Current developments.

EXECUTIVE SUMMARY

* The TIPRA will affect S corporation operations in several important ways, both immediately and in the near future.

* The Tax Court's decision in Ruckriegel discards one of the IRS's fundamental criteria for establishing shareholder basis.

* Sec. 409A may apply to some fairly common S corporation deferred-compensation and business practices

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This two-part article discusses recent legislation, cases, rulings, regulations and other developments in the S corporation area. Part II covers operational issues in the Tax Increase Prevention and Reconciliation Act of 2005, final regulations on built-in gains and LIFO recapture tax, Sec. 409A and many other cases and rulings.

During the period of this S corporation update (July 15, 2005-July 15, 2006), one of the biggest developments affecting S corporation operations was the passage of the Tax Increase Prevention and Reconciliation Act of 2005 (TIPRA).Two temporary regulations were finalized. A slew of court cases and rulings were issued on an S shareholder's adjusted basis for loss purposes. The IRS issued guidance on new Sec. 409A (deferred compensation); the effect on S shareholders is highlighted. In addition, an unusually large number of letter rulings were issued dealing with spinoffs for various corporate business purposes.

The last 20 years have seen an explosive growth in S corporation filings. According to the latest IRS Statistics of Income report, (48) S corporations continue to grow as the most common form of doing business. In 1985, there were 727,000 S corporations; in 2003, there were over 3.3 million, which represented 60% of all corporate returns filed. This growth has not gone unnoticed. The IRS National Research Program, which was initiated with individual tax returns, was instituted for 5,000 S corporation returns for tax years 2003 and 2004. At the same time this audit program was announced, the Treasury Inspector General for Tax Analysis reported (49) that there has been an "acute decline" in audits of small businesses and small S corporations, from 19,379 in 2001 to 7,328 in 2004. Interestingly, S corporations with greater than $10 million in gross assets have grown more than 1,000% from 1985-2003 (2,305 to 26,096). Also, for large S corporations, Schedule M-3, Net Income (Loss) Reconciliation for Corporations with Total Assets of $10 Million or More, will be required, beginning with 2006 returns.

TIPRA

On May 17, 2006, President Bush signed the TIPRA into law. It has several important effects on S corporation operations, both immediately and in the near future. First, under TIPRA Section 510, the "kiddie tax," which taxed unearned income above $1,700 at the parents' rate, was extended to children under age 18, up from under 14 years old. This somewhat limits the planning opportunity of gifting S stock to high-school students.

This rule change is effective starting in 2006.

Second, under TIPRA Section 514, the Sec. 199 domestic production activities deduction's application was clarified; the deduction is to be computed at the S shareholder level. Section 514 states that the 50%-of-wage limit only applies to wages generated in the qualified production activity (QPA). This means that officers' wages not involved in the QPA would not count for limitation purposes.

Third, TIPRA Section 517 eased the ability to accomplish tax-deferred spinoffs under Sec. 355 with an S holding company and active qualified subchapter S subsidiaries (QSubs), effective on the enactment date.

The Sec. 179 $100,000 (inflation-adjusted) expensing deduction has been extended to 2008 and 2009, under TIPRA Section 101. Also, the capital gain and dividend rate for taxpayers below the 25% marginal tax rate (in 2006, $30,650 for single and $61,300 for married filing jointly), which is currently 5% (zero in 2008), has been extended to 2009 and 2010, under TIPRA Section 102.

BIG

With many companies having converted from C to S status, one of the more important and complicated provisions is the Sec. 1374 built-in gain (BIG) rules. This year, Treasury issued guidance under authority granted in Sec. 337(d).

Final regulations were issued on the application of Sec. 1374 to an S corporation that switched from C to S status and back. This is basically a revisit of the Colorado Gas Compression, Inc. (50) case reported Last year. A C corporation was created in 1977. In February 1988, it elected to be an S corporation. It then revoked its election in December 1989 and re-elected S status effective Jan. 1, 1994. The key issue for 1994 and 1995, when the company sold assets that it owned in 1988, was whether the new Sec. 1374 BIG rules or the old capital gain hales applied.

