1. © 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. Taxation of Business Entities 1 Chapter 9 Corporations: Organization, Capital Structure, and Operating Rules

2. The Big Picture (slide 1 of 3) Amber has operated her business for 10 years as a sole proprietorship, but has decided to incorporate the business. –She understands that the corporate form offers several important nontax advantages (e.g., limited liability). –Also, the incorporation would enable her husband, Jimmy, to become a part owner in the business. Amber expects to transfer her business assets in exchange for her corporate interest, while Jimmy will provide services for his interest.

3. The Big Picture (slide 2 of 3) Amber’s sole proprietorship assets available for transfer to the new corporation are: Adjusted Fair Market Basis Value Accounts receivable$ –0– $ 25,000 Building 50,000 275,000 Other assets 150,000 300,000 $200,000 $600,000

4. The Big Picture (slide 3 of 3) Aware of the double taxation problem associated with operating as a regular corporation, Amber is considering receiving some corporate debt at the time of incorporation. –The interest expense on the debt will then provide a deduction for the corporation. Amber’s main concern, however, is that the incorporation will be a taxable transaction. –Can her fears be allayed? Read the chapter and formulate your response.

5. Various Business Forms Sole proprietorships Partnerships Trusts and estates S corporations Regular corporations (also called C corporations)

6. Sole Proprietorship Not a separate taxable entity Income reported on owner’s Sch. C

7. Partnership Separate entity, but does not pay tax Allocates partnership income to partners –Partners report partnership income on personal tax returns Files information return (Form 1065)

8. S Corporation Separate entity, only pays special taxes (e.g., built-in gains) Allocates entity income to shareholders –Shareholders report entity income on personal tax return Files information return (Form 1120S)

9. C Corporation Separate tax-paying entity –Reports income and expenses on Form 1120 –Income is taxed at corporate level and again at owner level when distributed as a dividend

10. Dividends Double taxation stems, in part, from the fact that dividend distributions are not deductible by the corporation To alleviate some of the double taxation effect, Congress reduced the tax rate applicable to dividend income of individuals for years after 2002 –Generally, dividends are taxed at same marginal rate applicable to a net capital gain Thus, individuals otherwise subject to the 10% or 15% marginal tax rate pay 0% tax on qualified dividends received Individuals subject to the 25, 28, 33, or 35 percent marginal tax rates pay a 15% tax on qualified dividends

11. Corporate Income Tax Rates

12. Nontax Issues in Selecting Entity Form (slide 1 of 3) Liability –Sole proprietors and some partners have unlimited liability for claims against the entity Capital-raising –Corporations and partnerships to a lesser extent can raise large amounts of capital for entity ventures

13. Nontax Issues in Selecting Entity Form (slide 2 of 3) Transferability –Corporate stock is easily sold, but partners must approve partnership interest transfer Continuity of life –Corporations exist indefinitely

14. Nontax Issues in Selecting Entity Form (slide 3 of 3) Centralized management –Corporate actions are governed by a board of directors –Partnership operations may be conducted by each partner without approval by other partners

15. Limited Liability Companies (LLC) LLCs have proliferated since 1988 when IRS ruled it would treat qualifying LLCs as partnerships –Major nontax advantage Allows owners to avoid unlimited liability –Major tax advantage Allows qualifying business to be treated as a partnership for tax purposes, thereby avoiding double taxation associated with C corporations

16. Entity Classification After 1996 (slide 1 of 2) Check-the-box Regulations –Allows taxpayer to choose tax status of entity without regard to corporate or noncorporate characteristics –Entities with > 1 owner can elect to be classified as partnership or corporation –Entities with only 1 owner can elect to be classified as sole proprietorship or as corporation

17. Entity Classification After 1996 (slide 2 of 2) Check-the-box Regulations (cont’d) –If no election is made, multi-owner entities treated as partnerships, single person businesses treated as sole proprietorships –Election is not available to: Entities incorporated under state law, or Entities required to be corporations under federal law (e.g., certain publicly traded partnerships)

18. Corporation Formation Transaction

19. Formation Example Ron will incorporate his donut shop: AssetFair Mkt Tax BasisValue. Cash$10,000$ 10,000 Furniture & Fixtures 20,000 60,000 Building 40,000 100,000 Total$70,000$170,000 Without §351: gain of $100,000. With §351: no gain or loss. Ron’s economic status has not changed.

