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By Christian Brause, Esq., Sharp Sorensen, Esq., and Laura M. Barzilai, Esq.
Sidley Austin LLP, New York, NY and Chicago, IL
On September 14, 2015, the Treasury Department (the Treasury) and the Internal Revenue Service (the IRS) issued Notice 2015-59 (the Notice), which announces that the IRS is studying certain spinoffs where either the controlled corporation (Spinco) or the distributing corporation (Parent) has significant investment assets, has qualifying business assets with a relatively small value, or elects to be a real estate investment trust (REIT). While the IRS is studying the issues raised by the targeted types of transactions, the IRS will, based on Rev. Proc. 2015-43 released together with the Notice, generally suspend issuing private letter rulings in connection with these types of tax-free spinoffs.1 This is an important announcement as these types of transactions often, but not always, require the receipt of a favorable private letter ruling. In addition, the Notice may affect counsels' willingness to issue tax opinions in connection with such spinoffs.
Section 3552 provides that, if certain requirements are met, a distribution of the stock of Spinco by a Parent will be tax-free to both the Parent and the Parent's shareholders. Three of these requirements are central to the Notice. First, before and after the tax-free spinoff, both Parent and Spinco must be engaged in an activity that constitutes an "active trade or business" (ATB). Second, the spinoff must be motivated by a non-tax "corporate business purpose." And third, the spinoff must not be principally used as a "device" for the distribution of earnings and profits in a tax-favored manner. The Notice states that some taxpayers are taking the position that spin-offs like those targeted satisfy those requirements, but states that the Treasury and IRS believe that the targeted transactions might not do so.
Recently, the IRS has faced two types of spinoffs. The first type involves pro rata spinoffs in which Parent transfers to Spinco investment assets (such as a minority ownership stake in a publicly traded company) along with an ATB that is tiny (by value and economic significance) when compared with the investment assets in Spinco. This type of spinoff rests on the view that, based on the statutory language of §355, Rev. Rul. 73-44 and subsequent private letter rulings, there is no minimum size of the ATB for §355 purposes. In addition, in such pro rata spinoffs by widely-held, public companies, taxpayers have taken the position that there is no problem under the so-called "device" or "corporate business purpose" requirements.
The second type of spinoffs targeted by the IRS involves spinoffs in which a new REIT election is made by either Parent or Spinco immediately after the spinoffs based on an overall plan. This kind of spinoff is exemplified by the highly publicized, completed spinoff by Penn National Gaming, Inc. (the opco) of its real estate into a new Spinco (the propco) that then elected to be a treated as REIT for U.S. tax purposes. That spinoff received a favorable private letter ruling from the IRS. The hallmark of these "opco/propco" REIT spinoffs is that real estate leaves the corporate solution and moves into the favorable REIT tax regime without a toll charge tax. However, unlike most other tax-free spinoffs, in these "opco/propco" REIT spinoffs Parent and Spinco typically remain very closely connected following the spinoff by way of a lease of Spinco's real estate back to Parent for use in Parent's operating business. This calls into question whether the separation is sufficiently clear to warrant tax-free treatment under §355, particularly in light of the corporate business purpose requirement. In addition, because REITs often use "triple net lease" structures in their operations and "triple net lease" activities do not amount to an ATB under general tax principles, Spincos that intend to elect REIT status in "opco/propco" REIT spinoffs typically face the "tiny ATB" issue because they use a small ATB that they may have in their structures to satisfy the ATB requirement.
In connection with the Notice, Rev. Proc. 2015-43 provides that:
We have the following initial observations on the Notice:
For more information, in the Tax Management Portfolios, see Starczewski, 621 T.M., IRS National Office Procedures — Rulings, Closing Agreements, Carnevale, de Bree, Schneider, Temkin & Witt, 742 T.M., Real Estate Investment Trusts, 776 T.M., Corporate Separation, and in Tax Practice Series, see ¶3827, National Office Guidance and Procedures, ¶4920, Corporate Separations, ¶5180, Real Estate Investment Trusts.
Sidley Austin provides this information as a service to clients and other friends for educational purposes only. It should not be construed or relied on as legal advice or to create a lawyer-client relationship. Furthermore, this Tax update was not intended or written to be used, and cannot be used, by any person for the purpose of avoiding any U.S. federal, state or local tax penalties that may be imposed on such person.
© 2015 Sidley Austin LLP.
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