Corporates engaged in common intercompany lending may see more documentation demands.
New rules recently published by the Treasury Department will keep corporate treasurers at multinational corporations (MNCs) on their toes, even if they’re not seeking to pursue an earnings-stripping tax strategy.
Treasury published two sets of rules April 4, 2016 with one set providing entirely new rules under Section 385 that impact all MNCs, including foreign ones, that lend to US subsidiaries via notes described in the rule.
“Earnings stripping” refers to a strategy in which a US subsidiary makes tax deductible payments to an offshore affiliate typically located in a low-tax foreign jurisdiction. The strategy is usually used in so-called inversions, in which a US company becomes a subsidiary of a new foreign company as part of a business combination with a smaller foreign competitor. The new foreign parent is often located in a low-tax jurisdiction, so it can reduce its taxes on its foreign earnings and lower its US tax bill via earnings stripping payments made by the US company to the foreign parent or an affiliate of the foreign parent. A common form of earnings stripping is intracompany debt where related party interest can be charged between affiliates.
Bret Wells, an associate professor at the University of Houston, said that the new rule presumes that dividends or other forms of recapitalization occurring within three years of establishing the intercompany debt are linked to that debt, resulting in its recharacterization as equity for tax purposes.
“So treasurers should understand that their treasury centers and the intercompany transactions they foster could get caught up in these rules in unexpected ways,” Mr. Wells said.
Besides the presumption, Mr. Wells said, intercompany debt could be recharacterized if the company fails to provide new formal documentation necessary for the US subsidiary to receive the interest deduction, even if that debt is different from the type described in the rule.
US companies’ inversions essentially put them on a level playing field to foreign competitors, who have been able to use intercompany notes to fund their US operations while taking advantage of tax benefits that are unavailable to US-headquartered competitors. The rule impacting intercompany notes applies to debt instruments issued on or after April 4. However, the recharacterization of the debt as equity will not occur until 90s days after the rule is finalized, which Treasury anticipates occurring shortly after comments are due July 7.
The second set of rules largely codifies existing guidance and is effective since the guidance was issued. However, a new rule that became effective April 4 is likely the main reason Pfizer Inc.’s board decided to nix its $160 billion merger with Ireland’s Allergan, which would have resulted in one of the largest inversions ever.
Neither Pfizer nor Allergan commented on the precise reason for halting the merger, but it’s likely a component of the second set of rules, also published on the April 4, put a stop to the transaction. Those rules fall under Section 7874, which favors inversions in which the US company makes up less than 60% of the merged company, permits inversions with percentages between 60% and 80%, and prohibits those in which the US entity owns more than 80%. The new rule says that acquisitions by the foreign merger partner of US-based companies over the previous three years cannot be included in the share calculation, and Allergan had merged with Ireland’s Activis the year before in an inversion that took Allergan’s name.
“There was only one reason for nixing the deal. It was untenable for [Allergan] to become a US Corporation, the result of the finding that the ownership fraction was at least 80%,” said Robert Willens, who heads up Robert Willens LLC and was formerly a managing director at Lehman Brothers who focused on tax issues.
Mr. Willens said the Section 385 rule was less of a concern to Pfizer in its pursuit of an inversion, since it focuses on earnings stripping and Pfizer “didn’t need to engage in earnings stripping since most of its consolidated earnings are already foreign sourced.” However, the rule would likely impact many other companies pursuing the inversion strategy.
“The rules make inverted companies incapable of engaging in a strategy known as ‘hopscotch lending,’ the principal tactic for repatriating foreign earnings on a tax-free basis,” Mr. Willens said.
And, he said, the Section 385 rule will almost certainly be more significant than those published under Section 7874, since intercompany debt is a common phenomenon that is also used by companies that have never contemplated an inversion.
“To that extent, therefore, there is no comparison, in terms of scope, between the Temporary regulations and the proposed Sec. 385 regulation,” he said.
The University of Houston’s Mr. Wells noted that the rule impacting earnings stripping was narrowly crafted, affecting only notes described in the new rule. There are other ways to create tax deductions, however, such as companies relocating their intellectual capital to an entity in a low-tax foreign jurisdiction that the US operation pays royalties to.
“None of those non-debt forms of earnings stripping are impacted by these new rules, whether royalty expenses, leasing equipment, or licensing or management fees,” Mr. Wells said.
Mr. Willens agreed that there will be other opportunities to “shift” income through such arrangements. However, “Nothing was as effective or easier to implement as earnings stripping” via interest-expense deductions, he said, adding, “Accordingly, by far the most effective income shifting tool has now been put into grave jeopardy.”
Nevertheless, Mr. Wells said, companies are likely to use “all the tools in their toolbox” to level the playing field with foreign competitors. Treasury has noted that to take a more holistic approach to eliminate the benefits of the other earning-stripping strategies would require broader tax reform legislated by Congress. That’s unlikely to occur before the election but, Mr. Wells said, he believes an effort to deal with the inversions and “inbound” tax reform is likely next year, whichever party controls the presidency and Congress.
“People of good will on both sides of the aisle can agree that we should not allow our tax base to be eroded by one group of corporations, by creating a preference for them over every other corporation,” Mr. Wells said. “We don’t want to discriminate against foreign-based companies, but we should not give them a preference over US-based ones.”