20. Consequences of §351 (slide 1 of 2) In general, no gain or loss to transferors: –On transfer of property to corporation –In exchange for stock –IF immediately after transfer, transferors are in control of corporation

21. Consequences of §351 (slide 2 of 2) If boot (property other than stock) received by transferors –Gain recognized up to lesser of: Boot received or Realized gain –No loss is recognized

22. Issues re: Formation (slide 1 of 7) Definition of property includes: –Cash –Secret processes and formulas –Unrealized accounts receivable (for cash basis taxpayer) –Installment obligations Code specifically excludes services from definition of property

23. Issues re: Formation (slide 2 of 7) Stock transferred –Includes common and most preferred stock Does not include nonqualified preferred stock which possesses many attributes of debt –Does not include stock rights or stock warrants –Does not include corporate debt or securities (e.g., corporate bonds) Treated as boot

24. The Big Picture – Example 11 Stock Transferred (slide 1 of 2) Return to the facts of The Big Picture on p. 9-2. Assume the proposed transaction qualifies under § 351 –i.e., The transfer of property in exchange for stock meets the control test –However, Amber decides to receive some corporate debt along with the stock.

25. The Big Picture – Example 11 Stock Transferred (slide 2 of 2) If she receives stock worth $550,000 and corporate debt of $50,000 in exchange for the property transferred, –Amber realizes gain of $400,000 [$600,000 (value of consideration received) – $200,000(basis in the transferred property)]. –However, because the transaction qualifies under § 351, only $50,000 of gain is recognized—the $50,000 of corporate debt is treated as boot. – The remaining realized gain of $350,000 is deferred.

26. Issues re: Formation (slide 3 of 7) Transferors must be in control immediately after exchange to qualify for nontaxable treatment –To have control, transferors must own: 80% of total combined voting power of all classes of stock entitled to vote, and 80% of total number of shares of all other classes of stock

27. Issues re: Formation (slide 4 of 7) “Immediately after” the transfer –Does not require simultaneous transfers if more than one transferor –Rights of parties should be outlined before first transfer –Transfers should occur as close together as possible

28. Issues re: Formation (slide 5 of 7) After control is achieved, it is not necessarily lost upon the sale or gift of stock received in the transfer to others not party to the initial exchange But disposition might violate §351 if prearranged

29. Issues re: Formation (slide 6 of 7) Transfers for property and services –May result in service provider being treated as a member of the 80% control group Taxed on value of stock issued for services Not taxed on value of stock received for property contributions –All stock received by the person transferring both property and services is counted in 80% test –To be considered a member of the 80% control group The service provider should transfer property having more than “a relatively small value”

30. Issues re: Formation (slide 7 of 7) Subsequent transfers to existing corporation –Tax-free treatment still applies as long as transferors in subsequent transfer own 80% following exchange

31. The Big Picture – Example 17 Transfers for Property and Services (slide 1 of 2) Return to the facts of The Big Picture on p. 9-2. Assume Amber transfers her $600,000 of property to the new corporation and receives 50% of its stock. Jimmy receives the other 50% of the stock for services rendered (worth $600,000).

32. The Big Picture – Example 17 Transfers for Property and Services (slide 2 of 2) Both Amber and Jimmy have tax consequences from the transfers. –Jimmy has ordinary income of $600,000 because he does not exchange property for stock. –Amber has a taxable gain of $400,000 $600,000 (fair market value of the stock in the new corporation) - $200,000 (basis in the transferred property). As the sole transferor of property, she receives only 50% of the corporation’s stock.