The Tax Court ruled for the IRS that the most current S election is considered in determining whether a corporation is eligible for the Tax Reform Act of 1986 Section 633(d) transition rules applicable to small businesses. As reported last year, the Tenth Circuit reversed and remanded the case to the Tax Court, holding that, as long as a pre-1989 election existed, it did not have to be in effect for the company to qualify for the transition rules; thus, the old capital gain rules applied. Under Secs. 337(d) and 1374(e), regulations (51) were issued on Dec. 20, 2005 that overturned the Tenth Circuit's decision.

LIFO Recapture Tax

Treasury finalized (52) Regs. Sec. 1.1363-2 to address a perceived problem with the Coggin Automotive (53) case. Again, using Secs. 337(d) and 1374(e) authority, Treasury in effect overturned the Eleventh Circuit's holding. The Tax Court held that the aggregate theory applied to LIFO inventory sitting in limited liability companies (LLCs) in which Coggin Automotive was a limited partner (after the restructuring). Thus, the taxpayer was subject to Sec. 1363(d) LIFO recapture tax. The Eleventh Circuit reversed the lower court's ruling, reading the statute literally. Became the S corporation owned no inventory directly, Sec. 1363(d) could not apply. Under the final regulation, effective for transfers after Aug. 12, 2004, a "lookthrough LIFO recapture" concept applies.

Losses and Limits

A major motivation for choosing S status is the ability to flow through entity-level losses to shareholders. There are several hurdles that a shareholder must overcome before losses are deductible, including Sec. 183 "hobby loss," Sec. 1366 adjusted basis, Sec. 465 at-risk and Sec. 469 passive activity loss rules. Several recent cases and rulings involved these loss limits.

At-Risk

Hubert Enterprises (54) is a partnership case, but the bad result would apply equally to an S corporation situation. The taxpayer placed in service similar assets in different years and wanted to aggregate their bases for Sec. 465 at-risk purposes. The Tax Court held that the language of Sec. 465(c)(2)(B)(ii), "aggregation of properties placed in service in any tax year," means that each tax year is treated separately. Thus, if a taxpayer has invested in multiple equipment-leasing deals, only the basis in those investments made in a given year may be combined for at-risk purposes.

Back-to-Back Loans 

Miller: In Miller, (55) the Tax Court held that a taxpayer had sufficient basis in his loans to his S corporation, such that he was allowed to deduct his share of S losses. The court also found that the taxpayer was at risk with respect to the loam, as defined in Sec. 465.

The taxpayer was the founder and one of the shareholders of MMS, an S corporation. The company built mobile medical diagnostic facilities, and lost money from its inception. The taxpayer obtained the agreement of a group of investors to contribute capital to the company conditioned on it obtaining a $1 million line of credit. The line of credit (and subsequent loam) were made directly to the company, with shareholder guarantees. On advice of the taxpayer's CPA, the loans were restructured as back-to-back loans. All of these loans were properly documented, with written agreements and market interest rates. The loan to the taxpayer was a full recourse loan collateralized by all of MMS's assets and a second mortgage on the taxpayer's principal residence.

Over the years, the taxpayer had deducted the S corporation's losses. Ultimately, the S corporation became insolvent; the loans were paid off by the investor group, not by the taxpayer. The IRS disallowed the losses, contending that the taxpayer had no basis in the corporation and also was not at risk for the amounts borrowed from the bank.

The Tax Court held for the taxpayer, finding that he had basis in the loans and was also at risk in the event of default. The court's conclusion was based on the fact that the taxpayer's fully recourse note to the bank was a valid note substitution (as opined in Gilday, (56) this gives the taxpayer basis for loss under Sec. 1366). Interestingly, the court held, in dicta, that borrowing from a related party would have been fatal to the basis claim. This is to be contrasted with the case discussed immediately below, in which the related-party scenario did not endanger the result.

Ruckriegel: In Ruckriegel, (57) the Tax Court held that indirect payments from a partnership to an S corporation that were routed through two brother/owners of the entities, were back-to-back loans; further, those transfers provided the brothers sufficient bases in the S corporation to deduct part of its flowthrough loss. In this case, the S corporation (Sidal) operated fast-food franchise restaurants at a loss. The taxpayer (and his brother) each owned a 50% interest in Sidal, which they actively managed. In addition, each brother owned a 50% interest in a partnership (Paulan) that owned real estate that it leased to Sidal and other restaurants. Paulan operated at a profit.

