change in character and amount

of outstanding stock, securities, or paid-in-capital

• The following exchanges qualify: – Bonds for stock– Stock for stock– Bonds for bonds

Type E Reorganization (slide 2 of 2)

• Corporation can exchange its common stock for preferred stock or its preferred stock for common stock tax-free– The exchange of bonds for other bonds is tax-free

when the debt received has a principal amount that is not more than the surrendered debt’s principal amount


‘‘Type E’’ Reorganization• Return to the facts of The Big Picture on p. 7-2.

• BrineCo’s stock is owned 80% by Gomez Adams and 20% by his children. – Gomez wants to relinquish his corporate control to his

children.

• He exchanges his common voting stock for nonvoting preferred stock.

• The exchange qualifies as a ‘‘Type E’’ reorganization. – However, any difference in value between stock received

and stock surrendered could be treated as compensation to Gomez or as a gift to Gomez’s children.

Type F Reorganization

• A mere change in identity, form, or place of organization, however effected– Restricted to a single operating corporation– Tax characteristics of predecessor corp carry over

to successor corp– Does not jeopardize status of §1244 stock or

terminate a valid S corp election

Type G Reorganization

• Substantially all of the assets of debtor corp are transferred to an acquiring corp in exchange for its stock and securities – This stock and securities are distributed to the

senior creditors in exchange for their claims against the debtor corporation

Judicial Doctrines(slide 1 of 2)

• Besides meeting specific requirements of reorganization, several judicially created doctrines must be met – Reorganization must exhibit a sound business

purpose• Not a well defined test

– Continuity of interest test• IRS deems this test met if shareholders of Target

receive stock in Acquirer equal to at least 40% of their prior stock ownership in Target stock

Judicial Doctrines (slide 2 of 2)

– Continuity of business enterprise test• Requires the acquiring corp to either:

– Continue the Target’s historic business, or

– Use a significant portion of Target’s assets in business

– Step transaction doctrine• Ensures that a series of transactions are not used to

obtain tax benefits that would be unavailable if the transaction were accomplished in a single step

• IRS generally views any transactions occurring within one year of reorganization as part of the restructuring

Carryover of Corporate Tax Attributes (slide 1 of 4)

• Assumption of liabilities– Acquiring corp either assumes liabilities of Target

or takes property subject to liabilities

• Allowance of Carryovers– In Type A, C, acquisitive D, and G

reorganizations, the Target’s tax attributes are acquired

– In Type B, E, and F reorganizations, Target corporation remains intact and retains its tax attributes


• NOL Carryovers– Amount of NOL that can be used in year

ownership change occurs is limited to a percentage representing the remaining days in the tax year over the total number of days in the year


• NOL Carryovers (cont’d)– NOL can be further limited in first and succeeding years

when there is a more than 50-percentage-point ownership change

• An ownership change takes place on the day (change date) that either an equity structure shift or an owner shift occurs

– An equity structure shift occurs when a tax-free reorganization causes an owner shift

– An owner shift is any change in the common stock ownership of shareholders owning at least 5%

– NOL can be used to the extent of the value of the loss corp’s stock on the date of the ownership change multiplied by the long-term tax-exempt rate


• Earnings and Profits– Positive E & P of acquired corp carries over– E & P of a deficit corp is deemed received by

acquiring corp as of change date • Deficit may only be used to offset E & P accumulated

by successor corporation after the change date


Net Operating Loss Carryovers• Return to the facts of The Big Picture on p. 7-2.

• R&W Corporation proceeds with its acquisition of ChemCo.• Prior to the merger, ChemCo accumulated a $3 million NOL.• After the reorganization, R&W generates $5 million of taxable

income.– ChemCo’s $3 million NOL carries over to offset the $5 million taxable

income, reducing it to $2 million. – R&W saves $1,020,000 in Federal income taxes by being able to

utilize ChemCo’s NOL carryover ($3 million NOL carryover X 34%).