33. The Big Picture – Example 18 Transfers for Property and Services (slide 1 of 2) Assume the same facts as in Example 17 except that Jimmy transfers property worth $500,000 (basis of $130,000) in addition to services rendered to the corporation (valued at $100,000). Now Jimmy becomes a part of the control group. –Amber and Jimmy, as property transferors, together receive 100% of the corporation’s stock.

34. The Big Picture – Example 18 Transfers for Property and Services (slide 2 of 2) Consequently, § 351 is applicable to the exchanges. –As a result, Amber has no recognized gain. –Jimmy does not recognize gain on the transfer of the property He does recognize ordinary income to the extent of the value of the shares issued for services rendered. –Jimmy has current taxable income of $100,000.

35. Assumption of Liabilities (slide 1 of 2) Assumption of liabilities by corp does not result in boot to the transferor shareholder for gain recognition purposes –Liabilities are treated as boot for determining basis in acquired stock Basis of stock received is reduced by amount of liabilities assumed by the corp

36. Assumption of Liabilities (slide 2 of 2) Liabilities are not treated as boot for gain recognition unless: –Liabilities incurred for no business purpose or as tax avoidance mechanism Boot = Entire amount of liability –Liabilities > basis in assets transferred Gain recognized = Excess amount (liabilities - basis)

37. Formation with Liabilities Example (slide 1 of 2) Property transferred has: Fair market value = $150,000 Basis = 100,000 Realized Gain = $ 50,000

38. Formation with Liabilities Example (slide 2 of 2) Liabilities assumed by corp. (independent facts): Business Business No Business Purpose Purpose Purpose Liability: $80,000 $120,000$120,000 Boot None $ 20,000$120,000 Gain Recognized None $20,000$ 50,000* *(Gain is lesser of $50,000 realized gain or boot)

39. Basis Computation for §351 Exchange (slide 1 of 2) Shareholder’s basis in stock: Adjusted basis of transferred assets + Gain recognized on exchange - Boot received -Liabilities transferred to corporation -Adjustment for loss property (if elected) = Basis of stock received by shareholder

40. Basis Computation for §351 Exchange (slide 2 of 2) Corporation’s basis in assets: Adjusted basis of transferred assets + Gain recognized by transferor shareholder - Adjustment for loss property (if required) = Basis of assets to corporation

41. Basis in Stock in Last Example Adjusted Basis of transferred assets: $100,000 Liabilities assumed by corp. (independent facts): Business Business No Business Purpose Purpose Purpose. Liability: $ 80,000 $120,000 $120,000 Basis in assets Transferred $100,000 $ 100,000 $100,000 + Gain recognized None 20,000 50,000 - Liab. Transferred (80,000) (120,000) (120,000) Basis in stock $ 20,000 -0- $ 30,000

42. Corporation’s Basis in Assets Received in Last Example Liabilities assumed by corp. (independent facts): Business Business No Business Purpose Purpose Purpose Liability: $ 80,000 $120,000 $120,000 Basis of trans- ferred assets: $100,000 $100,000 $100,000 Gain recognized by shareholder None 20,000 50,000 Basis to Corp. $100,000 $120,000 $150,000

43. Basis Adjustment for Loss Property (slide 1 of 2) When built-in loss property is contributed to a corporation –Aggregate basis in property may have to be stepped down so basis does not exceed the F.M.V. of property transferred Necessary to prevent parties from obtaining double benefit from losses involved

44. Basis Adjustment for Loss Property (slide 2 of 2) Step-down in basis is allocated among assets with built-in loss –Alternatively, if shareholder and corporation both elect, the basis reduction can be made to the shareholder’s stock Built-in loss adjustment places loss with either the shareholder or the corporation but not both