The issue was whether certain indirect payments from Paulan to Sidal were loans from the shareholders to Sidal, which would create basis for the taxpayers against which losses might be deducted. Wire-transfer payments were made by Paulan to the taxpayer, then by the taxpayer to Sidal. Sidal's principal and interest payments were made directly to Paulan. One of the fundamental requirements for the establishment of shareholder basis is that the shareholder must make an economic outlay. In the IRS's view, this test is met only if the taxpayer invests in or lends to the S corporation his or her own funds, or funds borrowed from an unrelated party to whom he or she is personally liable. In this case, the court clearly rejected that view; it stated that funds lent to an S corporation that originated with another entity owned or controlled by the shareholder, does not preclude a finding that the loan constitutes an actual economic outlay by the shareholder.

The Tax Court explained that it was not unusual for an individual to conduct multiple businesses through multiple entities, some or all of which are passthrough entities. Nor is it unusual for one or more of those entities to be unprofitable. When the loss entity is an S corporation, the court found nothing in Sec. 1366(d)(1)(B) or its regulations to require a shareholder to fund the S corporation's losses with his or her own money or a loan from a bank or other unrelated party. The Tax Court's analysis and decision discards one of the IRS's fundamental criteria for establishing shareholder basis--borrowing from an unrelated party.

TAM 200619021: Not surprisingly, the taxpayers in TAM 200619021 (58) did not fare as well, given the Service's stated related-party position. The taxpayers were 50% partners in a partnership (PRS) and 50% owners in an S corporation. PRS borrowed money, then lent it to the taxpayers, who in turn lent it to the loss S corporation. The S corporation would then pay rent back to PRS. Notes documented the transactions, although principal and interest repayments were generally not made. The circular route of the funds among related parties led the IRS to conclude that the taxpayers had not been financially affected by these transactions. With no economic outlay, the Service determined that the shareholders did not create any basis in their S stock. The ruling went on to state that the excess losses that arose in a closed tax year must first offset any increase in basis (from profits, capital or debt contributions), before open-year losses may be used.

Brooks: Brooks (59) involved open-account debt. Specifically, two brothers owned 50% and 49% of an S corporation and lent it money on an open account. (60) In 1997, they advanced $1 million to the S corporation. In January 1999, the S corporation repaid the advance. On Dec. 31, 1999, the brothers advanced $1.6 million, which the S corporation repaid on Jan. 3, 2000. On Dec. 29, 2000, the brothers advanced $2.2 million. Thus, at the end of any given year, the shareholders had basis in the loans so that they could deduct the S corporation's losses. The IRS maintained that the debt repayments should be treated separately, like notes, so that they resulted in income to the brothers when made, when the loan basis was zero. The court held that no income recognition was required, because the loans were open advances.

Installment Sales 

In a ruling, (61) two unrelated shareholders (A and B) each owned 50% of the stock of X Corp. Individual C (an X employee) was unrelated to A and B. B and C formed Newco, an S corporation; B owned 90% of the stock and C owned 10%. X sold all of its assets to Newco in exchange for two installment notes, then liquidated, distributing one note to A and one to B. The specific issue was whether Newco could amortize the cost of the goodwill acquired with the purchase of the taxpayer's business over 15 years under Sec. 197.

The ruling held that Newco could amortize the cost of the goodwill acquired in the purchase of assets from X. Although not specifically stated or analyzed, the ruling assumed that the transaction did not qualify as a D reorganization. (62)

Normally, taxpayers would have structured the transaction as a purchase of stock, with A selling his stock to B and C. However, because of the interplay of Secs. 453(h) and 453B(h), the corporation realized no gain, and the shareholders would recognize gain only when they collected on the installment notes, sometime in the future. In the meantime, the corporation benefited from immediate tax deductions and step-up in asset basis.

Another installment sales planning opportunity was illustrated in Letter Ruling 200603017. (63) When liquidating a corporation or selling its assets and receiving payments over time, the IRS generally refuses to recognize the "open transaction doctrine" opined by the Supreme Court in Burnet. (64) Instead, it applies contingent-payment installment sale rules, as described in Regs. Sec. 15a.453-1(c).