• Thus, the $3 million NOL is a valuable asset that may be worth more than $1 million to R&W.

The Big Picture – Example 41 Carryovers Limited By § 382 (slide 1 of 2)

• Return to the facts of The Big Picture on p. 7-2.• R&W Corporation proceeds with the acquisition of

ChemCo.– It acquires $100,000 of general business credits from

ChemCo.• Assume that the § 382 limitation for the year is

$200,000.– R&W’s taxable income is $800,000 before applying this

limitation. • If the full deduction allowable by § 382 were utilized,

R&W’s taxable income would be $600,000 ($800,000 - $200,000).

The Big Picture – Example 41 Carryovers Limited By § 382 (slide 2 of 2)

• The amount of general business credit that R&W may take in the current year is $68,000, computed as follows.Step 1. Regular tax liability

($800,000 X 34% tax rate) $272,000

Step 2. Tax liability with full § 382

limitation ($600,000 X 34% tax rate) 204,000

Step 3. Subtract step 2 from step 1 $ 68,000

Comparison of Reorganization Types (slide 1 of 5)





Refocus On The Big Picture (slide 1 of 6)

• Rock & Water Corporation (R&W) is unsure how to structure the potential acquisitions of its three suppliers.

• The first target is BrineCo, a profitable corporation that has been owned predominantly by the Adams family since its incorporation in 1950.

• In negotiations with BrineCo, R&W determines that – BrineCo has virtually no debt,– Senior Adams family members are ready to retire, and – The younger generation has no interest in the business.

• Consequently, all members would like some cash in the transaction.


• The ‘‘Type A’’ reorganization would be a good choice for this acquisition. – R&W can exchange cash, preferred stock, and voting stock

for only those assets it wants to acquire.

• Since BrineCo has few liabilities, acquiring all of them will not be an issue nor will obtaining the approval of the BrineCo shareholders.

• The assets not transferred to R&W will be distributed to the Adams family, along with the stock and cash received from R&W in complete liquidation of BrineCo.


• The next target, AcidCo, has been struggling financially and has legal liability issues related to its failure to meet environmental standards.

• Its landscaping chemical and mining acid lines of business are active and have been in existence for more than five years,– AcidCo can, through a divisive ‘‘Type D’’ reorganization, spin off or

split off its mining acid business and retain the landscaping chemical line.

• Once this is accomplished, R&W can acquire AcidCo stock from its shareholders by exchanging R&W voting stock in a ‘‘Type B’’ reorganization. – This restructuring would protect R&W’s assets from AcidCo’s legal

liability issues until R&W can clean up the environmental problems.


• Lastly, ChemCo has the technology to produce environmentally safe products, but its inexperienced management has resulted in it being unprofitable.

• R&W can use a ‘‘Type C’’ reorganization to acquire substantially all of ChemCo’s assets and can select which liabilities it assumes. – To avoid having the liability assumption treated as boot,

R&W should use solely voting stock for the exchange.

• ChemCo must terminate after the reorganization.


• ChemCo has NOL, capital loss, and business credit carryovers– R&W must be sure to meet the continuity of

business enterprise requirement for at least two years.

• Most likely the § 382 limitation will apply – ChemCo shareholders will experience an equity

structure shift of greater than 50 percentage points.– Thus, the amount of carryover tax attributes that

R&W may use in any one year will be limited.


• A net present value analysis should be performed to determine what R&W is willing to pay for ChemCo’s tax attributes.

• Finally R&W will need to keep two E & P accounts.– One for its pre-reorganization E & P, and – Another with ChemCo’s negative E & P that will

be offset by future profits of the combined company.

66© 2012 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

If you have any comments or suggestions concerning this PowerPoint Presentation for South-Western Federal Taxation, please contact:

Dr. Donald R. Trippeer, [email protected]

SUNY Oneonta

Business

Corporation reorganization