45. Stock Issued for Services Rendered Corporation may be able to deduct the fair market value of stock issued in exchange for services as a business expense –e.g., Performance of management services –May claim a compensation expense deduction under §162 If the services are such that the payment is characterized as a capital expenditure (e.g., legal services in organizing the corporation) –Must capitalize the amount as an organizational expenditure

46. Holding Period Holding period of stock received –For capital assets or §1231 property, includes holding period of property transferred to corporation –For other property, begins on day after exchange Corp’s holding period for property acquired in the transfer is holding period of transferor

47. Recapture Considerations In a § 351 transfer where no gain is recognized, the depreciation recapture rules do not apply –Recapture potential associated with the property carries over to the corporation

48. © 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. 48 The Big Picture – Example 36 Selecting Assets To Transfer (slide 1 of 2) Return to the facts of The Big Picture on p. 9-2. If Amber decides to retain the $25,000 of cash basis accounts receivable rather than transferring them to the newly formed corporation –She will recognize $25,000 of ordinary income upon their collection.

49. The Big Picture – Example 36 Selecting Assets To Transfer (slide 2 of 2) Alternatively, if the receivables are transferred to the corporation as the facts suggest, the corporation will recognize the ordinary income. –However, a subsequent corporate distribution to Amber of the cash collected could be subject to double taxation as a dividend Given the alternatives available, Amber needs to evaluate which approach is better for the parties involved.

50. Capital Contributions (slide 1 of 3) No gain or loss is recognized by corp on receipt of money or property in exchange for its stock –Also applies to additional voluntary pro rata contributions of money or property to a corp even though no additional shares are issued

51. Capital Contributions (slide 2 of 3) Capital contributions of property by nonshareholders –Not taxable to corporation –Basis of property received from nonshareholder is -0-

52. Capital Contributions (slide 3 of 3) Capital contributions of cash by nonshareholder –Must reduce basis of assets acquired during 12 month period following contribution –Any remaining amount reduces basis of other property owned by the corp Applied in the following order to depreciable property, amortizable property, assets subject to depletion, and other remaining assets

53. Debt vs. Equity (slide 1 of 2) Debt –Corporation pays interest to debt holder which is deductible by corporation –Interest paid is taxable as ordinary income to individual or corporate recipient –Loan repayments are not taxable to investors unless repayments exceed basis

54. Debt vs. Equity (slide 2 of 2) Equity: –Corporation pays dividends which are not deductible Taxable to individuals at low capital gain rates to extent corp has E & P Corporate shareholder may receive dividends received deduction

55. Reclassification of Debt as Equity If corp is “thinly capitalized,” i.e., has too much debt and too little equity –IRS may argue that debt is really equity and deny tax advantages of debt financing –If debt has too many features of stock, principal and interest payments may be treated as dividends

56. Thin Capitalization Factors (slide 1 of 2) Debt instrument documentation Debt terms (e.g., reasonable rate of interest and definite maturity date) Timeliness of repayment of debt Whether payments are contingent on earnings

57. Thin Capitalization Factors (slide 2 of 2) Subordination of debt to other liabilities Whether debt and stock holdings are proportionate Use of funds (if used to finance initial operations or to acquire capital assets, looks like equity) Debt to equity ratio

58. Dividends Received Deduction (slide 1 of 3) –If corporation owns stock in another corporation and receives dividends, a portion of dividends may be deducted from income: % owned Deduction Percent Less than 20% 70%  20% but < 80% 80% 80% or more, and affiliated 100%

59. Dividends Received Deduction (slide 2 of 3) The dividends received deduction is limited to a percentage of the taxable income of a corporation – For this purpose, taxable income is computed without regard to The NOL The domestic production activities deduction The dividends received deduction, and Any capital loss carryback to the current tax year –The percentage of taxable income limitation corresponds to the deduction percentage

60. Dividends Received Deduction (slide 3 of 3) The following steps are useful in calculating the dividends received deduction 1. Multiply dividends received by deduction percentage 2. Multiply taxable income by deduction percentage 3. Subtract 1. from taxable income -If entity has income before DRD, but DRD creates NOL, amount in 1. is DRD ( the NOL rule) -If DRD does not create NOL, deduction is limited to lesser of 1. or 2.