In Letter Ruling 200603017, the Service approved the use of an "alternative basis recovery method" when use of the general rules inappropriately deferred recovery of a taxpayer's basis in sold property. The shareholders sold their S stock and elected under Sec. 338(h)(10) to have it treated as a deemed asset sale. The shareholders were to receive stated payments plus an "earn-out" (a percentage of the annual operating income of the ongoing business in excess of a certain dollar amount). There was no maximum amount, nor a specified number of years, stated in the contingent-payment agreement.

Regs. Sec. 15a.453-1(c)(1) provides rules for allocating a taxpayer's basis to payments received and to be received in a contingent-payment sale. The rules distinguish between contingent-payment sales for which a maximum selling price is determinable; sales for which a maximum selling price is not determinable, but the time over which payments will be received is determinable; and, as in this situation, sales for which neither a maximum selling price nor a definite payment term is determinable.

Regs. Sec. 15a.453-1(c)(7)(ii) provides for alternative methods of basis recovery if the taxpayer demonstrates that the normal rules will substantially defer basis recovery. The taxpayer must show that the alternative method is reasonable. The shareholders proposed to recover their basis by multiplying the basis times a fraction. The numerator was the payment received; the denominator was the total estimated payments to be received under the stock purchase agreement. Total estimated payments were based on prior earnings history, the business and the existing business cycle.

Sec. 409A

In Notice 2005-1, (65) the IRS set forth initial guidance on the application of Sec. 409A. It subsequently issued proposed regulations (66) that generally incorporate the guidance in the notice. Unfortunately, these complex rules may apply to many tax-deferred compensation arrangements between an S corporation and its owner-employees and adds additional reporting requirements.

Sec. 409A requires amounts deferred under a nonqualified deferred-compensation plan (NQDC) after 2004 to be included in income to the extent not subject to a substantial risk of forfeiture, unless the plan complies with distribution event, election period, subsequent election and anti-acceleration rules. In addition, the amount required to be included in income will be subject to an additional 20% tax, plus an interest charge. This potentially raises an individual's Federal tax rate to over 55%.

Sec. 409A(d)(1) defines a NQDC plan as "any plan that provides for the deferral of compensation, other than (A) a qualified employer plan, and (B) any bona fide vacation leave, sick leave, compensatory time, disability pay, or death benefit plan." S shareholders can be subject to Sec. 409A if they receive a right to compensation that is not paid in the current year or within 2 1/2 months following the year it is earned. This could include bonuses paid in the year following the year declared, payments under separation agreements, severance payments or reimbursement of expenses that do not qualify as fringe benefits. Sec. 409A also applies to virtually any form of equity-based compensation issued at a discount on the date of the grant, such as phantom stock options or shared appreciation rights.

According to Q&A-8 of the notice, Sec. 409A does not apply to arrangements between taxpayers that use the accrual method of accounting. (67) Because many S corporations use the cash method, this exception will not be very helpful.

An S corporation can also be subject to Sec. 409A if it qualifies as a service provider (i.e., if 70% or more of its revenue comes from a single client). In addition, an S corporation could be a service provider if it provides management services and is paid a fee for providing the direction or control of the financial or operational aspects of the service recipient's trade or business. A prime example is a real estate management company.

Under Sec. 1363, it seems likely that an S corporation will not be subject to the taxes and penalties imposed by Sec. 409A(a)(1)(B)(i). Thus, it appears that the penalties are imposed on the shareholders, raising the question of the payment's character. Because the 20% payment is in the nature of a penalty, it does not appear that it would be deductible by the shareholders.

Perhaps a more serious tax policy issue is the fact that the shareholders in the year of the Sec. 409A violation may not be the same ones who owned the stock in the year the deferred-compensation rights arose and may, in fact, have derived no tax-deferral benefit from the arrangement.

Health Insurance Deduction

On May 15, 2006, the IRS issued a clarification (68) of Chief Counsel Advice (CCA) 200524001, (69) stating that a sole S shareholder cannot claim the 100% above-the-fine deduction for self-employed health insurance premiums if the policy is purchased in the shareholder's name. This conflicts with an old ruling (70) that treats a company check made payable to the insurance company as a Sec. 106 payment not subject to income tax. Hopefully, the Chief Counsel's office will apply this ruling to allow the 100% medical deduction above-the-line for a sole owner-employee. Treasury's position would allow the shareholder to deduct health insurance premiums only as an itemized deduction, subject to the 7.5%-of-adjusted-gross-income limit.