61. DRD Examples Z Corp owns 60% of X Corp’s stock in years 1, 2 & 3. Dividend of $200 is received each year. Limit (Step 1) is 80% × $200 = $160. 1 2 3_ Income 400 301 299 Dividend rec’d 200 200 200 Expenses (340) (340) (340) Income before DRD 260 161 159 80% of income 208 129 127 Year #1 $208 > $160, so $160 DRD Year #2 $129 < $160, so $129 DRD Year #3 DRD causes NOL ($159-$160), so $160 DRD is used. $2 less income results in $31 more DRD.

62. Organizational Expenditures (slide 1 of 2) A corporation may elect to amortize organizational expenses over a 180-month period beginning with the month in which the corporation begins business A special exception allows the corporation to immediately expense the first $5,000 of these costs Phased out on a dollar-for-dollar basis when these expenses exceed $50,000

63. Organizational Expenditures (slide 2 of 2) Organizational expenditures include the following: –Legal services incident to organization –Necessary accounting services –Expenses of temporary directors and of organizational meetings of directors and shareholders –Fees paid to the state of incorporation Expenditures connected with issuing or selling shares of stock or other securities or with the transfer of assets to a corporation do not qualify – Such expenditures reduce the amount of capital raised and are not deductible at all

64. Organizational Expenditures Example Wren Corp. incurs $53,000 of organizational costs –Wren can expense $2,000 of this amount [$5,000 - ($53,000 - $50,000)] –The $51,000 balance is amortized over 180 months

65. Start-up Expenditures (slide 1 of 2) Start-up expenditures include: –Various investigation expenses involved in entering a new business e.g., Travel, market surveys, financial audits, legal fees –Also includes operating expenses, such as rent and payroll, that are incurred by a corporation before it actually begins to produce any gross income

66. Start-up Expenditures (slide 2 of 2) At the election of the taxpayer, such expenditures can be treated in the same manner as organizational expenditures –Up to $5,000 can be immediately expensed (subject to the dollar cap and excess-of-$50,000 phaseout) –Any remaining amounts are amortized over a period of 180 months

67. Corporate Tax Formula Gross income Less: Deductions (except charitable, Div. Rec’d, NOL carryback, STCL carryback) Taxable income for charitable limitation Less: Charitable contributions (< = 10% of above) Taxable income for div. rec’d deduction Less: Dividends received deduction Taxable income before carrybacks Less: NOL carryback and STCL carryback TAXABLE INCOME

68. The Big Picture – Example 44 Corporate Income Tax Liability (slide 1 of 2) Return to the facts of The Big Picture on p. 9-2. Assume that Amber incorporates her business as a calendar year C corporation and that for 2011, the corporation has taxable income of $51,500.

69. The Big Picture – Example 44 Corporate Income Tax Liability (slide 2 of 2) Its income tax liability is $7,875, determined as follows: Tax on $50,000 at 15% $7,500 Tax on $1,500 at 25% 375 Tax liability $7,875

70. Tax Liability of Related Corporations Subject to special rules for computing income tax –Limits controlled group’s taxable income in tax brackets below 35% to amount corporations in group would have if they were one corporation Controlled group includes: –Parent-subsidiary groups –Brother-sister groups –Combined groups

71. 71 Parent-Subsidiary Controlled Group Consists of one or more chains of corporations connected through stock ownership with a common parent –Ownership is established through either: Voting power test: requires ownership of stock with at least 80% of total voting power of all classes of stock entitled to vote Value test: requires ownership of at least 80% of total value of all classes of stock

72. 72 Parent-Subsidiary Controlled Group

73. 73 Application of §482 §482 permits IRS to reallocate income, deductions, and credits between two or more businesses owned or controlled by the same interests Used to prevent avoidance of taxes or to reflect income properly –Controlled groups of corps are especially vulnerable to §482

74. Corporate Filing Requirements (slide 1 of 2) Must file Form 1120 on or before the 15th day of 3rd month following close of tax year even if it has no taxable income –Automatic 6 month extensions are available by filing Form 7004

75. Corporate Filing Requirements (slide 2 of 2) Must make estimated tax payments equal to lesser of: –100% of corporation’s tax for the current year, or –100% of tax for preceding year No estimated tax payments required if tax liability expected to be less than $500

76. Schedule M-1 Corporations must reconcile financial accounting income with taxable income on Sch M-1, Form 1120 –Common reconciling items include: Federal income tax per books Net capital losses Income reported for tax but not book income (e.g., prepaid income) and vice versa Expenses deducted for book income but not tax (e.g., excess charitable contributions) and vice versa

77. Schedule M-2 Corporations must reconcile retained earnings at beginning of year with retained earnings at end of year using Sch M-2, Form 1120 –Schedule L (balance sheet), Schedules M–1 and M–2 of Form 1120 are not required for corporations with less than $250,000 of gross receipts and less than $250,000 in assets

78. Schedule M-3 Corporate taxpayers with total assets of $10 million or more are now required to report much greater detail regarding differences in financial accounting income (loss) and taxable income (loss) –Reported on Schedule M–3 Schedule M–3 should –Create greater transparency between corporate financial statements and tax returns –Help the IRS identify corporations that engage in aggressive tax practices

79. Refocus On The Big Picture (slide 1 of 6) Amber, the sole property transferor, must acquire at least 80% of the stock issued by the new corporation in order for the transaction to receive tax-deferred treatment under § 351. –Otherwise, a tremendous amount of gain (up to $400,000) will be recognized. As a corollary, Jimmy must not receive more than 20% of the corporation’s stock in exchange for his services.

80. Refocus On The Big Picture (slide 2 of 6) However, even if § 351 is available, any corporate debt issued by the corporation will be treated as boot and will trigger gain recognition to Amber. –Therefore, she must evaluate the cost of recognizing gain now versus the benefit of the corporation obtaining an interest deduction later.

81. Refocus On The Big Picture (slide 3 of 6) What If? Can the § 351 transaction be modified to further reduce personal and business tax costs, both at the time of formation and in future years? –Several strategies may be worth considering. Have Jimmy transfer some property along with the services rendered to the corporation. –As long as Jimmy transfers property with more than a relatively small value compared to the value of services performed, Jimmy will be considered part of the control group. –This would allow Amber to own less than 80% of the new corporation and still qualify under § 351.

82. Refocus On The Big Picture (slide 4 of 6) What If? Instead of having the corporation issue debt on formation, Amber might withhold certain assets. –If the building is not transferred, for example, it can be leased to the corporation. The resulting rent payment would mitigate the double tax problem by producing a tax deduction for the corporation.

83. Refocus On The Big Picture (slide 5 of 6) What If? An additional benefit results if Amber does not transfer the cash basis receivables to the corporation. –This approach avoids a tax at the corporate level and a further tax when the receipts are distributed to Amber in the form of a dividend. –If the receivables are withheld, their collection is taxed only to Amber.

84. Refocus On The Big Picture (slide 6 of 6) What If? No mention is made as to the existence of any accounts payable outstanding at the time of corporate formation. –If they do exist, which is likely, it could be wise for Amber to transfer them to the corporation. –The subsequent corporate payment of the liability produces a corporate deduction that will reduce any corporate tax.

85. © 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. 85 If you have any comments or suggestions concerning this PowerPoint Presentation for South-Western Federal Taxation, please contact: Dr. Donald R. Trippeer, CPA trippedr@oneonta.edu SUNY Oneonta