Some states (like California) do not allow a corporation to purchase a group health plan with only one participant. This restriction prevents the entity from acquiring a health plan and would require the shareholder to purchase the plan in his or her own name. This will complicate the tax position of the sole shareholder. Whether a shareholder who employs a spouse or other family member, or if the entity joins a group health plan, would solve this issue is uncertain.

The other effect of the aforementioned CCA is that the shareholder may only deduct the medical insurance premiums up to the amount of net earned income from the activity.

Tax-Deferred Reorganizations

The increased use of S corporations and the flexibility engendered by the QSub disregarded-entity rules resulted in some merger and acquisition activity involving S corporations. Switching from the corporate form to a partnership or LLC is generally expensive, in that there will be gain recognition, along with a step-up in asset basis. (71) Letter Ruling 200548021 (72) addressed the treatment of an S corporation that converted to an LLC, but checked the box to maintain its corporate status; it held that this would be treated as an F reorganization. Further, the LLC agreement would be a "governing provision" for one-class-of-stock purposes under Regs. Sec. 1.1361-1(1)(2).

In another ruling, (73) the transaction was a bit more complicated. As above, the taxpayer wanted to convert an S corporation into an LLC that would maintain S status through a check-the-box election. However, it merged the existing S corporation into an LLC; the LLC was the surviving entity. The ruling held the transaction to be an F reorganization, and no gain or loss was recognized. Further, even though the former S corporation was essentially an investment company, the F reorganization avoided any possible problems when dealing with primarily investment assets, rather than a trade or business. The ruling cited Rev. Ruls. 64-250 (74) and 73-526 (75) for the proposition that the existing S election would not terminate and the new entity could use the same taxpayer identification number as the former entity.

Corporate Divisions

This year, in the S corporation context, common reasons for splitting up or off included: shareholder disputes on strategic direction and fundamental business matters that affected the efficient running of the business (76); focusing and segregating risky businesses from less risky ones (77); requirement to form an exclusive legal entity (78); and allowing key employees or new investors to buy stock. (79) In the past, the separation of risky and less-risky businesses would not have been viewed as a good business purpose, because the risky business could be dropped into a subsidiary and accomplish the business reason without spinning off the stock. Yet, recently, this purpose has been allowed. Similarly, forming a separate exclusive legal entity could be done by dropping the distributing business into a QSub, and filing separate financial statements. Nonetheless, the newly formed subsidiary was permitted to be spun off in a divisive D reorganization.

In a divisive reorganization as described above, the accumulated subchapter C earnings and profits and accumulated adjustments account are allocated among the distributing and controlled corporations under Regs. Secs. 1.312-10(a) and 1.1368-2(d)(3). Also, the rulings all allowed the spun-off subsidiary to qualify as an S corporation. In one of the rulings cited above, (80) the spun-off newly formed subsidiary would retain some assets that it would lease to the distributing corporation at fair market rental value. This is a little unusual, but was permitted under the ruling.

For more information about this article, contact Dr. Burton at [e-mail], Dr. Karlinsky at [e-mail] or Ms. Wright at [e-mail].

Editor's note: Dr. Karlinsky is a member of the AICPA Tax Division's C Corporation Taxation Technical Resource Panel (TRP). Dr. Burton is a member of the AICPA Tax Division's S Corporation Taxation TRP.

(48) See Lutrell, "S Corporation Returns, 2003," IRS Statistics of Income Bulletin (June 2005), p. 2.

(49) Audit No. 2004-30-030.

(50) Colorado Gas Compression, Inc., 116 TC 1 (2004), rev'd, 366 F3d 863 (10th Cir. 2004); see Burton and Karlinsky, "S Corporations: Current Developments (Part II)," 36 The Tax Adviser 694 (November 2005).

(51) TD 9236 (12/20/05).

(52) TD 9210 (7/11/05).

(53) Coggin Automotive Corp., 115 TC 349 (2000), rev'd, 292 F3d 1326 (11th Cir. 2002).

(54) Hubert Enterprises, Inc., 125 TC 72 (2005).

(55) Timothy J. Miller, TC Memo 2006-125.

(56) Donald Gilday, TC Memo 1982-242.

(57) Sid Paul Ruckriegel, TC Memo 2006-78.

(58) IRS Letter Ruling (TAM) 200619021 (2/7/06).

(59) Fleming G. Brooks, TC Memo 2005-204.

(60) Under Regs. Sec. 1.1367-2(a), shareholder advances not evidenced by separate written instruments and repayments are referred to as open-account debt and are treated as a single debt.

(61) IRS Letter Ruling 200551018 (12/23/05).

(62) This ruling has generated a lot of commentary in the tax community as to why the transaction did not qualify as an acquisitive D reorganization, which occurs when the acquired corporation transfers its assets to the acquiring corporation in exchange for the latter's stock or securities. The acquired corporation must distribute to its shareholders, pursuant to the plan of reorganization, stock, securities and any other property received from the acquiring corporation, as well as any of its assets it did not transfer to the acquiring corporation. Also, the acquired corporation's shareholders must be in "control" of the acquiring corporation immediately after the transaction; according to Sec. 368(a)(2)(H), "control" is defined in Sec. 304(c) (i.e., ownership of stock with at least 50% of the combined voting power or 50% of the total value of all shares).

Prior tax law has addressed the situation in which the acquiring corporation does not issue stock. The Service has ruled that the transaction will be treated as a D reorganization, even though no stock of the acquiring corporation is distributed to the selling corporation. Rev. Rul. 70-240, 1970-1 CB 81, states that an actual distribution of the acquiring corporation's stock to the seller is not required, because it would be a "meaningless gesture." In Letter Ruling 200551018, note 61 supra, B owned 50% of the target corporation and 90% of the acquiring corporation. The remaining 10% was held by C, who did not hold any interest in the target. The ruling reflects the IRS's conclusion that this transaction is not a D reorganization, because there is no direct common ownership and no issuance or distribution of the acquiring corporation's stock.

(63) IRS Letter Ruling 200603017 (1/20/06).

(64) Burnet v. Logan, 283 US 404 (1931).

(65) Notice 2005-1, IRB 2005-2, 274.

(66) REG-158080-04 (10/4/05); for a discussion, see Singer, "Deferred Compensation for Executives under Sec. 409A," Part I, 37 The Tax Adviser 402 (July 2006); and Part II, 37 The Tax Adviser 476 (August 2006).

(67) Prop. Regs. Sec. 1.409A-1(f)(2) enhances this rule, by stating that only the service provider need be an accrual-method taxpayer (i.e., the requirement under the notice that the service recipient be an accrual-method taxpayer was dropped).

(68) See Health Insurance Covering S Corporation Shareholders, IRS Headliner, Volume 163 (May 15, 2006); see also Ziegler, Tax Clinic, "Health Insurance for S Corp. Shareholders," 37 The Tax Adviser 587 (October 2006).

(69) CCA 200524001 (6/17/05).

(70) Rev. Rul. 61-146, 1961-2 CB 25.

(71) If the S corporation has BIG tax exposure, two gains would be recognized (if the shareholder had a lower basis in stock than the inside basis of the assets, a second gain would be recognized).

(72) IRS Letter Ruling 200548021 (12/2/05).

(73) IRS Letter Ruling 200622025 (6/2/06).

(74) Rev. Rul. 64-250, 1964-2 CB 333.

(75) Rev. Rul. 73-526, 1973-2 CB 404.

(76) IRS Letter Rulings 200622035 (6/2/06) and 200618011 (5/5/06).

(77) IRS Letter Rulings 200604016 (1/27/06) and 200622038 (6/2/06).

(78) IRS Letter Rulings 200614023 (4/7/06) and 200608037 (2/24/06).

(79) IRS Letter Ruling 200611002 (3/17/06).

(80) Id.

Hughlene Burton, Ph.D., CPA

Associate Professor

Department of Accounting

University of North Carolina-Charlotte

Charlotte, NC

Stewart S. Karlinsky, Ph.D., CPA

Graduate Tax Director

San Jose State University

San Jose, CA

Kathleen Wright, J.D., LL.M., MBA, CPA

Professor

California State University-Fullerton

Fullerton, CA